What Are Companies Legal Obligations Around Coronavirus
What Are Companies Legal Obligations Around Coronavirus
What Are Companies Legal Obligations Around Coronavirus
Around Coronavirus?
by Peter Susser and Tahl Tyson
March 04, 2020
With the rapid global spread of coronavirus, companies should focus first and foremost on
employee safety. And as they’re reviewing their strategies, policies, and procedures, many
leaders are specifically wondering about their legal risk. Not having adequate
communicable-illness policies and response plans could expose them to a laundry list of
HR-related legal concerns.
Most countries have laws designed to protect employees from physical harm at work. In the
United States, employees are protected under the Occupational Safety and Health Act, so if
an employee becomes infected at work, in some circumstances the employer may face
penalties. Unprepared employers may be exposed to lawsuits related to workers’
compensation, invasion of privacy, discrimination, unfair labor practice, and negligence.
https://hbr.org/2020/03/what-are-companies-legal-obligations-around-coronavirus?utm_medium=email&utm_source=circ_other&utm_campaign=s… 1/6
3/10/2020 What Are Companies’ Legal Obligations Around Coronavirus?
The good news is that with careful attention to employee safety and legal preparedness,
employers can minimize employees’ risk of infection and their own legal risks. Following
are eight steps companies should take to these ends. The value of these efforts, of course, is
relevant to any life-threatening infectious disease, not just coronavirus.
Stay informed
Start by identifying authoritative sources of public health guidance on the epidemic, and
stay up to date on officially recommended and mandated actions in the applicable
jurisdictions. These sources include The Centers for Disease Control and Prevention, The
World Health Organization, The European Center for Disease Prevention and Control, and
country-specific public health guidance such as this for Singapore and this for the United
Kingdom.
This official guidance should serve as the foundation for organizational decisions about
health- and legal-risk mitigation. Being able to demonstrate corporate policy alignment
with official recommendations can be an important legal safeguard in cases where the
company’s infection-control efforts are challenged.
Employers should also instruct staff to inform management if they have been exposed to the
virus or show symptoms of infection, or if they, or a member of their household, have
particular vulnerabilities such as a weakened immune system that may require enhanced
https://hbr.org/2020/03/what-are-companies-legal-obligations-around-coronavirus?utm_medium=email&utm_source=circ_other&utm_campaign=s… 2/6
3/10/2020 What Are Companies’ Legal Obligations Around Coronavirus?
protections from infection. Further, staff with symptoms of infection should be sent home
or instructed to stay home, and visitors who have been exposed or who have symptoms
should be excluded from the workplace. Failure to provide this guidance can potentially
expose a company to liability should employees become infected in the workplace and it can
be shown that management had not communicated about this policy. (Although disability
discrimination laws protect employees with covered health conditions, limitations can
generally be imposed if there’s a direct threat to the health or safety of others.)
In the United States, employees are protected under the Occupational Safety and Health
Act (OSH Act). Section 5(a)(1) of the OSH Act is the general duty clause, which requires
employers to provide their employees with a workplace “free from recognized hazards …
likely to cause death or serious physical harm.” The federal Occupational Safety and Health
Administration (OSHA) can cite employers for violating the general duty clause if there is a
recognized hazard and they do not take reasonable steps to prevent or abate the hazard.
However, OSHA citations can only be based on standards, regulations, or the general duty
clause.
cannot recover damages for pain and suffering or mental anguish. Some states allow
additional awards — beyond normal workers’ compensation awards — when injury results
from an employer’s “willful” or “intentional” act, which might include failure to provide
appropriate protections.
Businesses also have to consider liability to third parties, such as customers, which may not
be so limited. For example, a restaurant employee infected on the job will only be entitled to
workers’ compensation, but theoretically the patrons they may infect could seek greater
damages.
Drawing on this analysis, companies should consider under which circumstances they
would want to extend or expand benefits and protections, and they should evaluate their
level of income protection for employees on leave, perhaps adjusting benefits plans for
employees who exceed their sick-day allotment in order to support sick employees who
must stay home.
It is important to look beyond the immediate legal requirements to the broader business
and legal implications. For example, a business may not be legally required to pay an
employee during a period it bars him or her from the workplace because that individual was
on personal travel to a place where transmission was occurring. However, choosing not to
do so makes it more likely that they prematurely return to work, thereby infecting other
staff, risking business continuity, legal liability from third parties such as customers, and
contributing to an increase in infections.
mean taking steps beyond the minimum if doing so is not unduly burdensome to the
employer and mitigates the psychological burden on the employee. For example, rather
than terminating the employee for refusing to come to the office due to fear of contagion,
even though all officially recommended precautions have been taken, an employer might be
more flexible in allowing time off or remote working arrangements. Such steps can help
U.K. employers avoid claims of unfair dismissal.
Employers should be aware that mental health conditions such as germophobia may be
protected as a disability under laws such as the Americans with Disabilities Act and require
that employers take a modified approach pursuant to reasonable accommodation
requirements.
Protect privacy
Employers should understand which personal health data an employee might be obligated
to disclose if he or she becomes infected or is at high risk for infection — likely, anything
that could interfere with the employee’s ability to perform the essential functions of the job,
or that could increase the risk to coworkers or third parties through workplace contact.
Failure to understand the legal obligations in relation to such data could expose the
company to breach of privacy claims.
Fortunately, even rigorous privacy rules allow employers to disclose employees’ protected
health information to authorities for public health purposes. That said, all such data must
be handled within the organization’s data privacy protection framework, and if such data is
being transmitted from the European Union to the United States, care should be taken to do
so in compliance with the General Data Protection Regulation (GDPR).
https://hbr.org/2020/03/what-are-companies-legal-obligations-around-coronavirus?utm_medium=email&utm_source=circ_other&utm_campaign=s… 5/6
3/10/2020 What Are Companies’ Legal Obligations Around Coronavirus?
Peter Susser ([email protected]) is partner in the global employment and labor law firm, Littler Mendelson,
based in Washington, D.C.
Tahl Tyson ([email protected]) is a partner in the global employment and labor law firm, Littler Mendelson. She is
a U.K. solicitor based in Seattle, Washington.
Comments
Leave a Comment
Post Comment
0 COMMENTS
POSTING GUIDELINES
We hope the conversations that take place on HBR.org will be energetic, constructive, and thought-provoking. To comment, readers must sign
in or register. And to ensure the quality of the discussion, our moderating team will review all comments and may edit them for clarity, length,
and relevance. Comments that are overly promotional, mean-spirited, or off-topic may be deleted per the moderators' judgment. All postings
become the property of Harvard Business Publishing.
https://hbr.org/2020/03/what-are-companies-legal-obligations-around-coronavirus?utm_medium=email&utm_source=circ_other&utm_campaign=s… 6/6