THE CORONAVIRUS PANDEMIC – WHAT ARE MY OBLIGATIONS AND LIABILITIES AS AN EMPLOYER?

Earlier today, the World Health Organization (WHO) declared that COVID-19 (commonly known as “coronavirus”) is now a pandemic. The U.S. Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC), and WHO are official sources regarding information on pandemics. A declaration of a pandemic by WHO only indicates that there is a sustained human-to-human transmission across the globe – it does not have any implication on the severity of the illness itself.

Largely speaking, much remains the same right now. Although it is a pandemic, neither WHO nor any other national or global health organization has declared that it is particularly more dangerous than past pandemics, such as H1N1. So, while it is still imperative that you encourage employees to maintain healthy workplace practices and stay home if sick, your obligations under current law are the same as normal.

However, there are a few regulations that you should be keenly aware of while this pandemic is at large. Make sure you abide by the following and stay clear of violations.

The Americans with Disabilities Act (ADA)

The ADA protects applicants and employees from disability discrimination, and is implicated by a pandemic in three primary ways:

  1. Disability-related inquiries and medical examinations for applicants and employees
  2. Exclusion of individuals with disabilities from the workplace for health and safety reasons
  3. Reasonable accommodations for individuals with disabilities

You cannot make disability-related inquiries or require medical examinations unless the employee’s ability to perform essential job functions will be impaired by the medical condition or the employee will pose a direct threat due to the medical condition. Illnesses resulting from the seasonal flu or the 2009 H1N1 influenza do not justify disability-related inquiries and medical examinations. Nothing from WHO or other health organizations has thus far indicated that COVID19 is substantially more severe than these other illnesses, therefore you should still avoid all disability-related inquiries and medical exams.

The Equal Employment Opportunity Commission (EEOC) has a guide on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act that addresses many of the questions you may have regarding what you can and cannot do during a pandemic.

For example, you may still send employees home if they display flu-like symptoms such as fever or chills and a cough or sore throat. You are still allowed to ask employees if they are experiencing any of those flu-like symptoms (so long as you keep such information as a confidential record in compliance with the ADA).

But as of right now, you can’t take employees’ temperatures to determine whether they have a fever, or demand that they get their temperature taken, as that would be a medical examination under the ADA and COVID19, although a pandemic, has not risen in severity to warrant an exception to that general rule. You can, and should, still encourage employees to work from home if they are experiencing flu-like symptoms – telework is considered a reasonable accommodation under the ADA. Employees with existing disabilities that put them at higher risk of complications from catching COVID19 may also request telework as a reasonable accommodation under the ADA.

The Occupational Safety and Health Act (OSHA)

OSHA governs health and safety standards in the workplace for employers of a certain size and in certain industries. There is no specific OSHA standard covering COVID-19. However, some OSHA requirements may apply to prevent occupational exposure to the virus.

For example, OSHA has a general duty clause that requires an employer to respond adequately to the effects of a pandemic in the workplace.  Employers are required to furnish employees with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Your obligations under the general duty clause largely depend on the specific circumstances. Heightened protection standards might be necessary during the initial stages of the pandemic when information about its severity and transmissibility are limited. But keep in mind that places like hospitals and other healthcare facilities will have higher obligations to protect their employees than employers who are maintaining typical office environments. Make sure your workspaces are regularly cleaned and encourage your employees to maintain hygienic practices such as frequent handwashing.

OSHA also has recordkeeping requirements – employers have a duty to record certain work-related illnesses that meet specific criteria. Keep in mind that your obligations under OSHA are very fact-specific and we suggest that you frequently refer to the agency’s website here for updates on any heightened obligations you may have.

Family and Medical Leave Act (FMLA)

Employers covered by the FMLA must provide job-protected leave and other benefits to eligible employees who miss work due to a serious health condition suffered by the employee or their close family member.

The flu, common cold, and other similar illnesses are generally not considered serious health conditions under the FMLA, unless complications arise. Information from the CDC states that most people who have been diagnosed with COVID19 experience mild symptoms, however people with pre-existing conditions and compromised immune systems are at higher risk of developing more serious complications. The distinction between mild symptoms and those that cause further complications is important with regards to your obligation to provide FMLA leave.

If the employee has complications arising from COVID-19 and you are a covered employer, you must provide eligible employees with certain job protections and reinstatement rights while the employee is out on leave.

It is important to note, however, that missing work to care for a healthy child whose school is closed and staying home to avoid exposure to a pandemic virus are not examples of protected leave under the FMLA.

Please note that the above information is only meant to provide a general overview of the law as it currently stands. You may or may not be obligated to abide by some of these regulations, depending on factors such as how many employees you have or what industry your business operates in. Further consultation is required to determine the applicability of the above laws, or any other employment law, to you and your business.

Should you have questions regarding your obligations regarding COVID-19, have other legal needs for your business, or if you would like to schedule a no-charge initial consultation to discuss questions you have about your business, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

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