Pandemic Coronavirus: Practical and Legal Issues for Employers

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Introduction

While novel coronavirus­ (or COVID-19) has not yet been declared a global pandemic, people in 81 countries and 13 US states have been infected with the virus, and state and local public health departments are reporting new cases every day. The spread of coronavirus presents unique issues for employers seeking to protect themselves, their employees and the public.

Employers are advised to take preventative measures—such as developing policies specific to the outbreak, educating employees about how the virus spreads and encouraging telework­—to reduce the risk of the virus spreading in the workplace. Employers should take care to implement such measures in a manner that is consistent with applicable laws, including the ADA, OSHA, and the FMLA, as well as workers' compensation and state law wage and hour regulations. Employers should track the most up-to-date information from the Centers for Disease Control (CDC) and state and local government agencies about the severity and spread of novel coronavirus in determining the best course of action for their workplaces.

What Employers Can Do to Prepare

Employers can take steps to prepare for the onset of a potential pandemic virus, including¹:

• Identifying a pandemic coordinator and/or team with defined roles and responsibilities for pandemic response planning.
• Forecasting and allowing for employee absences during a pandemic due to things like personal illness, family member illness, community containment measures and quarantines, school closures, and public transportation restrictions.
• Establishing policies for employee compensation and absences unique to a pandemic (in accordance with applicable law, as discussed below).
• Providing infection control supplies such as hand sanitizer and tissues, increased cleaning of public facilities, such as door handles, countertops, kitchen and bathroom equipment.
• Establishing and enhancing remote-access capabilities to support employee telework.
• Ensuring that data and information that must be confidential is kept private while employees are teleworking by providing privacy screens or VPN services.
• Educating employees about the facts and directing them to available resources. With the onset of many diseases, numerous rumors arise. For example, a recent study reported that many beer-drinking Americans would not buy Corona beer because of fear of contracting the virus. (That is not the case.) Providing employees with basic information can prevent panic and paranoia.
• Establishing channels of communication (for example, email or text distribution lists, an intranet site or hotline) so that employees can receive timely updates and information.

Employers should protect their employees and the public by encouraging employees to:

• Stay home if they are sick.
• Work from home if possible. A number of companies have already announced mandatory work from home policies, or have encouraged employees to do so.
• Regularly wash their hands with soap and water for at least 20 seconds.
• Avoid touching their noses, mouths and eyes, and cover coughs and sneezes with a tissue or their elbow.
• Avoid shaking hands.
• Avoid face-to-face meetings in favor of video or teleconferencing.
• Keep unnecessary visitors, family members, and other members of the general public from visiting the workplace.
• Require employees who have been out sick to provide a doctor's note or submit to a medical examination before returning to work.
• Avoid any unnecessary travel.

Employment Law Implications

Preparing for and responding to a pandemic raises numerous employment law issues. Employers who implement pandemic preparation procedures must do so in a way that is consistent with the law. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

Americans with Disabilities Act (ADA)

The US Equal Employment Opportunity Commission (EEOC) has issued guidance for implementing pandemic preparation strategies in a manner that is consistent with the ADA. Generally, seasonal flu is not a disability under the ADA, but complications arising from pandemic coronavirus may lead to the condition becoming an ADA-covered disability. ADA-covered employers must make reasonable accommodations for an employee with a disability, including providing leave or adjusting attendance requirements. Implementing pandemic measures impacts two important issues regulated by the ADA: (1) inquiring about medical information and conducting medical exams, and (2) reasonable accommodations.

Inquiring About Medical Information and Conducting Medical Exams

Before a pandemic is declared, employers may not ask employees to disclose health conditions that might make them more susceptible to contracting the virus. But, employers can ask questions related to non-medical reasons an employee may miss work during a pandemic, such as a public transportation shutdown or school closure. Various factors, both health and non-health-related, that may cause an employee to miss work during a pandemic may be listed in a one-page form, with instructions to employees to provide a single yes or no answer as to whether any of the reasons listed would make the employee unable to come to work in the event of a pandemic.

During a pandemic, employers may:

• Ask employees whether they are experiencing influenza-like symptoms and send employees home if they are. Employees may be told to stay home and not come to work until at least 24 hours without symptoms.
• Take employees' temperature to determine whether they have a fever.
• Ask whether employees are returning from locations where the coronavirus is present, even if the travel was personal.
• Make a disability-related inquiry or require a medical examination if the employer reasonably and objectively believes that the employee's medical condition either impairs the employee's ability to perform essential job functions or poses a direct threat to the health or safety of the employee or others.

Whether coronavirus poses a "direct threat" under the ADA will depend on the severity of the virus, so employers should stay updated on the latest information from the CDC and state and local health departments about the severity of coronavirus.

Any information gathered about an employee's health must be kept separate from their general employment file and treated as a confidential medical record. In providing information to the workforce about the spread of the virus, it is important to do so without disclosing the names of those workers who may be infected.

Reasonable Accommodations and Telework

Employers may require employees to telework as an infection-control strategy, and employees with disabilities that put them at high risk for complications of coronavirus may request telework as a reasonable accommodation. If an employee with a disability has accommodations at work, the employer should provide the same accommodations for telework unless it would be an undue hardship. For example, a disabled employee who has a voice recognition program on his work computer as a reasonable accommodation should be provided a similar accommodation if required or permitted to telework.

Wage and Hour

Non-Exempt Employees. Non-exempt employees need only be paid for time that they are working. Employers can generally reduce scheduled hours or hourly pay without violating wage and hour laws; however, certain laws and local ordinances may require "reporting time" pay if non-exempt employees are called off their shift either after reporting or without sufficient advance notice.

If non-exempt employees are permitted to work from home, employers must make sure that those employees accurately track all time worked, are paid overtime according to state and federal law, and are provided meal and rest periods in accordance with state and federal law.

Exempt Employees. Exempt employees must generally be paid the same minimum weekly salary regardless of how many hours they work. Employers who fail to pay exempt employees' full weekly salary risk altering their exempt status and making them eligible for overtime pay. Employers can avoid this risk in one of three ways:

Unpaid furlough. Employers may impose unpaid furloughs. However, exempt employees cannot perform any work while on furlough. Employers must make sure that furloughed employees do not respond to email, take calls or otherwise perform work duties. If an exempt employee works during furlough, they must be paid for the full week.

Mandated Vacation. Employers may require employees to use vacation time or PTO rather than treating a furlough as unpaid.

Fixed Salary and Base Hours Reduction. Employers may implement a fixed reduction in future salaries and base hours due to a bona fide reduction in the amount of work an employee can do during a pandemic. Employers taking this route should be careful, as the Department of Labor and federal courts have concluded that this practice is only acceptable so long as it is occasional and due to long-term business needs or economic slowdown.

Workers' Compensation

For an illness to be compensable under a workers' compensation system, it must generally be contracted in the course and scope of an employee's employment and be specific to the work performed by that employee. So, for example, an attorney who catches coronavirus from a coworker is not likely to have a cognizable workers' compensation claim. But a health care worker who contracts the virus while treating infected patients at work probably does.

Employers whose employees are likely to encounter novel coronavirus in the scope of their employment should evaluate whether they have adequate workers' compensation insurance coverage and coverage limits that include occupational diseases.

If an employee contracts coronavirus and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits.

Occupational Safety and Health Act (OSHA)

OSHA requires employers to provide employees a safe place to work. Employers may be responsible for workplace safety violations related to the coronavirus outbreak under OSHA's "general duty" clause. In a pandemic, an employer could be cited for a general duty clause violation where, for example,

• The pandemic virus was present in the workplace and the employer's efforts to control exposure were insufficient.
• Employees were required to perform tasks that exposed them to the hazard of pandemic coronavirus.

Employers are required to take feasible steps to eliminate or mitigate recognized hazards. Employers should anticipate protecting employees by implementing controls, changing work practices, and, where appropriate, providing personal protective equipment.

Contagious diseases that are contracted at work (with the exception of the common cold or flu) are subject to OSHA's recordkeeping requirements and must be recorded. An employee's refusal to come to work for fear of contracting coronavirus may be protected activity, triggering OSHA's anti-discrimination provisions.

Family and Medical Leave Act (FMLA)

Employers who are covered by the federal FMLA must provide job-protected leave and other benefits to an eligible employee who misses work due to his or her own serious health condition, or to care for a close family member who has a serious health condition. While the common flu is typically not a serious health condition, pandemic coronavirus may be if it causes hospitalization or incapacitation. Many states (including California) have similar state leave laws.

The following absences do not qualify as protected leave under the FMLA:

• Missing work to care for a healthy child whose school is closed.
• Staying home to avoid exposure to the coronavirus.

There may be state laws (such as California's Labor Code Section 233) that protect caring for a sick family member that would protect an employee who stays home to care for a family member with COVID-19.

Unionized Workforces

For those employers with a unionized workforce, making changes to wages, hours, and terms and conditions of employment will usually require the employer to provide notice to the union and an opportunity to bargain, unless the issue is already covered by the current collective bargaining agreement.

The novel coronavirus situation is developing rapidly, and preparation by employers at this stage is key to keeping employees safe and avoiding legal missteps if and when it comes time to respond to coronavirus in your area. Please feel free to contact the attorneys listed on this Advisory for further guidance or analysis.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.