Six key questions that New Hampshire employers may have about the virus
Published in NH Business Review (3/10/2020)
Whether the spread of Covid-19 is a serious pandemic or a lot of overblown media-driven hysteria, businesses are seeing very real impact on their daily operations due to this illness.
Here are some common questions about what the World Health Organization has identified as a “public health emergency of international concern.” But keep in mind that information about Covid-19 changes constantly, so it is important to recheck the most reliable sources on the topic: the CDC, WHO, and for most readers, your state and local public health offices frequently.
1. Are there precautionary measures businesses should take now to curb the spread of the virus?
Yes! Businesses have a legal responsibility to maintain safe places for employees and guests to their premises. As you should during any flu season, educate and remind employees to practice good hygiene by covering coughs (but not with the hand!), minimizing touching with handshakes or welcome hugs, washing hands frequently, and cleaning and disinfecting surfaces like phones, keyboards, kitchen counters, and bathrooms diligently and frequently. Think about an extra shift for the cleaning crew to deep-clean all surfaces, especially if there has been fever or illness on the property.
2. How do I decide whether to stop business travel?
Some businesses have already suspended business travel internationally and even in the U.S. Is this necessary? It is hard to say and should be addressed on a case-by-case basis. You should start with the CDC travel guidance, which assigns a level of risk to various locations. China, Iran, Italy and South Korea are designated as “Level 3, Avoid Nonessential Travel.” Clearly, travel to those countries should be avoided. Japan is designated “Level 2 (as of March 9), Sustained Community Transmission, Practice Enhanced Precautions.“ Level 2 locations should also be avoided, since that status may change on short notice, and the risk may not be worth taking. Employers should watch these designations carefully, but it is probably legally prudent to avoid travel that isn’t essential.
3. Can I require an employee to stay home and self-quarantine?
This is complicated. If an employee is symptomatic, you can ask them to stay home, to get tested and to obtain medical clearance before returning. It is important to train supervisors not to overreact and not to share private medical information about others. If an employee tests positive for Covid-19, send home all employees who worked closely with that individual for a 14-day period to lessen the chances that the virus will spread.
Do not identify employees by name to others who do not have a need for that information.
4. If I require employees to stay home, or if my business temporarily shuts down or slows down, do I have to pay my employees?
Complicated again. In New Hampshire, salaried employees must be paid for the entire pay period in which they perform work, but more than that is likely not required. Depending on your policies, employees might use sick or vacation time to avoid losing pay.
Temporary stoppage of work may also mean employees are eligible for unemployment benefits. Employees who actually become ill may be eligible for workers’ compensation or short-term disability benefits based on whether they were exposed to the virus on work travel or another way. Employees in states with paid family leave programs may have access to those benefits.
5. What if employees refuse to come to work or to travel to low-risk areas?
OSHA rules state that employees may only refuse to work if they believe they are in imminent danger which is defined as a “threat of death or serious harm.” Most work conditions in the U.S. currently do not meet that standard. You need to look, again, on a case-by-case basis at your workplace and whether the risks there are heightened.
6. Can I prohibit employees from wearing masks at work?
You can, unless the doctor ordered it. Healthy employees who aren’t in health care don’t need masks. Masks should be worn by people who are ill, to prevent them from spreading germs or if they have a compromised immune system.
Note: This is general guidance on a very complex issue. For guidance specific to your business, consult your attorney and check the latest from the CDC. And wash your hands.
Charla Stevens, a director in McLane Middleton’s Litigation Department and chair of the firm’s Employment Law Practice Group, can be reached at 603-628-1636 or [email protected].