What are your legal obligations as an employer in the face of coronavirus?
It is without a doubt that the rapid spread of the disease and accompanying media coverage that has surrounded Coronavirus (COVID-19) has changed how businesses are operating worldwide. More people are using remote working opportunities, companies are being advised to limit the amount of in person contact required in the workplace, and conferences are being cancelled at a dizzying rate in order to slow the spread of this deadly disease. With the onslaught of uncertainty and discomfort amongst your staff, do you have the human resources policies ready to ensure that all employees’ health and safety remains a top concern in your workplace?
In the United States, employees may be protected by the Occupational Safety and Health Act (OSHA) which means that all eligible employees must be provided with an environment that is free from recognized hazards, which in this case, could be interpreted to mean free of biological hazards such as exposure to COVID-19. The Department of Labor has even put together a website providing information for workers and employers about the evolving coronavirus outbreak, which can be found at https://www.osha.gov/SLTC/covid-19/.
If employers do not protect their staff, they may put themselves at risk of facing penalties associated with non-compliance. In addition, employers must also be ready for lawsuits that may stem from measures taken to prevent the further spread of COVID-19. These topics may include workers’ compensation, invasion of privacy, discrimination, and negligence. Overall, by ensuring that your workplace is prepared and ready for this type of outbreak and has clear human resources policies to stipulate what must be done, organizations will be able to mitigate the risk of such lawsuits.
Employers should ensure that all employees are kept up to date on information provided by authoritative health sources (such as the CDC, WHO, Department of Labor, etc.), making them good initial sources to ensure your company is following current best practices based on the risk of contagion for your region. Educate your team by ensuring they receive up-to-date communications about what is expected of them, how they can limit and prevent the spread of infection, and how to report any COVID-19 related information to their company. Workplaces have also been recommended limiting the scope of exposure by taking measures to limit employee contact with each other. This can be done through remote working opportunities and moving live meetings to virtual conferences. It is the employer’s responsibility to ensure that those infected, or who have been exposed to the virus, are sent home and quarantined from the workplace as quickly as possible.
How do we know when an employee is ready to return to the workplace? It is recommended that employers contact independent medical providers to determine if an employee is virus free and able to return to work. This could be in the form of the employee’s doctor providing a release letter. It is vital for employers to have a clear threshold of when an employee would be asked to leave the workplace in order to avoid claims of discrimination. As an employer, you are responsible for upholding your commitment to the duty of care for your employees. Many countries around the world have specific regulations and guidance that have been published to protect an employee from physical harm in the workplace:
- S.A. – https://www.osha.gov/SLTC/covid-19/
- K. – https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers-and-businesses-on-covid-19), and it is up to employers to abide by these regulations.
- European Centre for Disease Prevention and Control – https://www.ecdc.europa.eu/en/all-topics-z/coronavirus/threats-and-outbreaks/covid-19/preparedness-and-response-covid-19
- European Commission on COVID—19 – https://ec.europa.eu/info/live-work-travel-eu/health/coronavirus-response_en
How do we compensate employees that are asked to leave the workplace because of COVID-19? In this regard, it will be important for employers to assess their legal obligations to compensate employees that are on leave based on this pandemic. Some American federal laws (FMLA, ADA, etc.) and other state regulated workers’ compensation laws will continue to apply, as will any compensation agreements originally listed in an employee’s contract. It is up to the employer whether to choose to go above and beyond the minimum requirements of this legislation to provide employees with any kind of increased benefits. In addition, new federal and state legislation being crafted to deal with this crisis will either supersede or require simultaneous compliance with already existing laws.
Finally, it is important to recognize the need for privacy in this matter. As with any outbreak, there is a certain amount of fear that is felt around the world. If an employee had a potential exposure to the virus, it is important that employers protect their staff’s privacy as best they can so as to limit any future discrimination in the workplace. In this case, it will be vital to follow up on the terms of the privacy protection clauses within your workplace and ensure that your best practices are consistently being upheld.
