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Coronavirus in the Workplace: What Employers Need to Know
The recent outbreak and spread of a new respiratory disease called Coronavirus has left many fearful of the widespread implication of this unknown threat. There are still many unknowns about the disease which has left individuals questioning what can be done to help contain the spread.  

By:  Kelly Holden, Esq. and Erin Shaughnessy, Esq. 

DBL Law


The recent outbreak and spread of a new respiratory disease called Coronavirus has left many fearful of the widespread implication of this unknown threat. There are still many unknowns about the disease which has left individuals questioning what can be done to help contain the spread.  As of March 10, over 100 countries have confirmed positive Coronavirus diagnoses. In the United States, 35 states and the District of Columbia have reported presumptive positive cases. As the number of cases continues to increase, questions remain about how employers can respond to the situation now and if the spread of the disease continues to worsen. This article address many those questions and recommends steps employers can take now to prepare while complying with their legal obligations. 


What is the Coronavirus and how does it spread? 

The Coronavirus, or COVID-19, is a flu like illness that originated in Wuhan, China.  Affected individuals have reported experiencing mild to severe respiratory symptoms, fever, cough, and difficulty breathing. The disease is spread through person-to-person transmission when an infected person coughs or sneezes.   


How can spread of the Coronavirus be prevented? 

The Center for Disease Control (“CDC”) recommends precautions such as washing hands with soap and water for at least 20 seconds, or using hand sanitizer if soap is not available; avoiding close contact with sick individuals; staying home when you are sick; and frequent disinfection of commonly touched objects and surfaces. There is currently no vaccine for the Coronavirus. 


What actions should employers take to ensure a safe and health workplace? 

The easiest steps that employers can take are to encourage employees to follow the CDC’s recommendations for preventing the spread of the disease. Employers should make efforts to provide health and sanitation supplies around the workplace such as soap, hand sanitizer, and disinfectant.  They should also encourage sick employees to stay at home. 


Employers should also ensure that they are complying with Occupational Safe and Health Administration (“OSHA”) regulations. Employers have a duty and obligation under these regulations to provide a safe and healthy work environment. In addition, they must not place their employees in situations that are likely to cause serious physical harm or death. This means employers may need to suspend non-essential travel to highly affected areas and consider accommodations for essential travel to these areas.  


What policies should employers be implementing now? 

Employers may want to consider adopting policies to address growing concerns such as: 

  1. Suspending travel to China, Italy and other highly affected areas. 

  1. Consider requests for accommodation under the Americans with Disability Act (ADA). 

As the virus may be considered a disability under the ADA, employers should consider granting reasonable accommodations to employees that are diagnosed with the virus.  Additionally, employers may need to consider granting accommodations to individuals with pre-existing medical conditions likely to be worsened by exposure to the virus.  Employers are not required to grant accommodations to individuals that only wish to stay home to avoid getting sick. 

  1. Send employees who display symptoms home and allow employees to work from home if feasible.  

This action does not run afoul of the ADA restrictions on disability related action, meaning employees are not discriminating based on a potential disability by sending the employee home and requesting that the continue to work from home.  If an employee’s position does not allow telecommuting, employers should consider providing them to utilize paid leave. 

  1. Provide leave under the Family Medical Leave Act (“FMLA”) or state wage and hour laws. 

Employees are entitled to take a 12 week job-protected leave for a serious health condition under the FMLA. Coronavirus would qualify as such a condition because leave time will exceed 3 days or meet other criteria. If FMLA time is exhausted, employers should consider affording additional time as a reasonable accommodation. Employers may consider giving employees paid time off if they are diagnosed with the virus. In some states, employees may even be entitled to paid sick leave but that is not currently true in Ohio, Kentucky or Indiana so employers should follow their ordinary paid leave policies.  

  1. Do not make medical inquires or require medical examination absent a reasonable belief. 

Under the ADA, employers are only able to make medical inquires and require medical examinations when they are job-related and consistent with a business necessity.  However, during a pandemic, employers can make medical inquires or require medical examinations if they have a reasonable belief that any employee will pose a direct threat due to contracting a medical condition. The CDC has not yet declared the Coronavirus a pandemic, but the world wide spread that is taking place suggests that it will eventually meet all the factors of a pandemic. 

  

This article just begins to cover some of the issues employers may face in the workplace as the virus continues to spread. Employers may want to designate a point person to address questions employees may have about steps being taken to address and combat further spread of the virus in the workplace.  It is important that employers and employees alike stay apprised of information on the virus by consulting trustworthy sources of information like the CDC website (https://www.cdc.gov/coronavirus/2019-ncov/index.html) and the website for the World Health Organization (https://www.who.int/health-topics/coronavirus).   

  

DBL Law is a full-service law firm, representing businesses, nonprofit organizations and individuals. The firm has over 40 attorneys and offices in Cincinnati, Louisville and Northern Kentucky. For more information, visit www.dbllaw.com.