By Kelley Walton
As sports and recreation organizations adjust to the new normal in dealing with the COVID-19 pandemic, employers are faced with the difficult task of balancing the safety of their workforce and the privacy of employees who are diagnosed or exposed to COVID-19. The best way to communicate expectations to employees and hold them accountable is to have a company policy that explains exactly what is expected and the consequences for non-compliance.
To ensure that your workplace is safe and healthy, it is recommended that employers have a communicable disease policy. This can either be COVID-19 specific or a general communicable diseases policy. The employer will need to determine whether the policy should apply to all communicable diseases like influenza, Ebola, and tuberculosis or whether they want a policy to deal with COVID-19 only. The employer’s location and likely exposure of employees to other diseases will most likely determine the scope of the policy. Many employers are creating a specific COVID-19 policy, so this article focuses on the creation of a specific COVID-19 policy for employers.
Employers are required to comply with a variety of laws when creating workplace policies and managing their employees. It is no different with creating a COVID-19 policy. Health Insurance Portability and Accountability Act (HIPAA) involves confidential handling of employee’s protected health information, Occupational Safety and Health Act (OSHA) states that employers have a duty to provide a safe workplace, Americans with Disability Act and Americans with Disabilities Act Amendments Act (ADA and ADAAA) protects workers with disabilities from discrimination, Families First Coronavirus Response Act (FFCRA) has special provisions and requirements for employees affected by COVID-19, Family Medical Leave Act (FMLA) provides unpaid job protection for eligible employees for a certain period of time and the Fair Labor Standards Act (FLSA) requires compliance with wage and hour regulations involving exempt and non-exempt status and overtime.
Given there are many legal and practical aspects to consider, when developing a COVID-19 policy, employers should:
Include a statement that the company will take into consideration and comply with all applicable federal, state and local laws; the recommendations of the Centers for Disease Control and Prevention (CDC); and the recommendations/mandates of federal, state and local governments when addressing issues related to COVID-19.
Explain that employee medical information will be kept as confidential as possible while maintaining a safe workplace. Employers may disclose, in general, that employees have been or may have been exposed to COVID-19 but should not reveal protected health information related to specific employees.
Require employees to stay home if they suspect or know they have COVID-19.
Require employees to notify the employer if they have been diagnosed with a COVID-19 and/or are under protocols for being exposed to COVID-19.
Explain the expectations of the employer and employees for keeping the work environment clean and complying with CDC and/or government recommendations/mandates.
Explain the company leave policy when a person has been diagnosed with COVID-19. Be clear about paid and unpaid leave. Reference your company’s sick leave policy and your company’s FMLA policy. These policies should all be consistent with each other and should all complement each other if a person takes leave due to COVID-19.
Provide a summary of the Families First Coronavirus Response Act with a link to the website that provides a summary of the act. As well, the Department of Labor FFCRA poster should be prominently displayed at your worksites. https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA-Employee_Paid_Leave_Rights.pdf
Provide guidance on business travel expectations.
Employers should not require persons with underlying medical conditions to remain home or work remotely without a physician’s suggestion. The Americans with Disabilities Act prohibits discrimination against employees with disabilities. Generally, employers should not ask employees to disclose whether they have an underlying medical condition. While employers may be trying to protect their workers, in reality they are treating these workers differently because of a medical condition and it is not the employer’s responsibility to restrict their work unless the employee is exhibiting symptoms or a physician requests an accommodation. Employers should be diligent in accommodating requests, but not requiring it of persons with underlying diseases without a request from the employee.
Employers also should not overly restrict personal travel. While the COVID-19 pandemic is changing many methods of operation and guidelines for travel, employers should focus on following federal, state and local guidance and not impose unnecessary restrictions to employee’s personal travel. If an employer is worried about exposure, it may be permissible to limit employee’s travel based on guidance from the CDC. For example, on March 26, 2020, the CDC issued an advisory that all persons traveling to New York City should self-quarantine for 14 days upon returning home. An employer could rely upon that guidance to require employees who travel to New York City for personal or business travel to self-quarantine upon return. It is important that the employer is relying on CDC or government guidance and not imposing blanket or arbitrary restrictions on the private actions of employees.
Once the policy is created, it is important that it is communicated to all employees. It should be clear what the expectations are of the employer and of the employee and it should be clear on consequences for violating this policy. The consequences for violating the COVID-19 policy should be the same as if an employee violates other policies in your employee handbook. Be consistent with company disciplinary action policies and with state laws. Generally, the language that is used is that “employees who violate this policy are subject to disciplinary action, up to and including termination.”
Employers are encouraged to be empathetic and find ways to adapt and work with those affected by COVID-19 directly and indirectly. While all employers will likely face some employees who will try to get as much as they can out of the “system,” most employees are diligent and hardworking who are likely concerned for the health and safety of themselves or their family members. Don’t make policies that harm your diligent workers in order to address the issues of those problem employees. That advice applies to ALL workplace policies but given that the COVID-19 pandemic has affected so many, it seems advice worth emphasizing.
Bottom line, what we are dealing with is like nothing the world has seen in the current era. Past pandemics did not face the personal and digital connections that we have today. We are a global society and a global marketplace. This has been evident by the quick spread of COVID-19 across the world. As employers, it is important to provide a safe work environment and support employees who are affected as we all try to find a way to manage the new normal at work and at home.
Kelley Walton, JD, SHRM-SCP is an Assistant Professor of Instruction and the Director of the Professional Master of Sports Administration and Master of Athletic Administration Programs at Ohio University. https://business.ohio.edu/about/centers-institutes/center-for-sports-administration/ She is also an attorney and consultant specializing in Human Resources consulting in the sport industry.
