August 3, 2020

Volume X, Number 216

July 31, 2020

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Assemble your COVID-19 rapid response team and plan now

ASSEMBLE YOUR RAPID RESPONSE TEAM AND PLAN NOW

Businesses are mobilizing to respond to employee and management concerns regarding the 2019 novel coronavirus (COVID-19). Employers want to know the first thing they should be doing to prepare. The answer from Godfrey & Kahn’s Labor, Employment & Immigration Law attorneys: Assemble your rapid response team now.

Who should be on your rapid response team?

While team makeup will vary based on sector and company size, a team should consist of employees with knowledge of safety compliance, employee policies and procedures, employee benefits, and operations. Key executives charged with reviewing and approving the plan and its implementation are also essential. These individuals should provide leadership as well as expertise in areas that directly impact key employment laws and regulations, such as Occupational Safety and Health Administration (OSHA) regulations, workers’ compensation, Fair Labor Standards Act (FLSA), Title VII nondiscrimination and the Americans with Disabilities Act (ADA).

The rapid response plan

First, it is important to know that the U.S. Centers for Disease Control and Prevention’s (CDC’s) current interim guidance to employers has not yet been updated in response to the World Health Organization’s (WHO) recent pandemic declaration. It’s possible the CDC’s employer guidance won’t change.

Using the CDC’s current recommendations as a base, here are 6 critical legal considerations for your rapid response plan:

1. OSHA: Identify internal and external potential sources of exposure to workers. Develop policies and procedures for prompt identification and isolation of employees who self-report symptoms and illnesses.

2. FLSA: Clearly identify expectations of hourly employees who temporarily work from home. For example:

  • Is there a cap on hours worked?

  • How should they record their time?

  • What are expectations of their productivity?

Also, remind employees that working from home is not a substitute for leave and how to  request paid time off and/or FMLA consistent with your policies when they are unable to work from home due to illness or for personal reasons. Employers should determine whether to extend, modify or adjust paid time off policies to provide additional paid time benefits to employees on a temporary basis.

3. Title VII: There is potential for racial and national origin profiling and comments among employees, particularly towards those individuals perceived or believed to be from countries where COVID-19 originated. It is important to remind employees not to engage in inappropriate discussions or rumors about coworkers and to restate your expectations for maintaining a respectful workplace.

4. ADA: Determine the essential functions of job positions, whether they are conducive to working from home. Remind key managers of the dangers of concluding an employee who exhibits common symptoms has COVID-19 from a “regarded as” disabled stand point.

5. FMLA: Review possible scenarios that would require unexpected employee leaves and whether the leave is Family and Medical Leave Act (FMLA) and/or Wisconsin Family and Medical Leave Act (WFMLA) covered. For example, while staying home with a sick child or spouse may be FMLA/WFMLA covered, a school closing unrelated to an illness of a covered family member likely is not covered. Prepare FMLA/WFMLA certifications forms now and/or touch base with your FMLA/WFMLA provider to ensure they are ready for an influx in requests.

6. Workers’ Compensation: Consult with your workers’ compensation insurance administrator to determine when COVID-19 is a work-related injury that needs to be reported.

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume X, Number 72

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About this Author

Rebeca Lopez, Labor & Employment Attorney with Godfrey Kahn
Associate

Rebeca Lόpez is an associate in the Labor, Employment & Immigration Practice Group in the Milwaukee office.

414-287-9634
Christine McLaughlin, Labor Attorney, Godfrey Kahn Law Firm
Shareholder

Christine Liu McLaughlin is a shareholder and chair of the Labor & Employment Law Practice Group in the Milwaukee office. Christine also is the immediate-past chair of the firm's Women's Leadership Forum and chair of the Diversity Committee.

Christine provides counsel on a wide variety of employment and labor issues ranging from interpretation and application of federal and state employment laws to specialized employee transition matters in complex business transactions.

Christine advises her clients on general employee hiring, discipline and termination issues; family and medical leave issues; federal and state disability discrimination issues; federal and state civil rights and fair employment issues; sexual and other unlawful harassment issues; workplace violence issues; and contingent workforce issues. Christine routinely defends discrimination claims that have been filed with the State of Wisconsin Equal Rights Division and the Equal Employment Opportunity Commission. Christine also has extensive experience in evaluating and drafting federal and Wisconsin state affirmative action plans, as well as advising on compliance reviews.

414.287.9232