David I. Rosen, Grace A. Byrd, Jill Turner Lever
Employment and Labor
March 05, 2020
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
and communication are critical: Employers
should circulate the most recent Center for Disease Control and Prevention (“CDC”)
for employers, as well as state and local guidance, such as those provided
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.
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.
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
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.
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.
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.
areas of risk: Identify health risks
specific to each work site, and a plan to address concerns. Review
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.
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
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.
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.
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.
This Client Alert has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.