In this episode of The Proskauer Brief, partners Harris Mufson and Guy Brenner discuss the coronavirus and what employers should be thinking about regarding that virus in the workplace. While the Occupational Safety and Health Administration has stated that most American workers are not at significant risk of infection at this time, it’s never too early for employers to consider how they can address employees’ concerns and help prevent an outbreak and address one if it occurs.  Tune in as we discuss practical tips and advice for employers who are thinking about being proactive in terms of confronting the potential issues associated with the coronavirus.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

 

Harris Mufson: Hello and welcome to The Proskauer Brief: Hot Topics on Labor and Employment Law. I’m Harris Mufson and I’m here today via phone with Guy Brenner.  On today’s episode we’re going to discuss the coronavirus and what employers should be thinking about regarding that virus in the workplace.

Now, Guy, there have been numerous news reports, obviously, about the coronavirus, and the Occupational Safety and Health Administration has stated that most American workers are not at significant risk of infection at this time, and the situation is evolving.  But it’s never too early for employers to consider how they can address employees’ concerns and help prevent an outbreak and address one if one occurs.  So, why don’t we start off with some practical advice for employers who have certain employees who travel to China for business?  Can you describe some practical tips for those employers?

Guy Brenner: For sure, Harris.  This is a rapidly evolving story and one that I think is getting the attention of employers and employees; and it’s something that employers need to get ahead of.  And so, for employers that require employees to travel to China as a practical matter, it seems today as we’re taping this that a number of airlines have indicated they’re suspending their flights to China.  So, as a practical matter, it may be difficult to do that. But employers may be facing situations where employees may want to go to China to continue business or employees who need to travel to China but are afraid to do so.  Employers need to make discussions as to how they want to handle those things.  You know, the safest practice—most prudent practice, would be to limit business travel to the affected areas.  You don’t want to be in the position where you are subjecting your employees, putting them in harm’s way, even if you believe the risk is slight.  And you also don’t want to deal with a situation where you have employees who are understandably nervous about going to that area and feel like they are being compelled to do so by their employer.

Harris Mufson: So, what should an employer do if an employee has recently traveled to China for business or vacation, any reason? What should employers be thinking about in that regard?

Guy Brenner: That is a tricky question; it’s a good question, and it’s one that I think we know from our clients.  It’s one that has already manifesting itself in work places across the country.

What employers are going to be facing is situations where they don’t know if an employee who was recently in China may have been exposed to the virus and whether they may bring that exposure into the workplace.  I think employers basically need to handle these things prudently and with caution but not in a way that’s going to create alarm.  So, if an employer knows that an employee is in China right now or recently returned from China, it may be worth getting into a dialog with the employee about having them work from home for a period of time.  I believe 14 days is believed to be the incubation period for this virus.  To just see if, you know, to make sure that the employee isn’t exposed and won’t expose other people.  That may also make people in the office less concerned about potentially getting sick.

In so doing, you want to be careful and you want to consult with counsel because the way you ask, and the circumstances surrounding it, could potentially subject the employer to certain claims by employee if it’s not handled properly.  So, you want to do it delicately.  But, as a general matter, seeing if an employee who recently was in China was willing to work from home for that period of time is a prudent measure to consider.

Harris Mufson: And so anything else?  Any other practical tips or advice that you have for employers who are thinking about getting out in front of this and being proactive in terms of confronting the potential issues associated with the coronavirus?

Guy Brenner: I think, what employers should do is to think right now.  What is your policy with respect to travel to China, and articulate that policy to your workforce? So, the State Department has indicated that they do not recommend that Americans travel to China right now, an employer can certainly put out a statement to its workforce saying they’re suspending work travel to China and is recommending that none of their employees go to China, and if they do, that they will need to let the employer know and that they may be required to work from home or that they may need to not work but be at home.  Or not come into the office for a period of 2 weeks from the time that they return.  Setting that policy up now in advance avoids certain risk with respect to people complaining that these measures were imposed on them specifically as opposed to generally.  It also helps the employer maybe calms some nerves of some employees who may be concerned particularly in workforces where travel to China is common.

Harris Mufson: And I’ll just note that we are recording this on January 31st, 2020, and so, this is a developing story, right?  As the science surrounding this disease develops and outbreaks hopefully are contained within the United States, there has been some reporting cases outside of New York already.  This is a developing situation, so we’ll continue to monitor that and advise our clients accordingly.

Guy Brenner: Yeah, that’s an excellent point.  I mean, I think it’s important for employers to stay on top of this and to respond as needed, and not with panic but with reason, and to make sure that they’re thinking about these things prudently and consulting with counsel as appropriate.

Harris Mufson: Alright, thank you so much, Guy, for your insight, and thank you, all of our listeners for joining us today on The Proskauer Brief.  Stay tuned for more insights on the latest hot topics in labor and employment law.  And be sure to follow us on Apple Podcasts, Spotify and Google Play.

 

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.