There is no hiding from it. The experts all predict that nearly every U.S. workplace will be impacted in some way by COVID-19 (a.k.a. the coronavirus). So what’s an employer to do? How does a business owner prepare for the inevitability of extended employee absences and empty offices and cubicles and continue to run a business?
1. Leave Policies. Review and become familiar with your PTO, sick leave, vacation, disability and other leave policies and decide in advance how you will handle employee absences once available paid leave is exhausted.
2. Leave Laws. Know which federal, state and/or local leave laws apply to your company, and under what circumstances your employees may be legally entitled to paid and/or unpaid leave. Consult with legal counsel to assist in analyzing the interplay of the various leave laws and which ones apply to your business.
3. Prepare for remote work capabilities. Most employers have employees who work remotely on an occasional or even a regular basis. Employers should consider whether there are other positions or jobs that can be performed off-site, and if so, procure any necessary equipment to keep your business operational in the event of prolonged absences or quarantine. Determine how “hours worked” will be tracked for any non-exempt remote workers.
4. Implement safe and hygienic workplace practices. For example, post signs in strategic locations to “Wash Hands.” If available, have hand sanitizer available throughout the office and work areas. Speak with your cleaning crew about taking extra steps to clean and sanitize door handles, light switches, elevator buttons, etc. each night. Communicate to your employees the extra steps that are being taken to keep them safe.
5. Decisions to Quarantine. Employers should require employees to stay home if they have been in “close contact” with someone with COVID-19. CDC guidance defines “close contact” as being within 6 feet of a person with COVID-19 for a prolonged period of time, which would include being seated near such a person on a plane, in a waiting room or in a meeting, or living with, caring for or being in an intimate relationship with such a person. Employers may also require employees to stay home if they have recently traveled to a country with “widespread sustained” transmission. Click here for access to the current list of countries considered “at-risk,” as listed on the CDC’s website.
6. Employee Requests. Employee requests to self-isolate due to fears of COVID-19 without any indicators of possible exposure do not have to be granted by the employer. However, employers may choose to grant such requests to avoid unnecessary anxiety among employees. Employers do not have to pay employees for such absences if paid leave and PTO has been exhausted, but again, may choose to do so given the unusual circumstances presented.
7. Confidentiality. An employer’s knowledge of an employee’s COVID-19 diagnosis will mostly likely come from the employee, so HIPAA privacy restrictions are not implicated. Nevertheless, because of the potential stigma associated with a diagnosis, or even an exposure, such information should be kept confidential and not disclosed to others in the workplace unless absolutely necessary. An employer does have a duty to disclose to its employees possible exposure stemming from a co-worker’s confirmed diagnosis of COVID-19, but should not disclose the identity of the infected employee.
The current COVID-19 pandemic presents a rapidly changing circumstance for employers, who need to be prepared to make quick decisions as new information comes to light. We are available to provide guidance and talk you through some of these difficult decisions you may be facing. The CDC website is also an excellent resource for employers.
For more information, contact the McCausland Keen + Buckman employment law attorneys: Dianne Moretzsohn (dmoretzsohn@mkbattorneys.com) and Benjamin Picker (bpicker@mkbattorneys.com).