Covid-19 Client Alert

This Client Alert presents information for employers in responding to Covid-19’s impact on the workplace.  It is organized into three sections:

• Stage 1 Preparedness
• Stage 2 Preparedness
• Legal and Practical Considerations (that overlap Stage 1 and Stage 2)

This Alert is not – and is not intended to be – a definitive guide.  This situation is rapidly evolving, and guidance based on our current understanding of the disease will change as the virus is better understood by public health professionals and regulators, and if the extent of the virus changes.  Also, because it is not based on specific facts, which can vary significantly, the Alert is not legal advice.

While this Alert addresses the possibility of lengthy business closures (Stage 2), we want to emphasize that such extremes are not currently anticipated in most of the country.  However, we recognize that it is implausible to be prepared for such an event without advanced planning.  And, such planning may help employers deal with or respond to other disruptive events besides Covid-19, such as natural disasters, fires, or other emergencies.

We hope you find this information helpful.  If you have any questions about this content or other issues associated with Covid-19, please reach out to your Elarbee Thompson attorney.

Stage 1 Preparedness

Stage 1 preparedness addresses general workplace safeguards with relatively few infected employees.  A significant portion of this information is based on advice provided to employers by the CDC: https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html 

Principal suggestions for Stage 1 Preparedness are as follows: 

• Designate a management official to check the CDC website daily to review the latest information on the spread of the virus and the CDC’s recommendations to employers and the general public.  This person – preferably a Human Resources professional – should be the in-house resource for managers, supervisors and other employees. 
• The CDC advises employers to emphasize staying home when sick, respiratory etiquette, and hand-hygiene by all employees, using the following actions:
  • Provide tissues and no-touch disposal receptacles for use by employees.
  • All employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).  Don’t shake hands with others during this time. 
  • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. 
  • Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand sanitizer in multiple locations or in conference rooms to encourage hand hygiene.
  • The CDC has published a coughing and sneezing etiquette and has a clean hands webpage containing more information.
• The CDC also recommends routine environmental cleaning:
  • Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, common area furniture, and doorknobs. Use the cleaning agents usually used in these areas and follow the directions on the label.
  • No additional disinfection beyond routine cleaning is recommended by the CDC at this time.
  • Provide disposable wipes so that commonly-used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
  • These steps are especially important in “open” or shared workspace environments.
• The CDC further recommends as follows:
  • Allow flexible use of sick leave policies during this time (more on this in the Considerations section below). 
  • Talk with companies that provide contract services or temporary employees to your business about the importance of sick employees staying home.
  • Employers should be aware that more employees may stay at home to care for sick children or other sick family members than is usual.
  • Use this opportunity to communicate with your employees about seasonal flu prevention strategies, such as minimizing contact, not shaking hands, and engaging in sound hygiene and sanitation.  (The CDC states that statistics demonstrate seasonal flu poses a far greater and more immediate threat to your employees’ health at this time than does Covid-19.)
  • Do not panic or overreact, but rather engage in sound business contingency planning.  Begin by developing contingency plans about how you will operate in the event absenteeism rates greatly exceed those of a normal flu season.  
  • Develop a plan for communicating with your employees if a major pandemic breaks out.  Plan for worst case scenarios now, so you can effectively respond to what would likely be a rapidly changing situation moving to a Stage 2 scenario. To do this, management should anticipate and prepare for how you will answer the plethora of questions that will almost certainly be raised (as addressed in the last section of this Alert).

In sum, the CDC recommends planning ahead for the worst, not overreacting, and being guided by statistical realities and current public health guidance.

Stage 2 Preparedness

Again, we hope it does not come to this level, but Stage 2 preparedness is intended to address more serious situations (e.g., a decision to temporarily close a business or operate it remotely because of a high level of infections, or public health officials mandating quarantines of a city or parts of a city).  As the CDC guidance indicates, the situation may change rapidly and there may not be much time to figure out these details in the event of a rapid spread of cases.

Our principal suggestions for Stage 2 Preparedness are as follows:

• Determine which employees must work from home to facilitate business continuity (“core employees”).
  • This likely includes exempt, managerial employees, but it may encompass non-exempt, administrative employees who know how to get certain things done.
  • Make sure employees’ work-from-home capabilities are intact (internet connection, printer/scanner, laptop, etc.), and take steps now to ensure any necessary equipment is available to such employees.
• Determine which employees would ideally augment the core employees.
  • This might include customer service, IT, and communications employees.
  • Make sure employees’ work-from-home capabilities are in place for the extent of the work they would need to do.
• Plan now for the IT remote access (and security), conference/video call, and other technical capabilities needed for a dispersed workforce.
• If your business involves (a) delivery of physical goods, (b) re-stocking of supplies, or (c) services performed at another business location, coordinate with those businesses to determine the best approach to business continuity in the event of more widespread infections.  This may amount to a sales opportunity to sell extra product now, so your customers can stock up in advance of any illness-based closure.
• Consider how your business would be impacted by an illness-based shutdown or slowdown at your suppliers.  You may want to stockpile certain components or other goods to be ready for such an event.
• Determine how you will address pay for non-exempt employees who work remotely during a closure.
  • How will employees record their time when working remotely?
  • Practically, how can you enforce how much employees work?
• Determine how you will address pay for all employees who do not work.
  • After exhaustion of any paid leave benefit, will non-exempt employees have any additional pay to help them in the event of a lengthy closure?
  • Will exempt employees who perform no work be instructed not to perform work so they do not create arguable obligations of entitlement to pay for checking e-mails, making sporadic calls, etc.?
  • Are there any resources (e.g., paying for delivery of groceries) you want to make available to employees during a business closure?
• Plan for the resumption of regular business after any closure or remote work period.
  • Should some employees report to work before others (returning to work in stages)?
  • What changes in process may be necessary if you come back on line before your suppliers, customers, etc.

Legal and Practical Considerations

In addition, there are myriad considerations that cross over both Stage 1 and Stage 2 preparedness:

Leave/Absence Issues

• HR’s job is usually to keep employees from missing too much work (limited PTO, attendance programs).  Covid-19 requires different thinking:
  • Should absence for Covid-19 form the basis for discipline?
  • Beware of conflicting policy approaches:
    • “We want you to stay at home if you’re sick.”
    • “But we’ll discipline if you do.”
• Must employees exhaust paid leave?  (Employers can require this.)
• Does the absence count as an “occurrence” under an attendance plan?  (If it is not FMLA leave, it can.)

Returning to work

• Monitor and follow current CDC guidance on when an individual who has had Covid-19 can return to a general business setting.
  • Here are the current CDC guidelines (for someone who has had Covid-19):
    • Being free from fever without fever-reducing medications.
    • No longer showing symptoms, including cough.
    • Having a negative result on two consecutive respiratory specimens collected at least 24 hours apart.
  • An employer may require a return to work note from a physician, consistent with its policies, including FMLA policy.
• Be prepared to respond to an employee who has travelled from an area of high infection or who may have been exposed but shows no symptoms.
  • The employee should generally self-quarantine at home for 14 days after exposure.
  • If the employee can work remotely, the employee should have that opportunity.
  • If the employee cannot work remotely, consider paying the employee (especially if the employee is not sick and wants to come to work).  In the latter situation, the employee is ready, willing, and able to work, and the employer is requiring the employee to do something else.

FMLA considerations

• Covid-19 is likely a serious health condition under the FMLA.
• An absence of more than three consecutive calendar days; and
  • Two treatments by a health care providers, or
  • One treatment plus continuing regimen of treatment.
• If an absence is FMLA-covered, it should not be counted under an “occurrence” attendance-control policy.

ADA considerations

• Covid-19, as it is now, is likely not a disability.
• However, complications from Covid-19 could constitute a disability.
• Checking temperatures.  The ADA generally prohibits medical exams and inquiries unless they are job-related and consistent with business necessity.  EEOC Guidance (from the 2009 H1N1 flu – https://www.eeoc.gov/facts/pandemic_flu.html) suggests that taking employees’ temperature is not appropriate under the ADA unless a local health authority or the CDC declares a “pandemic.”
• Inquiries about symptoms.  The same 2009 EEOC Guidance permits employers to ask employees if they are experiencing symptoms related to the health risk.  According to the CDC, those key symptoms are fever, cough, and shortness of breath.

OSHA considerations

• OSHA’s “General Duty Clause” to provide a workplace free of known hazards may obligate some employers to take action.
• Work positions with increased exposure risk, according to OSHA are: 
  • Healthcare 
  • Deathcare
  • Laboratories
  • Airline operations 
  • Border protection 
  • Solid waste and wastewater management 
  • Travel to areas with high infections 
• OSHA’s webpage for Covid-19 is https://www.osha.gov/SLTC/covid-19/

Vaccinations

• We do not recommend a requirement to obtain a seasonal flu shot, or a Covid-19 vaccine, should it be generally available.
• However, inducements to obtain vaccinations may encourage employees to obtain one (e.g., on-site administration of shot; low or no cost to employee). 

Unionized Employer Implications

• Your actions in regard to safety considerations may implicate the NLRA and the collective bargaining agreement to the extent they affect wages, hours and working conditions.
• Review the CBA to determine your rights to unilaterally implement safety rules, regulations, and policies. In most circumstances it is preferable to advise the union of the proposed actions, invite their input, and get their buy-in before implementation to avoid contract grievances or unfair labor practice charges.

State and Local Resources

• Keep up with state and local resources, which may present a more accurate picture of your local situation.
• For example, the Georgia Department of Public Health website is https://dph.georgia.gov/novelcoronavirus

Occupational Resources

• Some occupations present a greater likelihood of exposure to Covid-19 and other health risks.  The CDC’s guidance includes these categories:
  • Healthcare providers: https://www.cdc.gov/coronavirus/2019-nCoV/hcp/index.html
  • Emergency/first responders: https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-for-ems.html
  • Airlines: https://www.cdc.gov/quarantine/air/managing-sick-travelers/ncov-airlines.html