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March, 2020
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Client Advisory in Response to the  2019
  Novel Coronavirus
With the entire nation on their toes about the 2019 Novel Coronavirus-the contagious respiratory illness spreading across communities-employers have already taken action or are planning to take precautionary measures to monitor and enact certain protocols in the workplace. The following provides guidance as to what employers should do to address these concerns in their workplaces.

What responsibilities do employers have in response to the Coronavirus?

The federal Occupational Safety and Health Act (OSHA) requires employers to ensure safe working conditions for their employees in order to prevent employees from encountering death or serious physical harm. In light of the Coronavirus, taking safety measures to maintain a workplace of low risk or one that is free from the virus would demonstrate an employer's compliance with OSHA.

 

Thus, employers should take the following steps to provide a safe working environment for employees:

  • Encourage handwashing and use of hand sanitizers;
  • Implement the practice of frequently wiping down areas in the workplace that employees touch (i.e., keyboard, mouse, door handles, smartphones, office phones);
  • Encourage employees to cough into their arms when sneezing or coughing;
  • Limit or reschedule non-essential travel;
  • Encourage employees to limit or reschedule their personal trips or take heightened precautionary measures when traveling to and from highly affected areas;
  • Minimize exposure of employees by opting for video or teleconferences instead of physically attending meetings or conventions;
  • Monitor employees by encouraging those who recently traveled to affected areas or those who exhibit respiratory symptoms to work remotely, if possible, or use leaves of absence;
  • Allow employees to use their sick days or other leaves available to them, or to work remotely, if possible; and
  • Establish a way to notify employees of closures or any emergencies (such methods should already be in place to deal with other emergencies, i.e., caused by weather or terrorist attacks).
For more information on what employers should do to plan and respond to the Coronavirus, please refer to the CDC's interim guidance for businesses and employers and the World Health Organization's (WHO) guidance on preparing workplaces to combat the Coronavirus.

How should employers respond to traveling employees?

At the very least, employers should encourage employees to avoid traveling to any one of the countries on alert by the Centers for Disease Control (CDC) and the U.S. State Department - especially the Level 3 ("avoid non-essential travel") and 4 ("do not travel") alert countries, which currently are China, South Korea, Italy, and Iran. However, should employees still choose to travel to any of these countries, those employees should follow the CDC guidelines upon their return to the U.S.  Other countries that the CDC and U.S. State Department have put alerts on are Japan and Hong Kong.

Employees who still choose to travel to any of the above countries should undergo 14 days of self-quarantine and monitoring their health conditions. If the employer's business allows for remote work arrangements, such employees should work remotely during the period of self-quarantine and continue to practice sanitary precautions.
Can employers require their employees to leave work or stay home and use either paid leave days or unpaid leave days?

In short, yes. The CDC recommends employers to "actively encourage" employees to stay home, as well as to "separate sick employees" and send them home immediately. This is especially true for employees who have a fever at 100.4 degrees F or greater, per the CDC. However, employers should be cautious as to not single out or target a specific employee or a group of employees who are in protected categories per the federal, state, and local laws.

Employees should use their paid sick leave and vacation days during the time they are self-quarantined. If employees have exhausted all of their leave for the year, employers can consider offering employees additional paid or unpaid leave while quarantined.

A caution to employers: Stay away from stating to other workers why certain employees were sent home since doing so could violate privacy laws and disability discrimination protections. Since making certain decisions to send employees home could vary case by case, employers should seek counsel for further advice on their specific situations.

What if employers do not have policies that include providing sick pay to employees?

Most covered employers in New Jersey, New York City and Westchester County should already be providing their employees with paid sick leave days. New York State's Governor Cuomo is proposing that NYS employers provide paid sick days for larger employers and unpaid sick days for smaller businesses.

However, if employers do not have policies, this is a good time for these employers to make their company's leave policies more flexible by incentivizing workers with more paid sick leave days. Also, given that the virus incubation period is 14 days and some employees may have to exhaust all of their paid leave while quarantined, employers should consider offering additional paid leave days for employees to use for days other than the quarantine period on a case-by-case basis. Especially for healthcare workers who are at a higher risk for contracting the virus in their workplaces, the CDC recommends that healthcare facilities and organizations implement non-punitive and flexible sick leave policies.

If you have business and financial concerns about being more flexible with your company's leave policies, seek additional counsel from an attorney to help your business customize a leave policy that fits your business's needs.

Can the imposed quarantine, whether or not the employee is infected, be treated as unpaid leave?

If an employee is infected with the Coronavirus or has a family member who is infected, the infection may potentially qualify as a "serious health condition" under the Family Medical Leave Act (FMLA), invoking the employee's right for 12 weeks of unpaid leave. If the employee's or employee's family member's illness does not qualify for FMLA leave, FMLA leave could be denied. However, for conditions that could potentially qualify for FMLA leave, employers should seek counsel from an attorney first. Please note that FMLA leave covers employers with 50 or more employees.
Otherwise, if an employee is sick or could be sick without having yet been infected with or confirmed of having Coronavirus, employers should set up "non-punitive leave policies" in efforts to contain the potential spread of any germs, as is recommended by the CDC.

Currently, the NYS Paid Family Leave Policy allows employees to take up to 12 weeks of paid leave to care for only family, and not themselves, with a serious health condition, though it is unclear whether the Coronavirus qualifies as a serious health condition under the state law. However, although not law yet, Governor Cuomo has recently stated he would submit a proposal to amend a state budget proposal to mandate employers to provide paid, job-protected leave for employees who are mandatorily quarantined due to the Coronavirus.

If employers do not want customized leave policies created during this outbreak to become the standard leave practice, employers should make note of this clarification in these special leave policies.

Can an employer prohibit employees from wearing OR require employees to wear masks at work?

The answer really depends on the employer's industry or line of business and whether an employee is sick and/or exhibiting respiratory symptoms.

For healthcare workers, wearing a mask is essential in their workplaces (i.e., hospitals, outpatient clinics), especially when treating and caring for sick patients. Employers of healthcare organizations may mandate their employees to wear masks and can do so legally. If employers require their employees to wear specifically the N95 masks, which are specific types of masks akin to respirators, employers must comply with OSHA regulations. Such OSHA regulations require providing training to employees on how to use respirators and providing employees with these respirators.

As for the general public, the U.S. Surgeon General stated that they should stop purchasing and wearing masks as they are not for preventative measures. The Surgeon General also stated that the wearing of masks should be for healthcare workers, who are lacking masks due to the frenzy of the general public's mass purchases of masks
.
Since public health officials have uniformly recommended against the wearing of masks, especially for individuals who are not sick, it is unlikely that employers who forbid employees from wearing masks would be subject to legal liability. However, if there are sick employees, they should be encouraged to wear masks to prevent others around them from getting sick.

What legal concerns might employers have during this time?

The two biggest legal concerns employers may have during this crisis are the following:
  • Americans with Disabilities Act (ADA): The law is not clear about whether making employment decisions based on an employee being infected with the Coronavirus means that an employer violated the ADA. However, given that there are conflicting views of whether or not potential disabilities constitute existing disabilities under the ADA, employers should tread carefully on how they treat sick employees during this time.
  • Anti-Discrimination Laws (i.e., Title VII, NYS Human Rights Law): Employers should avoid singling out or targeting an employee or group of employees when asking employees about their medical history, personal travel plans, and the like because those employees could be in a protected class under the anti-discrimination laws (i.e., ethnicity, national origin, race).
Employers should consult with counsel regarding any potential legal repercussions of enacting mandatory travel restrictions and leaves of absence policies for employees traveling from affected areas. For additional counseling on how to respond to the Coronavirus epidemic in their workplaces, please contact Chaim Book at cbook@mb-llp.com, Sheryl Galler at sgaller@mb-llp.com, or Jennifer Kim at jkim@mb-llp.com. 
Moskowitz & Book, LLP  | cbook@mb-llp.com  | http://mb-llp.com/


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