15 Best Practices for Employers and Businesses – COVID-19 (Coronavirus)

 

Note: This is not legal advice.  This resource is for information purposes only and is provided solely to assist with navigating novel issues arising from COVID-19 (Coronavirus) risks.

 

1. Stay informed and monitor developments

2. Communicate proactively with employees

3. Disseminate public health guidance

4. Implement public health guidance

5. Educate employees about best practice for health and hygiene

6. Reduce risks in the workplace

7. Consider restrictions on returning to work

8. Consider liabilities to third parties

9. Evaluate leave and pay

10. Consider flexible arrangements

11. Review travel policies

12. Prevent discrimination

13. Protect privacy

14. Develop a business interruption plan

15. Keep policies and practices under review to be compliant

 

Employers have a duty to keep employees free from physical harm.  In the United States, employees are protected under the Occupational Safety and Health Act (OSHA).  If an employee becomes infected at work, the employer may face penalties and legal liability.  Legal liability may also apply in third-party scenarios.

The precautions to be taken with COVID-19 apply to any potentially life-threatening infectious disease.  Business leaders should consider that industry standards – how their industry peers are handling COVID-19 – may be irrelevant particularly where specific federal and state legal requirements apply and require higher standards.

With careful attention to employee safety and preparedness, employers can minimize employees’ risk of infection and the legal risks for their businesses.

 

1. Stay informed and monitor developments

Identify official and authoritative sources of public health guidance on the COVID-19 epidemic.

In the United States, the primary federal source of public health guidance is the U.S. Centers for Disease Control and Prevention (CDC).  Additional federal sources of information are USA.gov  and the Office of the Assistant Secretary for Preparedness and Response at  U.S. Department of Health & Human Services (HHS).

In North Carolina, the North Carolina Department of Health and Human Services (NC DHHS) manages the delivery of health services.

Employers and employees should consider this official guidance for organizational and personal decisions.  Businesses should use this guidance as a basis for health and legal risk mitigation.

Demonstrating that official business policies are aligned with official recommendations can be an essential legal safeguard if legal challenges arise.

2. Communicate proactively with employees

Employers should be able to show that they have provided employees information about steps to take to prevent the spread of infection.

Failure to provide guidance can potentially expose a business to liability if employees become infected in the workplace and management had not communicated.

Employees may fear for their health and preemptively seek to avoid the risks of the workplace despite the relatively low number of outbreaks recorded nationwide.  To alleviate anxiety, employers should keep employees current and should communicate with them proactively.

Best practices call for communicating policies and guidance in writing – email, brochures, postings in break rooms and other highly frequented areas.  Additionally,  discussions with employees and verbal instructions should be documented contemporaneously.

3. Disseminate public health guidance

Businesses should share public health guidance with workers and should direct workers to the official sources of information on which the business intends to rely.

Consider the CDC’s Mitigation Guidance and NC DHHS’s Mitigation Guidance and  NCDHH’s Recommendations for Businesses and Employers.

Consider also OSHA’s COVID-19 Standards and Guidance.

This guidance is not only about legal precautions, but also practical measures to assist with protecting the present and future operations of the business.

4. Implement public health guidance 

Employers should provide the means to act on public health guidance that has been communicated to employees.  That would mean taking specific measures to provide employees with resources and steps as simple as:

–  Ensure easy access to hand-washing facilities

–  Provide antibacterial alcohol-based hand sanitizers, soap, wipes, and tissues

–  Provide additional resources as necessary in high-risk contexts and if conditions escalate

–  Replenish resources frequently and adequately

–  Clean frequently public areas – lobbies, elevators, waiting rooms, and bathrooms

–  Disinfect regularly surfaces in public use with hospital-grade disinfectants – counters, door handles, elevator buttons, pens for signature, light switches, remote controls, checkout facilities, condiments, menus, and any other surface in contact with multiple users

–  Take precautions with respect to physical contact – reduce overcrowding by leveraging technology to facilitate remote work, shift work assignments, and potentially physical layout changes

–  Take precautions with respect to sick employees

–  Reevaluate resources based on official guidance and developments

These measures would help protect workers from infection and the business from liability.

5. Educate employees about best practice for health and hygiene

Employers should educate employees – before any workplace infection arises – about modes of transmission, symptoms of infection, what to do not to get sick, and what to do if sick.

6. Reduce risks in the workplace

Employers must implement measures to reduce the risk of workplace transmission.  See Best Practices #3 (sources of official guidelines), #4 (how to implement guidelines) #5 (how to educate employees), #6 (employee-management communication), and #7 (returning to work).

Employers should encourage employees to communicate with management.

Employers should also instruct employees to inform management immediately if the employee or a household member has been exposed to the virus or shows symptoms of infection.

Employees should also be encouraged to communicate individual vulnerabilities that may require enhanced protections from infection – for example, a weakened immune system or underlying health conditions, including heart disease, lung disease, or diabetes.

Certain mental health conditions may be protected as a disability under the Americans with Disabilities Act (ADA) and may require that employers take a modified approach to reasonable accommodations.

7. Consider restrictions on returning to work

Employers should evaluate whether and when an employee who has been sick or has potentially been exposed can return to work safely.

Employers can evaluate risks by applying official guidelines or with input from a medical consultant.

Written policies should be specific about when employees with potentially infectious conditions will and will not be allowed to return to work.

All relevant communications should be documented contemporaneously.

8. Consider liabilities to third parties

Businesses should also consider liability to third parties.  One significant third-party group  would be customers.  Customer injuries could result from omissions.  An employee infected on the job may be somewhat limited to workers’ compensation benefits under certain circumstances, but the customers the employee might infect could seek greater damages.

9. Evaluate leave and pay

Employers should consider whether their sick leave and disability leave policies – both paid and unpaid – should be adjusted.

Employers should analyze their legal obligations to provide employees with adequate leave.  Sources of these legal obligations are:

–  the Family and Medical Leave Act (FMLA),

–  the Americans with Disabilities Act (ADA),

–  state workers’ compensation laws,

–  contracts with employees and other workers,

–  employee handbooks, and

–  language of internal policies.

Employers should consider how they would support sick employees who must stay home for extended periods of time.

Employers should define the circumstances, under which they would expand benefits and income protection for employees on leave.  For example, employers may wish to adjust benefits plans for employees who exceed their paid sick-day allotment for sick employees who must stay home and may be restricted from returning to work.

10. Consider flexible arrangements

While the legal requirements set minimums for all employers to observe, business leaders should consider the broader implications for the business.  An employee who returns to work prematurely may infect others and affect business continuity and may become a source of legal liability to other employees and to customers and other third parties.

The North Carolina DHHS recommends that employers urge employees to stay home when they are sick and maximize flexibility in sick leave benefits.  Another recommendation is that employers should consider staggering start and end times to reduce large numbers of people coming together at the same time.

11. Review travel policies

Employers should review their current travel practices and evaluate whether to reduce or restrict some travel, particularly to high-risk locations. Employers will need to assess when travel is necessary and, for highly mobile employees, take additional precautions to ensure they are properly monitored and supported.

12. Prevent discrimination

Existing employment laws continue to apply.

While employers may risk discrimination claims if they base any business decisions on the grounds of characteristics like race, national origin, or religion, employers can impose reasonable, fact-based restrictions if an employee poses a direct threat to the health or safety of others.

Any difference in treatment of employees — for example, with respect to leave, payment, or policies — should be grounded solely on solid business reasons.  Consistency and uniformity are essential.

Legislation against discrimination on the grounds of certain illnesses or disability exists in many jurisdictions, including North Carolina, and employers should ensure they are compliant with these obligations.

Employers should take steps to ensure that employees are not subjected to detriment because of their own illness or that of household members on the basis of any health information they have disclosed.

13. Protect privacy

Employers should protect health information disclosed by employees and treat it with the necessary privacy protections.

To avoid exposure to breach of privacy claims, employers should understand which personal health data an employee might be obligated to disclose to the employer where health becomes relevant to job performance and safety hazards.

In limited circumstances, employers are permitted to disclose employees’ protected health information to governmental authorities for public health purposes.

14. Develop a business interruption plan

Now is the time for businesses to test existing business interruption or disaster preparedness plans.

If a business has not yet developed a plan, this is the time to take proactive steps to consider how to operate that business in times of an epidemic or another emergency.

15. Keep policies and practices under review to be compliant

Businesses need to consider whether existing policies and practices are sufficient.

Policies and practices should be updated based on developments and public health guidelines on an ongoing basis.