Protecting Employee Health and Safety in the COVID-19 Environment

If there weren’t enough considerations for an employer to balance in the

Due to the continuing spread of the coronavirus disease (COVID-19), the World Health Organization (WHO) officially declared COVID-19 a pandemic.[1] Various measures have been taken in response, such as issuing travel restrictions, instituting quarantine zones, restricting large gatherings (e.g., over one thousand people), and playing sporting events in front of empty arenas.

Because of the continuing spread of COVID-19, an employer’s preparedness will be crucial in protecting the health and safety of its workers, and this preparedness implicates federal and state employment laws. Here is what employers should know:

APPLICABLE LAWS

The Family and Medical Leave Act (FMLA) guarantees unpaid, job-protected leave for eligible workers at a business with at least 50 employees at job sites within 75 miles of one another. An employee who tests positive for COVID-19 could potentially qualify as having a “serious health condition” for the purpose of FMLA, depending on the circumstances. Employers should be prepared to receive and address FMLA questions and requests for leave. This may also include questions and requests relating to short-term and long-term disability insurance.

The American with Disabilities Act (ADA) prohibits discrimination against employees with perceived disabilities or making disability-related inquiries to employees. A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities.” Although unclear, a person testing positive for COVID-19 could have a “disability” within the meaning of the ADA. The ADA requires employers to engage in an interactive process with employees to identify a reasonable accommodation that may allow an employee to continue performing the essential duties of the employee’s position. Reasonable accommodations vary from employer to employer and from circumstance to circumstance. In some circumstances, reasonable accommodations may include a remote work arrangement, intermittent leave, or a temporary leave of absence.

Under the Occupational Safety and Health Act, an employer has a duty of care to keep an employee safe from harm. Section 5(a)(1) of the OSHA is the general duty clause, which requires employers to provide their employees with a workplace “free from recognized hazards … likely to cause death or serious physical harm.” The Department of Labor’s Occupational Safety and Health Administration has cited employers for violating the general duty clause if there is a recognized hazard and employers do not take steps to prevent or abate the hazard. Arizona has a corollary act under its laws that imposes this same general duty.[2]

Under Arizona law, employers should review and ensure they have up-to-date paid sick time policies. Moreover, employers should be aware of their state’s workers’ compensation programs and federal workers’ compensation laws, wherein employees are provided benefits if they suffer job-related injuries and illnesses. All employers, regardless of their size, must provide employees with paid sick time and workers’ compensation benefits.

SUGGESTED STEPS

Because of the rapid spread of COVID-19, employers’ paramount concern should be focused on employee safety. To accomplish this, employers should do the following:

Stay Informed. Employers should task a person or a department with identifying authoritative sources of public health on the epidemic and staying updated on recommended and mandated suggested actions. These sources include the Centers for Disease Control and Prevention (CDC), WHO, and state- and county-specific health organizations. These sources and guidance should be the foundation for any employer decisions about health and legal risk mitigation.

Review Handbooks or Policies and Update If Necessary. Employers should review their employee handbooks for policies that are potentially applicable to COVID-19. Policies should be updated and/or implemented as needed. For instance, a remote working policy may be justified for employers who anticipate providing employees with this option. The remote working policy should be drafted to clearly delineate the responsibilities of each party, including but not limited to compliance with laws applicable to remote working arrangements, such as the Fair Labor Standards Act (FLSA). Employers with a workforce engaged in regular business travel may consider implementing a policy to require workers reporting of travel in order to assess risk of COVID-19.

Emphasize Communication with Employees and Inform Employees How to Prevent the Spread of COVID-19. Employers need to show that they have given employees accurate information about COVID-19 and ways to help prevent infection or stop the spread of infection. Friendly daily or weekly emails about the importance of hand washing and other sanitary behaviors are suggested.

Assess Potential Work Stoppage Issues. If an employer’s workforce is engaged in manufacturing or other similar type of production job, an employer should prepare an emergency plan to deal with a situation in which many employees have to miss work, which could lead to a work stoppage. This plan could include increased hiring of part-time workers, contracting out labor to other entities, etc. An employer should also review any collective bargaining agreements in place that could affect any emergency plan by the employer.

Restrictions on Returning to Work. Employers should review their written policies on employees returning from work from a sickness and adjust these policies if necessary to deal with COVID-19. Written policies should be explicit about when employees with potentially transmissible conditions will and will not be allowed back, and relevant communications should be documented. Employers can impose reasonable fact-based restrictions on employees returning to work if there is a direct threat to the health or safety of others.

[1] According to the CDC website, as of March 11, 2020, there were 938 total cases reported in 38 states along with 29 deaths. Worldwide, as of March 10, 2020, the WHO reported 113,702 cases globally along with 4,012 deaths. In a congressional hearing on March 11, 2020, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, stated that COVID-19 is “ten times more lethal than the seasonal flu” and “things will get worse.”

[2] A.R.S. § 23-403.