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Wilson Sonsini – Employer Readiness for Issues Arising from the Coronavirus

19 March 2020


  • Marina Tsatallis, from SixtyFifty (WSGR)
  • Mark Gorman, from SixtyFifty (WSGR)

Providing a Safe Work Environment
Companies need to comply with workplace safety rules. The best way to do it is to follow recommendations on the CDC website. The ADA and the Rehabilitation Act rules are still the norms until it doesn’t infringe with the CDC advice.

There are three important points to follow during this period:

  1. Communication: Nominate a team or a person to follow updates and keep a clear communication between managers and employees. Communication must be clear, current and consistent.
  2. Policies: Review your HR policies, update it according to the needs (follow CDC updates and recommendations) or create a new one.
  3. Plan: Have one in place in case someone in the company gets infected. This should cover steps to be taken and how you will apply them in case of sickness or potential sickness.

Screening Employees
The following questions can be asked by the employer:

  1. Do you have any symptoms? If you do, when did they first appear?
  2. Have you had contact with someone who has tested positive for COVID-19 or is a suspected case?
  3. Have you traveled to any affected countries recently?

Please keep in mind that even though these questions are allowed they are still considered medical, so it cannot be recorded in your employees’ personal file, it must be recorded separately and kept confidential.

As it happened in 2009 with H1N1, during this period employers are allowed to measure employees’ body temperature (oral thermometers are considered invasive and therefore not allowed). If you feel the need to do so, please be mindful of privacy.

Confirmed or suspected cases of COVID-19
If any of your employees show symptoms of COVID-19 they must be directed home to be quarantined. Any employees who work within 6 feet of them should also be notified and allowed to self quarantine.

When can a sick employee return to work? Ideally a fitness for duty form from a medical doctor or a new test should be required, but this is not realistic during these difficult times, so employers should follow CDC’s recommendation which is to allow employees back to work 3 days after recovery or a week after symptoms disappeared.

Hiring questions
Employers may test new hires as long as they are consistent and test all of them. A start date might be delayed and the job offer can also be withdrawn in case of a positive COVID-19 test. For more information the EEOC website can be consulted, it’s all clearly explained on their portal.

Telecommuting policies
Employees must work the same amount of time as if they were in the office and should not receive calls or emails after their normal working hours as this may result in claims against the employer. For their own protection the company should have a clear schedule and record the working hours of its employees.

Additional rules can be established, e.g.: every employee should answer every email within 2 hours (when it’s during their working hours).

Employers must reimburse any necessary expenses incurred by employees when working from home. To avoid conflict, it should be asked to the employee to request authorization before making any purchase for this purpose.

The company can be liable for work-related injuries during telecommuting. Employers must make sure their employees’ workplace is safe and request that they work in a space away from another potentially sick person.

Legal Pursue
Any of the options below may be pursued, but we recommend that the employer speaks to a legal adviser before doing so:

  • Layoffs
  • Salary reduction
  • Unpaid leave
  • Hours reduction
  • Mandatory vacation
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