US: Critical COVID-19 labor and employment issues for employers

COVID-19, the 2019 novel coronavirus (“COVID-19” or the “coronavirus”) continues to stress US employers attempting to prevent the disease from spreading in their workplaces while continuing to operate effectively. With each passing day, health authorities provide more information about the spread of the disease and federal, state and local governments impose additional restrictions that impact businesses, their employees and their customers/clients. As the commercial and social environment rapidly changes, we are continuing to address a wide variety of labor and employment issues arising from those changes. We address some of those basic issues below. Remember that individual situations can vary and it is always best to seek legal advice based on the particular jurisdictions where your employees work. Some states, such as New York, New Jersey and California have state laws that exceed or vary from the requirements of federal law.

1. What are an employer’s duties to provide a safe workplace?

While there is no specific Occupational Safety and Health Act standard addressing potential occupational exposure to COVID-19, its “general duty” clause requires employers generally to provide a safe working environment free from “recognized hazards” in the workplace, and require employers to take feasible steps to protect employees. States (including California) which have their own OSHA-approved plans require equivalent protection. To assist employers in complying with their obligations, the Occupational Safety and Health Administration (“OSHA”) has issued “Guidance on Preparing Workplaces for COVID-19.”  If your health, safety and environmental professionals are not already familiar with and implementing the guidance, they should do so immediately. This guidance requires all employers to first take a variety of basic measures, including implementation of basic infection control procedures (hand washing, sanitizer and disinfectant wipes); encouraging sick workers to stay home; promoting coughing and sneezing etiquette; alternative work options; social distancing in the workplace; regular housekeeping practices; and travel restrictions. OSHA’s guidance also advises all employers to develop and implement policies and procedures for prompt identification and isolation of employees who become ill in the workplace. Those policies and procedures should include, among other things, directing employees to self-monitor for symptoms of the virus and providing a process for employees to notify employers if they are developing symptoms or have been diagnosed. 

If appropriate, employers should provide a method for isolating sick employees in the workplace and provide disposable facemasks for persons who have to come in contact with them. The recommendations also include imposing self-quarantine requirements for individuals who have shown symptoms or have been diagnosed. Likewise, all employers should develop policies requiring sick individuals to stay at home, review and modify sick leave policies as necessary, and develop policies to encourage social distancing, such as telework, or staggered shifts. 

In addition to the basic steps all employers should take, OSHA’s guidance recommends that employers conduct a hazard assessment of their workplace, and take precautions consistent with the level of those hazards. Depending on the level of risk, these precautions may include engineering controls (such as high-efficiency air filters or physical barriers), administrative controls (such as the social distancing described above), and personal protective equipment (such as gloves and goggles). Employers also should develop an action plan that includes hazard prevention procedures and employee training.

In addition to potential liability under the general duty clause, certain OSHA standards, such as those governing personal protective equipment and blood borne pathogens, may apply depending on the hazards to which workers may be exposed. In addition, state OSHA equivalents may impose greater obligations and include standards more specific to risks posed by the virus. California employers in particular should be aware of California’s standards regarding the airborne transmission of disease.

Employers may be required to record on their OSHA 300 logs an employee’s illness from COVID-19 for an employee who contracts the disease at work. Moreover, depending on the circumstances, an employer may be required to report the death of an employee from COVID-19.

2. What questions can I ask my employees that are related to the virus?

The Americans with Disabilities Act (“ADA”) places limits on an employer’s ability to engage in disability related inquiries and to require medical examinations. However, the ADA does not prohibit employers from asking questions and taking certain actions that do not constitute disability-related inquiries or medical examinations. Guidance issued by the EEOC on March 18, 2020, addresses what employers can ask. According to the EEOC Guidance, employers can ask employees whether they have COVID-19 symptoms, whether they have traveled to an area at high risk for the disease and whether they have been in contact with someone who has or is suspected of having the virus. Likewise, employers can require employees to report when they have symptoms or have tested positive. Employers may also require employees to stay at home until fit to return and are permitted to require employees to self-quarantine.

Be aware, however, that if these inquiries result in employees revealing medical information, for example, a positive test result, the ADA requires employers to keep this information confidential and in a separate and secure file. Employers have an obligation under OSHA to inform co-workers who have come in contact with an infected person so that they can begin self-monitoring and possibly self-quarantine, all to minimize the risk of spread in the workplace. But when employers use information obtained from infected employees to try to protect others in the workforce, for example, by engaging in contact tracing and notification of other employees who may have been exposed, they may not reveal the identity of the individual with a positive test and should take all reasonable steps to avoid accidentally revealing that person’s identity through non-identifying facts disclosed during that contact tracing.

3. Can I fever screen my employees or require COVID-19 testing?

Fever screening is being used as one method of detecting whether someone may have the virus. Holding aside whether fever screening is an effective method of detection, as mentioned above, the ADA limits an employer’s ability to make disability-related inquiries and its right to conduct medical examinations. While fever screening would be a medical examination, the EEOC’s March 18 guidance states that fever screening is now permissible due to the fact that COVID-19 is a global pandemic. That guidance also states that employers may fever screen applicants after a conditional offer of employment, may delay hire of someone with symptoms, and withdraw employment offers to someone with symptoms if they need the applicant to start immediately. 

If an employer implements fever screening, it should be aware that those measures may raise employee relations issues. It is wise to prepare an effective explanation for why screening is necessary and communicate that explanation to employees. Likewise, before implementing such measures, employers should decide in advance how they will deal with employees who refuse, ranging from discipline, to administrative leave, to attempting to convince the employee why the measure is necessary and important. 

Requiring a COVID-19 test, should those tests become widely available, would clearly be a medical examination. Medical examinations and disability-related inquiries are only permitted under certain circumstances. In this context, they are likely only permitted if job-related and consistent with business necessity. 

Again, in the context of the COVID-19 pandemic, that standard will likely require an employer to be able to establish that it reasonably believes the employee or group of employees poses a direct threat to themselves or to others. That reasonable belief must be based on objective evidence. Whether that test can be met will vary depending on the particular facts of a given situation, considering the circumstances of the individual employee (individual exposure risk), the exposure risks in the particular workplace, the industry and the geographic region of employment. As a result, there is no one answer as to when virus testing is permissible. The EEOC’s recent guidance and earlier guidance on flu pandemics implies that because the virus has been declared a pandemic, employers have more flexibility to engage in such testing. That flexibility increases because the symptoms of the virus are more severe than those of the flu. Similarly, that flexibility increases if the virus is widespread in the community as assessed by state or local health authorities or the CDC. Even if all those things are true, however, employers should be very cautious and evaluate all the relevant factors based on objective evidence before imposing widespread virus testing, if and when such testing becomes available.

4. What are my other obligations under the ADA?

The American’s with Disabilities Act (“ADA”) prohibits an employer from discriminating against employees who have covered physical, mental or emotional impairments, but are otherwise qualified to perform the essential functions of their jobs with or without reasonable accommodations. Generally, seasonal flu and other conditions with short durations are not considered disabilities under the ADA, but complications from the virus could lead to a condition being a covered disability. In addition, the CDC has reported that individuals with underlying health problems are impacted more severely by the virus. Employer’s must look at the underlying medical condition to see if it is a potential covered disability, e.g. diabetes. If the virus impacts or is associated with an underlying health problem, that may also create a covered disability or implicate the regarded as disabled provision of the ADA. Many states have similar laws, which may provide more extensive protection. In any of those situations, the ADA’s obligation to provide a reasonable accommodation to allow an individual with a disability to perform the essential functions of the position can be implicated. 

In addition to the guidance issued by the EEOC on March 18, the EEOC’s earlier guidance on influenza pandemics, which is referenced in the March 18 guidance, is directly applicable to COVID-19. That guidance provides that telework is a reasonable accommodation for employees who are at high risk of complications from the virus in order to reduce their chances of infection during a pandemic. Unpaid leave may be another reasonable accommodation employers must consider for employees who cannot telework, but who are at higher risk of serious health consequences due to an underlying medical condition. In addressing requests for reasonable accommodations, employers should be sure to follow their reasonable accommodation processes and policies, including use of the ADA-mandated interactive process. Whether a reasonable accommodation is required for a particular employee will depend on individual circumstances and should be discussed with counsel. In addition to the legally required responses to employees’ covered disabilities, employers may wish to consider other implications, such as employee morale and public expectations and perception.

5. What are an employer’s obligations under the FMLA?

The Family and Medical Leave Act (“FMLA”) requires covered employers to provide job-protected leave for eligible employees with serious health conditions, and to care for certain family members with serious health conditions. An illness caused by a pandemic virus may or may not qualify as a serious health condition, depending on the circumstances, and whether the employee develops complications. If a particular employee’s or family member’s illness does qualify as a serious health condition, the employee will be entitled to up to 12 weeks of unpaid leave. Employers cannot force employees who do not exhibit symptoms to take FMLA leave. If an employer forces such an employee to go home, the time at home cannot be counted against the employee’s FMLA leave entitlement. 
  
Employers need to be aware of more than just federal law. Several states also have FMLA equivalents, some of which are more generous and may require paid leave. 

And new laws are being passed. New York recently passed a law requiring New York employers to provide additional leave. Read our latest legal update on this, "New York State employers must provide job-protected time off to employees subject to COVID-19 quarantine."

In addition, on March 18, 2020, President Trump signed the Families First coronavirus Response Act (“FFCRA”). The FFCRA amends the FMLA to create additional leave requirements for private sector employers with less than 500 employees and all public sector employers, as well as a requirement to provide paid sick leave. Please check our COVID-19 hub for a summary of that law’s requirements. The FFCRA goes into effect on April 2, 2020.

6. What legal issues should I be concerned about if my employees either cannot come to work or have been sent home?

Employees may not be able to come to work for any number of reasons associated with the virus, including self-quarantine, child care responsibilities due to closed schools, lack of work, and government-mandated closures or force reductions. When employees miss time from work related to the virus, particularly exempt employees, employers need to be mindful of Fair Labor Standards Act requirements, state wage and hour laws, and state and local laws governing paid sick and family leave. 

Non-exempt employees do not have to be paid unless they are working. However, employers need to be aware of the possibility that a non-exempt employee will perform work from home, even if not required to do so. If the employer has knowledge that the employee has done so, the employee will have to be compensated for that work time. Of course, non-exempt employees may be entitled to use paid sick time, paid time off or vacation time, depending on the reason for the absence and the terms of the employer’s policy. 

As a general matter, exempt employees must be paid their full salaries for any week in which they perform any work, unless an exception applies. If an employer has a bona fide sick leave plan or policy, it may substitute pay under the sick leave plan for any full day absence due to illness. If the exempt employee has not yet qualified for the plan or has already exhausted all sick leave under the plan, the employer may deduct from the weekly salary for the full day absence due to illness. In addition, if the absence is for purely personal reasons, i.e. not mandated by the employer, and not due to illness, salary may be reduced for each such full day absence. Note however, that the employee may be able to substitute paid leave time, depending on the reason for the absence and the terms of the employer’s policies. 

Where, however, the employer initiates the absence by sending an exempt employee home, the employer cannot reduce the employee’s pay under the personal leave exemption, unless the employee ends up performing no work during a workweek. As with non-exempt employees, employers need to be aware of whether an exempt employee is performing even some work at home. Where that is the case, the employee may be entitled to full salary for the week, unless an exception applies. Note also, that depending on the reason for the absence, and the size of employer, the employee may qualify for some form of paid leave under existing or newly enacted state laws, and/or under the FFCRA.

7. What can I do with respect to employees who protest or refuse to come to work?

Employees who engage in concerted activity related to their working conditions, such as advocating for greater employer action with respect to the virus, or protesting against an employer’s perceived failure to act may be protected from adverse employment actions under the “protected concerted activity” provision of Section 7 of the National Labor Relations Act, whether or not they are represented by a union. 

The Occupational Safety and Health Act also contains anti-retaliation provisions that prohibit employers from taking an adverse employment action against an employee who complains about workplace hazards. If an employee does not want to come to work due to fear of contracting COVID-19, an employer should consult with counsel to determine whether there is a sufficient factual basis to implicate the employer’s duties under OSHA, and state law equivalents, to take additional steps to make the workplace safe. A simple or generalized fear that coming to work may increase the employee’s risk of being infected is not likely to be a justifiable basis to refuse to come to work. Depending on the factual circumstances, there could be scenarios where the employee’s refusal may be reasonable until the employer has taken the steps required by OSHA. This determination will depend on the risk of exposure present in the particular workplace. 
Because discipline of protesting or complaining employee could implicate both NLRA and OSHA, employers should consult with counsel before disciplining employees who engage in such activity.

8. What are employer’s obligations under the Health Insurance Portability and Accountability Act?

Employers should also be aware of the limitations under the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule. HIPAA’s privacy rule imposes certain requirements on covered entities and their business associates with respect to patient’s protected health information (PHI). Under HIPAA, covered entities are generally health plans, healthcare clearinghouses and healthcare providers that conduct one or more covered healthcare transactions electronically. Business associates are persons or entities (other than members of the workforce of a covered entity) that perform functions or activities on behalf of, or provide certain services to, a covered entity that involve creating, receiving, maintaining, or transmitting protected health information. Business associates also include subcontractors that create, receive, maintain, or transmit protected health information on behalf of another business associate. Although many employers are not covered entities or business associates, employers that sponsor self-funded group health plans may be covered entities and, regardless of whether an employer is a covered entity, it is important for employers to be aware of HIPAA’s privacy requirements.

On February 3, 2020, the Office for Civil Rights (“OCR”) of the Department of Health and Human Resources (“HHS”) issued guidance to covered entities and business associates on how to balance the needs for protecting patient privacy while safeguarding the health of the public. 

This guidance makes clear that PHI may be shared in certain cases, subject to certain requirements:

• Information Shared by Covered Entities Without Patient Consent. Covered entities may share a patient’s PHI without the patient’s consent: 
  • As necessary to treat the patient or a different patient.
  • At the direction of a public health authority or foreign government agency acting in collaboration with the public health authority.
  • With persons who are at risk of contracting or spreading the disease or condition, if authorized by law, as necessary to prevent or control the spread of disease or otherwise carryout public health interventions or investigations.
  • For example, a covered entity may disclose PHI to the CDC on an ongoing basis information regarding prior and prospective cases of patients exposed to or suspected or confirmed to have COVID-19.
• Information Shared by Covered Entities With Consent or Other Action: Covered entities may share a patient’s PHI with a patient’s family, friends, relatives, or other persons identified that were involved in the patient’s care. This may include sharing PHI with the police, press, public at large or, in certain cases, disaster relief organizations. The OCR guidance sets forth detailed guidance on steps that should be taken before sharing such information, including in certain cases obtaining verbal or written consent of the patient or his or her representative. 
• Information Shared by Healthcare Providers. Healthcare providers may share PHI with anyone to prevent or lessen a serious imminent threat to the health and safety of the public, consistent with applicable law and the provider’s standards of ethical conduct. 
• Minimum Necessary Standard. Covered entities must take reasonable measures to limit disclosure of PHI to only the “minimum necessary” to achieve the purpose of disclosure.
• Safeguarding PHI During Emergencies. Covered entities must implement reasonable safeguards to protect PHI against “intentional and unintentional uses and disclosures”.
• Business Associates. Business associates (and their subcontractors) may make disclosure on behalf of a covered entity in accordance with these rules, to the extent provided in the business associate agreement.

On March 17, 2020, in an effort to reduce the risk of transmitting coronavirus to seniors and other at risk populations, HHS announced that it will exercise its enforcement discretion and not impose penalties for HIPAA non-compliance against covered healthcare providers in connection with their good faith provision of telehealth during the nationwide COVID-19 health emergency. Under this guidance, covered healthcare providers who wish to avail themselves of the enforcement relief:

• May use any non-public facing remote communication product that is available to communicate with patients, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype and certain other specified applications. 
• May not use Facebook Live, Twitch, TikTok, and similar video communication applications that are public facing.
• Should notify patients of the privacy risks of third-party applications.
• Should enable all available encryption and privacy modes when using such applications.
• Should provide such services through technology vendors that are HIPAA compliant and will enter into HIPAA business associate agreements (BAAs) in connection with the provision of their video communication products. 

9. What should you be doing now?

CDC guidance and state and local directives

Employers must stay up–to-date with the increasing number of state and local directives and laws applicable to their work locations. Those directives are evolving rapidly. 

The CDC has issued guidance on the coronavirus for employers, recommending strategies for employers to implement immediately. The CDC updates its guidance regularly and employers should continually check that guidance. The CDC’s basic strategies, along with recommended strategies from an employment law perspective, are discussed below.

There are several things employers can do now:

• Encourage safe and healthy workplace practices: Encourage employee to wash their hands frequently, especially after coughing, sneezing, or blowing their noses. Alternatively, use an alcohol-based hand sanitizer. Advise employees to avoid touching the eyes, nose and mouth with unwashed hands and to avoid close contact with people who are sick. Finally, employers should ensure frequently touched surfaces are clean and disinfected periodically.
• Update all relevant policies: Employers should ensure all policies related to leaves, managing absenteeism and providing accommodations in the workplace are up-to-date. This will facilitate managing employees who do not or refuse to report to work. Consider issuing policies that explain what employees should do if they show symptoms of the virus.
• Respond to sick employees properly: Employers should actively encourage sick employees to stay home, and, per guidance from the CDC, should separate sick employees from healthy employees.
• Respond to symptomatic employees properly: If an employee is exhibiting the typical symptoms of the coronavirus, or is asymptomatic but has been in contact with an infected person, he or she should not be allowed access to the workplace and should be sent home and advised to seek medical advice as soon as possible from his or her primary-care provider, local public health office or by any other means recommended by the CDC. If an employee is confirmed to be infected with COVID-19, the employer should inform other employees of their possible occupational exposure to COVID-19 while maintaining ADA confidentiality. 
• Consider the feasibility of alternative working options: If possible, to reduce the risk of transmission when there is reason to believe that coming to work will increase that risk, consider in advance who can be permitted to work from home and for what periods of time. Consider restricting employee business travel in areas where the virus is prevalent.
• Advise traveling employees properly: Employees who must travel should be advised to take certain steps before traveling, including checking the CDC’s Traveler’s Health Notices for the latest guidance on the country and city that they are traveling to; checking themselves for symptoms of acute respiratory illness before starting travel and notifying their supervisors and staying home if they are sick; notifying their supervisors if they become sick while traveling and promptly calling a healthcare provider if needed; and following the employer’s policy for obtaining medical care abroad.
• Promote awareness: Develop a communication plan with recommendations for employees. Disseminate it and update it regularly.
• Protect privacy: Should an employee reveal that the employee or a family member has the virus, keep this information confidential. 
• Stay informed: Employers should continue to stay updated on any new information published by public health authorities.