Among the uncertainties posed by the coronavirus epidemic are the rights and responsibilities of restaurateurs and other employers in protecting their staffs, customers and the business itself. Can an operation legally send home sniffling employees? Is it lawful to require someone to show for their shift despite the employee’s fear of contamination? Are establishments permitted under current law to require that all staff members wear a mask?
Employers may have more leeway than they realize, even without much precedence to draw upon in setting their policies, according to employment law firm Dorsey & Whitney. In a webinar yesterday that drew more than 1,000 participants, attorneys for the West Coast firm offered some guidelines and recommendations, starting with what they stressed is an essential move for any employer at this stage in the crisis: having an articulated plan.
“Coming up with a plan to deal with a pandemic—it’s your No. 1 protection,” said Aaron Goldstein, an authority within Dorsey’s employment practice. And just as important: “Tell your employees the plan. People are really scared. They’re worried that no one knows what’s going on.”
For instance: “Plan what you’re going to do if you have an employee who tests positive. Don’t wait,” Goldstein said.
Employers do have some guidelines they can draw upon in drafting their policies, Goldstein noted, pointing to information that was put forth by federal regulators during the swine flu epidemic several years ago. That crisis did not wallop the United States as it did other nations, but health officials did provide recommendations at the time for employers.
One indication that is unambiguous, according to Dorsey: Employers can send home an employee showing signs of COVID-19, as the illness caused by a novel form of coronavirus that originated in China is formally known. An employee suspected of having the virus can be directed to stay home for 14 days, according to Goldstein. “You can even require that an employee get a certificate of approval from a health professional before allowing them back to work,” he said.
Less clear is whether an employer can compel an employee to work if the staff member claims to have symptoms of COVID-19, the Dorsey presenters said. “There are surprisingly few laws allowing employers to make those types of decisions,” Goldstein said.
But, he added, “You are permitted to ask employees, ‘What symptoms are you having?’”
In general, according to Dorsey, employees cannot refuse to come to work without repercussions. But presenters in the webinar suggested that employers be flexible and keep public perceptions in mind as well. For instance, said Michael Droke, another attorney in the firm’s labor and employment practice, healthy employees may more readily come to work if they know the business is shielding them from possible contamination by letting employees who suspect they’ve been infected stay home.
Complications can arise because of the technical change in the employee’s status. For instance, ”If someone is instructed not to work, they may or may not be eligible for unemployment compensation,” said Droke.
Businesses can also refuse employees’ requests to wear face masks. But, the Dorsey attorneys said, why would they want to?
“Maybe all the employees should be required to wear a mask, not for their protection, but as a reassurance to customers,” said Goldstein. “It’s not just what you’re legally obligated to do. There are also PR implications.”
One area that could be particularly difficult for employers is compliance with the WARN Act, a relatively new law that requires business of a certain scale to notify employees before the operation intends to shut down for at least six months. Some businesses may shut for what they expect to be a few weeks, yet conditions could extend the closure, and perhaps make it permanent.
“This is not just a health crisis, this is an economic crisis,” Goldstein noted.
Droke advised the webinar’s listeners to seek legal counsel on closures, given how complicated compliance with the WARN Act might prove to be.
The attorneys wrapped up their presentation with a look at what safeguards employers may or may not be required by the Occupational Safety and Health Administration (OSHA) to provide employees.
“These are guidelines, but only guidelines,” Goldstein said.
Those measures include providing hand-sanitizing solutions and encouraging employees to wash their hands often and thoroughly.
More coronavirus resources
How restaurants can prepare for a coronavirus pandemic.
The National Restaurant Association has guidelines for coronavirus and what restaurants can do.
The CDC has interim guidance for what employers can do to respond to coronavirus. It also has a checklist for employers to prepare for pandemic influenza.
The WHO has guidelines for workplaces to get ready for COVID-19.
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