COVID-19 – A Business Survival Guide

Highlights of a forthcoming article in Textile Services magazine. This report looks at employee safety/compliance issues in the wake of COVID-19.

The disruption and danger associated with the COVID-19 virus seems to grow hourly, as employees call in sick and customers scale back spending. But the first duty of any employer is to protect staff as well as customers. That starts with maintaining a virus-free environment.

“An employer’s general duty is to maintain the health and safety of the workplace,” says Joseph Deng, an employment law partner at Baker & McKenzie in Los Angeles. “A business must be free of hazards that are likely to cause death or serious physical harm. In light of the virus, employers should pay close attention to what the national, state and local authorities are advising.”

At the national level, the Centers for Disease Control and Prevention (CDC) continually updates a website with advice on how to reduce the chances of infection. (To access the information go to www.cdc.gov and search for “Interim Guidance for Businesses and Employers.”)

State and local authorities also may provide information on their own websites. “Advice at the local level is especially important,” Deng says. “It will be directly related to what’s happening with the virus in the area where a business is located – just as a recommended response to a hurricane will depend on the proximity of the storm to a business.”

Much of the guidance from all levels deals with the proper sanitation of the work environment. “The most significant thing businesses can do is make sure employees engage in proper hygiene practices,” says Susan Gross Sholinsky, vice chair of the employment, labor & workforce management practice of Epstein Becker & Green in New York. “They should keep their premises clean, disinfecting doorknobs, elevator buttons, and community equipment such as printers, and commonly used kitchen items such as refrigerator handles.”

Employers also are taking steps such as:

• Limiting travel. “Most of the companies I am talking to are limiting or prohibiting all future international travel,” Sholinsky says. “They are also asking employees if they have traveled internationally, whether for business or pleasure, and are requiring them to stay home if they have visited countries with elevated risk. When feasible, audio and video conferencing is taking the place of in-person visits.”
• Restricting outsider visits. “Some companies are limiting third parties who can come into the offices, separate and apart from their own employees,” Sholinsky says. “Visiting clients and vendors are being asked where they have traveled in the last few weeks, and whether they are exhibiting any flu-like symptoms.”
• Coordinating with vendors. The CDC website suggests businesses “talk with companies that provide contract or temporary employees about the importance of sick employees staying home and encourage them to develop nonpunitive leave policies.”

DEALING WITH SICK STAFFERS

Despite management’s best efforts, some employees may become ill. Anyone who comes down with symptoms of the virus (fever, coughing and shortness of breath) should be separated from the workplace and required to remain at home. That will protect their co-workers from infection, helping to contain the spread of the disease. Below are some tips and insights for dealing with sick staffers:

• Afflicted individuals should contact their healthcare provider, or the state or local health department, for advice on what to do next. “Infected individuals should not go straight to the doctor’s office or to the hospital emergency room, because they are not equipped for infectious-disease control,” Deng says.
• A business may want to consider changing its sick-leave policies in light of the coronavirus. “Sometimes a liberal sick leave policy is tough for employers,” says Brian Baker, vice president of Hagerty Consulting, an emergency-management consulting firm based in Evanston, IL. “But it is much better to lose a portion of your workforce than to lose all of them.”
• Do you pay people for sick leave? While no national law requires this, several states and cities, including California and Michigan do have statutes mandating sick-leave pay. All companies should consider reimbursements for quarantine time. “Employers should avoid being penny wise and pound foolish,” Deng says. “They should establish nonpunitive leave policies, and that includes loosening requirements that employees provide doctors’ notes to verify an illness. Bear in mind that local health workers will likely be overwhelmed with live cases and may not be able to provide such notes.”
• Consider whether COVID-19 victims qualify for disability leave “In some cases, an individual who is out sick for an extended period of time because of COVID-19 may be entitled to short-term disability,” Sholinsky says. “An employee who was infected while on business travel to an affected country may be eligible for workers’ compensation.” Some states have paid family-leave laws that mandate partial pay for employees who are out of work because they are caring for sick family members, says Sholinsky. “Some states’ and cities’ sick-time laws provide for paid sick time when an individual’s workplace – or a child’s school or day care center – is shut down due to a declared public health emergency.”

PROTECT CUSTOMERS

Businesses also must protect anyone who comes into contact with staff members. “To the extent the business is a place of public accommodation, employers need to be mindful of the risks to customers, vendors and other visitors,” Sholinsky says. “If asked what the company is doing to protect against the spread of the virus, an employer can inform individuals that the premises are being cleaned and maintained consistent with CDC recommendations.” Related issues include:

• Public disclosure: Strictly from a public-relations perspective, employers may wish to advise customers if a staff member has been diagnosed with the disease. “Customers will likely not take kindly to finding out they were at a business where an employee had been impacted and they were never informed,” Deng says. At the same time, employers should be mindful of not identifying which employee was affected. “You need to maintain the delicate balance between getting the information out in a manner that will protect everyone, while also complying with privacy laws about disclosing medical information.”
• Medical Privacy: Concerns about employee privacy should be paramount for any business dealing with the coronavirus outbreak. “Generally speaking, if you are asking questions about an employee’s life outside of the workplace, there should be a legitimate, business-related reason for doing so,” Sholinsky says. “You need to balance the important information needed about someone’s health in light of COVID-19 concerns against the individual’s right to privacy regarding their personal medical situation.” There is a limited number of health-related questions that employers are permitted to ask of employees, Sholinsky says. “If someone was quarantined after traveling to a country with elevated risk, for example, and shortly after returning to the office they are out sick, it would be appropriate to ask whether they are experiencing flu-like symptoms, and if they are whether they have visited a doctor or been tested for COVID-19.”
• Secure Medical Documentation: Once obtained, personal medical information should be kept safe from dissemination. “If you are requiring employees to make declarations about their travels or their health conditions, you need to be careful about how the information is collected and disclosed,” Deng says. “Handle the information with respect to COVID-19 in the way you would handle any other personal information.” That means restricting information to those with a need to know.
• Disability Rights: Be sure that all actions conform to state and city employee privacy laws, which vary widely. Some federal laws may also apply. “Bear in mind that under the Americans with Disabilities Act (ADA), employers are generally not allowed to make disability-related inquiries about pre-existing health conditions or other private medical information,” Deng says. The law also prohibits giving a medical exam. “It’s allowable to ask employees if they have a cough or fever, or shortness of breath. But you may have issues under the ADA, or under state laws, if you take their temperature or do any other screening that might be construed as a medical exam.”
• Pandemic Response: One exception to the rules on medical privacy, Deng says, is if there is a “direct threat” to the workplace, such as the development of a pandemic in your area. “You are allowed to make medical inquiries and ask about disability-related matters if there is no other way to get information that will protect the workforce. Be informed about what CDC guidelines and what local and state authorities tell you.”

AVOID DISCRIMINATION

• In carrying out the policies and procedures described above, businesses must avoid any actions that are discriminatory, whether applied consciously or otherwise. “Although it is OK to ask employees if they have traveled recently to high-risk locations, and to tell them to self-quarantine for a two-week period, you have to apply the policy without reference to race, ethnicity or national origin,” Deng says. The novel coronavirus causing COVID-19 can strike any individual, regardless of background.

This article is for general guidance only. For specific legal and compliance-related questions on dealing with COVID-19, readers should contact their legal counsel, healthcare or other experts.