The United States has not experienced a pandemic anything like what we are currently experiencing since the 1918 Spanish Flu outbreak that killed nearly 700,000 Americans. In 1918, most of the laws currently governing the employment relationship did not exist. Nor were those laws passed with a pandemic in mind. As a result, lawyers are facing unique challenges in counseling employees and employers in the pandemic.

Adding to this challenge is that a COVID-19 infection can exist in an employee asymptomatically for 10 days or longer, infecting other employees before anyone knows the virus is even present. It is like an invisible man sneaking into the workplace, causing injury or death without being detected until it is too late. And although the threat may be invisible, it cannot be ignored. An employer must mitigate against its effects while also taking care not to violate laws making mitigation even more difficult. This article will identify some of the issues that have arisen and laws that are implicated as a result of the presence of this invisible threat in the workplace.

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