Coronavirus Raises Labor Law Concerns for Senior Housing, Other Employers

As the coronavirus pandemic brings everyday life across the U.S. to a halt, businesses including senior housing operators need to take precautions to protect their employees, as well as themselves.

But they need to err on the side of caution while doing so, lest they run the risk of violating the Americans with Disabilities Act or be the defendant in a liability lawsuit.

These — and other questions employers are asking as the gravity of the pandemic becomes clear — were the subject of a webinar Friday, hosted by San Francisco, California-based law firm Littler Mendelson.

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Constant communication

Employers need to ramp up communications with their workers, if they haven’t done so already, Littler Of Counsel Alka Ramchandani-Raj said. This involves providing background on the coronavirus, that there is no immediate cause for concern but that the company is taking precautionary measures given the scope of the pandemic.

Communications should stress that the safety of all employees is top priority, and inform staff of travel restrictions for business travel, and the executives responsible for the company’s action plan.

Employers cannot control an employee’s personal travel but can discourage it, especially if a worker is traveling to a hot spot of coronavirus activity based on CDC guidelines, Raj said.

“Any travel is risky [for the time being],” she said.

Immediate actions

If an employee tests positive for coronavirus, immediate steps should be taken to mitigate the possible spread of the virus. This also establishes a timeline for when the virus was discovered within the workplace, Littler Special Counsel Melissa Peters said.

The timeline also chronicles how quickly an employer responded to the discovery, when state and local public health departments were notified, and the measures taken to clean the workplace to ensure no further exposure to the virus. If the hazard is not removed, an employer may be cited by the Occupational Safety and Health Administration (OSHA) and be exposed to a possible liability lawsuit if the virus spreads.

“The tricky part is knowing when the hazard existed, or could have, in the workplace,” Peters said.

The identity of the infected worker should not be revealed to others in the office. As more cases are identified, those workers should be sent home, as well, and those who cannot work from home should take sick leave or personal time off.

Employers should also hire a qualified hazmat removal company to handle cleanup, as a further precaution and added layer against liability. Workers for these companies are properly trained in how to don masks and other protective equipment, reducing further risk of exposure.

Employees exhibiting signs of coronavirus exposure that have not traveled recently to hot spots should be encouraged to give a timeline of people they have been in contact with, as that is a sign of secondary exposure.

ADA compliance

Employers need to adhere to ADA guidelines when dealing with differently-abled workers, Littler Shareholder Emilie Hammerstein said.

The ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances or if they are job-related and consistent with business necessity.

The ADA also has defined protocols during pandemic influenza outbreaks. If the CDC or state or local public health authorities determine that a viral illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations.

Conversely, if health officials determine that pandemic influenza is significantly more severe, it could pose a direct threat.

In that case, employers should heed to the latest assessments from the CDC, as well as local and state health authorities.

Workers’ compensation gray area

An employee diagnosed with coronavirus may be eligible for workers’ compensation if exposure occurred while traveling for business, by a coworker or visitor to a workplace, or if an employee experiences stress or anxiety due to the potential of exposure, although the latter is rare, Peters said.

Coronavirus is not a normal pandemic influenza, however, and Peters recommended that employees who test positive for coronavirus file claims, if they believe they contacted the virus while working.

All employee hospitalizations should be reported, as well. OSHA requires inpatient hospitalizations to be filed within 24 hours, but some states have shorter windows, notably California.

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