A Message to Employers About Coronavirus From West & Dunn

Given the current Coronavirus (COVID-19) pandemic, West & Dunn wishes to provide some helpful information regarding potential legal implications for businesses. Any organization with employees should of course have the safety and welfare of those employees in mind, and all diligent steps should be taken on their behalf. Additionally, we recognize that any business, regardless of size, will be facing challenges in the upcoming weeks when it comes to personnel matters, contractual obligations, and, emerging on the other side of this emergency having minimized the economic impact as well as potential legal liabilities.

The Centers for Disease Control and Prevention recommends the following strategies for employers to implement as soon as possible (if you have not done so already):

• Actively encourage sick employees to stay home;
• Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies;
• Maintain flexible policies permitting employees to stay home to care for a sick family member;
• Provide tissues and no-touch disposal receptacles for use by employees;
• Assure ease of access to soap and water and/or alcohol-based hand-washing;
• Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs;
• Allow for employees to decline traveling in the scope of employment and revisit what travel is essential;
• 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 physical distance among employees and between employees. To assist with this assure that you have all of your information technology and infrastructure in place to support multiple employees working from home.

In addition to the pursuit of the numerous health & safety priorities, potential legal implications of your company’s actions and decisions should be considered. In order to minimize the potential of legal liability being incurred due to violation of any federal and state employment laws your company should be carefully thinking about the following:

• Ensure compliance with all applicable state and local sick leave laws. Additionally, you should be prepared to notify eligible employees of their rights under the federal Family Medical Leave Act (“FMLA”). If an employee or their covered family member contracts COVID-19 which results in extended illness and/or inpatient treatment, they may be entitled to up to 12 weeks of unpaid time off.
• Section 5(a)(1) of the “Occupational Safety and Health Act” imposes a duty on employers to provide a workplace free from “recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA has deemed the coronavirus a recordable illness subject to reporting requirements. Be prepared to address this requirement.
• Liability for the spread of a disease is often difficult to prove because duty, causation, and breach can be difficult to establish, particularly because diseases are often spread prior to symptoms emerging, however, beyond liability to their employees, employers also face potential liability for spreading the coronavirus if they act negligently. Court precedent on this issue varies from state to state but overall is well-established. At the federal judicial level, in Crim v. International Harvester Co., an off-road vehicle manufacturer invited participants to test-drive its vehicles in the Arizona desert, where valley-fever spores were known to be present. 646 F.2d 161 (5th Cir. 1981). The Fifth Circuit upheld a negligence award against the manufacturer for negligently failing to warn and protect the participants of the test-driving event who contracted the illness.

In this uncertain time, we at West & Dunn hope the above information helps to assure continued success in your business ventures, and, more importantly, the protection of you, your families, and your employees. Please do not hesitate to contact us with any questions you may have as we always stand ready to assist.