Now that we have seen the first confirmed case of the novel Coronavirus, also known as COVID-19, in North Carolina, it seems that it may only be a matter of time until we see multiple cases in the Carolinas. With this in mind, employers in North Carolina and South Carolina should be taking steps to prepare—including measures to protect their employees and themselves.

From a legal perspective, there are several issues of which employers will be aware of. These include, but are not limited to, the following:

1. Asking Employees to Take Leave

One issue that employers may encounter is the need to ask employees to take leave. If an employee is exhibiting symptoms of the novel coronavirus, it may be in everyone’s best interests (and it may be the employer’s legal obligation—more on this below) to have the employee stay home.

Under federal law, an employer can ask an employee not to come into work if the employer has reason to believe that the employee presents a health threat to his or her coworkers. With respect to the novel coronavirus, such a request can extent for the full period of the virus’s incubation.

2. FMLA Leave for Employees Diagnosed with the Novel Coronavirus

Whether an employer asks an employee not to report to work or the employee stays home of his or her own volition, if an employee is diagnosed with the novel coronavirus, he or she may be entitled to the protections of the Family and Medical Leave Act (FMLA). In order to qualify for protected unpaid leave under the FMLA, an employee must have a “serious health condition,” as defined in the statute. Not all COVID-19 diagnoses are likely to qualify as serious health conditions for purposes of the FMLA, and an employee’s fear of contracting COVID-19 is generally not likely to qualify for FMLA protection.

3. Avoiding Allegations of Discrimination

When making decisions regarding employee attendance in relation to the novel coronavirus, employers in the Carolinas must be careful to avoid setting themselves up for allegations of workplace discrimination. For example, employees should not be asked to stay home based on their race or national origin. These are both protected classes under Title VII of the Civil Rights Act of 1964, and discriminatory practices – even if well-intentioned – can expose employers to significant liability.

With regard to disability discrimination under the Americans with Disabilities Act (ADA), employers may lawfully screen employees who present health risks for their coworkers as long as their screening measures are reasonably designed to prevent infection within the working population. Similarly, asking an employee who has been diagnosed with COVID-19 to stay home would generally be permissible under the ADA as well. That said, this can be a dangerous area for employers, and we would encourage all North Carolina and South Carolina employers to consult with legal counsel prior to taking any employment-related action in response to the risks posed by the novel coronavirus.

4. Providing a Safe Workplace “Free from Recognized Hazards”

Under the federal Occupational Safety and Health Act of 1970 (OSHA), employers have a legal obligation to provide their employees with a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm.” This obligation also extends to employees’ employment generally, meaning that employers could potentially face liability under OSHA for sending employees to locations where the risk of contracting the novel coronavirus is high.

When would this apply in the workplace? It is difficult to say for sure, but if an employee who is confirmed to have COVID-19 comes to work during the virus’s incubation period, it will certainly be necessary to consider whether what obligations, if any, the employer has to protect its other employees.

5. Implementing a Policy that Forbids Employees with Symptoms of the Novel Coronavirus from Coming to Work

To mitigate the risk of the novel coronavirus being spread at their places of business, employers in the Carolinas can implement policies that forbid employees from coming to work if they are experiencing symptoms of a contagious disease. Many employers likely have such policies already—and these policies may be sufficient to cover the novel coronavirus if they are general enough. However, given the risks associated with COVID-19, it may be prudent for employers to remind their employees that these policies exist and to inform them of the specific symptoms of which they need to be aware.

6. Requesting a Doctor’s Note Before Allowing an Infected Employee to Return to Work

Before allowing an infected employee to return to work, employers can lawfully request a doctor’s note confirming that the employee is fit to work and does not present a health risk to the company’s other employees. The same is true if an employee has returned from travel to an area with a high prevalence of novel coronavirus infections. However, employers should not ask specifically about an employee’s medical condition (i.e., whether the employee has been diagnosed with and/or recovered from COVID-19). Rather, they should focus solely on seeking confirmation that the employee is not likely to expose co-workers to a “hazard[] that [is]. . . likely to cause death or serious physical harm.”

7. Advance Preparations are Critical

As with all employment-related legal matters, advance preparation is the key to mitigating the risk of employer liability. In order to protect themselves and their employees, employers in North Carolina and South Carolina should address the novel coronavirus proactively by adopting appropriate policies and procedures, and they should have a response plan in place that they can execute in the event that an employee exhibits symptoms of COVID-19.

Speak with an Employment Lawyer at Gignilliat, Savitz & Bettis, LLP

Gignilliat, Savitz & Bettis, LLP is an employment law firm based in Columbia, SC, that represents employers throughout the Carolinas. If you have questions about preparing for the novel coronavirus and would like to speak with an attorney, we encourage you to call 803-799-9311 or contact us online to schedule an initial consultation.