Coronavirus: An Employer’s Guide to Contingency Planning

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Coronavirus: An Employer’s Guide to Contingency Planning

COVID-19, commonly known as “Coronavirus,” has officially been categorized as a pandemic by the World Health Organization. Preparations for the onslaught of the virus are reaching a fever pitch in Illinois and across the US. New cases are confirmed hour by hour, and at least one case has been confirmed at a downtown Chicago office. Markets are going haywire with wild losses and gains. Some schools have closed; many universities have moved classes online for the remainder of the semester. In fear of mandatory quarantines aimed to slow the spread of the illness (which are already underway in New York state), panicked purchasers have wiped retailer shelves clean of hand sanitizers, surgical masks, toilet paper, and bottled water. Businesses have restricted employee travel and rescheduled or even canceled meetings and conferences. Some workplaces (including governmental agencies) have encouraged or mandated working from home. And now the federal government has promised that economic aid is forthcoming to help mitigate the damages the virus and related panic have caused. Perhaps the most serious indicator of the gravity of Coronavirus for Chicagoans is that the City of Chicago canceled all St. Patrick’s Day festivities, including its annual tradition of dyeing the Chicago River green.

As our business clients have begun preparing responses to COVID-19, we have been fielding a myriad of workplace-related questions raised by the virus. We strongly suggest that all businesses adopt a COVID-19 action plan and ensure that it is clearly communicated and equitably enforced across your workforce so as not to create claims of disparate treatment.

At a minimum, such a plan should include provisions for:

  • Employee telecommuting, including clear directives to employees regarding continued compliance with company time-keeping policies, frequency of communication with supervisors, and procedures for safeguarding the company’s confidential business information;
  • Restrictions on employee travel;
  • Employee leave (paid or unpaid) for those workers that must remain home due to illness, possible exposure to the illness, or those placed under quarantine;
  • An action plan for employees that become ill at work, attend work with symptoms of illness, or simply suspect exposure; and
  • A communication plan to notify employees, clients, and others that have been present in your workplace of potential or confirmed COVID-19 cases.

Below are some of the questions we have received thus far and some helpful tips to ensure that your business does not run afoul of applicable employment laws in dealing with fallout related to this virus.

An employee in our office appears sick. What can I do to confirm whether he or she has COVID-19?

First, rely on information from local health officials regarding the presence of COVID-19 in your area. There are many illnesses and even allergies with symptoms similar (at least initially) to Coronavirus. Second, the CDC recommends that employers evaluate employees utilizing the following criteria to determine whether exposure to COVID-19 may have occurred: if an employee (1) recently traveled to an area restricted under a travel advisory by the U.S. State Department; (2) was in close contact with someone confirmed to have Coronavirus; or (3) appears to have acute respiratory illness symptoms (such as cough or shortness of breath), employers may ask the employee to leave the workplace and seek a health assessment.

It is important to note that while employer medical examinations of employees are prohibited under most circumstances, the Americans with Disabilities Act (ADA) allows employers to make medical-related inquiries of an employee if the employer has a reasonable belief that the employee poses a "direct threat" to the health or safety of the workforce (that cannot otherwise be eliminated or reduced by some sort of accommodation). According to the Equal Employment Opportunity Commission (EEOC)’s Pandemic Preparedness guide, assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, rather than on subjective perceptions. It is likely that the Coronavirus will be considered a "direct threat" in Illinois, given that as of March 9, Governor J.B. Pritzker declared a state of emergency in Illinois. Employers with locations in other states should rely on assessments made by their respective state and local authorities, as well as the CDC. It is paramount to keep in mind that any personal medical information received by an employer regarding an employee must (generally) be kept confidential.

My employee has a confirmed case of COVID-19 or has been exposed to a person with a confirmed case of the virus. What do I do next?

Health officials are recommending at least a fourteen (14) day period of self-quarantine for individuals diagnosed with or exposed to COVID-19. If at all possible, these sick or exposed employees should utilize paid time off/sick leave or work remotely to control infection within your workforce.

You should communicate with anyone who has interacted with the ill or exposed employee through your business, including employees, clients, and others that may have been present in your offices. (Ask for the employee’s help in identifying these persons). Currently, the CDC recommends that those who have been in “close contact” with infected individuals (6 feet or less) should remain at home and practice social distancing to ensure they do not spread the virus. Employers can indicate that an employee or visitor to the office has been or may have been exposed to Coronavirus, but the identity of the infected or exposed person should be kept confidential.

Note that an employer is not required to report a suspected or confirmed case of COVID-19 to the CDC, as this is the responsibility of the employee’s healthcare provider.

Am I required to pay employees that must remain home due to their COVID-19 illness or exposure?

For workers that cannot perform their jobs remotely, employers should review internal policies (including disability policies), as well as federal, state, and local leave laws (for example, the Cook County Earned Sick Leave Ordinance) to determine whether employees are entitled to paid leave during their time at home. Illinois lawmakers are currently investigating how to expand unemployment insurance access to those who are ill or exposed to diminish the financial impact of remaining off work.

Generally, there is no requirement to pay non-exempt employees who do not report to work and cannot work remotely. Similarly, exempt employees who cannot report to work for the entirety of a workweek (and do not perform any work during such workweek) need not be paid for that week. However, businesses should strongly consider whether to implement an emergency paid leave policy for employees placed on leave due to COVID-19. This will help contain the spread of the virus (both in your workplace and your community generally) by encouraging symptomatic employees that may otherwise attend work out of a concern for financial necessity to remain home.

Can my employees remain home from work or refuse work-related travel out of fear they may contract COVID-19?

We strongly recommend that you create a contingency plan to allow your workforce to work remotely from home and/or conduct meetings which would otherwise require travel via teleconference if your business can accommodate it. This will help minimize disruption to your revenue in the event that quarantines are requested or required by the government. However, for businesses that simply cannot accommodate a work from home option or require travel, there are limited circumstances in which your employees can legally refuse to attend work. Section 13(a) of the Occupational Safety and Health Act (OSHA) provides employees the right to refuse to work (or travel) if doing so would place them in “imminent danger,” which includes “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA’s examples of imminent danger include situations in which there is a “threat of death or serious physical harm,” or where “toxic substances or other health hazards are present” and “exposure to them will shorten life or cause a substantial reduction in physical or mental efficiency.”

If your business currently requires travel to Italy or China or forces employees to interact with COVID-19 infected individuals without personal protective equipment, for example, this might be considered “imminent danger” under the Act. However, most work conditions in the United States do not meet these criteria, at least not at this time. Even so, do not be quick to discipline or terminate employees that stay home out of fear they will contract COVID-19: the anti-retaliation provisions of OSHA prohibit employers from disciplining an employee who “reasonably believes” that she is in imminent danger by attending work.

Can we restrict an employee’s personal travel due to COVID-19?

Employers generally cannot prohibit an employee from engaging in otherwise lawful activity, such as travel, though recent case law has confirmed that firing an employee for a refusal to cancel personal travel to a high-risk area may not violate ADA. Nevertheless, this situation presents a scenario in which legal exposure (and certainly bad press) may exist. If employees do travel to high-risk zones, encourage these employees to monitor themselves closely for any signs of illness.

Other tips

Now is a perfect time to create a remote work contingency plan. Identify critical roles in your workforce that are key to maintaining operations in the event your business must run with a limited workforce. Test system capabilities immediately (perhaps by instituting a company-wide remote workday) to ensure that your workers have the necessary equipment, bandwidth, and IT support to prepare for a scenario in which your offices will be closed for an extended period of time.

Above all, ensure that your policies are implemented and applied in a logical, non-discriminatory manner to avoid legal fall-out once COVID-19 has cleared. As always, consult knowledgeable employment counsel if you have any questions or concerns.