Guidance for Employers to Address Coronavirus in the Workplace

Brooke T. Iley, Jason E. Reisman, Susan L. Bickley, Anthony B. Haller, Mara B. Levin, and Taylor C. Morosco

COVID-19 (commonly referred to as the “coronavirus”), a respiratory illness that was first diagnosed in Wuhan, China, in late 2019, has hit the United States. The World Health Organization (“WHO”) has declared the outbreak a public health emergency of international concern and the virus is being classified as an epidemic. With the spread of the virus, employers face a series of constantly evolving questions regarding their competing legal obligations to provide a safe workplace, while protecting the privacy rights of their employees, and without violating anti-discrimination laws.

WHAT LAWS ARE POTENTIALLY IMPLICATED?

Before an employer responds to these challenges, they should be familiar with the laws implicated with an epidemic like the coronavirus:

Occupational Safety and Health Act (“OSHA”)

OSHA’s General Duty Clause requires employers to maintain a safe workplace for all workers and to distribute information and training about workplace hazards. It also bars employers from retaliating against employees for exercising their rights to safe workplaces.

The situation is constantly evolving. Employers must monitor the developments about the ongoing outbreak and assess government notifications to formulate appropriate workplace responses and preventative measures.

Americans with Disabilities Act (“ADA”)

The ADA protects employees from discrimination based on their disability, record of a disability, or perceived disability. “Disability” has a broad definition, which could cover the coronavirus. This means that those who have or are suspected of having the coronavirus could be covered by the ADA, depending on its impact on the employee, or, for instance, if an employee is perceived to be disabled. Employers must be sensitive to the risk of discrimination under the ADA. The ADA also requires employers to keep employee medical information and records confidential and in a separate folder from the employee’s personnel file.

Employers must balance these competing legal requirements as they adjust business practices to address coronavirus concerns. Employers should act to protect their workforce, with an eye toward discrimination laws, all the while maintaining tact and sensitivity towards those who have or may be suspected of having contracted the virus. This is not a science and often involves a case-by-case determination.

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