The coronavirus pandemic has arrived in the United States, and it undoubtedly has impacted your business or workforce in some way. On Friday, March 13th, President Donald Trump declared a national emergency to free up $50 billion in federal resources to combat COVID-19 and has since issued coronavirus guidelines for America.
At the local level, some states, counties, and municipalities have gone into lockdown by requiring all non-essential public places to close indefinitely until this crisis has passed. On Sunday, March 15th, Pennsylvania Governor Tom Wolf mandated the closing of all non-essential businesses in five eastern counties (Bucks, Chester, Delaware, Montgomery and Allegheny). On Monday, March 16th, New Jersey Governor Phil Murphy ordered the closing of all schools and non-essential retail, recreational, and entertainment businesses effective at 8:00 p.m., and instituted a curfew for non-essential and non-emergency travel between the hours of 8:00 p.m. and 5:00 a.m. These mandates will remain in effect for the foreseeable future.
Sporting events have been cancelled or postponed. Broadway shows have been cancelled. Disneyland and Disneyworld are closed. Schools everywhere have implemented, or are in the process of transitioning to, remote learning platforms. Our infrastructure has undergone radical changes in just a matter of days, leaving families, employers, and employees wondering what to do and what happens next.
Different employers have responded to the crisis in different ways. Target has increased staffing to perform more store cleaning and sanitizing and to augment its in-demand services like order pickup and drive-up. Meanwhile, it has encouraged employees to stay home if they are not feeling well and has limited travel to only that which is business critical.
Starbucks similarly has increased its cleaning and sanitizing procedure, and many of its stores either have limited seating to effectuate social distancing or have closed except for the drive thru service.
Best Buy has ramped up cleaning services and has added hand sanitizer at the front entrances and all cash registers. Sanitizing wipes also have been made available near workstations and counters to keep those areas continuously clean. Employees have been instructed to stay home if they feel sick, and employees who have traveled to countries designated by the Centers for Disease Control and Prevention (“CDC”) as Level 3 Travel Health Notice Countries must stay home and self-quarantine for 14 days. In addition, Best Buy has implemented a strict travel policy for its employees, and the company has canceled meetings with large gatherings.
These are just a few examples of how some well-known and eponymous retail brands have responded to the coronavirus.
Employers across all industries are trying to figure out and reconcile the many employment-related, human resource, and other issues and challenges they face as a result of COVID-19. The CDC has published Interim Guidance for business and employers on its website. For example, among many other things, the CDC recommends that for the next 8 weeks businesses and organizers cancel or postpone any in-person events consisting of 50 people or more. Employers and Human Resource professionals should reference the CDC’s website for updates and guidance on the situation.
What steps should employers take to help contain and combat the coronavirus?
Beyond that, what must employers do to navigate the many labor and employment issues presented by the coronavirus? While this is a rapidly evolving issue that may require constant change and adjustment as the crisis develops, here are some recommendations employers should consider:
- Identify essential business functions, jobs or roles, and other components of your business that are required to maintain a continuity of business operations. In addition, consider and prepare for how your business will continue to operate if there is increasing absenteeism, if business declines, if supply chains are interrupted, or if there is a government mandated lockdown, and identify positions that are eligible for remote work arrangements;
- Educate employees on proper hygiene practices (discouraging handshakes or other customary physical conduct, cough and sneeze covering, hand washing, face touching, social distancing, etc.) and the risks of transmitting the coronavirus;
- Increase routine cleaning and workplace disinfecting (especially frequently touched objects like door handles and high traffic areas like bathrooms and kitchens), and consider providing disposable wipes and hand sanitizer for employee use at work;
- Consider cancelling all non-essential business travel and any non-essential group meetings, especially meetings that consist of 50 people or more (per CDC guidance effective March 15th);
- Ensure sick leave policies are consistent with federal, state, and local laws and public health guidance, and understand that you may have to be flexible with those policies and make exceptions for unique situations, either for your workforce as a whole or on a case-by-case basis;
- Remind your staff about your company’s sick leave policies and update them on any changes to your wellness programs, insurance plans, or any other health-related programs;
- Consider creating an infectious disease outbreak response plan in writing, recognizing that the plan’s scope and procedures may be subject to change depending on a change in circumstances or business needs;
- Consider creating communication procedures, or at least have a communications strategy in place, for how your company will communicate with employees about work-related issues, with customer/client inquiries, or with the press; and,
- Determine whether staffing changes must be made and whether furloughs, reductions in force, or layoffs (temporary or permanent) may be necessary due to reduced business and revenues and, if so, how those changes will be implemented.
These are just a few recommendations employers should consider in dealing with COVID-19. The list of considerations, however, does not end there.
Many state and federal laws may be implicated by this crisis, including but not limited to: the Americans with Disabilities Act (“ADA”) and applicable state anti-discrimination laws; the Family Medical Leave Act (“FMLA”) and any state leave analogs; the federal Worker Adjustment and Restraining Notification (“WARN”) Act and any state analogs, such as the New Jersey WARN Act; the Health Insurance Portability and Accountability Act (“HIPAA”); state workers’ compensation laws; and Occupational Safety and Health Administration (“OSHA”) regulations and requirements. All of these may be triggered or come into play in assessing a COVID-19 related situation in the workplace.
For instance, under OSHA, employers have a duty to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA guidance for employers preparing their workplace for the coronavirus can be found here. OSHA does not require that an employer take more than reasonable steps to protect its employees. And, while the coronavirus may not present a hazard that is likely to cause death or serious physical harm to the majority of your workforce, if you have a confirmed case of coronavirus in your workplace or any exposure to it, reasonable and appropriate – but immediate – action should be taken to mitigate risk and prevent any exposure to the virus.
Employers who reasonably believe an employee may have been exposed to or contracted COVID-19 may ask if the employee is symptomatic, can encourage employees to consult with a medical professional, and can require employees to stay home if they exhibit flu-like symptoms. While desperate times may call for desperate measures, the Americans with Disabilities Act places restrictions on the inquiries that an employer can make into an employee’s medical status. Under the ADA, employers are prohibited from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation. Employers may ask non-disability-related questions, such as if they need to care for dependents or are high risk for illness. If an employee with a disability voluntary discloses their disability because they are concerned they are high risk, you must engage in the interactive process to determine if a reasonable accommodation is available to the employee.
If an employee has tested positive for the coronavirus or has been exposed to someone who is presumptive positive for the coronavirus, the following steps should be taken.
- First, the affected employee should not report to work (or should be sent home immediately) and should be self-quarantined for at least 14 days.
- Second, all employees who worked closely with that employee for the prior 14 days should be sent home and quarantined to ensure the infection does not spread. To that end, the affected employee should be asked to identify all individuals with whom that employee worked (in close proximity) to obtain a complete list of other employees who should be sent home.
- Third, employers should consider having a deep cleaning done of the affected workspaces.
- Fourth, if the affected employee came into contact with any customers, clients, patients, vendors or other third-parties during the previous 14 days, the employee should be asked to identify those individuals, and those individuals should be contacted to let them know that they may have been exposed to a confirmed or suspected case. Similarly, if your company shares office space with any other businesses, you should inform building management and those other businesses so they can take appropriate precautions.
Bear in mind that this health crisis does not supersede HIPAA privacy rules. Employers must comply with HIPAA while dealing with the coronavirus. All medical information should remain confidential and afford it the same protections as those granted by HIPAA in connection with your group health plan. Thus, if an employee if affected by coronavirus (whether a confirmed case or an exposure), efforts to contain the virus around that employee while communicating the exposure to other employees, customers, patients, etc., must be done without revealing the affected employee’s identity.
Employers are not required to report actual or possible infections to public health officials. However, employers are encouraged to report infections to state and local public health agencies (via their hotlines), but should maintain compliance with HIPAA when doing so.
If an employee cannot work, consider whether the absence may be covered by the Family and Medical Leave Act, especially if the employee is hospitalized or absent for three days or more. The FMLA standard is reasonable notice, so employers should send the eligibility and notice of rights and responsibilities to any employee if there is a possibility the FMLA may apply. In addition, consider whether any other paid or unpaid leave policies apply (such as sick leave or PTO), and whether employees will be required to use, or may use, such leave benefits if they are required to stay home.
Through all of this, employers must maintain compliance with federal and state wage and hour laws. Under the Fair Labor Standards Act (“FLSA”), employees who are not working generally must not be paid. For example, hourly or wage-earning employees who do not report to work, whose hours are reduced due to staff reductions, or who are asked to stay home, need not be paid subject to applicable sick leave and PTO policies. However, exempt employees paid on a salary basis generally must be paid their entire salary if they perform at least some work for that particular pay period. Employees who are telecommuting, whether wage-earning or exempt, should be required to truthfully and accurately track and report their time working to ensure that no wage and hour violations are committed. Employers also may be obligated to pay employees pursuant to applicable employment contracts or, for unionized workforces, under an applicable collective bargaining agreement, so employers must remain mindful of these compensation arrangements.
If an employee believes he or she may have contracted the coronavirus while at work, it could result in a compensable workers’ compensation claim. This situation will be very fact-specific and could depend on the industry in which the affected employee works (i.e. health care industry, emergency services, first responder, etc.). However, any employee who is infected with COVID-19 in the scope of employment may be eligible to receive workers’ compensation benefits, and the employee should consider reporting the exposure at work to the employer’s workers’ compensation insurance carrier.
Employers who must suspend operations, close their doors, or conduct mass layoffs or reductions in force as a result of this crisis should consult with legal counsel to ensure compliance with the federal WARN Act or applicable state analogs. While the WARN Act provides a specific exception when layoffs occur due to unforeseeable business circumstances and this provision may apply to the coronavirus, a fact-specific analysis is required as this exception often is litigated.
Lastly, employers are strongly discouraged against disciplining or taking adverse employment action against an employee for any reason relating to the coronavirus that is not required due to business, financial or economic necessity, or some other legitimate business reason. Given the publicity and sensitivities surrounding this crisis, employee discipline related to the coronavirus may create exposure to liability, attract media attention, and can damage an employer’s goodwill, reputation, and workplace morale.
Our attorneys at Stark & Stark ready to assist employers in addressing this global crisis. As your legal partner, we want you to know that your safety and well-being is our top priority as we monitor the COVID-19 outbreak. While we may be working remotely over the coming weeks, our offices remain open and we will continue to monitor and follow the recommendations of the CDC, World Health Organization, and other government authorities with respect to the coronavirus. We are ready and prepared to help guide you as this emerging situation continues to evolve. If you have any questions or concerns about COVID-19 or require any legal assistance, we are here for you and can be reached by phone at 609-895-7358 or via email at employmentlaw@stark-stark.com.
