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Employers: Preparing for the Coronavirus/Covid-19

This flu season is here along with a very unwelcome relative: the coronavirus (covid-19). While the impact of the coronavirus in the United States is still unknown, the workplace, (like schools), are places where disease has an opportunity to easily spread; it has been estimated that each infected person will infect 2-3 more people.

Scientists believe that the virus is primarily spread through airborne respiratory droplets produced when an infected person coughs or sneezes. In the close quarters of a workplace environment, it is important to take measures to reduce the possibility of a wide-spread impact in your workplace and think beyond hand sanitizers and disinfectant wipes. Planning should include (re)consideration of paid and unpaid leave policies, the identification and handling of employees suspected of having the virus and possible reconsideration of short-term telecommuting.

It must be remembered that under the OSHA General Duty Clause, employers do have a general duty to provide a safe and healthful workplace for employees. Moreover, a workforce in which many employees are absent due to coronavirus infection will obviously present significant operational problems for employers.

Family Medical Leave/Sick Leave/PTO

For larger employers with more than 50 employees, qualified employees have the right to 12 weeks of unpaid leave under the Family Medical Leave Act ("FMLA"). While employers can and usually do require certification for an FMLA leave, employers should probably immediately grant leave to employees with flu-like symptoms and require a healthcare provider's certification of illness and release to return to work after three days of absence.

Small employers with fewer than 50 employees, are not covered under the FMLA and most employers are not required to provide paid or unpaid sick leave (except those located in states or communities with paid sick leave laws, such as Chicago or in Cook County municipalities that have not opted out of the Cook County sick leave ordinance). While there is always the possibility of exploitation of leave policies, now is probably not the time to discipline employees for excessive absenteeism where the absence is due to flu like symptoms - better to have a few infected employees on leave than an entire crew or department ill and absent.

Paid or Unpaid Leave

Although most employers are not obligated to provide paid leave, the risk of having infected employees remain at work because they cannot afford to be without pay for a few days is obvious. On the flip side, providing a special paid leave for this widely publicized virus could be abused. The relative costs and risks should be balanced and consideration should be given to granting short term paid leave with documentation required after three or fewer days of paid leave.

Identification and Treatment of Infected Employees

Thus far, the virus seems to have impacted China, South Korea, Japan, Italy and Iran most heavily but that may not remain the case as everyday more countries, including the U.S., are affected. Nonetheless, employees who have recently traveled to highly impacted countries or who have had close contact with infected individuals presently seem to present a higher risk of contracting the virus. What does this mean? Well, NYC is requiring coronavirus testing for public first responders, teachers and health care workers with symptoms of the virus, who have traveled to a highly affected area or had contact with others who are infected. Under the NYC order, employees who refuse the test may be subject to discipline and will be ordered into mandatory quarantine. The NYC measures are extreme but perhaps something to be considered particularly for employers in, for example, health care areas. On the other hand, consideration must be given to avoiding the impression of targeting employees of a particular national origin; such an approach could result in the impression of a hostile work environment. In addition to risking discrimination claims, mandatory testing could give rise to claims for invasions of privacy, emotional distress and other statutory or tort claims.

Less controversial and certainly prudent is the creation and posting of a coronavirus safety protocol. Such a policy could require all employees with symptoms of the virus to stay home if they develop a fever, cough or shortness of breath until they can be cleared by testing. Confidentiality of health information must, of course, be maintained. Also, it may be appropriate for any employee with a fever to be required to stay away from the workplace until they have been fever free for at least 24 hours.

Hopefully, the spread and severity of the virus will diminish soon but until that is known, the risk and benefit of protective measures should be addressed.

Questions? Contact Jennifer Murphy in our St. Charles office at 630.377.1554 or by email at [email protected]

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