1. Ban business travel to high-risk places.
The CDC has advised against all non-essential travel to China, Iran, South Korea, and Italy. Designate a management official to check the CDC website daily to see the latest tracking of the virus’ spread. This person should be involved in ban decisions. If an employee expresses fear of any business travel, have a rational discussion and review the statistics. Even if the fears are irrational, consider the negative impact on employee morale by forcing someone to travel during the outbreak.
2. Plan accordingly for any employee or client travel related to Europe.
The United States government has now prohibited non-US citizens who are from the 26 countries that make up the European Union’s Schengen Area or who have visited the Schengen Area in the previous two weeks from entering the United States. These countries include Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.
This new policy goes into effect at 11:59 p.m. Eastern Daylight Time on March 13, 2020 but does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 11:59 p.m. Eastern Daylight Time on March 13, 2020. The United States government has stated that they intend for this policy to be in place for the next 30 days.
This policy does not include or impact:
- American citizens, permanent legal residents and their immediate families.
- Any child, foster child or ward of a United States citizen or lawful permanent resident, or who is a prospective adoptee pursuant to the IR-4 or IH-4 visa classifications.
- Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces.
Anyone traveling at the invitation of the United States Government for virus-related work, certain travelers related to NATO or United Nations work (G4), and certain travelers doing work related to the CDC, Department of Homeland Security, State Department and other law enforcement issues.
- Certain classes of air or sea crewmembers
- Anyone traveling from the United Kingdom who has not been to the Schengen Area in the last 14 days.
While not prohibited from entering the United States, these travelers who have been to the Schengen Area may be required to return to the US through select airports where enhanced screening procedures have been established.
3. Avoid Hotspots and Minimizing Impact
Take extreme precautions with employees returning from Covid-19 “hotspots.” If an employee has traveled to such an area, consider making the employee stay home for the 14-day incubation period upon return. Make an individualized determination of whether the employee should work remotely or not, depending on responsibilities and business needs.
4. Require sick employees to stay home and determine how to compensate them.
Your business has an obligation to keep employees safe. Whether you should pay sick or quarantined employees (who are not working remotely) depends on their exempt or nonexempt status; previous use of sick leave; union contracts; and your policies and benefit plans. You should make reasonable allowances to show concern about employee health and protect the health of your non exposed employees. For example, forcing employees to stay home for two weeks without pay or to use precious PTO could incentivize hiding symptoms or travel, which defeats the goal of preventing spread in the workplace.
Check your own policies and procedures to ensure that you are compliant with applicable state and local laws. Some jurisdictions, such as Montgomery County, Maryland requires employers to provide sick time pay for each employee.
5. Do not treat some employees differently.
For example, do not limit your requests for employees to stay home or self-quarantine to older or pregnant employees, or to employees of specific races or national origin. Develop an approach that treats all employees even-handedly and stick to it.
6. Do not require employees to undergo medical testing.
As of now, test kits for the virus are somewhat limited and can only be performed by a qualified healthcare provider. The CDC is instructing healthcare providers to be selective in how testing is administered. Screening all employees’ temperatures as they enter the workplace is likely to create more panic than benefit and is not normally warranted. Such screening may violate the Americans with Disabilities Act (ADA), as does requiring employees undergo a medical test to confirm a Covid-19 diagnosis.
7. Communicate expectations to employees.
Right now, you should be communicating with your employees to (a) emphasize the need to stay home when sick, (b) remind them of respiratory etiquette and hand hygiene, and (c) advise them to monitor their health and those with whom they live. But do not ask, “Do you have coronavirus?” Such an inquiry could run afoul of the ADA. (Although it is not clear Covid-19 qualifies as a “disability,” employers generally need to know whether employees are fit to work and what limitations, if any, they have—not a specific diagnosis.) Generally, you can ask, “do you have any of the specific symptoms (listed on the CDC website)”?
8. Do not disclose an employee’s health condition (generally).
Such notification may violate diagnosed employees’ right of privacy. However, if you learn that an employee has been diagnosed with Covid-19, and you have not been contacted by local health authorities, contact the health agency to seek guidance on employee communication or other steps the agency wants you to take. If you believe that an employee or customer with Covid-19 has been present in your facility plan to thoroughly clean the facility without disclosing the identity of the subject person.
9. Develop a communication plan in the case of an outbreak or pandemic.
Ensure you have a way to reach all employees if they lose access to work email, regardless of where they are located. Management should also prepare for the plethora of questions employees will likely have; designate a point-person or official team to ensure consistent messaging.
10. Start business contingency planning now.
Your workplace might not have any employees with a confirmed case of Covid-19, so now is the time to prepare. You should develop contingency plans tailored to your industry, the size of your business, and how you will operate if absenteeism rates go up or if you must mandate closures. Relevant factors include how many of your employees have remote working devices, whether you can cross-train employees, whether you have alternative suppliers, and whether you want to prioritize certain customers or functions.
The Covid-19 outbreak is an evolving threat to businesses worldwide, and implicates a range of employment laws, including the ADA, GINA, OSHA, Title VII, and ERISA.
This article is not intended as specific legal advice, but as a general discussion related to these issues. To deal with individualized legal issues, you should consult your attorney.
Jeffrey D. Katz, Esq. is a tax, business and estate attorney. He is the Managing Attorney of JDKatz, P.C. located in Bethesda, MD and can be reached at 240-743-5408 or at Jeffrey@JDKatz.com
Checklist for Business Continuity
Items employers should consider in developing business continuity planning policies include:
Declaring an emergency.
Evacuation procedures should identify who or what authority has the power to issue an evacuation order and under what circumstances. Because a wide variety of emergencies—both man-made and natural—might require a workplace evacuation, employees need to respond differently to different types of threats. For example, employers might want to have employees assemble in one main area inside the workplace if threatened by a tornado or a chemical spill nearby but evacuate to an outside location during a fire. Employers’ plan must identify when and how employees should respond to various types of situations.
Employers should establish a system for emergency warnings. This system should have a distinct, recognizable signal that is audible or within view by everyone in the facility; be capable of warning persons with disabilities (for example, a flashing strobe light can be used as a warning for people with hearing impairments); have an auxiliary power supply; and be tested regularly.
Many employers designate specific employees as evacuation coordinators to help move employees and visitors to safe areas during emergencies. The appropriate number of coordinators should be available at all times during work hours. They can be responsible for checking offices, bathrooms, and other spaces before exiting an area and ensuring that fire doors are closed when exiting. All designated employees should be trained on using alternative routes if primary evacuation routes become blocked. These employees also should be aware of employees with special needs who might require extra assistance during an evacuation, how to use the buddy system, and any hazardous areas to avoid during an evacuation.
Disaster management team.
Assembling a disaster management team is key to successful continuity planning, and senior management should select team members who are qualified to address business needs for the accounting, human resources, information technology, public relations, and legal functions.
The plan needs to address the amount of time it takes to restore data and telecommunication systems before the business experiences serious setbacks and how much employers are willing to pay to implement a data and telecommunications backup plan. Many organizations store more than just data in their off-site backup systems; they also safeguard copies of mission-critical software, such as operating systems and applications, so they can reinstall their entire system on other computers if needed.
To quickly and accurately account for employees after an evacuation, employers should maintain a complete list of current staff, including their home addresses, email addresses, telephone numbers, and emergency contacts; designate assembly areas where employees should gather after evacuating; and take a head count after the evacuation, identify the names and last known locations of anyone who isn’t accounted for, and pass that information to the official in charge. Employers also should establish a method of accounting for nonemployees, such as customers, suppliers, and other visitors, and set procedures for assisting them during an evacuation.
Employees who shut down critical operations before evacuating.
Certain equipment and processes must be shut down in stages or over time, which might not be possible or practical in emergency situations. Employers should review their operations and determine whether total and immediate evacuation is possible for various types of emergencies. If any employees are designated to stay behind, employers’ plan needs to detail the procedures they are to follow.
Communication procedures. Failure to communicate effectively during an emergency is itself a disaster. Employers need sound communication procedures to report emergencies, warn employees and visitors of danger, keep family members and off-duty employees aware of what is happening at the workplace, and stay in touch with customers and suppliers.
If employers share a worksite with another employer, they should coordinate their evacuation procedures. Employers also should have further evacuation procedures in the event that an incident expands, such as sending employees home or providing transportation to an off-site location.
Business continuity The business continuity plan should cover employers’ response to dealing with human losses, excessive absenteeism due to infectious illnesses, communication breakdowns, and the loss of data and facilities. The goal of a business continuity plan is to preserve and protect the essential elements of a business and maintain an acceptable level of operations during the crisis and recovery period. The plan also needs to address what happens if business facilities are partly or completely destroyed and how to deal with the loss of senior management or other employees (for example, critical employees and their backups need to be identified).
The plan should identify constituencies in and outside of the company that will need information following a crisis, including employees, their families, government agencies, customers, and stockholders, and take into consideration the needs of employees affected by a disaster. These needs can range from providing counseling to help employees and their families cope with a crisis to arranging financial, housing, transportation, and other kinds of assistance.
Federal and state requirements.
Under the federal Occupational Safety and Health Act provisions and state safety and health laws, certain employers must follow industry-specific procedures in emergencies to ensure employees’ safety and health.