Best practice policies for employers when addressing COVID-19 (Coronavirus)

The Do’s and Dont’s of Coronavirus – Helping to keep your employees and business healthy in a time of uncertainty.

March 19, 2020 UPDATE: Governor Brad Little adopted White House guidelines yesterday and recommended all Idahoans work from home if possible (Source: https://www.idahoednews.org/news/little-urges-idahoans-to-avoid-groups-of-10-or-more-and-to-work-from-home/). Governor Little also recommended Idahoans avoid groups larger than 10 people, and avoid unnecessary travel.

These recommendations are in line with our best practices for employers.

March 18, 2020 UPDATE: We continue to recommend Idaho employers allow employees to work from home. The CDC, the Trump Administration, and the US Surgeon General all recommend Americans stay at home as much as possible over the next 15 days.

Surgeon General Jerome Adams stated yesterday: “My message is to everyone: Fifteen days, you can do anything for 15 days. Stay at home as much as possible, limit the spread, we do not want to look like Italy does two weeks from now.” (Source: https://www.cbsnews.com/news/coronavirus-surgeon-general-jerome-adams-interview-follow-cdc-guidelines/)

U.S. Surgeon General Jerome Adams, with Vice President Mike Pence, left, and other members of President Donald Trump’s coronavirus task force, speaks to reporters during a briefing on coronavirus in the Brady press briefing room of the White House in Washington, Tuesday, March 10, 2020. (AP Photo/Manuel Balce Ceneta)

Given these recommendations, Fisher Hudson Shallat advises local Idaho companies and other employers continue allowing employees to work from home.

MARCH 17, 2020 UPDATE: The latest guidance on dealing with the COVID-19 pandemic is that working from home is encouraged whenever possible.

If you are in a critical infrastructure industry, like healthcare and pharmacy services, as well as food supply, you are encouraged to maintain your normal work schedule.  Employers should, at a minimum, follow CDC guidance to protect your employees’ health at work. Additionally, based upon the most updated epidemiological studies, best practices for employers in Idaho now include allowing non-essential employees to work remotely.

As of March 17, 2020, Idaho has confirmed 7 cases of COVID-10, with investigation regarding transmission under investigation for a couple of the cases. However, numerous local governments, businesses, and entities are taking precautionary measures including sending employees home, closing schools, closing businesses, and reducing hours.

Critically, the number of tests conducted in Idaho so far has only been 295 out of our 1.75 Million residents. This equates to only 13 tests per 100,000 residents. Comparatively, South Korea, where the epidemic is now receding, has administered 369 tests per 100,000 residents.

Coronavirus tests per 1 million people:

South Korea: 5,000 +

Guangdong, China: 2,820

Italy: 2,000 +

UK: 500 +

Idaho: 168.7

United States: 125

(As of March 17, 2020. Source: https://www.nytimes.com/interactive/2020/03/17/us/coronavirus-testing-data.html)

Medical professionals now agree that asymptomatic transmission of the coronavirus has fueled outbreaks. (Source: https://www.cnn.com/2020/03/14/health/coronavirus-asymptomatic-spread/index.html). For example, it appears that a Massachusetts coronavirus cluster with at least 82 cases was started by people who were not yet showing symptoms, and more than half a dozen studies have shown that people without symptoms are causing substantial amounts of infection.

With these considerations in mind, we now believe the best practices for employers in Idaho to include allowing non-essential employees to work from home.

1. What Employers Should Do Now, When There Are No Known Cases:

As of March 17, 2020, employers should encourage all non-essential employees to work from home. For companies that do not currently have employees that are known to be infected, the Center for Disease Control suggests taking the following actions[2]: 

• Actively encourage sick employees to stay home (even without a doctor’s note), employees exhibiting a fever should not come to work until at least 24 hours after the fever and other symptoms have subsided.
• Communicate with contractors or temporary employees about the importance of employees staying home when sick
• If employees do show up to work sick and appear to have acute respiratory illness symptoms, keep them separate from other employees, send them home, and encourage them to contact their doctor or primary care physician.
• Perform routine environmental cleaning and provide disposable cleaning wipes that can be used to wipe down common surfaces.
• Advise employees that have recently traveled to check themselves for symptoms of acute respiratory illness upon return and remain at home if exhibiting any symptoms.
• Work with employees facing travel restrictions and visa renewal issues.

Additionally, it is advised that now, while no known cases are present in their workplace, employers create an infectious disease outbreak plan for how they will respond if one of their employees becomes ill with COVID-19. Considerations for the plan should include 1) reducing transmission between employees; 2) protecting those individuals at higher risk for adverse health complications; 3) maintaining business operations; and 4) minimizing adverse effects on other entities in the supply chain. This plan should include[3]:

• Appointing a single individual or department in charge that employees can speak to regarding their questions or concerns to ensure a coordinated and consistent response to all inquiries.
• Educating supervisors on the company’s planned response policies.
• Developing flexible sick leave policies that are consistent with public heath guidance and permit employees to stay home while sick or while taking care of a sick family member and ensure that employees are aware of such policies.
• Reviewing or establishing flexible working arrangement and accommodation policies. This may include permitting remote or flexible working or implementing staggered shifts, which help to provide additional distance between both employees and others, depending on the needs of your business.
• Communicating with those employees whose position does not permit remote or flexible work whether time in which they are required to be quarantined will be paid and if so, whether it will be through the use of their vacation, sick or other available leave, or if it will be outside of the company’s typical leave policies. For union-represented workers compliance with applicable collective bargaining agreements should be examined.
• Ensuring that any IT needs to support a remote work force are available to employees, including maintaining data security, especially for entities covered by the Health Insurance Portability and Accountability Act (“HIPAA”).
• Identifying potential workplace exposure and health risks to employees as well as triggers and procedures for activating the company’s infections disease outbreak response plan. This includes reviewing relevant Occupational Safety and Health Administration (“OSHA”) materials on how to protect workers from potential exposures.
• Identifying essential business functions, including the jobs or roles
• Establishing a process to communicate to employees and business partners on the company’s infectious disease outbreak plan and how to quell employee fear, anxiety, rumors and misinformation.

2. What Employers Should Do When an Employee is Confirmed to have the Coronavirus:

Once a case has been identified within your company, the company’s infectious disease outbreak response plan should be triggered and activated.  Actions that need to be taken by the employer include:

• Informing fellow employees of possible exposure to COVID-19. However, employers should be mindful about maintaining the confidentiality of the employee’s health information pursuant to the Americans with Disabilities Act. Depending on the nature of the workforce, the employer may need to balance the affected employee’s privacy interests with the need to adequately inform the workforce.
• Encouraging compliance with the CDC’s Interim Guidance for any employees who have had close contact with a person confirmed to have COVID-19 infection, including missing work for a potential 14 day incubation period.
• Coordinating with state and local health departments as appropriate.

3. What Employers Should Not Do:

If an employee does become sick, actions that should be avoided by employers include:

• Fearmongering and panic should be avoided at all costs.
• Forced isolation, until a confirmed medically informed decision has been made, should be discouraged.
• Making decisions or implementing procedures based on ethnicity or national origin.

4. Legal Considerations

In addition to planning for the interruption of business and absence of employees in light of a local Coronavirus outbreak, there are also additional legal considerations that employers should address while creating a response plan.

A. Discrimination Issues

Potential discrimination issues may arise if COVID-19 related responses and restrictions target individuals based on fear instead of facts. To avoid claims of national origin discrimination, there should for example, not be additional quarantine requirements on individuals from China or of Southeast Asian heritage. All actions taken by the employer should be based on objective, legitimate, non-discriminatory business reasons. If an incubation period leave policy is created, it should be based on neutral, objective information consistent with information received from the CDC, WHO, or your local public health officials.

B. Leave and Sick Pay Issues

If an employee is quarantined due to their own travel or exposure or to care for a family member, employers should determine whether the Family and Medical Leave Act (FMLA) or other leave laws apply to the employee’s absence. However, if it is the employer’s implemented plan or policy that requires an individual to stay away from work, the employer should be cautious before designating any time away as leave under a specific leave law. Additionally, some state laws prohibit employers from mandating the use of paid sick time and paid time off, rather the employee must be permitted to choose whether to use the benefit while absent from work.  Employers should also ensure that they are implementing consistent protocols for employee re-entry to the workplace in terms of obtaining a release clearing the employee to return to work and ensuring the employee does not pose a risk to the health and safety of themselves and others.

C. Furloughs and Layoffs

Short-term layoffs or furloughs are generally permitted so long as selections are not based on protected categories like race, gender, or national origin. For salaried employees, care should be taken to avoid reducing the weekly salary of exempt employees who typically should continue to receive their full salary for each workweek where work was performed (including work at home, like checking emails). Hourly workers are not required to be paid for time not worked.  If considering short-term layoff or furlough of less than six months, it should not implicate notice requirements under the Federal Worker Adjustment and Retraining Notification (WARN) Act, but in some states may require advance notice under state statutes. Further, employees may have rights to compensation under state law or employee benefit programs.

[1] Cdc.gov/coronavirus/2019-ncov/cases-in-us.html (accessed March 10, 2020).

[2] CDC Interim Guidance for Businesses and Employers, https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html, (accessed March 10, 2020).

[3] Id.