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Dealing with the Coronavirus in the Workplace

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The general duty clause of the Occupational Safety and Health Act requires employers to provide a workplace which is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employee.” While it’s unlikely that OSHA inspectors are going to be scrutinizing how most employers — outside those in the health care industry — are handling the potential threat of the spread of the coronavirus, employers should start thinking about what steps they will take to minimize the threat of infection to their employees.

If you do have employees who have traveled to or are working in areas where the coronavirus has been found, make sure that they get the best information on how to avoid exposure and what to do if they think they may have been exposed (I am not a scientist, but I have heard that washing your hands may be the best advice for avoiding the coronavirus).

Employees who think they may have been exposed should be advised not to come to work until a doctor has cleared them to do so. Note that this is not just good advice for dealing with a new threat like the coronavirus, but also for the annual flu outbreak, which can also endanger lives and is by far more widespread in the United States. Your employee who insists on coming into the office with a 100-degree fever needs to understand that they are not doing anyone any favors by showing up to work. Considering the health risks, it may be worth your while to continue to pay sick, hourly employees during any periods of convalescence, even in cases where they have already exhausted their PTO.

Employers should also heed government warnings about travel. Even if your employees are able to book airplane tickets to or from areas where there have been cases of coronavirus, that does not mean it is a good idea. In fact, an employee may be safer staying in a hotel room in China than spending 14 hours with several hundred people — with a few who are infected with the virus — on a flight back to the United States. When in doubt, get expert advice from a doctor, your local health department or the Centers for Disease Control and Prevention.

Finally, while there is much to be worried about the coronavirus, be aware that epidemics often engender misinformation and unwarranted panic that sometimes results in discriminatory conduct. For example, back in the late 1980s and early 1990s, I remember many gay men and Haitians were discriminated against because of irrational fears from their coworkers that they might “catch” HIV from these employees, even when those employees were uninfected. This was in spite of clear scientific evidence that even HIV-positive people could not transmit the HIV virus outside of sex or shared needle use. Similarly, employees of Chinese origin may also find themselves subjected to disparate or hostile treatment from some of their coworkers if the current epidemic spreads or becomes a pandemic. Managers or supervisors will need to quickly respond to any inappropriate comments or complaints.

Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.