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COVID-19 Employment Considerations

COVID-19, better known as the Corona Virus has temporarily changed the way we live our lives. The workplace is no different. Employers have a lot to consider during this time: operations, legal ramifications and the health of their workforce. Here are some tips for employers to navigate their way through this difficult period.


Establish a Written Plan

Employers may want to consider developing an infectious disease protocol, compliant with OSHA and health/safety laws and regulations, if not already included in a written safety or emergency action plan. The plan should address such issues as the following:

· when an employee may be sent home due to illness and under what circumstances they may return;

· when an employee should disclose potential exposure and how such disclosure will be treated;

· whether and when employers may want employees to use personal protective equipment, such as face masks or gloves, and how that will be implemented in the workplace;

· what leave benefits are available and restate any required procedures for their use;

· how the employer will maintain the employee’s privacy; and

· who is the designated point of contact regarding the plan.

Minimize Workplace Exposure CDC recommends a number of measures for employers to implement immediately to help reduce the risk of acute respiratory illnesses, such as COVID-19 and seasonal influenza:


Social Distancing. Maintain 3-6 feet distance between yourself and anyone who is coughing or sneezing. Suspend the common courtesy of shaking hands with others; they will understand.


Send home employees who become sick at work. If an employee appears to have symptoms of COVID-19 (fever, cough, shortness of breath) during the work day, send the employee home and tell them to seek medical attention. Provide transportation home if necessary.


Educate and remind about respiratory etiquette and hand hygiene. To stay as healthy as possible, remind employees to take the basic protective measures recommended by CDC. Posters reminding of these good habits can be downloaded at: https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html.


When coughing or sneezing: cover your mouth with a tissue, then throw the tissue in the trash, or cough/sneeze into your bent elbow. Wash your hands with soap and water throughout the day, for at least 20 seconds, or clean your hands regularly with an alcohol-based hand sanitizer. Avoid touching your eyes, nose, and mouth. Hands touch many surfaces and can pick up viruses. If you must touch your eyes, nose, and mouth, wash/sanitize your hands before, and promptly after, doing so. Tissues and hand sanitizer: place additional tissues and hand sanitizers in common areas throughout your facility.


Actively encourage sick employees to stay home. Employers should remind employees that during cold and flu season, it is always best for employees who are sick to stay home and recover. But in particular right now, employees who have symptoms of COVID-19 (fever of 100.4º or higher, cough, and shortness of breath) should be instructed not to come to work; they should notify their supervisor or HR and stay home (except to seek medical care). Employees who have a respiratory illness should stay home and not come to work until they are fever-free and free from symptoms (without the use of fever-reducing or other medicines) for at least 24 hours.


Enhanced cleaning. Arrange for your cleaning personnel to increase the frequency of cleaning and disinfecting of regularly touched surfaces such as doorknobs, countertops, and keypads. Make available to employees extra cleaning and disinfecting supplies so that they may clean high-touch surfaces at their own workstations or common areas as needed.


Plan for employees who have an infected person at home. Employees may themselves be well but have someone in their household who is sick. Employees should be instructed to notify their supervisor or HR, who should then consult CDC guidance on determining the risk level posed by their possible exposure, including compliance with CDC-recommended precautions for home care https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-home-care.html.


Modify policies as needed to reduce disincentives for sick employees to be off work. Consider waiving a doctor’s note for employees reporting off with COVID-19 or other respiratory illness (like the flu). For employees who have exhausted their allotment of sick days or other forms of paid time off, consider allowing them to borrow against next year; if time is to be unpaid, relax rules so that these days off are penalty-free.

Employment-Related Legal Considerations

Occupational Safety and Health Administration (“OSHA”)

There is no specific OSHA standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19, including, but not limited to, PPE standards, and the general duty clause. Employers knowing that an employee is contagious with COVID-19 or any other infectious disease should consider how best to abate the situation. At present, OSHA is merely advising employers and employees with questions about COVID-19 to review CDC guidance.


Employers should be cautious when dealing with employees who raise concerns about COVID-19. Employees generally have the right to complain to OSHA or their employers about the safety conditions in their workplaces and not to perform duties in conditions that they consider dangerous. OSHA could consider an employer’s taking an adverse employment action against an employee who complains about his or her concern about COVID-19 in the workplace as unlawful retaliation. The adverse action could be nearly anything that would make the employee unhappy, from being fired to being isolated in a room by himself or herself until feeling better.


More information from OSHA is available at: https://www.osha.gov/SLTC/covid-19/.


Family and Medical Leave Act (“FMLA”); State-Specific Leave Laws; Employer-Specific Leave Policies; and Americans with Disabilities Act (“ADA”)

The FMLA, state-specific leave laws, and employer-specific leave policies could be implicated by an employee’s concern about COVID-19. Generally speaking, the FMLA and other leave laws do not protect employees who wish to stay home to avoid getting sick. Nevertheless, employers should consider any leave requests made by their employees regarding COVID-19, and make decisions only after assessing all relevant facts. Although employers may not have to grant leaves under the FMLA or other laws, they should consider providing leaves to those who express concerns under their personal leave policies. Although there may not be a legal reason to do so, the cost-benefit ratio and employee morale benefits given the current climate regarding COVID-19 could justify going over and above the minimum leaves permitted by law or a policy.


An employee who has COVID-19 may or may not be a qualified individual with a disability. The symptoms often are not all that bad, similar to a cold or flu. Even so, employers should be concerned about the ADA. For example, an employee with serious symptoms could be substantially limited in a major life activity, or the employee could have some other impairment or bodily condition that could make the employee eligible for protection under the ADA. And, the ADA protects employees whom their employers regard as disabled even when they are perfectly capable of performing their duties at work.


The ADA also restricts the kinds of inquiries that an employer can make into an employee’s medical status. The ADA prohibits employers from making disability-related inquiries and requiring medical examinations, unless they (1) can show that the inquiries or exams are job-related and consistent with business necessity or (2) have reasonable beliefs that employees pose direct threats to the health or safety of themselves or others that cannot otherwise be eliminated or reduced by reasonable accommodation.


According to the Equal Employment Opportunity Commission (“EEOC”), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. The EEOC advises employers that assessments by the CDC or other public health authorities provide the objective evidence needed for disability-related inquiries or medical examinations, including taking the temperatures of employees. To date, the WHO has not classified COVID-19 as a pandemic and instead refers to the disease as a “public health emergency of international concern.” As of March 10, 2020, the CDC notes that COVID-19 currently meets only two of the three criteria for being classified as a “pandemic,” but also that “current global circumstances suggest it is likely that [COVID-19] will cause a pandemic.”


For more information regarding the EEOC’s guidance on preparedness in the workplace and the ADA see: https://www.eeoc.gov/facts/pandemic_flu.html.


Health Insurance Portability and Accountability Act (“HIPAA”) & Similar State Laws

HIPAA and similar state laws may be implicated in employer efforts to combat COVID-19 outbreaks in their workplaces. HIPAA protects an individual’s “protected health information” and sets forth under what circumstances it may be used or disclosed.

HIPAA-covered entities, including self-insured employers who administer their own health plans, should remind their employees of their obligations regarding the disclosure of protected health information under HIPAA, including when authorizations may be required before disclosure. Covered entities should also be mindful of disclosures of protected health information to family members and others and encourage strict compliance of the rules that regulate when authorizations must be obtained. For certain employers, it may be especially important to retrain their employees so that they understand that unauthorized access of personal health information may result in significant liability. Reviewing protected health information should only occur when necessary, and reviewing protected health information “just because” should be expressly prohibited.


Finally, HIPAA-covered employers should consider implementing and following a policy for communicating with media outlets or public health agencies/departments when those communications may indirectly disclose protected health information. Considering appointing a “lead” through whom all external communications are filtered.

If you have an employee that has been exposed to COVID-19 and/or is showing symptoms that has led the employee to be sent home, co-workers may inquire about the situation or make complaints about working near the individual. In these situations, the CDC recommends letting exposed co-workers know so they can monitor their own health and identify potential symptoms. However, employers must be careful not to disclose specific information regarding the individual’s circumstances as it could violate HIPAA and/or the ADA. As a result, an employer can disclose generally that an employee or employee’ family member has been exposed to the COVID-19; however, no names should be shared and all communications should focus on more generalized guidance on how the organization is responding to COVID-19.


The Worker Adjustment and Retraining Notification (“WARN”) Act

Generally, the federal WARN Act imposes notice obligations on covered employers that implement plant closings or mass layoffs in certain situations, even when they are forced to do so for economic or health concern reasons. Under the Act, employers must provide 60 calendar days’ notice prior to any covered plant closing or mass layoff. There are a few exceptions to this general rule, such as the unforeseen business circumstances exception.

A COVID-19-specific plant closure or mass layoff may or may not implicate the WARN Act or its exceptions and may states have enacted their own “mini-WARN” acts. Whether an employer’s decision to temporarily cease operations at a specific plant is a fact-specific inquiry, and before doing so, it is recommended that employers consult with their employment counsel to ensure legal compliance.


Labor Relations; Requests to Wear Protective Face Masks

Ohio Revised Code Chapter 4117 requires Ohio public employers to bargain in good faith over mandatory subjects of bargaining, such as wages, hours, and terms and other conditions of employment. This duty obviously impacts a public employer’s decision to change union employees’ work schedules or duties, among other employment-related matters, in response to a COVID-19 concern. Employers should take care to review their collective bargaining obligations with their labor counsel before making unilateral changes over a mandatory subject of bargaining in response to COVID-19-related concerns.

While the CDC is not currently recommending the use of face masks for the general public, an employee may, nonetheless, request to wear a face mask in the workplace. Until the CDC requires employers to provide and/or allows employees to wear face masks at work, there is no legal requirement for employers to do so, unless a group of employees request to wear face masks in the workplace, in which case it could be considered protected concerted activity.


Title VII Discrimination and Related State Laws

The COVID-19 outbreak has stirred up many offensive and racist beliefs, and people of certain ethnicities have been stigmatized. Employers should be extra vigilant in ensuring that employees are not being harassed or otherwise discriminated against based on their race or national origin because of COVID-19 fears.


Workers’ Compensation

If an employee alleges that they contracted COVID-19 while at work, whether the employee will have a compensable workers’ compensation claim depends – if the employee is a health care worker or first responder, the answer is likely yes; but for other categories of employees, the analysis would be very fact-specific.

While COVID-19 is not an “injury,” it may qualify as an “occupational disease.” To be an occupational disease, an employee must generally show two things: (1) the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and (2) the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.


The general test in determining whether an injury “arises out of and in the course of employment” is whether the employee was involved in some activity where they were benefitting the employer and was exposed to the virus. Importantly, special consideration will be given to health care workers and first responders, as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. This would also include plant nurses and physicians who are exposed to the virus while at the worksite.


As for other categories of employees, compensability for a workers’ compensation claim will be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to their employment. Even if the employer takes all of the right steps to protect the employees from exposure, a compensable claim may be determined where the employee can show that they contracted the virus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.


Absent state legislation on this topic, an employee seeking workers’ compensation benefits for a coronavirus infection will still have to provide medical evidence to support the claim. Employers who seek to contest such a claim may be able to challenge the allowance if there is another alternative exposure or if the employee’s medical evidence is merely speculative.

Finally, employers should be aware that states are taking action on this issue. For instance, Washington Governor Jay Inslee recently directed his Department of Labor and Industries to “ensure” workers’ compensation protections for health care workers and first responders. The directive instructs the Department to change its policies regarding coverage for these two groups and to “provide benefits to these workers during the time they’re quarantined after being exposed to COVID-129 on the job.” Other states are expected to follow Washington’s lead.

Conclusion

In sum, employers will be best served by acting now to ensure that their workplaces and workforces are in the best positions possible to effectively deal with the potential for a COVID-19 outbreak in their locations. Educating workforces should be the paramount concern now, and the major theme of any educational efforts on the part of employers should be to remind their employees not to panic, to maintain proper handwashing and other personal hygiene techniques, and to be forthright with management about any plans to travel outside of the country. Nothing contained in this post should be construed as legal advice. Please contact your legal counsel for any specific questions or concerns.

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