Recommendations

• Maintain open lines of communication with staff. Employers should educate employees about the coronavirus, including its symptoms and risks, and mitigating steps recommended by relevant health authorities:
• Use online and in-office employee information notices.
• Ensure that employees know what to do if they are concerned that they or their colleagues are infected by the coronavirus. For example, employers should establish first line points of contact within the HR team responsible for managing employee questions or concerns, and clearly communicate any business contingency measures to all staff members (see below).
• Encourage any employees showing symptoms of the coronavirus to follow public health guidance and to inform public authorities promptly.
• Remind employees about applicable HR policies and procedures, including absence reporting and home working arrangements.
• Train supervisors about strategies to address overreaction from employees and conflict in the workplace and ensure supervisors are informed about applicable medical laws that restrict inquiries into the health status of employees and the importance of adhering to antidiscrimination laws and avoiding stereotyping based on race and ethnicity, and national origin.
• Establish protective measures. Employers should check recommendations issued by public health authorities and take appropriate action in response (e.g., provide easy-to-access hand sanitizers in the workplace):
• Ensure that those managing the response plan keep up to date with the recommendations, including recommendations to avoid misinformation or overreaction. See, for example, the guidance for the public from the WHO, the U.S. Centers for Disease Control and Prevention (CDC), and the European Centre for Disease Prevention and Control.
• Closely monitor travel advisories and warnings from relevant public health and governmental authorities with respect to areas where your employees may travel or where you currently have operations. Consider reducing, making optional, or banning all non-essential work trips to affected regions—and provide guidance to supervisors about how to address concerns from employees about international travel.
• Consider asking all employees and prospective visitors whether they have recently visited any regions affected by the coronavirus or had close contact with anyone who recently visited those regions so that mitigating steps can be put in place (such as remote access meeting facilities, home working, etc.).
• Check local law requirements before asking employees to undergo testing for the coronavirus, and note that privacy laws generally restrict an employer’s ability to request health data from its employees (see below).
• Plan for business continuity. Employers should have a plan to deal with any business consequences resulting from the coronavirus:
• Begin contingency planning for operations and supply-chain disruptions that may occur due to travel restrictions in affected areas.
• Identify which medical facilities in your area would be best positioned to evaluate and treat any employees suspected of having the virus.
• Train staff members to reallocate tasks from those unable to work or who choose to work remotely or to avoid business-related travel.
• Ensure that a robust but fair procedure is established to deal with employees demonstrating symptoms of the coronavirus who refuse to stay away from work and those employees who refuse to attend work for fear of contracting the coronavirus.
• Facilitate home working where applicable (e.g., by ensuring remote access to IT systems).
• Ensure that relevant staff members know how to deal with disruptions in the supply chain. For example, some commercial agreements may contain “force majeure” clauses, which may reduce the liability of a party unable to fulfill its contractual obligations as a result of events triggered by the spread of the coronavirus (e.g., closing of international borders).

Key Questions

Can I ask my employees to leave the workplace if they show any symptoms of the coronavirus at work?

Generally speaking, employers must balance the obligation to ensure a healthy and safe working environment with their other legal obligations towards employees such as privacy and anti-discrimination legislation in the EU and rest of the world (including, in the United States, obligations under the Americans with Disabilities Act (ADA)).

Early-stage coronavirus symptoms appear to share similarities with a common cold. There is a risk of overreaction, severe business disruption and financial cost if employers apply a blanket policy requiring all employees with those types of symptoms to stay home. Employers should assess the risk on a case-by-case basis, and encourage employees displaying symptoms to seek and follow professional medical advice, in line with the employer’s usual practice for sickness absence reporting.

Note that in the United States, if the current outbreak is declared a pandemic by the WHO or the CDC, the U.S. Equal Employment Opportunity Commission suggests that requiring employees who show symptoms to stay home would be permitted under the ADA. Given that the current outbreak has not (yet) been officially declared a pandemic, however, employers should consider this guidance with caution.

Can I ask my employees to work from home if they recently returned from an infected area but do not show any symptoms of the coronavirus?

Given that (i) the incubation period of the coronavirus is currently understood to be between two and 14 days and (ii) there are reports that the virus can be transmitted to others even before an infected person displays symptoms, employers are potentially justified in asking any employees who recently returned from an infected area to work from home for at least the length of the incubation period. Employers should check their policies and contractual provisions regarding home working, explain the position to the employee carefully, and ensure that measures are put in place to facilitate any requirement to work at home. Where an employee’s role is not suitable for home working, employers should consider providing paid leave for the employee during the incubation period.

Can I ask my employees to provide health data (e.g., ask employees to submit to a medical examination)?

Privacy laws in most jurisdictions (including throughout the EU and the UK) restrict an employer’s ability to request health-related data. For example, in the EU, employers must always consider the requirements of the General Data Protection Regulation (GDPR) when seeking health data from employees. This would include identifying a lawful basis (under Article 6) for doing so as well as a separate condition applicable to health data (under Article 9). Likewise, in the United States, the ADA and similar state laws limit medical inquiries by employers if doing so may reveal someone’s disability. Given these limitations, employers should only consider asking employees to provide health data in line with their usual compliance practices or as a method of last resort or where there are specific concerns (e.g., where an employee was previously diagnosed with, or in close contact with, the coronavirus wishes to return to work).

Conclusion

Regardless of location, employers must balance the need to maintain a safe and healthy workplace against the privacy rights of individual employees and the potential risks of overreaction. Furthermore, even after this outbreak is contained, employers should ensure that they have adequate policies in place to deal with similar events in the future.

The authors thank their colleagues Wataru Shimizu, Amber Shubin, Yuki Terazawa, Miriam Wugmeister, and Tom Macintosh Zheng for their contributions to this article.

Author David Newman served as Chief of Staff to the Office of Ebola Response during his time on the National Security Council staff.