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MARCH 5, 2020

Employment in the Time of Coronavirus: Managing Your Workforce in the Face of a Global Pandemic

RICHARD REICE
MARCH 5, 2020


Coronavirus (COVID-19) is the largest viral outbreak in the past hundred years and has already made an unprecedented impact on how businesses operate around the world. As of this date, coronavirus has disrupted travel and industry across Asia, and is now beginning to spread across Europe and the United States in what the Center for Disease Control (CDC) refers to as "an emerging, rapidly evolving situation." It is clear that coronavirus is a global health issue that will have a lasting effect in the weeks and months to come. Already, supply chains and production lines are being severely disrupted, travel bans have been implemented, and public and private events have been canceled. Additionally, as testing methodologies improve, the number of people identified as having coronavirus will continue to increase.

Given these circumstances, employers must do more than simply monitor the CDC’s website, limit overseas travel, cancel unnecessary employee meetings, and hand out bottles of hand sanitizer. Instead, employers must be proactive and develop new health and safety plans to weather this crisis while maintaining business continuity, workforce management, and litigation avoidance. If coronavirus continues to spread, companies may soon face a future that includes: (1) a legal duty to prevent or mitigate the spread of coronavirus and other infectious diseases; (2) increased worker absenteeism due to illness, mandatory quarantines, the need to care for others, or to provide child care due to school closures; (3) the burdens of having to pay and accommodate absent employees; (4) increased demands by employees to ensure workplace safety from contagious diseases; (5) the burdens of implementing disinfection routines; (6) the need to assess employees exhibiting flu-like symptoms; (7) self-imposed or government-ordered closure; and (8) the need to reduce workforces in the face of lower economic activity.

Workplace Safety

Whether initiated by management, demanded by employees, or enforced by government regulation, there will soon be additional needs and requirements for increased workplace safety from health risks. Should coronavirus continue to spread, it is foreseeable that employees may refuse to work in certain settings unless their safety can be assured. Additionally, employers may be held liable for both employees and nonemployees infected in the workplace. To mitigate against coronavirus and potential negligence claims by employees and visitors, employers must develop and implement advanced safety standards. These standards may include modifications such as (1) additional handwashing/hand sanitation stations; (2) training employees about proper hygiene techniques and implementing rules to that effect; (3) insisting that symptomatic employees leave the workplace, (4) providing approved respirators; (5) initiating and maintaining disinfection methods and routines; (6) cancelling large employee gatherings; (7) implementing virtual office technology to maintain worker-to-worker and worker-to-management communication, should management decide to encourage staff to work remotely or in cases of a workplace closure; and (8) training managers on the company’s health, safety procedures, human resources polices, and to speak with one voice to avoid employee confusion and panic.

Additionally, employers are encouraged to insure they have proper contact and emergency contact information for employees, to monitor the OSHA and CDC websites, and to initiate training about the coronavirus, proper hygiene and other mitigation techniques, employer action plans, policy revisions, and support programs. Further consideration should be given to paid employee leave for testing and to having third parties conduct on-site testing.

OSHA

OSHA regulations pertaining to workplace safety may become relevant to a broader range of non-industrial workplaces. The General Duty Clause, 29 U.S.C. § 654(a)(1), of the Federal Occupational Safety Act of 1970 requires employers to furnish each worker with a "place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." Coronavirus certainly qualifies as a "recognized hazard."  While many employers in the health care, manufacturing, or construction industries are accustomed to working with OSHA standards, most white-collar employers are not because their workplaces are generally free of the hazards that OSHA targets. This will soon change and attention must be paid to the mandate of the General Duty Clause.

It is telling that the homepage of OSHA’s website (https://www.osha.gov/) is now devoted to coronavirus. While there is no specific OSHA standard for coronavirus, there are standards, aside from the General Duty Clause, which may soon apply and require employers to provide certain protective equipment or rearrange the workplace. OSHA's Personal Protective Equipment (PPE) standards (in General Industry, 29 CFR 1910 Subpart I) require using gloves, eye and face protection, and respiratory protection in certain circumstances; for instance:

When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134).

Should a workforce become exposed to coronavirus, or if symptomatic employees are discovered, the foregoing provision may become applicable and the distribution of face masks and workplace disinfectant programs may be required, depending on what the CDC determines to be "best practices" for coronavirus mitigation. Note that, at present, the CDC "does not recommend that people who are healthy wear a facemask to protect themselves from respiratory diseases, including COVID-19." However, the CDC advises that facemasks "should be used by people who show symptoms of COVID-19 to help prevent the spread of the disease to others" and for "people who are taking care of someone in close settings (at home or in a health care facility)."

Similarly, states may have their own workplace safety rules. New York has adopted the OSHA standards in their entirety. California goes one step further, as the California Division of Occupational Safety and Health (Cal/OSHA) publishes an Aerosol Transmissible Diseases (ATD) standard. Specific to the healthcare industry, it is aimed at preventing worker illness, via the use of appropriate respirators and environmental (HVAC) controls, from infectious diseases that can be transmitted by inhaling air that contains viruses (including COVID-19), bacteria, or other disease-causing organisms. Knowledge of this provision is useful because it provides insight as to what the future may hold should the government issue additional worker protection rules and regulations.

Finally, per California’s current regulations, employees can request a respirator even when one is not required by statute (https://www.dir.ca.gov/dosh/dosh_publications/respiratory.pdf).

Managing Employee Absence

A coronavirus pandemic may have a dramatic impact on absenteeism, requiring employer planning to ensure coverage and policies to best facilitate continuity of operations and workforce. Employers whose workforce generally work in an office setting, should be looking at developing policies and technology to allow for and facilitate telecommuting and the management of a remote workforce. Industrial, service and healthcare employers whose workforce cannot telecommute will have to engage in business and workforce continuity planning and how best to support, via salary continuation and benefits, employees who cannot work remotely.

Employees absent due to coronavirus will fall into several categories. Generally speaking, there will be employees who:

  • Are ill and cannot work as a result;
  • Have symptoms and are self-quarantined, or are ordered home by a physician or their employer;
  • Are asymptomatic, but must take leave to care for others who are sick or to care for children whose schools have closed to facilitate disinfecting or to limit further spread of the disease; and
  • Refuse to come to work out of concerns for their health.

The least problematic cohort will be those white-collar employees who are not ill but who can, if circumstances require, continue to work remotely. Those who are ill with coronavirus will generally be covered under an employer’s sick leave policy and applicable local leave laws. Their absence will be subject to the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and related state and local laws, which means that an employer will have to offer employees reinstatement upon conclusion of their leave. Employees who take leave to care for parents or children who are ill will also be covered by FMLA and or state equivalent.

A more challenging group, and perhaps the largest group, will be employees who must take leave to care for healthy parents or children who are precluded from being in a senior center or school due to a coronavirus related closure. These individuals will fall outside the ambit of their employer’s sick leave policy and FMLA coverage. Those employees who are asymptomatic but quarantined because of potential exposure to the virus via travel or otherwise will also fall outside traditional workplace sick leave policies and regulatory protections. Employers will have to consider how to address these latter two groups in terms of facilitating their leave, salary continuation (in accordance with the Fair Labor Standards Act), and reinstatement. Additionally, employers may be faced with some difficult choices in the case of employees who, out of fear, absent themselves from the workplace contrary to their employers’ instructions.

The Need for Information

One problematic aspect of increased absenteeism will be to satisfy the need for information. Employees will want to know that their employer is being proactive, that their workplace is safe, and what will happen to their job and pay if circumstances require their absence. Employers are going to have to maintain lines of communications with offices and employees to get real-time assessments of the impact of the disease on the organization and local communities. Thus, a rule requiring employees to immediately notify their employer if they develop symptoms or require leave will be essential, as well as requiring regular reports from local management regarding disease impact.

With regard to employee health, employers may face some challenges getting and disseminating needed information. For example, the ADA prohibits all disability-related inquiries and medical examinations for job applicants, even if they are related to the job. In contrast, an employer may make disability-related inquiries and require medical examinations of its existing workforce, but only if they are job-related and consistent with business necessity. Good faith inquiries regarding coronavirus infection should satisfy the business necessity exception.

The next hurdle is the ADA’s requirement that employee medical test results be kept confidential. There is, however, an exception that allows employers to share such information in limited circumstances "with supervisors, managers, first aid and safety personnel." (EEOC ADA Enforcement Guidance (No. 915.002, July 27, 2000)). This is a highly problematic prohibition because if coronavirus is found in the workplace, employees will want to know whether the person they work with has it—not an unreasonable request under the circumstances. Thus, employers will likely ignore this ADA prohibition (better than a wrongful death suit) and provide the information in the name of public health and safety. Alternatively, and far less satisfactory, would be an employer announcing that an individual in the workplace had been diagnosed as having the coronavirus, which may lead to unnecessary speculation and panic.

Visitors, Meetings and Travel

Employers are going to have to make a host of risk-related decisions relating to limiting the spread of the disease with regard to employee travel, attendance at large employee gatherings, and visitor access to the workplace. To keep abreast of current coronavirus related events and news, HR departments should monitor the CDC’s website for travel advisories and the latest news on coronavirus mitigation. One excellent source of monitoring coronavirus spread is the real-time "global cases" (tested and confirmed only) dashboard map generated by Johns Hopkins University:

https://www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6.

This site can be used to make informed statistical assessments regarding the risks of traveling to, or allowing visitors from, a given country.

Government or company imposed bans on travel, employee meetings (such as sales conventions or award ceremonies), and the screening of visitors will require employers to consider and plan for how they are going to maintain their culture, morale, and the communication of information when in-person employee interaction is curtailed. In addition, consideration should be given to screening visitors by inquiring about their health and travel history before granting them admission to the workplace.

Union Management Relations

Whatever the parties to a collective bargaining agreement may feel about each other, coronavirus will require labor and management to work together to help bargaining unit members affected by the virus and to ensure business continuity. Topics management and unions will have to confront will include, among other things, paid time off for testing; periodic mandatory testing; payment for testing; longer or additional shifts for those able to work; relaxation of the prohibition against cross-classification work or management preforming bargaining unit work; relaxation of attendance and leave rules; a program of salary continuation at a regular or reduced rate; the implementation of support programs for employees who are ill or quarantined; gaining alignment on how to address workplace safety concerns; and/or how to assess and deal with members of the bargaining unit who, out of fear for their safety, refuse to report for work, or won’t or can’t adapt to new schedules and workloads. Furthermore, plans and procedures must be put in place for the worst case scenario where a plant or facility is forced to shut down either for cleaning or where the workforce is placed on fourteen-day quarantine.

Conclusion

The coronavirus presents unprecedented challenges for employers and employees. Each employer must find a balance, specific to their workplace, between employee safety and business continuity. Clear and sensitive human resources policies will have to be developed that reflect this balance.  Employers who clearly communicate enhanced safety protocols and rational policies via a trained and informed management team are in the best position to maintain normal business operations and keep employee loyalty and morale high in these evolving, turbulent times.

*Special thanks to Alex Barnett-Howell for his assistance in preparing this article.


We are working diligently to keep our clients up to date on coronavirus-related developments. Nevertheless, these developments are changing daily and, in some cases even hourly, so it is important that you make sure you are dealing with the most current information. That being said, this alert is not offered, and should not be relied on, as legal advice. You should consult an attorney for guidance and counsel regarding any specific concern or situation.