Hunton Employment & Labor Perspectives

Although the World Health Organization (“WHO”) has declared the coronavirus outbreak a “public health emergency of international concern,” WHO has not yet declared the outbreak as a pandemic. Nevertheless, the emergence of the latest coronavirus is an opportunity for employers, as it reminds them to consider policies and procedures related to pandemic planning.  The following are a few of the key considerations for employers when planning for or responding to an outbreak.

Employers should have procedures in place and a designated point-person to monitor disease progress and inform employees of measures they can take to avoid exposing themselves and others to infectious diseases. Companies should look to WHO and the Center for Disease Control (“CDC”) regarding travel advisories and health measures to prevent proliferation of a disease. The following are general resources for monitoring the current coronavirus situation, as well as for general travel preparedness:

• The CDC advisory page for China
• The dedicated page on Coronavirus
• The State Department Travel Advisory

Presently, the CDC states that individuals who may have been in close contact with someone with the coronavirus may continue with their daily activities so long as they are not showing any symptoms. Although the general American public is unlikely to be exposed to the virus, according to the CDC, reminding employees to wash their hands, keep their distance from persons showing symptoms, and not come to work if they are showing symptoms are some of the simplest and most effective measures to fight human/human disease transmission.

Otherwise, attendance, pay, benefits, and travel issues should be considered, with the help of employment counsel, in advance of any outbreak. For example, there should be no incentive for employees to come to work sick; nor should there be an incentive for able-bodied workers to stay home. Employers should determine which jobs are critical, which jobs are not critical, which jobs require on-site work, and which jobs can be done via telecommuting. Such pre-planning helps to avoid exposure to discrimination claims by individuals who may be treated differently due to their position or duties, as opposed to because of a protected class.

Because not all answers are clear cut and there is potential exposure to both infectious diseases and employment-related claims under the Americans with Disabilities Act and other statutes, employers should consult with their employment attorneys to develop policies, procedures, and training programs in advance of an outbreak.