Important updates for New York State employers regarding COVID-19 response

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We continue to receive calls from clients asking for guidance on dealing with the novel coronavirus (COVID-19). This is a rapidly evolving situation as more cases are reported in the U.S. and the effects are felt closer to home, it is difficult to keep up with the latest developments. We have compiled information, suggestions and materials from many different sources, including: Centers for Disease Control (CDC); World Health Organization (WHO); Occupational Safety and Health Administration (OSHA); the State of New York; and others to help guide you.

Compliance issues for employers

As the number of reported cases of the novel coronavirus (COVID-19) continues to rise, employers are increasingly confronted with the possibility of an outbreak in the workplace.

Employers are obligated to maintain a safe and healthy work environment for their employees and are also subject to a number of legal requirements protecting workers. For example, employers must comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) in their approach to dealing with COVID-19. 

 

This article provides a summary of the compliance issues facing employers in this type of situation.

Action Steps:

There isn’t a one-size-fits-all solution for how businesses should handle this situation. Here are some recommendations that each business should consider.

#1 – Educate your employees with these posters:

#2 – Minimize risk to your employees and customers. Here are some recommendations:

  • Stop handshaking – use other non-contact methods of greeting
  • Provide hand sanitizer in high traffic areas
  • Disinfect surfaces like doorknobs, tables, desks and handrails regularly
  • Assess the risks of business travel
  • Use video conferencing for meetings when possible

#3 – Prepare to address the issue of sick employees with these strategies from the CDC:

  • Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever for at least 24 hours (without the use of fever-reducing medicines).
  • Ensure that your policies are flexible and consistent with public health guidance and that employees are aware of these policies.
  • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
  • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
  • Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than usual.
  • CDC recommends that employees who appear to have acute respiratory illness symptoms upon arrival at work or become sick during the day should be separated from other employees and be sent home immediately.

#4 – Continue to monitor developments.

Get your information directly from the experts. Use the CDC, WHO and State websites to avoid misinformation.

#5 – Develop a plan and communicate this plan to your employees and customers.

Be prepared to make modifications as necessary – this situation is rapidly changing. Check out resources on the Department of Homeland Security website: Ready.gov

More interim guidance for businesses from the CDC

image of Coronavirus Disease 2019 (COVID-19)

What is the Coronavirus?

The 2019 novel coronavirus (“COVID-19” or “coronavirus”) is caused by a member of the coronavirus family that is a close cousin to the SARS and MERS viruses that have caused outbreaks in the past. Symptoms of COVID-19 include fever, runny nose, cough and trouble breathing. Most people develop only mild symptoms. But some, usually people with other medical complications, develop more severe symptoms, including pneumonia, which can be fatal. The incubation period for COVID-19 is from two to 14 days.

Initially detected in Wuhan, China in late 2019, the first case of COVID-19 in the United States was reported on January 21, 2020. Since then, the disease has spread to more than 900 people within the continental United States, with CDC officials warning of further outbreaks.

How is Coronavirus Spread?

The available information about how the virus that causes COVID-19 spreads is largely based on what is known about similar coronaviruses. COVID-19 is a new disease and there is more to learn about its transmission, the severity of illness it causes, and to what extent it may spread in the United States.

According to the CDC, the virus is thought to spread mainly from person to person, between people who are in close contact with one another (within about six feet) or through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby, or possibly be inhaled into the lungs.

It may also be possible for a person to contract COVID-19 by touching a surface or object that has been contaminated with the virus and then touching his or her own mouth, nose, or eyes, but this is not thought to be the main way the virus spreads.

People are thought to be most contagious when they are most symptomatic. Some spread might be possible before people show symptoms, and there have been reports of this occurring, but this is not thought to be the main way the virus spreads.

Disease Prevention in the Workplace

Whenever a communicable disease outbreak is possible, employers may need to take precautions to keep the disease from spreading through the workplace. It is recommended that employers establish a written policy and response plan that covers communicable diseases readily transmitted in the workplace.

 

Download: Sample written policy for communicable disease

Employers can require employees to stay home from work if they have signs or symptoms of a communicable disease that poses a credible threat of transmission in the workplace, or if they have traveled to high-risk geographic areas, such as those with widespread or sustained community transmission of the illness. When possible, employers should consider allowing employees to work remotely. 

Employers should consider canceling business travel to affected geographic areas and may request that employees notify them if they are traveling to these areas for personal reasons. Employees who travel to China should be informed that they may be quarantined or otherwise required to stay away from work until they can provide medical documentation that they are free of symptoms.

 

Review recommendations from the CDC, including Mitigation Strategies for Communities with Local COVID-19 Transmission. Review the WHO advice on Getting your workplace ready for COVID-19.

Legal considerations for employers

There are several legal considerations that employers should keep in mind when implementing and administering a communicable illness policy. These considerations are addressed in the following sections.

Occupational Safety and Health Act of 1970

Under the federal Occupational Safety and Health Act of 1970 (the OSH Act), employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Workers also have the right to receive information and training about workplace hazards, and to exercise their rights as employees without retaliation.

There is no specific Occupational Safety and Health Administration (OSHA) standard covering COVID-19, although they have provided newly released Guidance on Preparing Workplaces for COVID-19.

Employers should continue to monitor the development of COVID-19 and analyze whether employees could be at risk of exposure. It is also important for employers to consider what preventative measures they can take to maintain safety and protect their employees from potentially contracting COVID-19.

Also, OSHA requires many employers to record certain work-related injuries and illnesses on their OSHA Form 300 (OSHA Log of Work-Related Injuries and Illnesses). OSHA has determined that COVID-19 is a recordable illness when a worker is infected on the job. Establishments that are required to complete an OSHA 300 log should be sure to include all COVID-19 infections that are work related.

The Americans With Disabilities Act

The Americans with Disabilities Act (“ADA”) protects applicants and employees from disability discrimination. It is relevant to COVID-19 because it prohibits employee disability-related inquiries or medical examinations unless:

  • They are job related and consistent with business necessity; or
  • The employer has a reasonable belief that the employee poses a direct threat to the health or safety of him-or herself or others (i.e., a significant risk of substantial harm even with reasonable accommodation).

According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

The EEOC has said that sending an employee home who displays symptoms of contagious illness would not violate the ADA’s restrictions on disability-related actions because advising such workers to go home is not a disability-related action if the illness ends up being mild, such as a seasonal influenza. On the other hand, if the illness were serious enough, the action would be permitted under the ADA as the illness would pose a “direct threat.” In either case, an employer may send employees home, or allow employees to work from home, if they are displaying symptoms of contagious illness.

The ADA requires that information about the medical condition or history of an employee, obtained through disability-related inquiries or medical examination, be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. Employers should refrain from announcing to employees that a coworker is at risk of or actually has a disease. Instead, employers should focus on educating employees on best practices for illness prevention. Check out the EEOC Statement and guidance on Coronavirus.

Employee Leave Requirements

If an employee, or an employee’s family member, contracts COVID-19, the employee may be entitled to time off from work under federal or state leave laws. For example, an employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take leave under the Family and Medical Leave Act (FMLA). An illness like COVID-19 may qualify as a serious health condition under the FMLA if it involves inpatient care or continuing treatment by a health care provider. Employees may also be entitled to FMLA leave when taking time off for medical examinations to determine whether a serious health condition exists.

Many states and localities also have employee leave laws that could apply in a situation where the employee or family member contracts COVID-19. Some of these laws require employees to be given paid time off, while other laws require unpaid leave. Employers should become familiar with the laws in their jurisdiction to ensure that they are compliant.

Some employees may wish to stay home from work out of fear of becoming ill. Whether employers must accommodate these requests will depend on whether there is evidence that the employee may be at risk of contracting the disease. A refusal to work may violate an employer’s attendance policy, but employers should consult with legal counsel prior to disciplining such an employee. However, if there is no reasonable basis to believe that the employee will be exposed to the illness at work, the employee may not have to be paid for any time that is missed.

Check out: COVID-19 and the Family and Medical Leave Act

Compensation and Benefits

If employees miss work due to COVID-19, whether they are compensated for their time off will depend on the circumstances. As noted above, employees may be entitled to paid time off under certain state laws if they (or a family member) contract the illness. In other cases, non-exempt employees generally do not have to be paid for time they are not working. Exempt employees must be paid if they work for part of a workweek, but do not have to be paid if they are off work for the entire week. Note that special rules may apply to union employees, depending on the terms of their collective bargaining agreement.

Employees may be entitled to workers’ compensation benefits if they contract the disease during the course of their employment. For example, employees in the healthcare industry may contract the disease from a patient who is ill. Whether an employee is eligible for other benefits, such as short-term disability benefits, will depend on the terms of the policy and the severity of the employee’s illness.

Check out: COVID-19 and the Fair Labor Standards Act

Communicating with Employees

As part of their efforts to prevent the spread of COVID-19 in the workplace, employers should consider communicating information about the illness to employees. The CDC, WHO, and OSHA have all created informational material on the virus and its symptoms, prevention and treatment that can be helpful for employees. Another resource for employees is the Employee Assistance Program (EAP).

More updates to watch

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NY Employment Law Update

New York employers: it’s important to stay up to date on the employment laws in your state. Knowing the latest changes can help protect you from liability and keep you in compliance. We’ve summarized the most important updates for New York employers to be aware of as we move through 2020. Download the updates as a PDF for a quick takeaway, and read more about each new law and regulation below.

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