With the novel coronavirus in the news, I’ve been receiving a few questions from employers about what considerations they should be making now, just in case the virus spreads within California. I do not want to sound alarmist, and hesitated in writing this article, but the situation is a reminder for employers to have disaster plans in place, especially here in California. Here are a few considerations that employers could use to begin a contingency plan if the coronavirus spreads in California:
1. Establish a contingency plan
Employers should develop a natural disaster contingency plan. A natural disaster plan could be drafted to address a broad range of potential threats, and should consider:
- Who will make the decision on whether employees should be contacted to remain home?
- Which positions are essential to business operations that must continue during a disaster?
- Does the company have a method to contact employees about emergencies?
- Are records easily obtainable on who the employee would like the employer to contact in the case of an emergency?
- Does the company have emergency kits and basic supplies if employees must remain on the company’s premises after a disaster?
In addition, ensure that managers are trained on what they can and cannot ask about the employee’s medical status and information. Employers need to be careful that managers and supervisors do not discriminate against employees based on any perceived disabilities, and that they are not asking for private medical information from employees.
Employers can plan for employee’s absences, but they must be careful about the type of information they seek from the employee to make these plans, in order to avoid any disability related questions. The EEOC published a sample form that it suggests employers could circulate to plan for anticipated absenteeism in advance of the risk of a pandemic:
ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY
Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.
In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:
- If schools or day-care centers were closed, you would need to care for a child;
- If other services were unavailable, you would need to care for other dependents;
- If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
- If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).
Answer: YES______ , NO_______
OSHA provides specific control and prevention guidance regarding the coronavirus for workers and employers involved in the following industries:
- Airline operations
- Border protection
- Solid waste and wastewater management workers
- Business travel abroad
2. Review legal obligations to employees
Employers generally will have to ensure that they are not exposing employees to any known threats, and they must provide reasonable accommodations to employees.
For example, OSHA requires employers to comply with industry-specific safety standards, and its guidance can be helpful in determining what steps employers may need to take when dealing with a natural disaster, such as a pandemic. OSHA sets forth a general duty obligation on employers, which requires employers to:
- Keep its workplace free from a hazard
- The hazard is recognized
- The hazard was likely to cause death or serious physical harm
- The hazard could feasibly be corrected.
See 29 U.S.C. § 654(a)(1).
OSHA has not issued any specific standards in regard to pandemics. However, it did issue a Field Operations Manual in November 2009 (Enforcement Procedures for High to Very High Occupational Exposure Risk to 2009 H1N1 Influenza) setting forth employer’s responsibilities during the H1N1 outbreak in 2009. In that memo, OSHA provided the following:
At the onset of a pandemic influenza, the knowledge concerning the severity and transmissibility of the virus may be limited and enhanced protection measures may be necessary. As the 2009 H1N1 influenza virus evolves and additional information become available, protective measures may need to be modified based on the updated information from the CDC, state and local government. Therefore, employers will need to adjust their 2009 H1N1 influenza virus plans as new information becomes known.
Also, employers must be careful about disciplining employees who refuse to come into work during a pandemic out of fear of contracting the virus. Under OSHA, for example, an employer cannot take any actions against an employee who “refuses in good faith to expose himself to the dangerous condition.” The condition must be one that a “reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through regular statutory enforcement channels.” (29 C.F.R. § 1977.12(b)(2).)
Employers must be careful to avoid any disability discrimination claims. Employers must provide reasonable accommodations to employees with a disability to perform their essential job functions. In addition, many state and Federal laws regulate an employer’s ability to require medical examinations and medical information for work purposes. Addressing some of the issues, the EEOC published a resource in October 2009, Pandemic Preparedness In The Workplace and The Americans With Disabilities Act, for employers outlining Federal legal obligations in response to the H1N1 outbreak. While the EEOC’s publication is a good overview of Federal law, California employers need to still comply with any California regulations pertaining to disability discrimination and obtaining medical information from employees.
3. California paid sick leave laws
In addition, California employers also would need to plan to provide paid sick leave according to California’s Healthy Workplace Healthy Families Act. If the employees work in any of the various cities or counties in California that provide for paid sick leave, employers would need to comply with those laws.
4. Time off for school emergencies
Labor Code section 230.8 also provides that employers with 25 or more employees working at the same location must permit employees to take time off to address a “school emergency.” A school emergency definition includes when a child cannot remain in school due to “a natural disaster, including, but not limited to, fire, earthquake, or flood.” Employees are permitted to take up to 40 hours per year to attend to these school emergencies.
5. Employees’ leave to take care of themselves or family members could be protected under various leave laws
Federal Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) provide for an employee’s leave to care for themselves or to care for a family member with a “serious health condition.” Employers will need to approach this issue carefully as whether a virus constitutes a “serious health condition”, and this would likely need to be an individualized assessment based on the facts of the case.