September 19, 2020

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September 16, 2020

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The Coronavirus: Best Practices to Mitigate Risks in the Workplace

As impact of the Coronavirus Disease 2019 (COVID-19) continues to develop, employers and employees are increasingly concerned about the risk of contamination. Employers should consider practical steps to protect their employees, address employee concerns and maintain productivity during potential business disruptions that may result from the spread of this virus. 

  • Education and communication are critical:  Employers should circulate the most recent Center for Disease Control and Prevention (“CDC”) guidance for employers, as well as state and local guidance, such as those provided by New Jersey and New York City. Review for updates from federal, state and local levels as there will be daily developments and updates. Provide significant updates to employees on a regular basis.   We recommend providing these materials via several methods, such as email, postings in breakrooms, on the company intranet, and hard copies inserted with weekly payroll. Ongoing regular communication with employees will create confidence that the business is taking their continued health seriously and help to avoid panic.

  • Encourage sick employees to stay home: When an employee calls in sick, particularly where the symptoms are associated with COVID-19, employers should err on the side of caution and encourage those employees to stay home. New York City and New Jersey both require employers to provide paid sick leave, which includes time off for employees to care for themselves, care for family members, for time off related to school closures and the like, which eligible employees may need to utilize. Employers should consult leave laws and policies that apply to the company. Moreover, employers should not require a healthcare provider’s note for employees who are sick with respiratory illnesses to validate their illness or to return to work. Relaxing such requirements is important given concerns about containing further spread of the virus and the potential inundation of healthcare providers who may have increasing limited resources.

  • Allow for telecommuting/teleconferencing: Employers should not place emphasis on in-person attendance, and should evaluate telecommuting options. This may require employers to temporarily relax current telecommuting policies, or to take steps to set up a method for telecommuting.

  • Review polices regarding travel and off-site events: Employers should review travel and off-site meeting needs and consider making in-person attendance voluntary.  If an employee voluntarily decides to attend off-site events, we recommend that employers require the employee to sign a short assumption of risk and waiver of liability.  If an employee declines to attend given concerns of the virus, employers should not treat such conduct as insubordination and should consider work around arrangements.  Teleconferencing may provide another means for employees to attend off-site functions.  The CDC guidance recommends travelers stay home for 14 days from the time the person leaves an area with widespread, ongoing community spread.  We recommend employers adopt similar policies as applied to employees returning from business or personal travel.

  • Encourage healthy practices:  Encourage employees to engage in healthy practices, such as regularly washing and/or disinfecting their hands. To the extent an employer is able to secure these items, they should  make disinfectants and hand sanitizers available to employees, especially upon entry to the work place.  Employers also should arrange for periodic industrial cleaning and notify employees of those efforts.

  • Identify areas of risk: Identify health risks specific to each work site, and a plan to address concerns.  Review CDC and the Occupational Safety and Health Administration’s guidance providing safety tips and highlighting potential areas of risk.

  • Avoid stereotyping: Employers should not make determinations of risk or treat employees differently based on race or country of origin.

  • Maintain confidentiality: If/when an employee is suspected or has been confirmed to have contracted the virus, employers should act to maintain confidentiality around the employee’s diagnosis. In addition, employers should refrain from asking employees questions about their symptoms and medical conditions or suspected conditions.

  • Train managers: Train managers on how to handle concerns and preventative steps that the company is taking to manage the potential spread of the virus.  Remind them of current policies and any changes that the business has decided to make to accommodate employees and business needs during this time. Encourage managers to promptly address all leave requests and meet with team members regarding concerns to engage in a dialogue to move forward in a way that benefits both the employee and the company. It may be prudent to appoint a single department or point of contact for COVID-19 questions or concerns that managers need to further discuss.

  • Consider other long term considerations such as:
    -  Consider creating a plan that involves how to prepare for a pandemic, including how to deal with office closures to avoid business disruption.  The CDC encourages employers to plan for a possible coronavirus outbreak and advises employers to ensure that their plan is flexible and well communicated to employees.  A formal plan may help the employer to focus on necessary steps to prepare and ensure a single message regarding preparedness is communicated to employees. 

    -  Recognize that there may be legal rights associated with an employee who has the virus or who is perceived to have the virus under federal, state and local disability and leave laws.

    -  If employees are represented by a union, consider whether there are any issues that need to be addressed with the employees’ bargaining representative and whether there are any provisions in the company’s collective bargaining agreements that may be affected.

Importantly, employers should keep in mind that the U.S. is early in the process of understanding and combating COVID-19. The situation is rapidly evolving and employers will need to pay close attention to daily developments.  When in doubt, reliance on the guidance provided by health experts, government agencies, and counsel will best insulate employers from exposure to liability for discrimination, privacy or other legal claims from employees.  

© Copyright 2020 Sills Cummis & Gross P.C.National Law Review, Volume X, Number 71

TRENDING LEGAL ANALYSIS


About this Author

David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney
Member

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

(973) 643-5558
Grace Byrd Employment Attorney Sills Cummis Law Firm
Of Counsel

Grace A. Byrd is Of Counsel to the Sills Cummis & Gross Employment and Labor Practice Group.

Ms. Byrd has worked with business owners, executives and other professionals to develop and execute well–thought–out and practical legal strategies to effectively achieve their litigation and business goals.  She counsels with an eye towards helping clients meet their business objectives while remaining legally compliant.

She has represented corporate clients from a range of industries, including financial services, health care, pharmaceutical, hospitality and manufacturing, among others, in connection with employment disputes before federal and state courts and agencies.  In addition to her litigation practice, Ms. Byrd frequently counsels management regarding the implementation of employment policies and personnel issues that arise in the workplace, such as family and medical leave eligibility, disability accommodations, wage and hour matters, reductions-in-force, and hiring and discharge of personnel.

She provides training to employees and management level personnel on various topics including anti-harassment, diversity, ethics and whistleblowing.  Ms. Byrd also conducts in-house harassment investigations, drafts and updates personnel policies and employment handbooks, and drafts and negotiates separation agreements and employee contracts.

973-643-6792
Jill Turner Lever Employment Lawyer Sills Cummis Gross Law Firm
Of Counsel

Jill Turner Lever practices in all aspects of employment law.  She advises clients on a wide range of employment law issues including day-to-day advice and counsel on compliance with federal, state and local employment laws.  Ms. Lever drafts employment agreements, separation agreements, employee handbooks and human resources policies.  She provides advice on handling complaints of sexual and other forms of workplace harassment.  

973-643-5691
Clifford D. Dawkins, Jr. Associate Sils Cummins Newark Employment and Labor Practice Group
Associate

Clifford D. Dawkins, Jr. is an Associate in the Sills Cummis & Gross Employment and Labor Practice Group. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

While attending law school, Mr. Dawkins was an editor for the Rutgers Race & the Law Review, served as the president of the Student Bar Association, and participated in International Commercial Moot Court competitions in Paris, France and Hong Kong, China. He worked as an Associate Mediator with the Equal Employment Opportunity Commission. Mr....

(973) 643-7000