As the evolving coronavirus virus (COVID-19) first discovered in China continues to grow in both China and other countries including the United States, businesses here need to consider a number of factors in preparing a response plan. One of the most challenging issues in dealing with any epidemic affecting the workplace is that there is no one-size-fits-all approach. A multitude of factors needs to be considering in formulating an appropriate response plan including but not limited to the nature of the epidemic, size of the business, the specific industry, the demographics of the workforce, and operational needs. In addition, there are numerous laws which must be carefully considered in any response plan such as OSHA, Title VII, the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) to name just a few.
It is clear that addressing an opioid epidemic will require a different type of response than a COVID-19 response plan. However, this does not mean that an employer cannot effectively prepare an overall Plan for Pandemic/Epidemic Response (Plan) which can be used as a foundation to address any specific threat and it would be prudent for any employer to implement such as Plan. Specific details of any Plan will need to be tailored to the business but some general considerations should include:
- Designating responsibility for the Plan and ensuring that team members are monitoring action items within the Plan and keeping it updated as information is learned about the specific epidemic
- Creating a culture of infection control particularly during heightened periods of concern such as encouraging employees to be vaccinated and/or making vaccinations available at no cost
- Providing employee education such as making information available by various agencies addressing any specific epidemic
- Establishing alternative plans to continue business operations and/or procedures to continue operations at certain locations with the least possible number of staff
- Establishing procedures to allow employees to have flexible work hours or working remotely
- Communicating with public health agencies, emergency responders and other applicable entities
- Discussing the criteria for implementing an emergency sick leave policy
- Implementing restrictions on employee work travel to affected areas
- Establishing guidance for employees returning to work from affected areas
- Establishing employee assistance programs/counseling services for employees and their families affected by the illness
- Creating special procedures and/or accommodations for employees and customers with special needs or disabilities
- Addressing actions that should be considered before, during and after an epidemic
As part of any specific response plan, businesses need to understand what information is available by various agencies. For example, the Center for Disease Control and Prevention (CDC) has published a brochure called, “Get Your Workplace Ready for Pandemic Flu” which is available here. The brochure is a helpful resource for employers and covers topics such as actions that may help slow the spread of the flu, action items during a flu pandemic and after the pandemic has ended. The CD has also published similar information on the opioid epidemic which is available here.
More recently, OSHA published information discussing hazard recognition of COVID-19 which is available here. This guidance identifies employees who may have increased exposure risk including those in healthcare, deathcare, airline operations, waste management, and employees who may be required to travel to China.
OSHA also advises that in assessing potential hazards, employers should consider whether or not employees may have encountered someone infected with COVID-19 in the course of their duties or have been exposed through environmental factors such as worksite or materials contaminated with the virus. OSHA also states that depending on the work setting, employers may also rely on the identification of sick individuals who have signs, symptoms, and/or a history of travel to COVID-19-affected areas that indicate potential infection with the virus, in order to help identify exposure risks for workers and implement appropriate control measures. Although there is obviously no specific OSHA standard that deals with COVID-19, OSHA further identifies some standards which may be applicable such as Personal Protective Equipment and states that Section 5(a)(1) (referred to as the General Duty Clause) requires employers to furnish to each worker a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.
As mentioned above, another key consideration in implementing a response Plan is the potential discriminatory impact on employees based on protected characteristics. Concerns of racial discrimination in dealing with COVID-19 because of its origins in China may be heightened when compared to an opioid response, however, even there ADA and FMLA concerns, among others, would need to be considered. In this area, the Equal Employment Opportunity Commission (EEOC) has published guidance called, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” which can be found here. The guidance provides, among other things, information on ADA-complaint practices before, during, and after an influenza pandemic which can be a helpful tool in addressing any other epidemic. Furthermore, as the CDC recommends that people who visit specified locations remain at home for several days until it is clear they do not have COVID-19 illness symptoms, there is little doubt that an employer can require any employee who has recently traveled to China to remain out of work for a suggested period of time without encountering any viable claims of racial discrimination. However, if the policy were limited to only Asian American employees, it would certainly cross the line into a Title VII violation. It is for these types of reasons that any response Plan be carefully reviewed to determine that it does not conflict with such anti-discrimination laws and/or applicable laws prohibiting retaliation.