July 14, 2020

Volume X, Number 196

July 13, 2020

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Beyond Hand Washing: What Employers Should be Doing Now in Response to COVID-19

Most of us have never seen anything like this! As we have watched COVID-19 spread, many clients have contacted us asking what they can do now to help stop the spread, what they should tell their employees, how they should handle work from home and payroll issues, and more. Below are some of our suggestions and recommendations. 

The recommendations below are guided by several important principles:

1.    Employers subject to OSHA’s General Duty clause have a legal obligation to address hazards in the workplace. (More information about OSHA’s recommendations is available here.) 

2.    We understand from medical professionals who have studied pandemics that limiting face to face contact absolutely slows the spread of illness. 

3.    We know that all employees are thinking about this issue and many are worried about their own health.

4.    We are confident that strong leadership in this difficult time will instill trust among all employees.

5.    The consequences of erring on the side of caution, while not insignificant, are preferable to those resulting from not taking this threat seriously enough.

Based on what we know today, and with the understanding that the situation is rapidly changing and evolving, we recommend the following:

Employees Who Are Sick

1.    Encourage employees to stay home if they are sick. Any employee exhibiting any signs of fever, coughing, or respiratory distress in the workplace should be sent home immediately.  Given these symptoms, it is reasonable to require the employee to stay home for 14 days or to return to work only after a COVID-19 test comes back negative.

Travel

1.    Cancel all work-related travel to countries with a Level 2 or 3 travel advisory from the CDC. 

2.    Consider canceling all work-related travel domestically or at least all travel to areas of high risk (e.g., Seattle, Westchester County, NY etc.).

3.    Establish an approval process for any work-related travel that is not prohibited by #2 above so that a case-by-case analysis can be done, taking into consideration the reason for the travel as well as the location.

4.    Require all employees to disclose their own personal travel to a country with a Level 2 or 3 travel advisory from the CDC or an area of high risk in the U.S. as well as such travel by a member of their household. Also require all employees to disclose their own personal travel or travel by a member of their household on any cruise. Identify the person or persons to whom such disclosures should be made and also identify the format (e.g., a simple form is probably best so that there is no room for misunderstanding a voicemail or a conversation in the hallway).

5.    You may be thinking it would be less disruptive to ask employees to be tested rather than stay home for 14 days. This may be more difficult than it sounds. It is our current understanding that there are problems with testing (e.g., not enough tests in some areas, medical systems may not be able to accommodate an avalanche of testing requests, and a test done prematurely may not be accurate) and, therefore, it may not be realistic to require employees to be tested before returning to work. At this point, requiring employees to be out of work and symptom free for 14 days is our best recommendation but that may change as the testing kinks are worked out. 

Of course, if an employee provides evidence of a negative test result despite being out of work without symptoms for less than the required 14 days, it may be reasonable to have that employee return to work.

Work from Home

1.    If you have not already done so, determine the ability of your workforce to work from home.  This involves a review of roles as well as technical capabilities. Do not assume that all employees have access to computers, Wi-Fi, and adequate cell phone reception. Take steps to address gaps in access to technology for all employees whose work can be performed remotely.

2.    Consider conducting a “resilience” test to determine whether your systems work in the event a large number of employees have to work from home. There are many ways to do this, but the general idea is to test your capacity to have large groups work from home by conducting a “stress test” on the system to see how things work. As part of this process, you may consider conducting training for employees in how to use technology remotely.

3.    Consider approving requests to work from home from any employee who can do so based on their role and their access to technology. At the same time, if any of these positions are not suited for telecommuting on a long-term basis, make it clear to those employees that when circumstances dictate they will be required to return to the workplace.

4.    Treat a request to work from home by an employee with a medical condition that increases their risk in the face of COVID-19 as a request for an accommodation under federal and state law. In most cases, such requests should be approved. If the employee works in a community with no reported cases and the individual does not commute by public transportation, then there may be a basis for denying the request, especially if the employee is in a position that cannot be done remotely.  That said, employees with medical conditions may be feeling fearful, which ought to be taken into consideration.

5.    Require all employees who meet any of the following criteria to work from home for 14 days:

  • Personal travel or travel by a member of the household within the past two weeks to any country with a Level 2 or Level 3 travel advisory from the CDC

  • Personal travel or travel by a member of the household within the past two weeks to any area in the U.S. with a high risk of exposure.

  • Personal travel or travel by a member of the household on any cruise to any location.

  • Any actual exposure by the employee or a member of the household to any individual diagnosed with COVID-19 or currently quarantined as a result of a possible exposure to COVID-19.

Group Events

1.    Consider canceling all group events that involve people from outside of your organization for the next four weeks. This includes events that you are planning as well as events that your employees are attending. Consider extending this period for an additional four weeks if necessary based on the spread of the illness over the coming weeks.

2.    If you decide to go forward with a group event that you are planning, consider asking all attendees in advance to self-disclose any risk factors (current symptoms, travel, actual exposure, etc.).  

Visitors/Vendors

1.    Do an inventory of how many vendors regularly enter your workplace. Consider whether such visits are necessary. Cancel any unnecessary in-person meetings with vendors.

2.    Consider asking anyone entering your workplace who is not an employee to answer a few screening questions aimed at determining whether the individual presents any risk to the organization.

Pay Issues

1.    Of course, employees working from home – including during a period when they are prohibited from working in their regular workplace due to quarantine issues described above -- should be paid their regular salaries/hourly pay.

2.    Employees who are absent from work because they are sick should be expected to use available paid sick time. They may also be eligible for protected leave and continuation of medical benefits under federal or state family medical leave statutes and/or state public health emergency leave statutes.

3.    The most complex issue in all of this is what to do about employees who can’t work from home because of their roles but who are required to stay home because of the quarantine requirements identified above. This is especially challenging if an employee makes a personal decision to travel to a high risk area against advice. This scenario does not lend itself to a one-size-fits-all approach. We recommend speaking with your employment counsel to address this important issue.

Discrimination Issues

1.    We continue to hear stories about harassment directed at people from China, South Korea, Italy, and other areas where the virus is widespread. It is imperative that employers take swift disciplinary action to address any and all such incidents.

2.    Given the constant reminders that COVID-19 impacts those over the age of 60 much more significantly than those under the age of 60, it is tempting to impose age-related restrictions. While measures such as asking all employees over the age of 60 to work from home are surely well-intentioned, they may run afoul of the federal and state laws prohibiting discrimination on the basis of age. Before imposing any such restrictions, we encourage you to consult with employment counsel.

Other Issues

1.    An employee who contracts COVID-19 from a work-related exposure will likely be a reportable illness under OSHA requirements. In that situation, consult with your employment and/or workers’ comp counsel to address any workers’ comp reporting and benefits issues.

2.    Communicate, communicate, communicate.  Your employees will likely be looking for regular updates, so don’t hesitate to be in touch with your workforce regularly. This is an unnerving time for everyone!

3.    Your HR team may well be swamped by issues related to COVID-19. Support them and consider whether there are additional resources (i.e., employees who may not be HR professionals but who can pitch in for the duration of this challenging period) to assist with the many, many tasks related to implementing these suggestions. 

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 77

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About this Author

Suzanne King, Employment Lawyer, Pierce Atwood
Partner

An experienced management-side employment lawyer, Suzanne King counsels employers on a wide range of employment practices, including: hiring, managing employee performance and discipline, terminations, reductions in force, complaints about sexual and other harassment, reasonable accommodations under the ADA, leave under the FMLA and various state laws, wage and hour practices, including employee classification issues and pay equity, and data privacy and security.  Suzanne also has extensive experience drafting a variety of employment agreements (including executive employment, non-...

(617) 488-8159
James Erwin Employment Lawyer Pierce Atwood Law Firm
Partner

Jim Erwin leads Pierce Atwood's Employment Group. He has extensive state and federal litigation experience in a wide range of substantive areas at the trial, appellate, administrative and arbitration levels. His practice involves the defense at agencies and in court of all types of employment claims, including sex, race, religious and national origin discrimination; sexual and racial harassment; disability discrimination under the ADA; FMLA; retaliation and whistleblower claims; restrictive covenant and trade secrets enforcement; wage-hour claims and class actions; defamation; and labor arbitrations.

Jim counsels employers on a wide range of workplace issues, conducts training sessions on harassment and other workplace issues, and performs investigations for employers. He also advocates for employers before the Maine State Legislature and administrative agencies on important issues of public policy.

(207) 791-1237
Margaret Coughlin LePage, Employment lawyer, Pierce Atwood
Partner

Clients look to Meg LePage for help on a wide range of workplace disputes and seek her counsel when looking to minimize legal risks in connection with hiring, discipline and discharge, discrimination and harassment complaints, family medical leave requests, wage payment disputes, non-competition agreements, and a wide variety of other employment issues.

Meg's clients include healthcare and educational institutions, financial services companies, insurance companies, manufacturers, social service agencies, summer youth camps, and hospitality and recreation...

(207) 791-1382