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Commentary: COVID-19 presents urgent challenges for businesses, industries

The outbreak of a novel coronavirus that causes COVID-19 is presenting a multitude of challenges for businesses. Many industries are grappling with its impact, but businesses that require significant travel, in-person contact and those in health care are especially impacted. All businesses and their in-house legal counsel should prepare for widespread business disruptions.

Social distancing and remote work

Anne Baggott

Baggott

Businesses, either at their own choice, or at the direction of public health agencies, may be required to limit all non-essential, in-person contact. This may require businesses to maximize employees’ ability to work remotely. Business leaders should quickly evaluate their technology resources to determine whether their businesses may function with most or all employees working from home. Key concerns include whether employees have the technology available to work from home, such as laptops and WiFi access; data and customer privacy and confidentiality; and compliance with wage and hour laws for hourly employees. Many businesses should consider whether they have adequate video conferencing and electronic chat room capabilities to facilitate internal communication.

Business leaders should review and update their companies’ paid time off and sick leave policies to reduce employees’ fear of penalties for absences related to COVID-19. Some employers are considering offering additional paid leave options to encourage employees to stay home if they are sick. Where employees are not showing signs of illness but are self-quarantining or self-isolating at home due to possible exposure, businesses should assist those employees to work remotely, consider the time away from work as protected leave or take other steps to assure employees they will not be penalized at work.

Protect employees from exposure

Industries for which in-person contact is essential, such as health care, retail and hospitality, may not be able to implement remote-work arrangements. Where these industries continue to operate, i.e. where public health agencies have not issued a mandatory quarantine, business leaders should focus on protecting their employees and customers from exposure.

All companies can help to ensure a safe workplace by asking employees to take a few precautions, based on recommendations from reliable medical sources, such as the Centers for Disease Control and Prevention and the  World Health Organization. Encourage hand hygiene and coughing and sneezing etiquette. Offer sanitizing wipes for employees to clean their workspaces. Ensure regular cleaning of commonly touched surfaces, such as entryway keypads, door handles, elevator buttons and water cooler spigots, and establish a regular cleaning schedule throughout the day for those sources of exposure. Companies should consider banning all non-essential travel or requiring additional approvals for all travel.

Companies can help to educate employees by directing them to reliable medical sources, such as the website for the Centers for Disease Control and Prevention, for updates on preventing exposure and transmission.

Compliance obligations

Business leaders should also comply with several laws that impact employers’ obligations to keep employees safe.

OSHA: The General Duty Clause of the Occupational Health and Safety Act of 1979 (OSHA) requires employers to furnish each worker a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm. Many states have similar laws. Employers should consider policies in all aspects of the business to ensure workplace safety. For example, requiring travel to high-risk areas could expose companies to liability under OSHA. If the employee refuses to travel due to fear of exposure, the company should carefully consider whether the concern is reasonable before taking disciplinary action for the refusal.

Privacy: Where an employee is confirmed to have COVID-19, employers must keep this information private to comply with the Health Insurance Portability and Accountability Act and Americans with Disabilities Act. Where an employee discloses an underlying health condition that could make complications from COVID-19 more severe, the business also must keep this information private.

Medical Testing and Inquiries: In 2009, the Equal Employment Opportunity Commission implemented a pandemic preparedness policy to comply with the ADA. Though not binding, its recommendations are still in place. EEOC takes the position that during an outbreak of illness, employers who require medical testing, make other disability-related inquiries of its employees or take other disability-related actions would violate the ADA, unless the employee is located in an area recognized by a public health agency as being in a pandemic; the employee is exhibiting symptoms of a pandemic-related illness; the employee has traveled to an area where exposure is likely; or the employee volunteers information about possible exposure.

Protected Leave: Employees with COVID-19 may be eligible for up to 12 weeks of unpaid protected leave under the Family and Medical Leave Act. Business leaders should ensure compliance with all notice, assessment and return-to-work obligations in the FMLA. Business leaders should treat requests for paid time off, reasonable accommodation or leaves of absence as they would any other request.

Finally, in-house legal counsel and other business leaders should follow the CDC’s recommendation to implement a disease-outbreak response plan. The plan should identify possible exposures and health risks and be consistent with public health recommendations. The plan should be communicated to all supervisors and workers and should include a reliable system for quick, public-health communications.

Anne Baggott, a shareholder/director at Dysart Taylor Cotter McMonigle & Montemore in Kansas City, is an employment lawyer with a unique, blended practice representing both companies and individuals on all aspects of employment law.

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