March 10, 2020 Practice Points

Coronavirus: Do's and Don'ts for Your Firm

A few steps your office should and should not be taking to keep your employees and business safe.

By Kelsey Heino

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside the Section of Litigation paywall and available to all readers.

Over the weekend of March 6, 2020, the worldwide number of reported cases of COVID-19 passed over 100,000 across 100 countries. However, of all the cases reported globally so far, 93 percent stem from just four countries. At this point, it’s not about containment or mitigation—it’s about both. Every effort to contain the virus and slow the spread saves lives and protects companies’ bottom lines. These efforts give health systems and all of society much needed time to prepare and researchers more time to identify effective treatments and develop vaccines.

So, what steps should your office be taking? Here are some simple do’s and don’ts.

Do

  • Develop or update a pandemic preparedness plan for your office. Identify the key personnel who will make decisions regarding closures and other containment efforts. Think about how you will share information with your employees. Will you create a Wellness Committee/Task Force? 
  • Review your paid time off policy. Does your policy address government-ordered quarantine or mass closures? Keep in mind that there may be a difference between what is required for exempt and non-exempt employees: employers are only required to pay non-exempt employees for the hours they actually work, whereas exempt employees must be paid when they work any portion of a workweek. Determine whether your office will require employees to use accrued PTO, whether employees may go into a negative PTO balance, and/or whether you will pay non-exempt employees when the office closes without deducting their accrued leave (similar to inclement weather).
  • Emphasize staying home when sick, respiratory etiquette, and hand hygiene for all employees. The CDC’s Interim Guidance for Businesses and Employers includes links to workplace posters on the subjects.
  • Perform routine cleaning of all offices and common spaces.
  • Monitor and respond to absenteeism at the workplace. Implement plans to continue your essential business functions in case you experience higher than usual absenteeism (for instance if a local epidemic occurs or schools close). Cross-train personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent.

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Don’t

  • Force employees to wear masks. The CDC actually advises against this practice. (Editor's Note: Since publication of this article, the CDC has updated its recommendation about wearing masks.) That being said, an employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
  • Allow a visibly sick employee to remain at the worksite. Employers may have a duty under OSHA to remove from the workplace “recognized hazards that are causing or are likely to cause death or serious physical harm.” Further, the ill employee may infect other workers or your clients—even if it is not coronavirus, it is still a very active flu season. An important consideration, too, is the reaction of other employees and clients—if your office is seen as disregarding their wellbeing, the backlash can be severe. Remind employees early and often that staying home and seeking medical help when necessary is the best option.
  • Ask the wrong questions. Don’t discriminate, for example assuming anyone of Asian descent is likely to be infected. Keep in mind that any long-term impact of the coronavirus may be covered under the ADA or FMLA, so the protections that apply under those statutes may protect infected employees. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic (e.g., curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that increase the risk of complications). The inquiry should be structured so that the employee gives one answer of “yes” or “no” to the whole question without specifying the factor(s) that apply to him. The answer need not be given anonymously. For a sample question, see the EEOC’s Guidance.
  • Panic. Begin planning now and make use of the resources available to you.

Kelsey Heino is an employment litigation attorney at Woods Aitken, LLP, in their Omaha, Nebraska, office. 


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