Coronavirus (COVID-19): Business Continuity and Your Infectious Disease Policy

Author: David Galt

The health impact on personnel is the primary threat to an organization trying to sustain essential functions and services during a pandemic outbreak. Many businesses do not have a plan to respond to such a threat, and even those that do are unprepared to respond effectively to the novel coronavirus (COVID-19) pandemic and its widely disruptive impact on businesses and the global workforce. It is never too late, however, to put in place measures to maintain stability and trust in business decisions to carry out mission-essential functions and protect employees and the public from the effects of the disease.

What are the components of a good infectious disease policy?

A good infectious disease policy helps slow the spread of disease among employees and other stakeholders, and at the same time sustains the core mission and operations of the organization. The policy describes how an organization will continue to function during and after a disease outbreak and incorporates provisions compliant with applicable laws and protections for its employees and the public. There are resources to help develop an infectious disease policy at the Coronavirus (COVID-19) Workplace Resource Center.

For illustration, the core components of the policy can be divided into three function-specific sections.

1. Operational Control

Responsibility for the Policy

Identify a coordinator or team with defined roles and responsibilities for implementing the policy and keeping it up to date.

External Contacts

Maintain a current list of contacts who can or have agreed to assist the organization during and after a pandemic, such as:

  • Government agencies;
  • Emergency responders;
  • Healthcare facilities and services;
  • Equipment suppliers; and
  • Service contractors.

Continuity Communications

Describe the basic communication systems and technologies that can be used to perform essential functions without physical person-to-person contact, and contingency measures if primary systems are interrupted or fail. Also describe mechanisms to enable employees to get the latest communications on the pandemic.

Transfer of Operational Control

Describe how the organization will transfer operational control if the pandemic renders leadership and essential staff incapable or unavailable.

Return to Pre-Pandemic Operations

Develop a contingency plan for the possibility that not all employees can return to work when normal operations resume, and that it may be necessary to hire temporary or new permanent workers for additional support.

Training

Identify job positions or personnel who must be trained in business continuity and infectious disease response measures and the type of training that is available. Also identify the training provider or vendor that will provide the training whether onsite or offsite. Train supervisors and employees where to find relevant information about business continuity.

Records

Describe procedures to ensure essential electronic and hardcopy documents, references and records are accessible and information systems remain operational. For larger organizations and multiple locations, a separate essential records management plan may be necessary.

2. Safety and Health

All employers must comply with the General Duty Clause of the Occupational Safety and Health (OSH) Act enforced by the Occupational Safety and Health Administration (OSHA). Under this clause, an employer is required to furnish each worker with "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." OSHA considers COVID-19 a recognized hazard and has prepared COVID-19 guidelines for employers.

Provide pandemic disease mitigation and protective measures for employees working onsite and offsite and for interactions with customers or the public during the pandemic, such as:

  • Making work from home and remote work options available to as many employees as possible, especially for employees with disabilities that increase risk of COVID-19-related complications and for employees who are or may be pregnant;
  • Social distancing measures for onsite employees, such as limiting in-person meetings or the number of persons occupying a cafeteria;
  • Staggered work schedules;
  • Personal hygiene practices and personal protective equipment such as masks or gloves;
  • Worksite disinfection and cleaning procedures, including supplies and equipment;
  • Business travel restrictions or bans;
  • Cancellation of nonessential activities;
  • Relocation of essential activities; and
  • Health monitoring for illness, such as temperature and respiratory symptom screening if feasible.

Include a procedure to notify employees if a fellow employee is confirmed to have been infected, and how notified employees should self-monitor for symptoms. Maintain confidentiality of the infected employee as required under the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA).

3. Human Resources Management

Family and Sick Leave

Ensure that leave policies are flexible to accommodate personnel that need to stay at home due to COVID-19 symptoms, quarantines, shelter-in-place orders, school and childcare shutdowns and other pandemic-related emergencies. The Families First Coronavirus Response Act, signed into law on March 18, 2020, provides emergency Family and Medical Leave Act (FMLA) leave and paid sick leave. The law requires employers with fewer than 500 employees to provide job-protected leave to employees who are unable to work (or work from home) due to a need to care for a child under 18 years of age based on school closings and loss of childcare services, and sick time to the extent that the employee is unable to work (or work from home) due to a need for leave for reasons related to COVID-19 such as a quarantine order or other reasons listed in the rule.

Attendance and Absenteeism

Describe the conditions under which the organization would accommodate absences of employees due to unforeseen events such as government closings of public transportation or other services. Write attendance statements broadly so as to comply with the federal ADA, the FMLA, the Fair Labor Standards Act (FLSA) and any other federal, state or local laws that provide individuals with protections for related absences or breaks. For example, be prepared to accommodate the extended absence of employees in recovery or recovered from the symptoms of illness when quarantine requirements stipulate longer periods of isolation during recovery.

Pay

Wage and hour requirements may come into play with remote work. Employees must be paid for all hours worked. Many states require that employers provide nonexempt employees meal and rest breaks. There are pay or reimbursement considerations for employee costs incurred for additional equipment or services needed for telework or accommodation for a qualified person with a disability to work from home. There are also steps to prepare payroll operations for a pandemic.

Layoffs, Furloughs and Terminations

Describe guidance for employees about unemployment insurance. The majority of states have expanded their unemployment insurance rules and/or guidance to account for the COVID-19 pandemic.

Closings

In the event there is a pandemic-related workplace closure, including closings caused by employees unable or unwilling to work, develop policies concerning payment based on each employee's status as exempt or nonexempt under the FLSA, the length and timing of closure, whether the employee performs work at home and the requirements of any collective bargaining agreements.

Return to Work

The Centers for Disease Control (CDC) encourages employers to adopt the agency's recommendation that infected employees should not return to work until the CDC criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments. Options now include 1) a time-since-illness-onset and time-since-recovery strategy for individuals not tested, and 2) a test-based strategy (contingent on availability of testing supplies, laboratory capacity and access to testing).

Be prepared to update the human resources guidance to keep pace with changes in government rules and services, the intensity and trajectory of the pandemic disease itself, and the needs of the workforce.

What are some dos and don'ts in drafting an infectious disease policy?

Do not make statements or adopt measures that could give rise to discrimination against employees based on fear of infection or determinations of risk based on race or country of origin.

Do provide guidelines for supervisors to make determinations on a case-by-case basis whether to stop the work or send someone home based on symptoms or signs of a pandemic-related illness.

Do maintain the confidentiality of people with confirmed coronavirus infections.

Do not make statements or encourage actions that set unreasonable conditions for automatic disciplinary action or termination for employee actions related to a pandemic. For example, an employee may refuse to go to the workplace based on fear of exposure to pandemic disease. The policy should promote interaction between the employee and management to work out an accommodation before progressing to disciplinary action.

Can the policy be amended during the pandemic and, if so, how might that be done without raising concerns among employees?

Be prepared to amend or update the policy in response to changes in government rules. If your organization already has a business continuity plan or policy, you may not need to rewrite it. Add an addendum that addresses the elements specific to the infectious disease and reference the addendum in the affected sections of the continuity plan. An infectious disease policy neither replaces nor supersedes a current, approved continuity plan; rather, it supplements it.

In the case of COVID-19, there is currently no vaccine so any provisions in your existing policy for vaccination will not apply to it until a vaccine is available. Reserve a place in your policy about vaccinations that can be amended when a vaccine becomes available.

How should the policies be communicated to employees?

Where possible, distribute via email or employer intranet existing policies for sick leave and other time off, social distancing and other measures to suppress the spread of infection at the workplace, remote work and actions the organization will take for violations of the policy.

What is the difference between an infectious disease plan and a business continuity plan, and how can the two be harmonized?

Many business continuity plans focus on what will happen if the building, equipment, products or services are damaged in some way from a natural disaster or an attack, with the assumption that some or most employees will be able to return to the building, or begin rebuilding, fairly quickly after the event.

An infectious disease like COVID-19, however, can cause many other social disruptions and complications when employees may not be able to return to work for extended periods, or return only intermittently, due to quarantines, prolonged or intermittent personal illness, long-term or intermittent school closings, lack of childcare services, or the need to care for sick family members. The infectious disease policy may include elements for social distancing at work and sick leave accommodations that may not apply to other elements of the business continuity plan.