Coronavirus has predominated the news recently. Employers are now prompted to consider employee safety and health amidst the plethora of the laws protecting employees.
The Centers for Disease Control (“CDC”) has released recommended strategies for employers. The importance of proper communication to employees and addressing their concerns cannot be overstated.
Employers should focus on the following considerations to promote safety and health while not running afoul of the laws:
- Recognize that the law does require employers to address the safety and health of their employees; the Occupational Safety and Health Administration (“OSHA”), for example, recently put out a bulletin addressing employer’s obligations in these circumstances;
- Recognize that the law also requires employers not to discriminate against employees based on, among other classifications, national origin, disability, and perceived disability; the Equal Employment Opportunity Commission (“EEOC”), the federal agency that administers discrimination claims, has issued guidance on employer preparedness for pandemics;
- For mass layoffs or plant closings due to coronavirus, consider the federal or state WARN Act implications and whether the unforeseeable business circumstances exception may apply;
- Consider new policies to address concerns, such as instructing employees to stay home if they display symptoms or require that they get tested, while evaluating such policies against the employer’s existing sick leave and paid time off policies; also consider such options against leave laws such as the federal Family and Medical Leave Act (“FMLA”);
- Of course, employers should encourage employees to follow basic hygiene practices, including frequent hand washing, using hand sanitizers, not shaking hands, and going home if they feel sick; education is a key aspect of controlling the spread of any illness in the workplace;
- Consider a working remotely policy if it can be made applicable to the employer’s business; if so, insure that such policy contain a method to track non-exempt employee’s time worked so that they are compensated for all time and the employer does not run afoul of the wage and hour laws, including overtime and meal periods;
- Take caution not to violate employees’ rights through defamatory statements or an invasion of privacy;
- If the employer learns that an employee has contracted coronavirus, disclose it to others with whom the employee has had contact while recognizing the affected employee’s right to confidentiality (although the employer may request permission from the employee to disclose their identity);
- If employees need to say home due to illness or quarantine related to coronavirus, employers should review their policies such as sick days, vacation days, and paid time off as well as applicable leave laws to determine whether pay may be required;
- If employees need to stay home due to illness or quarantine or a layoff related to coronavirus, employers should evaluate whether the employees are entitled to statutory benefits, such as under New York Paid Family Leave law, New York Disability law, and the unemployment insurance law;
- If employees have been home due to illness or quarantine related to coronavirus, consider requesting documentation from a doctor that they are cleared to return to work (although recognize that this may cause a delay in returning to work);
- Establish a method for holding teleconferences instead of requiring physical attendance at meetings;
- Recognize the recommended travel restrictions and limit travel as much as possible; and
- Monitor and evaluate the emergency relief bills proposed by Governor Cuomo and President Trump to assess the impact of that legislation on the employer’s business.
The bottom line is that employers must be prepared and have a plan in place to deal with the workplace in the event of a widespread illness. Employers should also consider consulting with counsel to ensure such efforts do not violate employees’ rights under the law.
Douglas E. Rowe is an Employment Law Partner at Certilman Balin.