Preparing for + Reacting to COVID-19 in the Workplace
E-mployment Alert March 12, 2020
Smart Summary for Employers
COVID-19 is making employers navigate uncharted waters. Proactive communication and consistent policies for reacting to people under investigation make up most of the best practices:
- Communicate with employees as to the CDC’s recommendations for combating the virus and your workplace expectations
- Think about how you will handle employee travel, both business and personal
- Plan for time off and alternative work arrangements, whether unpaid quarantine or remote working
- Know the procedures for dealing with live coronavirus cases and subsequent investigations
- Be prepared to comply with your legal obligations
- Review the data privacy implications of employee telecommuting
COVID-19, more commonly referred to as the “coronavirus,” officially reached Ohio on Monday with three confirmed cases in the Cleveland area. Whether warranted or not, coronavirus has had a significant impact on the U.S., from stock market drops to supply chain difficulties and media hysteria. In the wake of this attention, we’ve received a number of inquiries from our clients regarding the legal issues coronavirus poses.
Especially given the increase in travel expected in the coming weeks for spring break, we’ve prepared the following guidance from an employment and privacy law perspective in order to help your business respond to the ongoing issue of COVID-19.
First and foremost, employers should maintain open communication with their employees. There may be excitement in the media, but your workplace should remain a professional, safe, and informed environment. Consider circulating an email or memo covering the topics proposed by the CDC to put employees’ minds at ease and generally remind them of best practices during flu season, which include:
- Educating employees on the disease’s symptoms and transmission
- Encouraging employees to use good hygiene and provide disinfectant, wipes, and sanitizer to accomplish this
- Reminding employees to cover their coughs
- Advising employees to stay home if they are ill
In addition to the CDC’s recommended subjects, your memo may also want to include a review of relevant policies. This might be a simple refresher on the company’s attendance, time off, and leave of absence policies, or you may want to communicate new policies you plan to implement in response to coronavirus. All new policies should be clearly communicated to employees before they are put into effect.
Relevant Policies + Travel
Perhaps you’ve heard something about the types of policies being introduced recently by other companies. For example, OSU just announced that courses will be online only until the end of the month. In the employment context, some companies have limited the maximum number of employees allowed in meetings/groups or proposed travel bans. So what should you be doing?
One action step all employers should take is deciding how they want to deal with employee travel, both business and personal. Obviously, business travel to any restricted areas should be suspended until further notice from health officials. Failing to do so could result in substantial financial liabilities if an employee is denied reentry to the U.S. or exposed to the disease.
As for other destinations, both domestic and international, you should limit non-essential business trips when possible. Consider whether travel can be replaced with virtual communication options. If you must send your employees out, be sure to purchase travel insurance for the trips.
If an employee elects to travel for personal reasons, you may validly require a quarantine period before allowing them to return to work. Whether this is necessary should be determined on a case-by-case basis. Obviously, international travel to restricted regions poses the greatest threat to your workforce, whereas domestic travel to a state with no known cases may make quarantine unnecessary. Keep up to date on the number and locations of active cases here.
In any event, if you decide that potential quarantines are necessary, be sure to communicate with traveling employees before they embark; do not wait until they return to introduce the idea. For example, ask employees to notify HR of any travel plans they have in the coming months. Sit down with those employees and learn where they are going, for how long, etc. If you think a waiting period is necessary given this information, let them know so they can elect to cancel their plans rather than stay home.
During a non-working quarantine period (whether due to actual illness or the inability to work from home), allow employees to exhaust PTO first. You may also wish to allow advancements on to-be-accrued PTO to assist employees in need. If you make advancements, be sure to hand them out consistently. If an employee runs out of PTO during a quarantine period, the remainder of the time may be either paid or unpaid at the employer’s discretion. As a practical matter, however, you will most certainly face pitchforks and torches by forcing employees to stay home when they are otherwise healthy. Remember, just because you can does not mean you should. This is why we suggest conferring with employees as to potential quarantine periods before they travel.
As an alternative to non-working quarantine periods for jet-setting employees, you could consider remote work where possible until the virus’s incubation period has passed. If you decide to allow employees to work from home, be sure to include the anticipated duration of that arrangement in your telecommuting agreement. If at-home work is indefinite, be sure to reserve your right as the employer to revoke the agreement at any time. If you do not have a telecommuting agreement in place, be sure to have one prepared before allowing remote work. Also remember, exempt, salaried employees generally must receive their full salary for any week in which they perform any work, even if that work is from home.
Even absent recent travel, you may want to encourage employees to work from home if feasible. The most prominent response to coronavirus recently has been what’s called “social distancing.” Concerts have been canceled, sporting events have been scaled back, and the governor has banned gatherings of more than 100 people. The goal is to limit in-person interactions and prevent further spread of the disease. This applies to your workforce, too. If you have systems in place that easily allow employees to work from home, encourage that. If not, think about how this could be effective if and when the need arises.
When considering the prospect of telecommuting, you should also contemplate privacy matters that may be implicated in any remote-working situation. Protecting sensitive data is necessary in any work environment. Assessing and minimizing the potential data breach risks should be part of any discussion of telecommuting.
When You Must React
In the relatively unlikely event an employee contracts coronavirus, immediately send them home. If the employee refuses, you can force them to leave. Then, remain calm. Without disclosing the name of the employee or any protected information, advise your workforce, clients, customers, and/or vendors that an employee has tested positive for COVID-19 but that the company is taking all recommended preventative measures, such as hiring a cleaning company to disinfect the office. Remember, your role is that of HR manager or supervisor; you should simply be providing employees with information, not speculating, advising, or soliciting employees’ health information.
At this point, you will also need to conduct an internal investigation. The CDC has coined this process “contact tracing.” Essentially, review the rest of your work force for individuals who may have come into contact with the affected employee or work closely with him or her. You can require these individuals to leave the office as well.
A related topic that arises is the newly dubbed “PUI” or Person Under Investigation. A PUI is a person who has either traveled to an afflicted area and may have been exposed to the virus by way of their travels, or individuals who have been in contact with an affected person. If you have an employee who is officially labeled a PUI, follow the process set forth above as if their diagnosis has been confirmed. If the CDC or other health organization’s investigation clears the employee, they may return to work. If you have an employee whom you believe may meet the definition of a PUI or who has been in close contact with a PUI, engage in the “contact tracing” investigative process. You will likely want to send these individuals home as well.
If you do have a sick employee on your hands, you may need to comply with certain laws. For example, absent employees may be entitled to leave under the FMLA. In addition, affected employees may be covered by the ADA, meaning you can require a return to work certification before allowing them to return to the workplace. If a sick employee contracted coronavirus while at work, you may have a workers’ comp claim on your hands.
At this time, the incident rate in the U.S. is minor and it is unlikely you will find yourself in any of these scenarios. However, being armed with this information now will allow you to respond quicker if the need arises.
A Note on Privacy
As already mentioned, businesses must consider the impact of coronavirus and their response to it from a data privacy perspective. As to international data transfers, businesses in Europe and the UK should consider whether employee, visitor or customer data processed for COVID-19 purposes will be transferred by the business or by a vendor outside of the European Economic Area/UK. If such data will be transferred, are the contemplated transfers covered under an appropriate GDPR data transfer mechanism?
Businesses covered by the GDPR in particular will want to consider whether a data privacy impact assessment is required (or advisable) to conduct the new data-related activities needed for responding to COVID-19.
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For questions concerning how your business should prepare for or react to issues related to COVID-19, please contact Brendan Feheley.