By Bello Welsh LLP
Businesses of all sizes are having to make significant changes in many areas of their operations and to respond to unprecedented issues stemming from the continuing spread of COVID-19. The following are key business and legal consideration for all employers dealing with the impacts of the COVID-19 pandemic in the workplace.
- Understanding new obligations to provide paid sick time and family and medical leave under the Families First Coronavirus Response Act (FFCRA)
The new law will go into effect no later than April 2, 2020, and will require employers of fewer than 500 employees to (1) provide up to 80 hours of paid sick time (prorated for part time employees) for purposes related to COVID-19 infection, quarantine, or school/daycare closings and (2) provide up to 12 weeks of protected, partially paid leave for caring for a child due to COVID-19 related school/daycare closings (“E-FMLA”). The E-FMLA leave must be paid after the first 10 days, and payments under both the sick leave and E-FMLA provisions are subject to caps and reimbursed to employers through tax credits. While amendments and additions may be enacted in the coming days, employers should become familiar with these requirements as soon as possible to ensure they are prepared to comply on the effective date.
- Attention to anti-discrimination requirements when implementing and applying policies and procedures
Employers should beware of making decisions—even ones that may seem beneficial to particular employees—based on assumptions about employees’ risk from COVID-19 exposure or infection. While it may be appropriate to make inquiries in particular circumstances, consultation with counsel should occur in advance. Policies should be implemented and administered uniformly where appropriate to avoid inconsistent decisions and implementation by multiple lower level managerial personnel.
- Implementing procedures for alerting employees of health risks, such as contact with those who have or have been exposed to COVID-19
If an employee who worked in proximity with others is later identified as testing positive for COVID-19, or as being at high risk of having been exposed to the virus before coming to work, employers may wish to reach out to such employee’s “Tier 1” (direct) contacts to notify them of their potential exposure and to confirm whether additional measures should be taken to protect the workforce. Again, given the sensitivity of these situations, prior consultation with legal counsel is recommended.
- Contingency planning for dealing with an employee or visitor to your facility becoming sick
In addition to the above, if an employee contracts COVID-19 as a result of performing their work-related duties, this may be a recordable or reportable incident under OSHA rules.
- Planning now to meet obligations attendant to short- and long-term layoffs / reductions-in-force
Employers should review notice requirements under the federal Worker Adjustment Retraining and Notification (WARN) Act and any applicable state counterparts to determine whether planned layoffs or closings may trigger the technical notice obligations in these laws. While short-term layoffs and hours reductions (under 6 months) may not implicate notice requirements, employers should plan ahead now in case it becomes clear that layoffs or reductions will need to extend for longer or be converted into terminations.
Separate from statutory notice requirements, employers should review any existing employment contracts and CBAs for any contractual notice obligations. In addition, some employers may consider obtaining releases in exchange for severance payments not otherwise required by law or contract. Such agreements should be drafted with advice of counsel.
On Site Employees
- Review of attendance and paid time off policies
Employers with strict call-in procedures may need to revise or loosen policies in light of changing work locations and schedules. As more employees may miss time due to illness, strict application of discipline may no longer be practical.
- Review of workspaces to allow for greater social distancing
Employees working in open spaces may need to be reseated to allow for 6 feet of distance, and different procedures may need to be implemented for shift changes to avoid large groups of people coming into close contact.
- Consideration of additional safety measures with respect to employees returning from travel or other time away
Questions aimed at determining whether an employee may be infected or may have been exposed to infected individuals are permissible under federal law so long as employers do not make disability-related inquiries. It is recommended that legal counsel be consulted before any such questioning or other actions (such as temperature taking) are implemented.
- Review of appropriate mechanisms for processing and maintaining confidentiality of potentially sensitive travel, health and personal employee information
Even employers not subject to HIPAA obligations should maintain the confidentiality of information that may relate to an employee’s health status, , to the extent practical when taking steps to mitigate employee risk. This is the case whether such information is volunteered (such as when an employee self-identifies as being at greater risk in order to request work-from-home or other accommodation) or provided in response to an employer inquiry (such as on return from travel).
- Review of occupational health and safety policies
Employers in certain industries, particularly manufacturing and biotech, should consult their safety experts to ensure that standard operating procedures are updated as needed.
- Increased cleaning of equipment and facilities, especially for equipment used by different employees across shifts
Particular attention should be paid to the safety of employees who share equipment or workspaces.
- Mechanisms for tracking work hours, productivity, and time off
Federal and state wage payment laws of course continue to apply to employees working remotely, which poses special challenges. Most notably, non-exempt employees (whether hourly or salaried) must be paid for all time worked, so it is important to communicate clearly the expectations of when and how much time employees should work, and how they will record time (which should include time responding to emails, phone calls and other similar activities).
- Ensuring protection of confidential business information and data security during remote work
Employees should be reminded of the need to use only secure internet connections and engage in good internet “hygiene” to protect the confidentiality of business information, and to ensure that businesses do not lose the protection of trade secret laws and confidentiality restrictions in employment agreements.
Other Business Considerations
- Creation or updating of an incident response plan.
- Creation of a task force or other crisis response team composed of leaders from key parts of the organization (e.g., Human Resources, Operations, Finance, Communications, etc.).
- Designation of one or more points of contact to address internal and external inquiries and concerns, including employee questions, media inquiries, and shareholder concerns.
- Creation of an internal communication plan for keeping employees informed and receiving guidance from leadership (C-Suite, Board, etc.).
- Creation of an external communication plan for customers and business partners, including on social media and email distribution lists.
- Review of any external reporting requirements (SEC, FDA, 10K, OSHA, etc.).
- Review of contractual requirements with third parties (suppliers, business partners, etc.).
- Review of and creation of contingency planning for supply chain issues.
- Review of network capabilities for robustness under increased usage. Creation of contingency plans for system failures.
While some of the issues facing employers amid the COVID-19 pandemic involve known legal and practical obligations, many are unprecedented, involve interconnection of business, practical and legal considerations, and are not susceptible to a single correct resolution. We are available to provide additional information and specific guidance on any of these subjects, and have prepared other resources to assist you during this time, including a review of summary of the new law and frequently-asked questions and answers.