The recent worldwide outbreak of the respiratory disease COVID-19, caused by the novel coronavirus, presents many issues for hospitality establishments, hotels in particular. Employers must be vigilant and follow federal, state and local laws concerning “shelter in place” and similar orders and pay careful attention to agencies such as the U.S. Centers for Disease Control and Prevention. Issues are different for those hotels remaining open throughout the crisis and those who have already or will close.
This article is intended to provide only general information and does not address every potential concern. Given the complex legal landscape and the multitude of issues involved, hospitality employers should consult with legal counsel about the facts and circumstances of specific situations prior to taking any action in response to the coronavirus.
1. How can we prepare for a local outbreak (or recurrence) of the coronavirus?
Create an outbreak response plan now to ensure the continuity of your operations and involve your employees in that process. You should anticipate increased employee absences, as employees and their family members may become ill and their children’s schools and childcare providers may close. It would be advisable to determine which positions or functions are critical to your operations and plan for operating with reduced staff, which may involve cross-training employees to perform other duties or allowing employees to work from home (if possible).
Review your human resources policies and practices to ensure that they are flexible and comply with applicable laws (e.g. new paid leave laws) and public health recommendations, as well as develop a communications plan for sharing critical information with employees. In advance of any outbreak, remind employees of your sick leave policies, including their rights under applicable laws, and share details of your response plan. In addition, if you do not already have one, think about creating a disaster relief policy that addresses issues such as payments and distributions through charitable organizations and funds. Many hotels already have Disaster Plan policies—now is the time to update them and account for pandemics.
While many federal, state and local laws affect an employer’s response to an outbreak of the coronavirus, the U.S. Equal Employment Opportunity Commission previously released guidance on pandemic preparedness in the workplace and the Americans with Disabilities Act. The guidance is available here and may be instructive when creating your outbreak response plan.
2. Can we ask employees to stay home if we suspect they may have the coronavirus or have been exposed to the coronavirus?
Generally, employers are obligated to protect their employees from known hazards, which may include the coronavirus. However, employers should tread very carefully if employees do not voluntarily divulge that they have the coronavirus and employers are acting on mere suspicion.
To contain the spread of the coronavirus, you should actively encourage sick employees to stay home and remind sick employees of any rights that they may have to use paid time off when they are sick or caring for an ill family member. If employees have symptoms of an acute respiratory illness (e.g., fever, cough, shortness of breath), you can ask them not to return to work until they no longer have a fever for at least 24 hours.
3. Do we need to pay employees who are being quarantined, self-monitoring at home or are otherwise ill with the coronavirus or caring for a family member with the coronavirus?
It depends. Initially, you would be required to pay employees who are absent from work for these reasons if they have accrued paid time off pursuant to any paid safe/sick leave law. Additionally, employees may be entitled to several new federal and state paid leave programs as well. For instance, the new Families First Coronavirus Response Act provides for upwards of 80 hours of paid sick leave at the employee’s regular rate for eligible employees based on several COVID-related reasons outlined in the law. Generally, you are only required to pay nonexempt employees for the actual hours that they work. Therefore, legally, you do not have to pay these employees if they are unable to return to work after they exhaust any applicable paid leave entitlement. However, you likely would be required to grant them an unpaid leave of absence.
As for exempt employees, you are required to pay them their full weekly salary if they perform any work during a given week. Moreover, if you are requiring them to be absent from work—such as to self-monitor for the coronavirus at home—you must pay them their full weekly salary. On the other hand, if they are diagnosed with the coronavirus and unable to work due to their medical condition, then you likely would not have to compensate them after they exhaust any applicable paid leave entitlement. However, granting such employees an unpaid leave of absence is advisable. To the extent your workplace is unionized, you must consult your collective bargaining agreement with respect to leaves and other changes to policy.
4. Can we tell other employees about an employee who has or may have the coronavirus?
Employees have a reasonable expectation of privacy regarding their medical information. Therefore, you must maintain the confidentiality of any employee with a suspected or confirmed case of the coronavirus and should put procedural safeguards in place to protect his or her identity (including the reason why an employee may be working at home during a quarantine or self-monitoring period).
However, you should inform other employees of their possible exposure to the coronavirus because employees have a right to know if there is a health risk in their workplace. Those employees then can and should conduct a risk assessment of their potential exposure based on guidance from the CDC. Be very careful not to comingle employee medical information and personnel files.
5. What do we do if an employee arrives at work presenting symptoms of the coronavirus? Can we take their temperature?
If an employee arrives at work displaying symptoms of respiratory illness, you should immediately separate the employee from the other employees and send him or her home. However, under revised EEOC guidelines in March, employers may check employee temperatures. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements (i.e., all information about employees obtained through medical examinations—which include temperature checks—must be kept confidential and maintained on separate forms and in separate medical files and be treated as a confidential medical record). Please be cautious however, and make sure your jurisdiction does not have higher standards. Finally, even if the employee does not perform any work on the date in question, as a hospitality employer, you should be mindful of any legal requirements to provide the employee sent home with call-in pay.
6. If a vaccine for the coronavirus becomes available, can we require our employees to get it?
No, you cannot require employees to be vaccinated for the coronavirus if a vaccine becomes available. Nonetheless, it is possible that state and local laws may change in the future with respect to mandating such vaccinations. However, in the meanwhile, if a vaccine becomes available, you can educate employees about the vaccine, consider making it available at no cost to employees, and consider offering employees leave to obtain the vaccination.
7. What should we do if we believe that a guest or visitor to our establishment has the coronavirus?
You should be very careful in taking any action, particularly if your beliefs are mere suspicion, because it is against the law to deny a person entry to your establishment and refuse service based on a person’s actual or perceived race, ethnicity, national origin or disability. If your establishment has been enlisted or otherwise has agreed to shelter first-responders or those with the virus, it is essential that you speak to your local government agencies and follow enhanced protocols.
8. What should we do if a guest enquires about whether any employees have the coronavirus or recently traveled to a CDC-designated area?
As explained above, you must maintain the confidentiality of any employee’s medical information. However, in response to a guest inquiry, you may choose to inform that guest as to whether any employees recently traveled to a CDC-designated area and/or have been diagnosed with the coronavirus. You also may choose to inform the guest of the precautions that you have taken to minimize the risk of transmission to any person who enters the establishment.
9. As a hotel are there other precautions we should be taking with respect to operations?
Yes; check the U.S. Environmental Protection Agency website about switching to and using disinfectant products that have been preapproved by the EPA for use against emerging pathogens such as COVID-19. Review laundry procedures and add appropriate disinfectants. Bed scarves, bedspreads and pillows should be washed and/or replaced more frequently. Increase the frequency of cleaning public spaces such as the front desk, bathrooms, elevators and meeting areas. Strongly consider closing other spaces such as business centers and gyms (if not otherwise ordered to close by the government). Make sure record-keeping is up to date so that you can better trace who has been in contact with infectious individuals on your property. Consult with local health departments and employer-groups for further guidance and advice. With respect to employees make sure they are trained on new procedures and post appropriate signage concerning hand washing and other preventative measures. Provide information in multiple languages where necessary. Familiarize yourself with Occupational Safety and Health Administration requirements set forth in sections 13 and 14, which impose various duties on employers to ensure a safe environment. Assess whether changes to food-and-beverage and in-room dining should be implemented—including take-out service only. Finally, consider using teleconference for in-house meetings.
10. We may be permitted to open up again soon, what should we be doing?
Work with health and safety experts to make immediate and necessary changes to your facilities to promote social-distancing and safety measures. These may include installation of multiple hand-sanitizer stations, limiting occupancy of elevators, gyms, restaurants and other public spaces, implementation of additional cleaning procedures, and explore the use of antimicrobial and other means to lessen risk when using elevator buttons, doorknobs and the like.
Carolyn D. Richmond is a partner in the New York office of Fox Rothschild and co-chair of the firm’s Hospitality Practice Group. She can be reached at 212-878-7983 or [email protected].