Preparing for a COVID-19 outbreak: What do health care employers need to know?

While we hope that COVID-19 (coronavirus) will be contained to a very few isolated cases in the United States, health care employers should be prepared to deal with a number of employment law issues unique to being on the front line of this emerging crisis. We have identified issues for general employers to consider but here are concerns that are specific to health care employers:

1. Potential shortage of personal protective equipment 
Various labor laws, including the Occupational Safety and Health Administration, require employers to provide employees with safe workplaces. If coronavirus becomes a pandemic, it is likely that personal protective equipment, such as eye protection, respirators and gloves, will be in short supply. Employees might decide that it is unsafe to come to work without assurance that appropriate protective equipment is available to them. Requiring employees to report to work without such equipment and assurances could violate labor laws. Disciplining and terminating employees under those circumstances would likely lead to claims of unlawful retaliation or wrongful termination in violation of public policy.

Stockpiling reasonable amounts of personal protective equipment will be critical. It will also be important to communicate regularly with employees about the safety measures put in place, the kinds of equipment on hand and the mandatory sanitation practices to be followed by all employees.

2. Barring employees who show signs of potential infection
Health care employers should anticipate that some employees may want to report to work even though they might be exhibiting symptoms of the virus out of, perhaps, a desire to help during the crisis or a need to maintain their wages. Employers might be tempted to require the employee to disclose their medical conditions or confirm whether they have been diagnosed as having contracted the virus. However, such a requirement could violate the Americans with Disabilities Act (under a “regarded as” disabled claim) or the employee’s privacy rights. Requiring employees to undergo mandatory testing for the virus is likewise problematic absent a reasonable belief based on objective evidence that the employee poses a direct threat to him/herself or others due to the suspected medical condition.

Further, employers should ensure that all of its employees are aware of the symptoms of the virus and empower them to call off of work until the symptoms have subsided or to work from home if possible. Employers can require employees showing visible symptoms of the virus to leave work and take paid time off or sick leave. They should be encouraged to seek medical attention immediately. Under wage and hour laws, employers may be required to continue to pay overtime exempt employees who don’t have accrued paid time off, but who are required to leave work until such symptoms have subsided.

3. Mandatory vaccinations for the virus in the future
The Centers for Disease Control and Prevention estimates that it will take approximately one year to create and mass-produce a vaccine for this virus. Making such a vaccine a condition of employment will likely be subject to the same two exemptions associated with other vaccines, like the flu vaccine. Namely, employees will likely be able to assert a medical or religious exemption to a mandatory vaccination program.

However, health care employers can require that an employee get a medical provider to document that he/she has a medical condition that prevents him/her from getting the vaccine. For a religious exemption, employers can require that an employee explain how getting the vaccine would violate their religious tenets.