The health care community is fighting the coronavirus — officially named COVID-19 — on the medical front. But there are business issues as well, especially relating to the way companies manage their offices and employees. Managers face practical, emotional and legal considerations.
The National Law Review published legal advice in mid-February that helps companies live up to their responsibilities without succumbing to fear:
- An employer may ask an employee returning from an at-risk area to work at home during the incubation period. If working from home isn’t feasible, the company should treat this as a paid leave. However, the employer must have a “reasonable objective belief” the employee has been exposed — not just unfounded fears. Companies should consult legal counsel before making these decisions.
- If employers question employees about their travel plans, they run the risk of invading their employees’ privacy or discriminating against them. It’s better to ask employees to come forward, if they have been exposed, to a designated point person at the company.
- Employers should listen to any employees who come to them with concerns. This is especially true of those who have conditions that make them especially vulnerable to the coronavirus — this may become an ADA issue.
- Companies should be careful about requiring medical tests for employees. Again, “reasonable objective belief” is key.
- Managers should consult commonsense advice from OSHA to make sure they are making their workplaces as safe as possible.
The Society for Human Resource Management has been publishing employee management guidelines. It has especially noted travel fears, and it advises that companies take into account reasonable concerns. The key word is “reasonable.” It is understandable if employees don’t want to travel to hot spots, especially if they have a condition that could make them susceptible to contracting the coronavirus. But an employee who won’t get on a plane at all because the person next to them might be sick? That wouldn’t be considered a reasonable objection.
Indeed, many experts have warned against unfounded fears that cross over into discrimination. The SHRM noted that the Los Angeles County Public Health Department said, “people should not be excluded from activities based on their race, country of origin or recent travel if they do not have symptoms of respiratory illness.”
The SHRM also warned companies to avoid behavior that could lead to lawsuits. Although the coronavirus itself is not an ADA issue, suspecting certain employees of having it when they don’t can be an ADA violation: “An ADA disability includes regarding someone as having a physical or mental impairment that substantially limits a major life activity.”
In fact, the coronavirus can force businesses to walk on a knife’s edge. For example, consider several employees of Chinese descent who return from an at-risk area of China. It would not be discrimination to ask them to work at home during the incubation period, as they were in a high-hazard area. However, the employer might be open to ADA and Title VII civil rights charges from those who think the company is overreacting.
The bottom line: Consult not only the latest medical advice from the CDC and other authorities but also competent legal advice before making any major decisions.
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