The Coronavirus which causes the disease COVID-19 ("Coronavirus”) presents a plethora of challenging labor and employment issues for employers in the United States. As the virus spreads and experts' understanding of it continues to evolve, employers find themselves asking what precautionary measures they can or should take in response to the outbreak and its risks, how to respond when problems arise, and what are the legal considerations surrounding these measures. Below is a summary of certain potential strategies for dealing with the Coronavirus and key legal risks that employers should consider in making judgments and formulating their Coronavirus response efforts.
Establish an Individual or Team to Serve as Key Point of Contact and Stay Up to Date
News and guidance about the Coronavirus is rapidly changing, and employers need to be prepared to understand (1) current facts about the virus, (2) the latest guidance from applicable agencies, and (3) how the Coronavirus is impacting their workforce. Just as importantly, employers must be able to adapt when these things change. Employers thus should identify who is responsible within the organization for establishing policies and, where applicable, making decisions relating to the Coronavirus in the workplace. Having a trusted individual or a core group of individuals of a manageable size will help ensure that decisions can be made quickly and in a consistent and even-handed manner. Managers and others should be instructed to consult with this group when Coronavirus issues arise, to alert this group of updates, and to follow their guidance.
A point person or team should have duties such as:
- For U.S. employers, remaining abreast of the latest guidance issued by the Centers for Disease Control ("CDC"). Employers worldwide should consider guidance from the World Health Organization ("WHO"), and employers abroad should consider the European Centre for Disease Prevention and Control ("ECDC"), or another applicable authority.
- Monitoring guidance from applicable state and local authorities, as well as guidance relevant to the employer's specific industry. For example, the CDC has issued general interim guidance for businesses and employers, and has also issued guidance and resources for specific organizations such as laboratories, healthcare facilities, and schools. Following the guidance from these authorities may shield employers from legal claims. The EEOC, for example, encourages employers to follow CDC guidelines. You should also consult the OSHA website for any developments including how to report lost workdays resulting from Coronavirus.
- Being informed immediately of any developments within the workplace such as an infection.
- Leading efforts to establish or adjust policies in the workplace relating to the Coronavirus.
- Where appropriate, being responsible for consulting with other relevant constituencies, such as human resources, internal or external counsel, and unions.
Consider Establishing Action Plans and Policies
Employers should consider developing a written action plan or policy tailored to their own company's needs and a system for communicating internal policies related to the Coronavirus to employees. Employers may also want to communicate such documents (or summaries of such documents) to customers or third parties to assure them that they are taking the issue of Coronavirus seriously. Likewise, employers should consider whether to make temporary adjustments to preexisting policies, such as those involving travel/meetings, access to company offices by third parties, and telework (some of these issues are discussed below).
The advantage of establishing an action plan or policy (or modifying preexisting policies) is that it can improve the likelihood of consistent treatment of similar situations. However, employees must understand that these plans or policies are subject to change at any time with changing circumstances.
Address Issues of Workplace Safety
Under the Occupational Safety and Health Act ("OSHA"), employers with facilities in the U.S. or U.S. territories are required to furnish a place of employment that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm." While OSHA has not issued standards specific to the Coronavirus, OSHA has a webpage with information for workers and employers about the situation that identifies the existing OSHA standards that will apply to Coronavirus risks, as does the National Institute for Occupational Safety and Health (NIOSH), an arm within the CDC. OSHA's webpage also provides links to current information from the CDC on issues that should inform employers' response, such as information on how the Coronavirus spreads and recommendations for common-sense precautionary measures that employers should take to prevent the spread of infection.
According to the most recent guidance from the CDC, the Coronavirus is thought to spread mainly person-to-person in close contact situations (up to 6 feet), through respiratory droplets produced when an infected person coughs or sneezes, which can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. According to the CDC, it is currently unknown whether the Coronavirus can be contracted by touching a surface or object that has the virus on it and then touching one's own mouth, nose, or possibly eyes, although that may be possible. The CDC's current recommendations for precautionary measures to prevent transmission of the Coronavirus in the workplace provide that employers should adopt include, among other measures:
- Actively encourage sick employees to stay home and seek prompt medical attention.
- Send employees home immediately if they exhibit signs of acute respiratory illness such as cough or shortness of breath.
- Educate employees about the employer's sick leave policy as well as respiratory and hand hygiene.
- Provide tissues and no-touch disposal receptacles for use by employees.
- Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty. Provide soap and water and alcohol-based hand rubs in the workplace, and place hand rubs in multiple locations or conference rooms.
- Perform environmental cleaning such as routinely cleaning all frequently touched surfaces such as workstations, countertops, and doorknobs and provide disposable wipes for employees' use. At this time the CDC does not recommend any enhanced cleaning methods.
- The CDC currently does not recommend that people who are well wear a facemask, however, it does recommend that the following persons wear masks: (1) those who are infected with Coronavirus or showing symptoms; (2) those who are caring for someone who is infected with Coronavirus; (3) health workers; or (4) those who are recommended to do so by a healthcare professional.
In taking any actions, unionized employers should consider whether they have any obligation to notify or bargain with their unions over their planned actions.
Note also that, unlike the common cold and flu, OSHA has determined that the Coronavirus is a recordable illness when a worker is infected on the job, and OSHA recordkeeping requirements apply. Many states and localities impose similar or additional safety requirements that may also apply to the Coronavirus.
If an employee contracts the Coronavirus at work or during a work-related activity (such as business travel), the employer should notify its workers' compensation carrier immediately. Workers' compensation may provide coverage for employees, but bear in mind that unpaid interns, volunteers, independent contractors, and third-party vendors are typically not covered by workers' compensation and may present greater liability risks.
Consider Travel and Event Restrictions
Employers should consider implementing business travel restrictions to high-risk areas. As the areas of concern evolve, employers should continue to monitor the travel guidance issued by the United States and various national governments and follow the government recommendations to prohibit business travel to high-risk areas for non-essential purposes. As of March 5, the CDC has advised travelers to avoid all non-essential travel to China, Italy, South Korea and Iran ("high-risk countries") and indicated that older individuals and those with chronic medical conditions consider postponing travel to Japan. Of course, the list of "high-risk" countries is subject to change.
The CDC has stated that travelers returning from high-risk countries should stay home for 14 days and avoid contact with others. The CDC also advises that employees who are well but who have a family member at home with the Coronavirus should contact their supervisor and refer to the CDC's guidance on how to conduct a risk assessment of their potential exposure.
Also, consider whether in-person conferences or similar events in all locations should be postponed or conducted via teleconference or videoconference. Employers are increasingly postponing such events since attendees may be reluctant to travel in the current environment, and to avoid risks associated with potential Coronavirus exposures.
Although employers can restrict work-related travel, note that prohibiting personal travel or other personal activities may be problematic. For example, certain states prohibit taking adverse action against an employee for some types of an employee's lawful, off-duty conduct, although the scope of these laws varies. Employers should also bear in mind that for-cause termination provisions in union or other contracts or policies may be implicated if an employee is terminated for not following a personal travel restriction.
Consider Adjusting Telework Policies
Employers should review their flexible work arrangements and modify them as needed in their judgment. In addition to allowing any quarantined workers to telecommute when feasible, an employer should prepare for potential office closures by ensuring that all employees whose jobs can be performed remotely have remote access capabilities and consider requiring them to take their electronic devices home each day. If an employer decides to permit non-exempt employees to telework, it should ensure that it has a system in place, as well as clear instructions to employees, for accurately keeping track of non-exempt employees' time during telework periods. Likewise, an employer should consider if or how it will compensate employees whose jobs cannot be performed remotely in the event the employer imposes a work-stoppage (see the discussion on pay considerations below).
Consider Wages, Leave Policies and Benefits
How will employees be compensated during a Coronavirus outbreak if they are not working? The answer to this question will depend on, among other things, whether employees are considered exempt or non-exempt under the Fair Labor Standards Act ("FLSA"), applicable state or local laws, and employer policies or contracts (including collective bargaining agreements).
Under the FLSA,
- Nonexempt employees generally need not be paid for time not worked for Coronavirus-related or other absences.
- Exempt employees generally must receive their full weekly pay for any week in which they perform more than a de minimis amount of work (although depending on the specific facts, state laws, and employment policies, it may be permissible to deduct paid time off for days not worked), however, they need not be paid for full week absences.
In addition to the FLSA, employers need to follow any policies, contracts (including collective bargaining agreements) and state and local laws that may apply. Also, some employers may—for good reason—choose to go beyond legal and normal policy standards regarding the continuation of pay for Coronavirus-related absences, at least for some time.
Employers should take this opportunity to remind employees of their current policies related to paid and unpaid leave. Coronavirus-related absences, both for employees who are sick and employees caring for sick family members, may qualify as "serious health conditions" triggering the FMLA and similar state or local laws guaranteeing unpaid leave, as well as government-paid family and medical leave benefits available in jurisdictions such as California, New York, and (starting in July 2020) the District of Columbia. State paid sick leave laws may cover absences for the illness of an employee or family member, and may also cover absences due to closures of an employee's child's school or daycare facility.
If nonexempt employees are permitted to telework, special care should be taken to ensure that they are accurately tracking their hours worked, are paid for all hours worked, are complying with the employer's policies including meal and rest break policies, and understand whether they need to seek authorization before working overtime.
The ADA, Medical Inquiries, and Privacy
A Coronavirus infection itself may not itself constitute a disability under the Americans with Disabilities Act ("ADA") or similar state or local laws, but the ADA also protects employees who are "regarded as" disabled, which may come into play based on perceptions of employees who have been exposed to the Coronavirus or are thought to have been exposed, or as discussed below, who have disabling conditions that make them more vulnerable to the Coronavirus. Thus, employers must be careful and should seek legal advice before taking any adverse action against an employee who the employer believes has been exposed to or contracted the Coronavirus.
A common question is whether employers must "accommodate" employees who do not want to report to work because they are concerned about contracting the Coronavirus. The answer: it depends. In considering such requests, the employer should focus on, among other things, whether the employee is seeking accommodation for some other condition that makes them particularly vulnerable to COVID-19, or because of a diagnosed anxiety or other mental or emotional issue triggered by concern over the Coronavirus. Such preexisting conditions may themselves be disabilities for which potential accommodation may be required. If the request is not due to some other underlying condition, the employer should treat the request within the parameters of its existing policies, including any new policies developed especially for addressing the Coronavirus, taking care to ensure that those policies are enforced uniformly.
As a general rule, employers are permitted to send home employees who come to work visibly sick, whether from Coronavirus or any other contagious illness, and the CDC recommends that they do so. However, when sending an employee home, employers should keep in mind state laws which require paying non-exempt employees reporting time pay—a minimum amount of pay that must be paid to an employee when they report to work but is provided less than their usual amount of work, or no work, by the employer. It may be useful to train supervisors on how to detect the illness and deal with sending an employee home. Notably, employers should remember that the ADA generally does not permit employers to make inquiries about a current employee's medical information or status or ask employees to submit to medical examinations except in narrow circumstances, such as when an employer has a reasonable belief, based on objective evidence, that the employee poses a "direct threat due to a medical condition" to themselves or others. According to pandemic preparedness guidelines issued by the Equal Employment Opportunity Commission ("EEOC") in 2009 following an outbreak of the H1N1 influenza virus, such a "direct threat" might exist if the Coronavirus is officially declared to be a pandemic and is deemed severe by federal, state, or local authorities. In that event, the EEOC's guidance states that employers may make certain medical inquiries or take employees' temperatures to determine if they have fevers.
Any information that an employer does obtain from an employee or the employee's health provider about an employee being infected with the Coronavirus must be kept confidential and apart from the employee's personnel file, and the employer should not distribute information beyond those on a need-to-know basis (and only to the extent such individuals have a need to know). Employers may tell other employees that they may have been exposed to the Coronavirus and thus should seek medical attention, but may not reveal the name of the employee who has already contracted the virus. Likewise, it is not unlawful to tell an employee that he or she may voluntarily reveal to others in the workplace that he or she has contracted Coronavirus.
Avoiding Discrimination, Retaliation, and Whistleblower Claims
Although an employer may send an employee home based on a reasonable belief that the employee has been in contact with the Coronavirus, it is important to treat all similarly-situated employees equally. For example, employers must not treat individuals of a particular national origin (or who are associated with someone of a particular natural origin) any differently than other employees. Employers should also take care to follow existing policies when employees request leave or report workplace safety issues related to the Coronavirus to reduce exposure to potential retaliation claims under OSHA, the FMLA, or other applicable laws. In fact, employers should consider proactively reminding its workforce, and, in particular, its supervisors, about obligations to refrain from Coronavirus-related discrimination or harassment, and to report instances of same.
What to do if a Vaccine is Released?
At this time, no vaccine has been developed for the Coronavirus. However, if one is developed, employers may consider whether to develop mandatory vaccination policies. The EEOC has explained that an employer that adopts a mandatory vaccination policy may have to exempt employees based on either a disability under the ADA, or based on a sincerely-held religious belief under Title VII of the Civil Rights Act. In other words, from an employment law perspective, adopting a mandatory vaccination policy may be appropriate, but it would make sense to include a carve-out that the policy would yield to specific employees where required by applicable law. Employers should confirm that such a policy is acceptable under state and local law, as well as any applicable collective bargaining agreement.
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Employers should understand that there is no one approach that is best, and addressing issues related to the Coronavirus will require considering circumstances specific to the industry, the location(s) where the employer operates, the nature of its workforce, any contractual obligations, and the employer's own risk/benefit analysis, among other considerations.
The issues raised in this alert are not exhaustive. This is a novel and constantly evolving event that requires vigilance and flexibility. The Hogan Lovells Employment Team is available to advise on all employment-related aspects of the Coronavirus response, from crafting company or office-wide policies, to handling concerns involving individual employees. Please contact one of the authors of this Alert or other Hogan Lovells employment attorneys with whom you regularly work for additional information related to the Coronavirus.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.