On the medical front, the health care community is fighting the coronavirus, also known as COVID-19. In addition, there are business issues relating to companies managing 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 yielding 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 is not an option, the company should treat the time as 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 is best to ask employees to come forward, if they have been exposed, to a designated 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, which 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 (SHRM) has been publishing employee management guidelines. It noted travel fears, and advises that companies take into account reasonable concerns. The key word is “reasonable.” It is understandable if employees do not want to travel to hot spots, especially if they have a condition that could make them susceptible to contracting the coronavirus. However, an employee who will not get on a plane because the person next to them might be sick, would not be considered a reasonable objection.
Indeed, many experts have warned against unfounded fears that cross over into discrimination. 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.”
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 do not 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 into an uncertain situation. 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.
In addition to consulting the latest medical advice from the CDC and other authorities, check with a competent attorney before making any major decisions.