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Pandemic or Pandemonium? Employers Brace for the Coronavirus (US)

You can’t escape the panic spreading through mass and social media regarding the 2020 Wuhan Novel Coronavirus, a virus that has resulted in fatalities in China and infected thousands worldwide. Symptoms mimic that of influenza (fever, cough), but can include difficulty breathing, pneumonia, kidney failure, and death in severe cases. Despite the panic, there are only a handful of confirmed cases in the U.S., but this has done little to quell paranoia. With fear of the bug’s spread, many employers are bracing themselves the possibility of employee absences, either due to illness or fear of contagion in congested workplaces. Employers and human resources professionals can immunize themselves against some risk by implementing steps in advance.

  1. Familiarize yourself with state and local paid sick leave laws. Many U.S. states and municipalities now require that employers provide paid time off to employees to address their own illnesses or that of their family members. If you have not done so already, be sure that your policies comply with any state and local requirements, and train managers on your paid sick leave policy in the event they receive calls from employees seeking treatment for themselves or family members infected with the virus, or missing work because their place of business or children’s schools or daycares are closed due to contagion, or because businesses are closed due to a declaration of public health emergency. However, these laws generally do not provide paid time off or job protection to employees staying home simply to avoid public places where they might contract the virus.

  1. Determine FMLA coverage. U.S. employers with 50 or more employees are required to provide eligible employees with up to 12 weeks off if they or a parent, spouse, or child experiences a serious health condition. “Serious health condition” can include a period of inpatient care – such as a one-night stay in the hospital – or incapacity of three consecutive days requiring continuing treatment by a health care provider. Many employers and managers forget that even a period of three days of illness causing incapacity with follow-up care can trigger FMLA leave rights. Therefore, FMLA-covered employers should be prepared to notify employees of their eligibility to take FMLA leave if infection with the virus results in inpatient treatment or extended illness of the employee or their spouse, parent, or child.

  1. Review your wage payment obligations. Non-exempt employees must be paid for all hours worked and their absences can be docked for absences, but salaried, exempt employees ordinarily must be paid for all workweeks in which they perform any work. If employers close the place of business for a partial workweek because of fears of contagion but employees are otherwise ready and available to work, exempt employees must nonetheless be paid for the full workweek. However, if an exempt employee fails to work for one or more full days out of fear of contagion (but does not utilize time provided under a bona fide sick leave or paid time off bank), the employer may take deductions from that exempt employee’s pay without losing the exemption. For employees already on travel who may be detained in foreign cities for screening, be sure to confirm whether that time is compensable.

  1. Evaluate business travel needs. As of January 27, 2020, the CDC issued the highest threat-level travel notice recommending that people avoid all nonessential travel to China, and on January 30, 2020, the World Health Organization declared a global health emergency over the spread of the coronavirus, triggering the U.S. State Department to issue a “Do Not Travel” travel advisory to China. In keeping with your obligations under the General Duty Clause of the Occupational Safety and Health Act (OSHA) to provide a safe workplace, postpone all non-essential business travel to the region, and evaluate the necessity of all international travel until the virus is controlled. If an employee does report contracting the coronavirus while traveling work, note that OSHA has deemed the 2019 novel coronavirus a recordable illness subject to reporting requirements.

  1. Encourage wellness. Employees should be encouraged to stay home when they are ill, regardless of the cause of the illness. If managers are reported to encourage employees to continue working even when sick, consider disciplinary steps. Post reminders to wash hands thoroughly, distribute hand sanitizer, and reinforce appropriate hygiene measures to reduce the spread of all winter bugs.

  1. Keep your sanity. Despite the global concern over the illness, there still are very few confirmed U.S. cases of the coronavirus. Employees exhibiting common cold symptoms are unlikely to be infected with the coronavirus, so be vigilant against making disability-related inquiries or requiring medical examinations of employees, and against harassment or treatment of such employees as more seriously impaired (regarded as disabled) than they are. Because of the close connection between the illness and the region where it originated, also be alert to race- or national origin-based remarks that could be perceived as harassing. Be particularly cautious against removing job duties from employees or attempting to quarantine mildly symptomatic workers out of (likely irrational) fears that they present a serious direct threat to others, particularly outside higher risk industries like healthcare, airlines, and mortuary services. Consult with counsel before implementing any steps that could be perceived as adverse.

Employers have weathered similar storms during the H1N1 and MERS outbreaks and through many influenza strains. Principles employed in past (perceived) pandemics apply here as well.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 34

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About this Author

Laura Lawless Trial Attorney Squire Patton Boggs Phoenix, AZ
Partner

Laura Lawless is a trial lawyer who represents employers before federal and state courts and administrative agencies, as well as in arbitration and mediation proceedings, defending employers in matters arising under federal and state employment laws, including claims of discrimination, harassment, retaliation, whistleblower retaliation, wrongful termination, wage and hour violations, and breach of contract, as well as in in noncompetition, nonsolicitation, nondisclosure, trade secret and unfair competition cases.

Laura also counsels and collaborates with human resources...

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