COVID-19. What can employers do now?

I assume you all have not been burying your head in the sand and you all know now that the COVID-19, that’s what the World Health Organization has labeled the current outbreak of Coronavirus, is sort of in the news. And I am equally sure you are all wondering what, as an employer, you should be doing about it.  Before we get into that, let’s do quick refresher on the Americans with Disabilities Act. Don’t forget, the ADA places some restrictions on employers and only allows medical examinations, where the employer can show that the exam is job related and consistent with business necessity, or there is a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others.  See https://www.eeoc.gov/policy/docs/guidance-inquiries.html

That’s nice, but how do we know if there is a “direct threat” from COVID-19?  While we don’t have anything from the EEOC on COVID-19 yet, during the N1H1 flu outbreak the EEOC did published guidance called PANDEMIC PREPAREDNESS IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT.  https://www.eeoc.gov/facts/pandemic_flu.html

In that guidance, the EEOC stated:

Direct threat is an important ADA concept during an influenza pandemic.

Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

So, relying on the EEOC, let’s go see what the CDC is saying. And sure enough, the CDC just published Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020. You can find it here:  https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html

And what are the CDC’s recommendations? 

Recommended strategies for employers to use now:

Actively encourage sick employees to stay home

Separate sick employees

Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees

Perform routine environmental cleaning

Advise employees before traveling to take certain steps

So basically the CDC is advising that you tell people to stay home when they are sick. A couple of things to keep in mind. First, “Separate sick employees” does not mean quarantine them or put them in the back corner of the plant. What the CDC is saying here is if somebody comes to work sick or gets sick at work, send them home. Second, the CDC is recommending you have a lot of tissues and hand sanitizer on site and you encourage employees to use them. Probably a pretty good idea.

One other thing the CDC says you should do that I want to point out, because this is a bit of a departure from what we would normally think, the CDC is specifically instructing that if you have a confirmed case of COVID-19 in the workplace, you need to tell your employees. 

If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

Now this DOES NOT MEAN you tell everybody that Bill has coronavirus. It simply means you tell them they have been exposed and encourage them to get checked by their doctor.

If you are an employer and you want to discuss what else you can be doing and what all of this means for your workplace, give us a call.