Coronavirus in the Workplace: What Do Employers Need to Know?

Companies of all sizes have obligations during the coronavirus pandemic. Here is what employers need to know in order to protect their employees and themselves.

Individuals and businesses in the United States have suddenly and unexpectedly been thrust into a new normal. While the novel coronavirus (COVID-19) will eventually be contained, the future remains highly uncertain in the near term, and this uncertainty presents a number of complicated practical and legal issues for employers.

When it comes to managing legal risk, employers have much to keep in mind. First and foremost, while managing risk is indeed important, companies’ efforts in response to the novel coronavirus should ultimately be focused on helping contain the virus. Keeping employees healthy means reducing the risk for their friends and family members healthy as well; and, if everyone – individuals and companies included – does their part to combat COVID-19, we will all be able to get back to business as usual as quickly and safely as possible.

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Lynette S. Byrd

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U.S. Department of Justice

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Joe Brown

Former U.S. Attorney & Former District Attorney

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Former U.S. Attorney

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Aaron L. Wiley

Former Federal Prosecutor

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Roger Bach

Former Special Agent (OIG)

Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick

Former Special Agent (FBI & IRS-CI)

Ray Yuen

Former Supervisory Special Agent (FBI)

How Can Companies Reduce Risk and Help Prevent the Spread of the Novel Coronavirus (COVID-19)?

With this in mind, what can – and should – employers be doing during the coronavirus pandemic? Here are three key areas of focus from the perspective of corporate risk mitigation:

1. Educating Employees about the Risks of Coronavirus and Methods of Prevention

In order to mitigate the risk of employees bringing the novel coronavirus (COVID-19) into the workplace, one of the most important steps employers can take is simply to educate. Even with the 24/7 media coverage of the coronavirus pandemic, employers should not assume that their employees are up-to-date on the latest recommendations. When educating employees regarding the risks of COVID-19 and what they can do to protect themselves, companies should generally rely on the advice of the Centers for Disease Control and Prevention (CDC) unless they have their own medical advisors.

The CDC’s website is currently the primary resource for finding information about novel coronavirus symptoms and what individuals should do if they believe they may have contracted COVID-19. The CDC has also published Resources for Businesses and Employers that are intended to assist with “plan[ning], prepar[ing], and respond[ing] to coronavirus.” The CDC’s resources currently address the areas of:

• Environmental cleaning and disinfection
• Encouraging sick employees to stay home
• Separating sick employees from those who are not sick
• Emphasizing respiratory etiquette and hand hygiene
• Advising employees regarding travel
• Planning for a possible outbreak
• Creating an infectious disease outbreak response plan

With regard to establishing a response plan, the CDC provides a number of recommendations focused on mitigating the risk of the novel coronavirus spreading through employee populations. These recommendations include:

• “Identify possible work-related exposure and health risks to your employees.”
• “Review human resources policies to make sure that policies and practices are consistent with public health recommendations and are consistent with existing state and federal workplace laws . . .”
• “Explore whether you can establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance . . . between employees . . . .”
• “Identify essential business functions, essential jobs or roles, and critical elements within your supply chains (e.g., raw materials, suppliers, subcontractor services/products, and logistics) required to maintain business operations. Plan for how your business will operate if there is increasing absenteeism or these supply chains are interrupted.”
• “Set up authorities, triggers, and procedures for activating and terminating the company’s infectious disease outbreak response plan . . . .”
• “Plan to minimize exposure between employees and also between employees and the public . . . .”
• “Establish a process to communicate information to employees and business partners on your infectious disease outbreak response plans and latest COVID-19 information. . . .”
• “Engage state and local health departments to confirm channels of communication and methods for dissemination of local outbreak information.”

2. Establishing (and Adhering to) a Policy of Transparency

During the coronavirus pandemic, employers must adopt a policy of transparency. As part of their response plans, companies should be prepared to proactively and comprehensively disseminate information about any confirmed COVID-19 infections within their workforces. This includes not only providing appropriate information to their employees, but also notifying the appropriate state and/or federal authorities and contacting vendors and customers whose personnel may have come into contact with the infected employee or employees.

In this regard, public companies may also have statutory or regulatory disclosure obligations with the U.S. Securities and Exchange Commission (SEC). In fact, public companies may need to update their Form 10-K, Form 20-F, Form 40-F, and other disclosures even in circumstances other than a confirmed employee COVID-19 infection. If any event or risk has the potential to constitute material information to the company’s investors, a corresponding SEC filing may be required. Various other factors can trigger coronavirus-related SEC filings as well.

3. Adopting Appropriate Policies and Procedures for Responding to Novel Coronavirus (COVID-19) Risks

In order to effectively implement the CDC’s health safety recommendations and ensure adequate transparency if and when necessary, companies must adopt corporate compliance policies and procedures that are tailored to both (i) the coronavirus pandemic, and (ii) the company itself. These policies and procedures can either be stand-alone documents or appendices and revisions to the company’s documentation; but, in either case, they must be structured and drafted appropriately in order to serve their intended purposes.

In addition to containing the necessary language to address the CDC’s guidance discussed above, corporate compliance policies and procedures must also address the various legal implications of responding to the novel coronavirus pandemic. This includes, but is not limited to, implications such as:

• Employee health screening, time off, and job reestablishment
• Anti-discrimination with regard to questioning employees about coronavirus exposure
• Staggering shifts, teleworking, and other means of limiting in-person employee interactions
• Managing risk with regard to contracted supplier
• Managing risk with regard to clients and customers
• Maintaining adequate transparency and complying with reporting and disclosure obligations
• Executive, managerial, and board-level decision-making
• Complying with local, state, and federal mandates
• Disaster preparedness and emergency response
• Communicating with authorities and responding to government inquiries

When appropriately drafted and implemented through adequate training and dissemination, corporate compliance policies and procedures will serve not only to mitigate the risk of COVID-19 exposure in the workplace, but they will also serve to protect companies in civil litigation and government enforcement proceedings. If a company can demonstrate good-faith adherence to an adequate compliance program, this can go a very long way toward establishing an effective defense to administrative, civil, or criminal culpability.

Mitigating Corporate Risk During the Coronavirus Pandemic

In times such as these, companies have an obligation to do what is necessary to protect their employees, their shareholders, and the public at large. Companies that fail to take the necessary precautions will face lawsuits (we have received multiple inquiries from companies facing the threat of coronavirus-related litigation already); and, depending on the circumstances involved, they could be at risk for substantial liability.

In particular, we foresee lawsuits targeting companies that are accused of doing too little too late, with grocery stores, restaurants, medical providers, manufacturing companies, and entities in other select industries being at particularly high risk for costly and time-consuming litigation. Not only do these businesses have a significant amount of direct consumer contact, but they also have very limited (or virtually non-existent) options for having employees work from home. These entities face coronavirus-related liability risks on multiple fronts; and, once again, implementing effective risk mitigation strategies through comprehensive and custom-tailored policies and procedures will be critical to preventing unnecessary exposure.

Compliance Alert: House Passes Families First Coronavirus Response Act

In the employment law realm, it is also important for companies to be aware of the Families First Coronavirus Response Act (the “FFCRA”) and its implications for employees’ rights during the coronavirus pandemic. The FFCRA has passed in the U.S. House of Representatives with bipartisan support, and it is currently expected to become law in substantially its present form.

The FFCRA contains several provisions that will have direct, and potentially substantial, implications for companies with 500 or less employees. These include provisions that entitle full-time and part-time employees to up to two weeks of additional paid time off, an extension of the Family and Medical Leave Act (FMLA), and a limited payroll tax credit for eligible employers. We will continue to monitor the FFCRA’s progress in the Senate and at the White House; however, due to the potential for significant compliance obligations, we would encourage companies to begin evaluating the steps they will need to take to comply now.

Contact the Federal Employment Law Attorneys and Legal Consultants at Oberheiden P.C.

Our firm is comprised of senior federal compliance and defense attorneys as well as legal consultants who have extensive prior experience with various federal government agencies. If you would like more information about what your company should be doing during the novel coronavirus (COVID-19) pandemic, we encourage you to get in touch. To arrange a confidential initial consultation with a senior member of our legal team, call 888-680-1745 or inquire online today.