The coronavirus disease (COVID-19) continues to spread across the globe, including in the United States. California, New York, Florida, Washington, and other states have declared a state of emergency as the number of coronavirus cases in those states continues to increase. Across the country, thousands of people are currently in self-quarantine and some health officials fear that regional lockdowns may become necessary to contain "community spread." The spread of the coronavirus and the response by officials affect virtually all employers and raise questions as to employers' obligations and how they should be preparing for the issues the virus may present.
The situation created by the coronavirus is fluid, and while there are legal requirements that come into play, there is no one-size-fits-all solution or advice for businesses in responding to this situation. Steps that may be feasible and appropriate for a large, global business may not be feasible or appropriate for others. Employers will also confront unique situations requiring specific legal advice. This alert provides tangible recommendations for employers in responding to the coronavirus, including steps necessary to comply with applicable law. Businesses are advised to monitor and adhere to the evolving guidance from the Centers for Disease Control (CDC), the World Health Organization (WHO), as well as that provided by federal, state, and local governments in determining whether additional steps are necessary as the situation evolves. Further, beyond certain legal requirements, some of which are identified below, employers should consider the unique nature of their organization and tailor their response to their circumstances, and should seek legal advice for specific situations not covered by this alert.
1. Provide Clear Communications to Employees. Companies should create a team or manager responsible for coordinating prevention efforts. The team or manager would be the central communication source about the coronavirus across the organization as well as to clients and vendors as needed. Consider creating an employee resource link on the company's intranet to help employees stay current on decisions the organization has made as the situation evolves. Consider creating template communications for employees to send to clients, vendors, or event attendees about how they will be affected by the company's response to the coronavirus. It is important that a company's messaging is clear, consistent, and current. Consider virtual team meetings or conference calls to underscore the importance of the issue.
2. Respond Quickly If an Employee Appears Sick or Presents Other Identified Risk Factors. It may be difficult for employers to determine whether an employee has been infected with the coronavirus. Companies should rely on guidance from local health officials in considering whether the circumstances reasonably indicate that the illness could be coronavirus. Based on the CDC's current guidance, when an employee: (1) recently traveled to a restricted area under a Travel Advisory according to the U.S. State Department; (2) was in close contact to someone who has confirmed coronavirus; or (3) appears to have acute respiratory illness symptoms (such as cough or shortness of breath), employers are permitted to and should ask them to seek a public health assessment to determine the need for medical evaluation, and require them to leave the workplace immediately. If an employee has tested positive for coronavirus, or is suspected to have coronavirus, employers should require that all employees who have been in contact with that employee self-quarantine for a 14-day period. Ask the infected employee to identify all individuals who worked in their vicinity so that the company can instruct those workers to self-quarantine. Employers should inform fellow employees of their possible exposure to the coronavirus in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA) and employee privacy rights.
Under the ADA, employers are permitted to make medical-related inquiries, or even obtain a medical examination of the employee, where 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. The Equal Employment Opportunity Commission (EEOC) Pandemic Preparedness Guidance advises that whether a particular outbreak rises to the level of a "direct threat" depends on the severity of the illness. Companies should rely on assessments made by the CDC and other public health authorities in their locations to determine the severity of the threat. It is likely that the coronavirus meets the threshold of a "direct threat" at least in the localities under a state of emergency or disaster proclamation.
Requiring that employees work remotely as an infection control strategy does not violate the ADA. If an employee is not able to telecommute, employers should review their internal policies and federal and state leave laws to determine whether employees are entitled to paid leave during the period they are out of the office. Many states and cities have sick leave laws that provide for salary continuation during the time an employee is out of the office due to illness. Typically, however, sick leave laws allow for only a few days of leave per year. An employee's sick leave entitlement may accrue throughout the year and employees may not currently have their full allotment of leave. In these circumstances, as well as others, the company must decide whether to voluntarily provide additional paid sick leave in the absence of an internal policy or legal obligation.
Employers should also review federal and state leave laws to determine whether employees have an additional leave entitlement and familiarize themselves with the procedures that must be followed to properly request leave. The federal Family Medical Leave Act (FMLA) applies to employers with 50 or more employees and only to employees who have worked for the company for at least 12 months, performed at least 1,250 hours of services during the prior 12-month period, and work at a location with at least 50 employees within 75 miles. If an employee meets the FMLA-eligibility requirements, the employee is entitled to use 12 weeks of unpaid leave for their own serious health condition or to care for a family member with a serious health condition. An illness like the coronavirus could be considered a protected serious health condition if an employee or their family member is incapacitated or receives continuing treatment from a doctor for more than three full consecutive days. Many states, including California, New York and Washington, have their own medical leave statutes that provide for some amount of salary continuation during the eligible leave period.
3. Prepare to Implement Employee Telecommuting Policy: According to health officials, one of the most effective ways to combat the spread of the coronavirus is to reduce the frequency, proximity, and duration of contact between people, known as "social distancing." Companies may consider mandating that all employees in areas with a high number of known cases work remotely for the next few weeks, to the extent possible, as companies continue to monitor the outbreak. The telecommuting policy should be reviewed and updated as needed, and it should be applied uniformly for all similarly situated employees. A telecommuting policy should include:
- Direction to nonexempt employees that they must continue to comply with the company's timekeeping policies, create contemporaneous time records, and accurately record all working time. Companies should consider including agreed-upon hours of work during this time period and refrain from emailing or calling these employees outside of the agreed-upon hours to avoid claims for overtime compensation. Employers also should ensure that they abide by meal and rest break laws while employees are working from home.
- Expectations regarding how frequently employees should communicate with their supervisors. For example, the policy can mandate daily phone calls or videoconferences and daily or weekly status reports.
- Instructions to employees to help them determine what resources they will need and be required to use, including remote, encrypted access to company systems.
- Provisions covering the electronic devices employees should use while they are telecommuting. If employees can or must use personal electronic devices, consider whether any additional measures should be taken to safeguard company property and confidential information, including implementing an audit policy that permits employers to inspect such devices for the purpose of ensuring compliance with confidentiality requirements and to recover company materials.
- A reminder about employee's responsibilities to safeguard company confidential information, and procedures to recover any confidential information an employee takes home for purposes of telecommuting.
Remember that the ADA (and similar state and local laws) requires that employers provide reasonable accommodations to qualified individuals with a disability to perform the essential functions of their job. Employees who contract the coronavirus may nor may not be seriously ill long enough to substantially limit a major life activity. Whether the company is required to permit telecommuting should be assessed on a case-by-case basis.
4. Monitor and Restrict Employee Travel. Many organizations have already instituted business travel restrictions, including cancelling all non-essential international and domestic business travel. Companies should consider eliminating any travel to locations under a Travel Advisory according to the U.S. State Department, which are currently China, South Korea, Japan, Northern Italy, and Iran. Where possible, encourage employees to hold business and customer meetings over video or phone. Consider mandating that employees get prior approval for all business travel. If business travel is already underway, companies should ask employees to complete business-critical obligations, follow all CDC and WHO guidelines when traveling, and return as soon as possible.
Employers should also consider requiring employees to inform them if they are traveling for personal reasons so the employer is aware of employees who are traveling to a high-risk location. Employees currently on personal travel or planning personal travel to countries currently designated at Level 2 or above within the CDC's Travel Health Notices specific to coronavirus, should be required to notify their supervisors as to the date they are scheduled to return from travel and to self-quarantine for a 14-day period before returning to their place of work.
5. Respond to Employee Fears of Infection Appropriately. Many employees may be scared to come to work or use public transportation during this time for fear of infection. It is important that companies respond to these fears with empathy but also understand their right to require that employees continue to come to work, subject to any conflicting company policy. Employees are only entitled to refuse to come to work if they believe that they are in imminent danger. According to the Occupational Safety and Health Act (OSHA), imminent danger includes "any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act." It is unlikely at this time that employment conditions in the United States meet the OSHA elements required for an employee to refuse to work due to fear of contracting the coronavirus.
Employers should also be careful before disciplining an employee who refuses to come into work out of fear of contracting the coronavirus. An employer many not discipline an individual who "reasonably believes" that he or she is in imminent dangers under OSHA's anti-retaliation guidelines. Employers should be mindful of other issues that may present themselves, such as "protected concerted activity for mutual aid or protection" under the National Labor Relations Act.
6. Consider Implementing Emergency Paid Leave Policy. It is essential that employees stay home if they are feeling sick or have been exposed to the coronavirus. However, nonexempt employees who are directed not to report to work and cannot perform work remotely generally do not need to be paid. Exempt employees who cannot report for work for an entire workweek, and perform no work during that workweek, also do need not be paid for the week they perform no work. As discussed above, many employees may not have accrued paid sick or vacation leave under company leave policies and may not be eligible or entitled to salary continuation under any state or local leave laws. If the company has a paid time off policy, the company can mandate that the employee use their accrued time off during the period they are absent from work and not performing work remotely. While not required by law, in balancing competing concerns regarding workplace safety, businesses may consider implementing an emergency paid leave policy so that employees out on leave due to coronavirus continue to be paid during the leave period. Employers should also be careful before disciplining an employee who refuses to come into work out of fear of contracting the coronavirus. An employer many not discipline an individual who "reasonably believes" that he or she is in imminent dangers under OSHA's anti-retaliation guidelines. Employers should be mindful of other issues that may present themselves, such as "protected concerted activity for mutual aid or protection" under the National Labor Relations Act.
7. Prepare for Minimum Staffing Levels. Staff shortages may be the primary challenge to maintaining business operations during this period. Companies should assess the minimum staffing levels required for each department to sustain necessary business functions and operations. Identify employees who have been cross-trained, or can most easily be trained now, to fill in for those functions. Companies may consider splitting employees into groups and have the groups rotate between working remotely and working in the office to reduce the number of employees that will be impacted if an employee is confirmed to have been infected with the coronavirus.
8. Conduct Resiliency Testing. Many companies already have the capability to maintain core business operations when the office may be inaccessible. However, those systems must be tested periodically to identify and fix malfunctions. Companies may consider conducting a test of their systems by mandating that all employees work remotely for one day. This will allow organizations to test their VPN bandwidth, equipment, and technology support systems and fix any problems in preparation for a scenario when the organization must close office locations and employees must work remotely.
We recognize and appreciate the potential business disruption caused by the coronavirus and implementing some of the above-stated guidance. Again, companies need to take appropriate preventive steps to protect their workforce and keep their organizations running smoothly through this outbreak. All restrictions should be guided by the latest advisories from the CDC, the WHO, federal and state agencies, and industry advisory groups. Remember, however, that the laws of some states may vary from those of others.
Last week, Wilson Sonsini provided a briefing on "Employer Readiness for Issues Arising from the Coronavirus." The webcast of employment-related issues that employers should be considering, and how to prepare for and address those issues can be viewed here:
http://peach.wsgr.com/store/seminar/seminar.php?seminar=152905
