March 24, 2020

Coronavirus: An Employer’s Action Guide

As the coronavirus continues to spread, employers should continually evaluate whether their prevention and response efforts are sufficient and appropriately tailored based on the latest information on the virus and their own business considerations. Here is our latest guidance, which may further inform your own response plan.

Updates as of March 24, 2020

What employers are covered by the new Families First Coronavirus Response Act (FFCRA), and what does it require?

The paid leave provision of the FFCRA apply to employers with fewer than 500 employees and some governmental employers. There are quite a few things you may need to know about the act’s leave provisions — you can find a more detailed analysis here.

May and should employers screen employees based on body temperature, and if so, how should they go about doing that?

It is now clear from recent EEOC guidance that employers may do so without violating the Americans with Disabilities Act’s restrictions on medical inquiries and testing. You can find our guidance on this subject here.

If employers need to downsize due to business interruption and financial pressures stemming from COVID-19, must they provide 60 days’ advance notice due to WARN requirements?

If the restructuring action is significant enough to trigger WARN (or a state’s mini-WARN) obligations, you may be excused from part or all of the notice period requirement due to unforeseen circumstances. You can learn more here.

How can employers comply with I-9 requirements and maintain social distancing?

The Department of Homeland Security has provided some flexibility in those requirements — see more information here.

How will COVID-19 travel restrictions and other containment measures affect individuals for whom employers are providing or seeking visa sponsorship?

That is another rapidly changing situation — see our recent guidance on announcements from USCIS and DOL, travel bans, cancellations and closures, and other immigration and global mobility challenges for employers.

 


 

Updates as of March 12, 2020

What degree of coronavirus exposure should cause employers to send employees home or deny visitors access to our worksite, and for how long should site access restrictions remain in place?

This is very much a judgment call. The nearly limitless variety of scenarios that may occur makes it difficult to establish clear and objective rules to follow in assessing reported situations, and of course in a growing number of jurisdictions, there are government-imposed site access restrictions.

Exposure may occur due to personal contact or through surface contamination, although the CDC advises that close personal contact is the greatest risk. In either case, exposure may be firsthand or of a second or third degree — i.e., via contact with a person who had recent close personal contact with someone diagnosed with coronavirus, or with a person who has had recent contact with another person diagnosed with coronavirus, etc.

Some employers are requiring employees and visitors with up to second-degree exposures to remain offsite until the transmission threat is mitigated. We have seen few employers sending people home with lesser degrees of exposure. If the only known exposure is via potential surface contamination, employers often restrict worksite access only if the exposure was firsthand.

Much depends on how disruptive it is to operations if high numbers of employees may work only remotely, if at all. Some businesses can manage under such an arrangement, but others such as manufacturers, health care providers and warehouse operations require a mostly-onsite workforce to function. For them, the primary strategy is likely to be mitigation (reducing exposure risks for workers onsite) rather than containment (removing known and even potential exposure sources from the worksite).

Employers adopting a mitigation strategy for business reasons are focusing more and more on sending home only employees with symptoms consistent with coronavirus, such as fever of 100.4 degrees or more, coughing or shortness of breath, and possibly also those with recent Level 3 country or cruise ship travel.

As to the period of time to require someone to remain offsite, the latest Centers for Disease Control and Prevention (CDC) guidance indicates that symptoms may not appear for two to 14 days after exposure, so many employers are following the more conservative 14-day time frame.

Can a company ask its employees to submit health declaration forms that provide personal data — for instance, whether they are experiencing symptoms and have traveled to, or been in close contact with persons who have traveled to, regions affected by the novel coronavirus?

Yes, those specific questions are permissible given the level of threat (severity and apparent ease of transmission) of this particular virus. For symptoms, it should be limited to asking if they are experiencing any of the symptoms associated with COVID-19, i.e., coughing, fever of 100.4 degrees or above or shortness of breath. (That is based on the CDC’s latest guidance, which should be monitored for potential updating). We recommend limiting the inquiry to activities or symptoms within the last 14 days, which seems to be the best available information about when transmission may occur. Medical inquiries that go beyond this should be further reviewed to determine whether they are permissible under the Americans with Disabilities Act (ADA). Under the California Consumer Privacy Act (CCPA), those employees residing in California should be provided notice, explaining the categories of personal information collected and the purposes for which the information was collected.

Can employers force employees to come to work, even if there is a known exposure-potential situation?

Currently, yes, employers can generally require employees to continue working their scheduled hours as assigned, onsite, as a condition of continued employment, with absences addressed under the applicable attendance policy. If the employee cites a medical impairment that could qualify as a disability as the reason for the reluctance to come to work, the employer should follow the ADA’s interactive process to determine whether a remote work arrangement or some time off work in hopes that the risk level will soon be alleviated would be a reasonable form of accommodation.

Before issuing any ultimatum, however, we recommend communication to employees about what the employer is doing to mitigate the risk to the extent reasonably possible. This may allay fears enough that the employee will be willing to meet attendance expectations. Also, keep in mind that If the person indicates that the employer is not doing enough by way of mitigation measures, that could invoke OSHA’s general duty clause which requires that employers provide safe and healthy workplaces. The person’s concerns should be documented and addressed — but if reasonable measures are in place, again, as a general matter that person can be ordered to perform job duties. If someone objects on behalf of coworkers as well as himself or herself, that could implicate the National Labor Relations Act’s protected concerted activity rules. So while the person may be told to carry on with job duties, he or she should not be punished for objecting unless the manner of objecting involved truly outrageous behavior. There may be other forms of objection that should be addressed in a reasonable manner — for example, the need to commute through an area where people are being pulled over and asked why they are out, and that can be addressed by providing an essential-function letter on company letterhead. And if there is a collective bargaining agreement in place that covers the employee, terms of that agreement need to be taken into account.

In situations of known potential exposure, can employers require employees to be tested for coronavirus?

No. Only health care providers can order testing, and with tests still in short supply, even individuals with symptoms consistent with coronavirus may not be tested if, based on age and medical condition, it is unlikely they would suffer severe effects even if infected.

Based on CDC advice that older people as well as those with serious chronic medical conditions stay home as much as possible if coronavirus is spreading in their communities, should employers require all employees age 60 or older to work remotely (if at all) in areas where coronavirus cases are being reported?

We do not recommend taking that action based on federal, state and local protections against age discrimination as well as disability discrimination laws intended to provide equal employment opportunities to the disabled. These disability discrimination laws generally do not allow employers to remove employees from situations based on a medical condition for preventive purposes unless and until the situation poses a direct that to the employee’s health and safety that cannot be effectively alleviated through other measures. Circumstances could conceivably rise to that level at some point, but as things stand now, presence in most workplaces would not rise to that “direct threat” standard.

May and should employers revise paid sick time policies to allow for “quarantine” situations?

Many employers are offering relaxed and/or additional paid leave benefits in response to the current situation. Most common is allowing use of paid sick time to cover time off work due to restrictions against coming onsite for coronavirus prevention purposes. Paid sick time may also be allowed for other coronavirus-related reasons for absence, such as the need to care for children whose schools are closed — and keep in mind that some states, such as New York, require a minimum amount of paid time off each year that may be used for such a purpose.

Some employers are simply paying for “quarantine time” separately from any existing paid time off policies, but that is not always feasible, especially given the uncertainty about the potential total cost at a time when revenues may be down. Some employers are considering adopting “leave-sharing” programs to allow employees to donate a portion of their paid time off to coworkers who are off work for extended periods due to the coronavirus. Because leave-sharing programs can be complex to administer, and if not properly designed, donor employees may be subject to payroll taxes on donated leave, we advise consulting benefits counsel before adopting such a program.

How may employers incentivize employees who are working long hours to cover for absent colleagues?

We are seeing a variety of incentives including some “bonus” paid time off to be used once the absence rate is back to normal, and monetary incentives such as a certain dollar amount or percent of pay for people working over a certain number of hours in a workweek. Do keep in mind that monetary incentives paid to non-exempt employees should be taken into account in calculating the regular rate for purposes of calculating overtime payments due, per requirements of the Fair Labor Standards Act. State law requirements may also apply.

If an employee contracts coronavirus through exposure at work, would that be treated as a workers’ compensation claim?

Likely not. Typically, workers’ compensation covers occupational diseases that are contracted or aggravated due to the nature of a particular kind of work — for example, a hospital worker who gets stuck by a needle and contracts a disease. Illnesses transmitted among workers would generally not be covered. State workers’ compensation laws differ, however, so it is a good idea to consult your workers’ compensation insurance carrier for guidance.

 


 

March 5, 2020

Do declared states of emergency, as we are seeing in many states and localities, change standard workplace policies or laws?

Not necessarily. State or local government officials may declare emergency status to access greater resources for prevention and preparedness, in hopes of avoiding or reducing the spread of disease. Such measures would not directly impact standard workplace policies or laws in most cases, although employers should monitor any such declarations in locations where they have employees for specific provisions applicable to employers.

What is the extent of coverage for Family and Medical Leave Act (FMLA)/sick leave as we start to see school/daycare closures?

The recently enacted Families First Coronavirus Response Act provides some paid leave benefits to care for children who are not in schools or daycare due to COVID-19 related closures to eligible employees of covered employers. Otherwise, although FMLA time is not usually available for a normal bout of the flu, it may well be available to eligible employees who contract the coronavirus or who have an immediate family member who contracts the virus and needs the employee’s care. A medical condition lasting more than three consecutive calendar days, with a visit to a health care provider and either (a) a follow-up visit, with both visits within certain time frames, or (b) other treatment such as a prescription, qualifies as a serious health condition under the FMLA. Some states also have sick leave laws that may provide time off with job protection, although, as with FMLA leave, not necessarily with pay.

Those forms of protection do not usually extend to time off work that is needed to care for a child who is healthy but cannot go to school or daycare because of a closure to avoid spread of infection. Unless employers or collective bargaining agreements provide options such as remote-work arrangements or use of available time off under sick leave or PTO policies to care for a child who is home because of a disease prevention situation, such employees could be at risk under attendance policies.

How can employers balance the obligation to ensure a healthy and safe work environment with privacy and antidiscrimination obligations under state and federal laws?

Proactive communication to the general employee populace about measures that the employer is taking for prevention and would take in the case of a report of an employee testing positive for the coronavirus can pay off if there is an actual individual situation to be addressed. If an individual situation does arise, be very thoughtful about who really has a need to know and what each person needs to know to minimize the risk of disclosure of confidential medical information and discrimination based on actual or perceived medical condition, ethnicity, etc. Encourage employees who have concerns to bring them forward to Human Resources rather than engaging in speculation and “water cooler” discussion that can easily lead to misinformation and unfounded fears. Establish a line of communication for employees to submit questions related to coronavirus prevention and preparedness measures, post answers to questions that may be of general interest, and provide ongoing assurance that the company is very mindful of safeguarding employee health and safety in a manner that is appropriately respectful of everyone’s privacy.

Are there any other considerations/changes that employers need to think about, given the developing CDC guidance?

Designate a point person to stay on top of developments, manage the communication process, and receive and address employee concerns, supported by a response team representing functions such as Human Resources, Health & Safety, IT, Facilities Management, Production, and other functional areas that need to anticipate action steps should the threat escalate. Look ahead to planned company events, such as staff retreats and sales meetings to anticipate the possibility of a need to limit travel to avoid employee exposure and otherwise practice social distancing. Stock restrooms and work areas with plenty of supplies for hand washing and sanitizing. Anticipate employee support, customer service, technology and other needs in the event of a business interruption. Review communications very thoughtfully so as not to either trivialize or escalate employee concerns.

Should employers allow employees who have been told not to come onsite to work remotely? What considerations are relevant if they're exempt versus nonexempt?

Allowing an employee to work remotely in lieu of time off (especially unpaid) might be considered a reasonable accommodation for a disability. Of course, the individual may not actually be disabled and, if he or she is merely regarded as actually or potentially disabled, may not be entitled to accommodation — but if the individual can be fully productive with an acceptable quality of work while telecommuting, employers can greatly reduce the risk of an ADA claim by allowing employees who have been at risk of exposure to work from home. Keep in mind, though, that the ADA does not require employers to lower quality or productivity standards as a reasonable accommodation. Also, employers who allow work-from-home arrangements may set reasonable expectations regarding working schedules, response time, output, prompt communication, etc. So if a remote arrangement does not result in a comparable contribution to what would be expected from working onsite, the employer could defensibly provide a leave of absence as the next-best form of reasonable accommodation.

When evaluating potential telecommuting arrangements, be sure to consider whether there would be appropriate protections regarding confidentiality and data security. This analysis should take into account the nature of the business and the types of information accessed in the employee’s role. Inability to ensure sufficient safeguards may make remote work infeasible.

Another consideration is that, even for jobs that could be done remotely, the employee may not have an appropriate setup for that arrangement, especially if the need arises on short notice. Home offices can be held to reasonable standards for protection of confidential information, backup of information according to standard company requirements for business continuity, etc. Employers should work with employees who are directed to work from home to provide the means to do so (within reason), keeping in mind that in some states, including California, employees cannot be required to pay for their employers’ business expenses, so an employee working from home may be entitled to reimbursement for things like internet access charges, supplies and so on.

If remote work isn’t feasible and the employer imposes time off, U.S. employers generally need not pay nonunionized employees if the time is not covered by an available form of employer paid time off or a form of state or local paid sick leave. For nonunionized hourly (nonexempt) employees, all time off work could be unpaid. For salaried (exempt) personnel, however, under federal wage/hour law, the time may be unpaid only if the employee performs no work during the entire workweek that is treated as unpaid.

Should employers "quarantine" employees who have traveled to a country designated as a level one, two or three travel health notice by the CDC and, if so, for how long?

There is no clear-cut guidance on this, but if someone is returning from a level-three country, it seems defensible to require that person to work remotely for a period of time or to take time off if remote work isn’t feasible. Current CDC guidance indicates that symptoms typically appear within 14 days after exposure, so that would be the best source for determining the period of time the person should work remotely. Focus on remote work arrangements or leave and avoid using the term “quarantine” due to possible stereotyping and stigma and because it might imply that the employer is mandating isolating health measures beyond what employers may do under the ADA.

It’s a closer call for level-one and -two countries. The ADA standard is that the employer should base decisions on objective evidence that allowing the individual to come to work would pose a direct threat to the health and safety of that person or others. So, be wary of forcing someone who has traveled to such countries off work, especially without pay, without further evidence that the person has been at high risk of exposure. Monitor the CDC site on a daily basis, as this situation is changing fast, and travel advisories are likely to be updated fairly often.

May employers lawfully require employees who have been off work for flu-like symptoms or potential coronavirus exposure to provide medical releases from their health care providers before they may return to work?

Yes. CDC guidance suggests that employers consider forgoing those releases — but their concern is that issuing those will be too burdensome on health care providers, and hard to get, if health care professionals are at capacity treating people with flu symptoms that could be due to the virus and others in urgent need of medical care. We suggest keeping the requirement in place but being flexible about format. If an initial off-work note says “may return to work 14 days after all symptoms subside,” for example, why make the person go back to a provider to say, “I’ve been fine for two weeks now,” when the provider has no way of verifying that anyway? That may be sufficient documentation if the elapsed time is consistent with the provider’s directions. Also, consider accepting expedited forms of release such as an email or phone call from the provider or the provider’s office staff in lieu of a note that requires a return visit in person by the employee.

 


 

February 13, 2020

May employers require employees to travel to/from China if needed for business purposes, or should they cancel all business travel to/from China for the duration of the threat? What about other Level 3 countries?

Although employers generally have broad discretion in determining and enforcing their job requirements, employers must tread carefully when deciding to require an employee to travel to a country with heightened travel warnings. Given the CDC’s Level 3 (Avoid Nonessential Travel) and the U.S. Department of State’s Level 4 (Do Not Travel) warnings, employers should limit business travel to China to absolute necessity and avoid travel to any of the affected areas.

If an employee notifies an employer that he or she does not feel comfortable traveling to China amid heightened travel warnings, then it is the employer’s responsibility to weigh carefully the employee’s concerns, the risk of actual exposure and the business needs to determine whether an accommodation is possible, such as video conferencing or rescheduling the trip.

In instances where travel to China is necessary, employers should provide their employees with as much support as possible. For example, consider reimbursing reasonable expenses for personal protective equipment, medicine and even upgrading the employee’s flight class to limit exposure to other passengers.

This advice would apply equally to any other country designated as Level 3 by the CDC.

May employers require employees who have recently traveled to a Level 2 or 3 country to work from home?

If an employer has a reasonable objective belief (not based on unfounded fears) that an employee may have been exposed to the coronavirus and is a danger to the workplace, the employer can require the employee to work from home. However, absent a reasonable objective belief, the employer does not have a legitimate basis to require an employee to work from home.

Given the severity of this threat and the apparent ease of transmission, it has become very common practice for employers to require employees to remain offsite during the 14 days following travel to or through a Level 3 country.

If an employee’s position does not allow him or her to work from home, the employer should consider providing the employee with paid leave for the duration of the incubation period (considered generally to be 14 days, although there is some information that it may be longer).

Should employers survey employees on recent travel to/from Level 3 countries for any reason? What should employers do if employees report such travel?

Questioning employees about their personal travel raises issues of privacy and the potential for actual or perceived discriminatory treatment, but an inquiry about travel to a high-risk country to evaluate risk of transmission in the workplace is defensible under the current circumstances. It has become very common practice for employers to require employees who have traveled to or through Level 3 countries to stay away from worksites for 14 days afterward, even if they develop no symptoms consistent with coronavirus.

How should employers respond to employees who express fear of working around others who may have traveled to/from Level 3 countries recently, or been exposed to the virus in other ways?

It is natural for employees to express fear over the coronavirus outbreak, including fear that they could be exposed to the virus in the workplace. There is much we don’t yet know about the virus, and often the unknown is what drives our fear. Employers can do a lot to address general fear of the virus by educating their workforce, including posting updates from the CDC in common areas with other workplace postings and communicating to employees that they are monitoring any guidance issued by OSHA and other regulatory agencies related to the coronavirus outbreak.

If one or more employees approach Human Resources or a manager about fears related to the coronavirus, it is important to listen to those concerns exactly as if the employee(s) had come to HR to complain about a potential safety hazard. Pinpointing the nature of the alleged “hazard” is essential so that additional details can be gathered to evaluate whether the concern is credible. If the employee identifies a coworker who recently returned from China, for example, ask the employee why they believe this person may have the coronavirus or could be a carrier. Document the information that the employee provides (whether it is based on general fears or actual firsthand knowledge). Remember that symptoms of the virus include fever, cough and shortness of breath, but those same symptoms closely align with a host of other medical conditions, including the flu.

After listening to the employee’s concerns and gathering whatever information is conveyed, HR should inform the employee that the information provided will be evaluated and any steps that may be warranted will be taken. However, do not discuss any other employee’s personal information with the employee who lodged the concern, or make any promises to do so. If the employee discloses that he or she has a medical condition that causes greater susceptibility to the virus (or increased anxiety about possibly contracting the virus), ask what the employee is asking the organization to do to address that condition, and document that request as you engage in an interactive process to help ensure compliance with the Americans with Disabilities Act.

If an employee raises a concern about the coronavirus to HR or a manager, it is important to remember that even if the fear is not reasonable, the employee has a right to raise it without retaliation. Federal law and laws in many states protect individuals from retaliation for raising safety concerns in the workplace.

Under what circumstances, if any, should employers require an employee to undergo medical screening?

Medical screening should be considered only after carefully evaluating all available and credible information about the employee’s potential exposure to the virus. Then, as with any other medical condition, medical screening may only be done if it is “job-related and consistent with business necessity,” which requires “a reasonable belief based on objective evidence” that the employee poses a direct threat to himself or herself or others due to the suspected medical condition. The employer must show that the employee’s medical condition poses a “significant risk of substantial harm” to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.

Certainly, the coronavirus poses a significant risk of substantial harm if in fact the employee has the condition or is a carrier, but you also must consider the likelihood that the potential harm will occur. That determination requires an examination of all relevant information, without consideration of information from unreliable sources and without relying on stereotypes or making general assumptions. Whether or not impairment due to exposure to the coronavirus qualifies as a disability under federal or state law, an employer could face a discrimination claim under the Americans with Disabilities Act or state law if the employer regarded the employee as disabled.

Is there anything employers need to do to meet my Occupational Safety and Health Act (OSHA) obligations?

OSHA’s General Duty clause requires employers to mitigate or eliminate workplace hazards that could cause serious harm to employees. The nature of the workplace affects the type and level of response that may be required. For example, health care facilities and organizations entrusted with care for vulnerable populations may need to implement heightened protection standards.

Remind employees to take common-sense precautions such as staying home if they are sick, greeting others in ways other than hand-shaking, and minimizing the risk of infection by conscientious hand-washing and sneezing and coughing into a sleeve or tissue. Provide plentiful supplies such as hand sanitizer and antiseptic wipes and avoid holding meetings in close quarters. Employers should assign someone, often a member of HR or Employee Health and Safety, to regularly monitor information posted by the CDC and information posted by OSHA for guidance on appropriate measures.

What should employers consider if they have unionized workforces or employee groups with concerns about the coronavirus?

In unionized facilities, employers operating with collective bargaining agreements (CBAs) should consider whether their responses to coronavirus concerns constitute unilateral changes of existing work conditions or procedures. Despite employer desires to act for the safety and benefit of their employees, implementing changes to working conditions in response to coronavirus concerns without bargaining with a union could result in unfair labor practices under the National Labor Relations Act (NLRA). Employers must carefully assess the language in their collective bargaining agreements (CBAs) so that bargaining obligations are fulfilled and to determine what management rights support their ability to appropriately respond to coronavirus concerns.

Even in non-unionized facilities, employers should consider NLRA implications if employees collectively raise concerns about working conditions or changes to work procedures/operations because of the coronavirus. Under Section 7 of the NLRA, employees have the right “to engage in [concerted] activities for the purpose of … mutual aid or protection.…” This includes employees raising group concerns about safety and health, such as by requesting additional personal protective equipment (PPE) because of potential exposure to the coronavirus. Under these magnified circumstances, employers must avoid retaliatory, threatening or discriminatory responses to employee group concerns about the coronavirus.

What should employers keep in mind for international employees?

Companies with employees working outside the U.S. should check any government or health authority guidance issued by the country in question. Employers also may wish to seek specific advice from employment law attorneys in that country, especially if the country has a high number of coronavirus cases or if any employee is believed to be at high risk of infection. Our firm has employment lawyers in the U.K. and China who can assist companies with employees in those countries, and we can source advice as needed for any other country through our strong network of contacts.

As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center provides information to help you understand and assess the legal, regulatory and commercial implications of COVID-19.

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