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Comprehensive And Updated FAQs For Employers On The COVID-19 Coronavirus

Fisher Phillips

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LAST UPDATED: April 13, 2020

Fisher Phillips has assembled a cross-disciplinary taskforce of attorneys across the country to address the many employment-related issues facing employers in the wake of the COVID-19 coronavirus. The COVID-19 Taskforce has created a Frequently Asked Questions (FAQ) document, which has been continually updated since first published on March 3 and will continue to be updated as events warrant. You can contact your Fisher Phillips attorney or any member of the Taskforce with specific questions, and a full listing of the Taskforce members and their practice areas is at the end of this publication.

The Taskforce has separately summarized the Families First Coronavirus Response Act, the federal legislation that includes an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law, among other things, and the Coronavirus Aid, Relief and Economic Security (CARES) Act, the federal law that allows small- and medium-sized businesses to receive federal loans – in some cases forgivable – to cover payroll and other expenses while expanding unemployment benefits for workers impacted by the outbreak.

Table of Contents

  1. BACKGROUND
  2. WORKPLACE SAFETY ISSUES
  3. ISSUES FOR WORKFORCES THAT TRAVEL
  4. REMOTE WORK
  5. INTERNATIONAL WORKFORCES
  6. IMMIGRATION ISSUES
  7. HEALTHCARE/HIPAA ISSUES
  8. BENEFITS/GROUP HEALTH PLAN ADMINISTRATION
  9. WAGE AND HOUR ISSUES
  10. EMPLOYEE LEAVE/ADA
  11. DISCRIMINATION/HARASSMENT/EEO ISSUES
  12. WARN ACT/PLANT CLOSINGS
  13. USERRA AND MILITARY LEAVE ISSUES
  14. WORKERS’ COMPENSATION
  15. INDUSTRY-SPECIFIC AND PRACTICE GROUP GUIDANCE
  16. FISHER PHILLIPS COVID-19 TASKFORCE MEMBERS

UPDATED (March 30, 2020)
BACKGROUND

On March 11, 2020, the World Health Organization (WHO) declared the COVID-19 coronavirus outbreak as a pandemic. This designation signifies that we are in the midst of a global disease outbreak, which occurs when a new virus emerges for which there is little or no immunity in the human population, begins to cause serious illness, and then spreads easily person-to-person worldwide. There have only been four influenza pandemics since 1900. The most recent pandemic declaration was the H1N1 outbreak in 2009. 

Once a pandemic is declared, public health officials use the Pandemic Severity Assessment Framework to determine the impact of the pandemic. Two main factors are used to determine the impact of a pandemic. First, the clinical severity, or how serious is the illness associated with infection. Second, the transmissibility, or how easily the pandemic virus spreads from person-to-person. The CDC uses these two factors to determine which actions to recommend at a given time during the pandemic. It will be important to monitor the Centers for Disease Control’s (CDC’s) pandemic severity assessment, as the severity level greatly affects the actions that an employer may take during a pandemic. 

What are the symptoms of the current COVID-19 coronavirus?

The virus symptoms manifest as a mild to severe respiratory illness with fever, cough, and difficulty breathing. The CDC believes at this time that symptoms may appear in as few as two days or as long as 14 days after exposure.

UPDATED ANSWER (March 30, 2020)
How is the current COVID-19 coronavirus transmitted?

People can catch COVID-19 from others who have the virus. The disease can spread from person to person through small droplets from the nose or mouth which are spread when a person with COVID-19 coughs or exhales. These droplets also land on objects and surfaces around the person. Other people then catch COVID-19 by touching these objects or surfaces, then touching their eyes, nose, or mouth. Therefore, it is important to stay more six feet away from a person who is sick, and to frequently wash your hands. It is possible to catch the virus from someone even before they have symptoms.

UPDATED ANSWER (March 30, 2020)
Can the virus spread from contact with infected surfaces or objects?

It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes.

WORKPLACE SAFETY ISSUES

UPDATED QUESTION & ANSWER (March 12, 2020)
What’s the main workplace safety guidance we should follow?

The Occupational Safety and Health Administration (OSHA) recently published Guidance on Preparing Workplaces for COVID-19, outlining steps employers can take to help protect their workforce. OSHA has divided workplaces and work operations into four risk zones, according to the likelihood of employees’ occupational exposure during a pandemic. These risk zones are useful in determining appropriate work practices and precautions.

Very High Exposure Risk:

High Exposure Risk:

Medium Exposure Risk:

Lower Exposure Risk (Caution):

What if an employee appears sick?

If any employee presents themselves at work with a fever or difficulty in breathing, this indicates that they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having the COVID-19 coronavirus is extremely low, it pays to err on the side of caution. Retrain your supervisors on the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.

UPDATED ANSWER (March 19, 2020)
Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. The Equal Employment Opportunity Commission (EEOC) confirmed that advising workers to go home is permissible and not considered disability-related if the symptoms present are akin to the COVID-19 coronavirus or the flu.

UPDATED ANSWER (March 19, 2020)
Can I take an employee’s temperature at work to determine whether they might be infected?

Yes. The EEOC confirmed that measuring employees’ body temperatures is permissible given the current circumstances. While the Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA, the federal agency recognizes the need for this action now because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions. 

However, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

Note: If your company does business in the State of California (e.g., if you have one or more locations, employees, customers, suppliers, etc. in the state), and your business is subject to the California Consumer Privacy Act (CCPA), then you must provide employees a CCPA-compliant notice prior to or at the same time as your collection of this information. For advice on CCPA compliance, please reach out to any member of our Data Security and Workplace Privacy Practice Group at any of California offices.

UPDATED ANSWER (March 18, 2020)
What precautions are needed for individuals who are taking the temperatures of employees, applicants or customers?

To protect the individual who is taking the temperature, you must first conduct an evaluation of reasonably anticipated hazards and assess the risk to which the individual may be exposed. The safest thing to do would be to assume the testers are going to potentially be exposed to someone who is infected who may cough or sneeze during their interaction. Based on that anticipated exposure, you must then determine what mitigation efforts can be taken to protect the employee by eliminating or minimizing the hazard, including personal protective equipment (PPE). Different types of devices can take temperature without exposure to bodily fluids. Further, the tester could have a face shield in case someone sneezes or coughs. Further information can be found at OSHA’s website, examining the guidance it provides for healthcare employees (which includes recommendations on gowns, gloves, approved N95 respirators, and eye/face protection).

UPDATED ANSWER (April 13, 2020)
An employee of ours has tested positive for COVID-19. What should we do?

The infected employee should be sent home until released by their medical provider or local health provider. You should send home all employees who worked closely with that employee to ensure the infection does not spread. Before the infected employee departs, ask them to identify all individuals who worked in close proximity (within six feet) for a prolonged period of time (10 minutes or more to 30 minutes or more) with them during the 48-hour period before the onset of symptoms to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary. The CDC provides that the employees who worked closely to the infected worker should be instructed to proceed based on the CDC Public Health Recommendations for Community-Related Exposure. This includes staying home until 14 days after last exposure, maintaining social distance from others, and self-monitoring for symptoms (i.e., fever, cough, or shortness of breath).

How long should the employees who worked near the employee stay at home? Those employees should first consult and follow the advice of their healthcare providers or public health department regarding the length of time to stay at home. The CDC recommends that those who have had close contact for a prolonged period of time with an infected person should remain at home for 14 days after last exposure. If they develop symptoms, they should remain home for at least seven days from the initial onset of the symptoms, three days without a fever (achieved without medication), and improvement in respiratory symptoms (e.g., cough, shortness of breath).

The CDC has released relaxed guidelines for critical infrastructure workers, as previously defined by the Cybersecurity and Infrastructure Security Agency, who have been potentially exposed to COVID-19. Under the relaxed guidelines, critical infrastructure workers potentially exposed to COVID-19 may continue to work following exposure provided they remain symptom-free and employers implement additional precautions to protect the employee and the community:

Critical infrastructure employees who become sick during the work day should continue to be sent home immediately. You should notify those who had contact with the ill employee while be employee had symptoms, and two days prior to the symptoms appearing. You should then implement additional precautions for those employees as described above.

The CDC also provides the following recommendations for most non-healthcare businesses that have suspected or confirmed COVID-19 cases:

If employers are using cleaners other than household cleaners with more frequency than an employee would use at home, employers must also ensure workers are trained on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication standard (29 CFR 1910.1200). Simply download the manufacturer’s Safety Data Sheet (SDS) and share with employees as needed, and make sure the cleaners used are on your list of workplace chemicals used as part of the Hazard Communication Program (which almost all employers maintain).

UPDATED ANSWER (April 9, 2020)
One of our employees has a suspected but unconfirmed case of COVID-19. What should we do?

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee has not tested positive for the virus but has been exhibiting symptoms that lead you to believe a positive diagnosis is possible.

As discussed above, critical infrastructure workers who have been potentially exposed may continue to work if they are asymptomatic and the additional precautions are implemented.

UPDATED ANSWER (March 30, 2020)
How can we distinguish between a “suspected but unconfirmed” case of COVID-19 and a typical illness?

There is no easy way for you to make this determination, but you should let logic guide your thinking. The kinds of indicators that will lead you to conclude an illness could be a suspected but unconfirmed case of COVID-19 include whether that employee has a suspected or confirmed COVID-19 case in their household or similar facts, like whether they traveled to a restricted area that is under a Level 2, 3, or 4 Travel Advisory according to the U.S. State Department, whether that employee was exposed to someone who traveled to one of those areas, etc. You should err on the side of caution but not panic.

The EEOC has confirmed that you can inquire into an employee’s symptoms, even if such questions are disability-related, as you would be considered to have a “reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.” Inquiries into an employee’s symptoms should attempt to distinguish the symptoms of COVID-19 from the common cold and the seasonal flu. This should include inquiries into whether an employee is experiencing:

The most common symptoms of COVID-19 are fever and a dry cough. This helpful chart can help you and your employees distinguish between the COVID-19 coronavirus, the seasonal flu, or a common cold.

It is important to remember that you must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Note: If your company does business in the State of California (e.g., if you have one or more locations, employees, customers, suppliers, etc. in the state), and your business is subject to the California Consumer Privacy Act (CCPA), then you must provide employees a CCPA-compliant notice prior to or at the same time as your collection of this information. For advice on CCPA compliance, please reach out to any member of our Data Security and Workplace Privacy Practice Group at any of California offices.

UPDATED ANSWER (April 9, 2020)
One of our employees self-reported that they came into contact with someone who had a presumptive positive case of COVID-19. What should we do?

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee is asymptomatic for the virus but you are acting out of an abundance of caution.

For critical infrastructure workers, they may continue to work if they are asymptomatic and you implement the additional precautions discussed above.

UPDATED ANSWER (April 9, 2020)
One of our employees has been exposed to the virus but only found out after they had interacted with clients and customers. What should we do?

Take the same precautions as noted above with respect to coworkers, treating the situation as if the exposed employee has a confirmed case of COVID-19 and sending home potentially infected employees that he came into contact with. As for third parties, you should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.

For critical infrastructure workers, they may continue to work if they are asymptomatic and you implement the additional precautions discussed above.

UPDATED QUESTION & ANSWER (March 9, 2020)
If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC?

There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility.

UPDATED QUESTION & ANSWER (March 16, 2020)
Can we require an employee to notify the company if they have been exposed, have symptoms, and/or have tested positive for the COVID-19 coronavirus? 

Yes, you should require any employee who becomes ill at work with COVID-19 coronavirus symptoms to notify their supervisor. Employees who are suffering from symptoms should be directed to remain at home until they are symptom-free for at least 24 hours.

While outside of work, if an employee begins experiencing symptoms, has been exposed to someone that is exhibiting symptoms, or has tested positive, the employee should contact your company by telephone or email and should not report to work. 

UPDATED QUESTION & ANSWER (March 19, 2020)
We are hiring employees during the outbreak; what steps can we take to protect our workforce?

The EEOC has confirmed that you may screen applicants for symptoms of the COVID-19 coronavirus after you make a conditional job offer, as long as you do so for all entering employees in the same type of job. You can also take an applicant’s temperature as part of a post-offer, pre-employment medical exam after you have made a conditional offer of employment.  

The EEOC has also said you may delay the start date of an applicant who has COVID-19 or symptoms associated with it. According to current CDC guidance, an individual who has the COVID-19 coronavirus or symptoms associated with it should not be in the workplace. In fact, the EEOC has also said you may withdraw a job offer when you need the applicant to start immediately but the individual has COVID-19 or symptoms of it.

UPDATED QUESTION & ANSWER (April 8, 2020)
What steps can we take to minimize risk of transmission?

Repeatedly, creatively, and aggressively encourage employees and others to avoid exposure. The messages you should be giving to your employees are:

As an employer, you should be doing the following:

Can an employee refuse to come to work because of fear of infection?

Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “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.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold.  Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.

In addition, Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to those employees (in union and non-union settings alike) to engage in “protected concerted activity for mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it has been extended to individual action expressly undertaken on behalf of co-workers.  

On its own website, the National Labor Relations Board (NLRB) offers a number of examples, including, “talking with one or more employees about working conditions,” “participating in a concerted refusal to work in unsafe conditions,” and “joining with co-workers to talk to the media about problems in your workplace.” Employees are generally protected against discipline or discharge for engaging in such activity. 

UPDATED QUESTION & ANSWER (March 17, 2020)
What actions can we take if an employee is exhibiting flu-like symptoms but refuses to leave the workplace?  

You should first take a collaborate approach. Remind the employee that you are asking them to leave. Try to make them understand the reasons why their departure is necessary to maintain the health and safety of the entire workplace. If there are benefits available such as paid sick leave, use of accrued vacation, or something else that may appease them, you should explain these benefits and how the employee can utilize them.

If the employee still refuses to leave the workplace, you can consider (a) explaining that the employee is now trespassing on private property and if they do not leave you will be forced to call local law enforcement to escort them off the premises; or (b) terminating the employee for insubordination. Termination of the employee, however, should be considered a last resort. Given the current climate, you will need to also consider public perception related to taking overly strong adverse action against an employee expressing concerns or apprehension related to the coronavirus.

UPDATED QUESTION & ANSWER (April 10, 2020)
When may an employee discontinue home isolation?

Have the infected employee follow the direction of their medical provider or local health official regarding the duration of self-isolation. If that guidance is unavailable, there are three options per the CDC for determining when a person may end home isolation, using either (1) a time-since-illness-onset option, (2) a time-since-recovery option, or (3) a test-based option.

The EEOC confirmed that you may require a doctor’s note stating the employee is fit for duty before permitting them to return to work.

UPDATED ANSWER (April 4, 2020)
Can employers in the United States refuse an employee’s request to wear a medical mask or respirator?

Yes, under most circumstances – but you should consider allowing your workers to wear them if it makes them feel safe. Under the OSHA respiratory protection standard, which covers the use of most safety masks in the workplace, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Likewise, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard.” In almost all work situations, however, there is no currently recognized health or safety hazard – even when employees work near other people and thus there is no need for a mask or respirator.

However, the CDC’s April 3 guidance recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission. The CDC recommends the use of simple cloth face coverings to slow the spread of the virus, given that a significant portion of individuals with COVID-19 lack symptoms. The simple cloth face coverings recommended by the CDC can be made at home from common household materials. The CDC made clear that the cloth face coverings being recommended are not surgical masks or N-95 respirators. The cloth face coverings are not subject to OSHA’s respiratory protection standard.

Given this new guidance from the CDC, it is recommended that you do not refuse an employee’s request to wear a mask. However, recommend that the employee use a cloth face covering, as suggested by the CDC, instead of a surgical mask. 

UPDATED ANSWER (April 4, 2020)
Can an employee refuse to work without a mask?

OSHA has addressed the common question of whether an employee can simply refuse to work in unsafe conditions. The safety agency provides the following guidance, which wouldn’t require the use of a mask or respirator in most situations. An employee’s right to refuse to do a task is protected if all of the following conditions are met:

  1. Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so;
  2. You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists;
  3. A reasonable person would agree that there is a real danger of death or serious injury; and
  4. There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Given the consensus that face masks are only necessary when treating someone who is infected with the COVID-19 coronavirus or influenza, masks are likely not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of the COVID-19 coronavirus or influenza. The use of the word “may” in OSHA’s respiratory protection standard makes it clear that when a respirator is not necessary to protect the health of an employee, it is within the discretion of the employer to allow employees to use a respirator. Accordingly, you are well within the applicable OSHA standard to deny an employee’s request to wear a surgical mask or a respirator in almost all situations.

However, in light of the CDC’s recent guidance recommending that people wear cloth face coverings in public settings, it’s not recommended that you refuse an employee’s request to wear a mask at work. However, you should recommend that the employee wear a cloth face covering instead of a surgical mask. As the CDC notes, the cloth face coverings recommended are not surgical masks or N-95 respirators. The cloth face coverings are not subject to OSHA’s respiratory protection standard.

UPDATED QUESTION & ANSWER (March 16, 2020)

Can we open childcare centers at our workplace for employees’ children who are not allowed to go to school?

No. Though while well-intentioned, childcare centers and daycares require proper licensing from your state. Unless you already have or can obtain the proper licensure, you should refrain from doing so.

UPDATED QUESTION & ANSWER (March 16, 2020)
Can we instead offer informal “entertainment areas” or “kid zones” for employees’ children who are not allowed to go to school?

You should probably refrain from offering informal “entertainment areas” or “kid zones” because state regulating agencies may consider them unlicensed daycares. Additionally, the reason that schools have been closed across the country is to encourage social distancing in an effort to stop the spread of the COVID-19 coronavirus. Allowing children to gather in “kid zones” would place children in close quarters and would risk spreading the virus among the children and the workforce. You may instead consider clearly communicating with those on your staff who are able to work remotely that you will be flexible to allow them to parent their children during this time, which may include adjusting schedules, holding phone calls or video meetings during off-hours, and other alterations. Even a quick message letting your employees know that managers will not mind if children are sitting on laps or making noise in the background during phone calls and video conferences could go a long way toward making your employees feel comfortable.

UPDATED ANSWER (April 13, 2020)
Is COVID-19 a recordable illness for purposes of OSHA Logs?

OSHA has published guidance on this issue. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log. You must record instances of workers contracting COVID-19 if the worker contracts the virus while on the job. The illness is not recordable if worker was exposed to the virus while off the clock. You are responsible for recording cases of COVID-19 if:

  1. The case is a confirmed case of COVID-19;
  2. The case is work-related, as defined by 29 CFR 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

OSHA recently published guidance for enforcing their recordkeeping requirements for cases of COVID-19. Recognizing the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will not enforce its recordkeeping requirements that would require employers in areas where there is ongoing community transmission to make work-relatedness determinations for COVID-19 cases, except where:

  1. There is objective evidence that a COVID-19 case may be work-related; and
  2. The evidence was reasonably available to the employers.

This waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions in areas where there is ongoing community transmission. These employers must continue to make work-relatedness determinations. 

UPDATED ANSWER (March 15, 2020)
Are employers required to develop a written infectious disease preparedness and response plan?

While you are not required to do so, it is a prudent course of action and highly recommended by OSHA. The elements of such a plan can be found here. OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials. While the Bloodborne Pathogens standard does not apply to all workplaces, the provisions may be helpful in controlling some sources of the virus. A good way to satisfy your obligations under these conditions is to prepare the hazard assessment required by OSHA’s standards.

What steps should we take if we use chemicals to combat the COVID-19 coronavirus?

Be mindful of the specific requirements of OSHA’s Hazard Communication standard if new chemicals, or temporary employees, are introduced into work areas to combat the COVID-19 coronavirus. You are required to provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new chemical hazard the employees have not previously been trained about is introduced into their work area. A comprehensive hazard communication program should include contain labeling and other forms of warning, safety data sheets, and employee training. Now is also a good time to retrain employees under OSHA’s bloodborne pathogens standard, including revisiting and communicating the elements of your exposure control plan.

ISSUES FOR WORKFORCES THAT TRAVEL

UPDATED ANSWER (March 15, 2020)
What current travel restrictions are in place?

The WHO declared the COVID-19 a pandemic on March 11, 2020, which means the virus is now considered to be spreading around the world and affecting a large number of people. In light of this sustained outbreak on a global scale, President Trump has issued a number of Presidential Proclamations limiting the entry of foreign nationals who were physically present in the following countries during the 14-day period before their attempted entry into the United States: China, Iran, Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom, and Ireland. The travel restriction on China does not apply to Hong Kong, Macau, or Taiwan.

The restrictions on entry from China, Iran, and the continental European countries listed above are already in effect and will remain in effect until modified or terminated by the President. The restrictions on entry from the U.K. and Ireland will begin at midnight EST on Monday, March 16.

UPDATED QUESTION & ANSWER (March 15, 2020)
Who is exempt from the travel restrictions?

The following individuals are not subject to the travel ban on Europe: 

UPDATED QUESTION & ANSWER (March 15, 2020)
Are there conditions for the return of those who are exempt from the travel restrictions?

Yes. All U.S. citizens, legal permanent residents, and their immediate families who are returning from a restricted country must self-quarantine in their homes for 14 days after their arrival. In order to ensure compliance, local and state public health officials will contact individuals in the days and weeks following their arrival.

UPDATED QUESTION & ANSWER (March 15, 2020)
Can employees returning from the restricted countries fly into any airport?

No. The Department of Homeland Security (DHS) has directed all U.S. citizens, legal permanent residents, and their immediate families who are returning from the restricted countries to travel through one of the following 13 airports where DHS has established enhanced entry screening capacities:

Upon arrival from a restricted country, travelers will undergo an enhanced medical interview where the passengers will be asked about their medical history, current condition, and asked for contact information for local health authorities. Additionally, some passengers will have their temperature taken. Passengers who are not symptomatic will be given written guidance about COVID-19 and be allowed to proceed to their final destination. Passengers who are symptomatic for coronavirus will be referred to the CDC for medical evaluation.

UPDATED ANSWER (March 21, 2020)
Can we prohibit an employee from traveling to a non-restricted area on their personal time? 

On March 19, the U.S. Department of State issued a Level 4 “Do Not Travel” advisory warning U.S. citizens to avoid all international travel due to the global impact of COVID-19. The U.S., Mexico, and Canada have also suspended all non-essential travel between the two countries. However, you generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. While a federal court of appeals recently held that it is not necessarily a violation of the ADA to terminate an employee who refuses to cancel personal travel to an area of the world with a high risk of exposure to a deadly disease, you still could risk legal exposure, reduced employee morale, and negative publicity if you do so. This includes pregnant employees or those with medical conditions. However, you should educate your employees before they engage in travel to risky environments to try and work out a solution, and you can – and should – monitor those employees returning from such travel for signs of illness.

UPDATED ANSWER (March 12, 2020)
What should I do if an employee has recently traveled to an affected area or otherwise may have been exposed to the COVID-19 coronavirus?

As noted above, the ADA prohibits employers from making disability-related inquiries and requiring medical examinations unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) 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.

According to the EEOC, whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. The EEOC instructs employers that the assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination. During a pandemic, an employer does not have to wait until an employee develops symptoms to ask questions about exposure to a pandemic influenza during recent travel. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home after traveling, an employer may ask an employee what locations they have traveled to, even if the travel was for personal reasons.  

UPDATED ANSWER (April 2, 2020)
We have an employee who has recently traveled overseas to a country that is not on any restricted list, but we’re worried about the risk of transmission. Should we institute a “soft” quarantine?

The CDC now recommends everyone who returns from international travel to stay at home for 14 days. Although not a requirement, an employer should ask such an employee to self-quarantine for 14 days before returning to work if at all possible in order to protect other employees and reduce the employer’s potential liabilities.

UPDATED ANSWER (April 2, 2020)
Can employees refuse to travel as part of their job duties?

Given the current travel restrictions and stay-at-home orders issued globally and domestically, employers should not ask their employees to travel for business unless absolutely necessary.

Employees who object to business travel on behalf of others or act in groups could be covered by the NLRA’s protection of concerted protected activity. You will want to proceed with caution and consult with your attorney before taking any steps in this regard. Moreover, under the federal OSH Act, employees can only refuse to work when a realistic threat is present.

REMOTE WORK

UPDATED QUESTION & ANSWER (March 9, 2020)
Should we institute a temporary remote work policy in light of the COVID-19 coronavirus outbreak?

Whether your company implements a remote work policy is entirely dependent on your organization’s circumstances and the area of the country where your workers reside. You may not want to introduce a new system in place if you have had not yet had time to test and develop your remote work capabilities. On the other hand, if you have established protocols in place, this could be a good opportunity to leverage them. Regardless of what you choose to do, you should make your decision based on objective evidence and not emotion or fear. Make sure your decision is educated and intentional, not reactionary and spur-of-the-moment.

UPDATED QUESTION & ANSWER (March 9, 2020)
What infrastructure should we have in place for a remote work plan?

You will want to identify the roles that are critical to your business operations and determine whether those individuals can carry out their jobs while working remotely. If you can proceed, the next critical component is assessing your technological capabilities. Do you have the support in place to assist with the inevitable questions and IT problems that will arise? Do you have sufficient security and privacy protocols in place? Considering these questions will help you determine whether you can move forward with a remote work plan.

UPDATED QUESTION & ANSWER (March 9, 2020)
What can we do to prepare for a possible remote work scenario?

There are a number of things you should do today to prepare for the possibility that your workers will need to operate remotely for a period of time.

UPDATED QUESTION & ANSWER (March 9, 2020)
What should be included in a remote work policy?

Your policy should lay out the expectations you have for your workers as the embark on their temporary remote work routines. The number one item you should convey to them is that you expect them to help your organization maintain normal business operations during this period of time to the extent possible. Consider all aspects of their work and make sure they understand what is expected of them.

You should include an anticipated end date in your remote work announcement, and/or inform your employees that you will provide weekly updates regarding the status of the remote work period.

UPDATED QUESTION & ANSWER (March 9, 2020)
What are some concepts we should keep in mind to ensure our remote work time is productive and successful?

There are a number of steps you can take to ensure that the temporary remote work time goes well for your workers and for your organization. 

INTERNATIONAL WORKFORCES

UPDATED ANSWER (March 15, 2020)
What should we do about expats working abroad and our global workforce?

Generally, the reaction to the COVID-19 coronavirus varies from country to country (or even jurisdiction to jurisdiction within a particular country). Employers with expats or other employees abroad should ensure copies of all expat assignment agreements and contracts are nearby if needed for reference. Most often the resolution of issues related to obligations with respect to these employees begin with reviewing applicable contractual obligations and agreements. You should also review all travel, medical, and other insurance policies to determine coverage limitations and to help assess risk. 

If you have expats or globally mobile employees who become stranded in a particular jurisdiction either because of locally imposed travel restrictions or simply an in ability to obtain transportation, you should be prepared to provide emergency support that may include assistance with accommodations, local medical and security advice, and possibly a temporary financial supplement until onward travel can be arranged. Again, a thorough review of contractual obligations and applicable policy documents is the starting point.

UPDATED ANSWER (March 15, 2020)
Should we bring our expats home?

In some circumstances, it may be best practice to do so. You should undertake a careful evaluation of conditions in the location where they are living and working on a frequent basis. It would be a good practice to require your expat employees to regularly report back on conditions and their circumstances. When evaluating a decision to bring an expatriate home, a careful review of travel restrictions and health screening obligations upon return should be considered.

What if one of our expat employees becomes quarantined abroad?

If an expat or employee is quarantined abroad, you should seek legal and other advice regarding the particular facts and circumstances of the situation. You will need to develop a plan to meet your obligations to the employee and their family, as well as your company needs. Each situation will be different, so your advice will need to be tailored to the situation.

What about our expats located in an area that is heavily affected by the COVID-19 outbreak?

In areas currently heavily affected, you should undertake a thorough review of conditions as they pertain to all employees within the area on a daily basis. The applicable laws vary from jurisdiction to jurisdiction. Some countries impose significant obligations concerning a duty of care to employees on employers that are more comprehensive than U.S. rules. You should not assume the law in other jurisdictions applies as it does here. 

IMMIGRATION ISSUES

What will happen to my foreign national’s immigration status if they are stuck outside the U.S.?

Generally speaking, U.S. immigration law only applies to a foreign national when that person is physically in the country. In most situations, a person is not considered to have failed to maintain lawful immigration status if they are not physically in the U.S. The employee’s absence from the U.S., however, could trigger other collateral immigration issues. It is important to seek specific legal advice for each impacted case.

UPDATED ANSWER (March 21, 2020)
Do the Presidential Proclamations mean that the U.S. consulates will deny all visa applications filed in the restricted counties in those non-exempt categories?

The Department of State announced that it is suspending routine visa services at all U.S. embassies and consulates in response to COVID-19. Embassies and consulates will cancel all routine visa appointments as of March 20, 2020.

The Department of State compiled a list of embassy websites for country-specific information concerning COVID-19. This page provides links to the COVID-19 dedicated page for each nation’s embassy which includes information concerning health services, recommendations, and information concerning a reduction or temporary suspension of visa services. Employers should check the respective post or embassy’s website before foreign national employees travel abroad and before planning the transfer of employees to the U.S. resumes.  Due to the ongoing situation relating to the COVID-19 coronavirus outbreak, the U.S. Embassy and Consulates have very limited staffing and may be unable to respond to requests regarding regular visa services.

UPDATED ANSWER (March 21, 2020)
Does the Presidential Proclamation affect those with visas?

The Proclamation specifically exempts any foreign national seeking entry into or transiting the United Sates pursuant to an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa. 

What issues can we expect green card holders to encounter?

Travel restrictions may cause issues for green card holders who have already been outside of the United States for an extended period of time. Extended absences from the United States by green card holders may lead to extensive questioning upon re-entry or a determination that the green card holder has abandoned their permanent resident status. 

What happens to employees on temporary visas who cannot work?

Pending specific guidance from DHS, these workers would presumably be treated as if they were on an approved, unpaid leave, and therefore would not be out-of-status for failing to work.

UPDATED ANSWER (March 15, 2020)
Must I pay an H-1B alien the salary listed in the petition even if that person cannot now work?

Again, you could presumably put such a person on an unpaid leave of absence until they are able to work again. Employers must provide H-1B workers with the same benefits and working conditions as U.S. citizen employees.

UPDATED ANSWER (March 20, 2020)
What if my H-1B employees must now work remotely from home?

Under normal circumstances, H-1B workers are restricted to working at the worksites listed on the underlying Labor Condition Application (LCA) filed with the U.S. Department of Labor. The H-1B regulations, however, allow H-1B workers to work remotely temporarily if the new worksite is within the normal commuting distance from the worksite listed on the LCA. A new or amended H-1B petition is not required when the employee is at a new worksite for up to 30 workdays, and in some cases 60 workdays (where the employee is still based at the permanent worksite). An amended H-1B petition is only required if the employer is required to file a new LCA. Thus, this requirement would come into play following exhaustion of the short-term placement, and only for employees who live outside of the MSA where they work.

UPDATED QUESTION & ANSWER (March 20, 2020)
Can we furlough or terminate H-1B workers?

Employers cannot furlough foreign national employees on H-1B work visas. If employers terminate H-1B workers before the end date listed on their H-1B Approval Notice, employers must withdraw their H-1Bs with USCIS to avoid claims for back pay. In addition, employers are responsible for providing terminated H-1B workers with return transportation to their home country.

UPDATED QUESTION & ANSWER (March 21, 2020)
How can we continue to complete Form I-9 if employees are working remotely?

For employers operating remotely, DHS announced greater flexibility for complying with the Form I-9 requirements:

Employers may utilize these provisions for a period of 60 days from March 20, 2020 OR within three business days after the termination of the National Emergency, whichever comes first. Employers will bear the burden of proof to provide written documentation of their remote onboarding and telework policy for each employee. Any subsequent I-9 audit would use the “in-person completed date” as a starting point for the impacted employees only.

This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. Employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process.

UPDATED QUESTION & ANSWER (March 21, 2020)
What if we were issued an I-9 Notice of Inspection?

Effective March 19, any employer that was served a Notice of Inspection by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

UPDATED QUESTION & ANSWER (March 21, 2020)
What happens to employment-based petitions that are currently pending with USCIS?

While U.S. Citizenship and Immigration Services continues to process visa petitions, all face-to-face interviews and biometrics appointments have been canceled and will be rescheduled when normal operations resume. USCIS has terminated premium processing services for all I-140 Immigrant Petitions and all I-129 Non-immigrant Petitions, including H-1B transfers and H-1B cap petitions, which will only further exacerbate the growing backlog of cases and delay the transfers of workers.

UPDATED QUESTION & ANSWER (March 21, 2020)
What if our employer representative who typically signs visa petitions is working remotely without access to a printer?

On March 20, USCIS announced that it will accept forms and documents with reproduced original signatures for submissions dated 3/21/20 and beyond. For forms that require an original “wet” signature, USCIS will accept electronically reproduced original signatures. This temporary change only applies to signatures. Employers that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

HEALTHCARE/HIPAA ISSUES

Does the COVID-19 coronavirus emergency trump HIPAA privacy rules?

No, the government recently sent a stern reminder to all employers, especially those involved in providing healthcare, that they must still comply with the protections contained in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule during the COVID-19 coronavirus outbreak. The Office for Civil Rights of the U.S. Department of Health and Human Services (HHS) issued a reminder after the WHO declared a global health emergency. In fact, the Rule includes provisions that are directly applicable to the current circumstances.

What are our obligations under the HIPAA privacy rules if we are contacted by officials asking for emergency personal health information about one of our employees?

The privacy restrictions mandated by HIPAA only apply to “covered entities” such as medical providers or employer-sponsored group health plans, and then only in connection with individually identifiable health information. Employers are not covered entities, so if you have medical information in your employment records, it is not subject to HIPAA restrictions.

Nevertheless, disclosures should be made only to authorized personnel, and care should be taken even in disclosures to government personnel or other groups such as the Red Cross. Further, you should be careful not to release information to someone until you have properly identified them.

UPDATED ANSWER (March 12, 2020)
How should we treat medical information?

We recommend you treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with your group health plan. In certain circumstances, if you have plan information, you can share it with government officials acting in their official capacity, and with health care providers or officially chartered organizations such as the Red Cross. For example, you can share protected health information with providers to help in treatment, or with emergency relief workers to help coordinate services.

In addition, you can share the information with providers or government officials as necessary to locate, identify, or notify family members, guardians, or anyone else responsible for an individual’s care, of the individual’s location, general condition, or death. In such case, if at all possible, you should get the individual’s written or verbal permission to disclose.

However, if the person is unconscious or incapacitated, or cannot be located, information can be shared if doing so would be in the person’s best interests. In addition, information can be shared with organizations like the Red Cross, which is authorized by law to assist in disaster relief efforts, even without a person’s permission, if providing the information is necessary for the relief organization to respond to an emergency.

Finally, information can be disclosed to authorized personnel without permission of the person whose records are being disclosed if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.

These restrictions remain in effect, even after the outbreak has been declared a pandemic.

May covered entities share protected health information with public health authorities?

When there is a legitimate need to share information with public health authorities and others responsible for ensuring public health and safety, covered entities may share PHI to enable them to carry out their public health responsibilities. This may arise with the current outbreak of COVID-19. The key, as always, is to limit disclosures to the minimum necessary to the purpose, strictly in accordance with these parameters.

For example, covered entities may share information as necessary with the Centers for CDC, as well as health departments authorized by law to receive such information, to prevent or control disease or injury. You may even disclose PHI to foreign government agencies that are working with authorized public health authorities. 

BENEFITS/GROUP HEALTH PLAN ADMINISTRATION

UPDATED ANSWER (March 4, 2020)
If our employees are no longer working, are they still entitled to group health plan coverage?

Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.

UPDATED ANSWER (March 4, 2020)
What happens to group health plan coverage if employees are not working and unable to pay their share of premiums?

In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue.

First, the insurance carrier providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and until an employer reopens its doors. More likely, the employer may make an arrangement with the insurance carrier providing health coverage to pay the employees’ share of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each situation will be different, depending upon the insurance carrier and the relationship between the employer and the insurance carrier. Therefore, each factual situation will need to be individually assessed.

UPDATED QUESTION & ANSWER (March 20, 2020)
Is COVID-19 testing covered by our group health plan?

Yes. The Families First Coronavirus Response Act signed into law by President Trump on March 18 requires group health plans to provide coverage for FDA-approved COVID-19 diagnostic testing products and related items and services furnished during a provider visit. This requirement applies to all fully-insured and self-insured group health plans other than retiree-only plans and other HIPAA excepted benefits. Even grandfathered group health plans must comply.

Mandated coverage must be provided without cost sharing (including deductibles, copayments and coinsurance) beginning March 18 through the end of the public emergency period. Covered services and related cost waivers apply to diagnostic testing, attendant health care provider services (in-person and telehealth), and facility costs (physician office, urgent care center and emergency room) to the extent the costs are related to evaluating the need for, or furnishing, a COVID-19 testing product. In addition to coverage and cost waiver provisions, plans shall not require prior authorization or similar medical management requirements as a precondition of COVID-19 coverage. 

Two items are of particular note. First, the above-mentioned coverage requirements, perhaps because temporary in nature, will not be statutorily reflected in ERISA, the Public Health Service Act, or the Internal Revenue Code. Correspondingly, the Act officially charges the Secretaries of HHS, Labor and Treasury with enforcement and implementation oversight “as if” the provisions were included in/amended these statutes. The Act also specifically authorizes the Secretaries to implement the coverage requirements through sub-regulatory guidance, program instruction or otherwise.

Second, in an effort to facilitate COVID-19 efforts, the IRS issued Notice 2020-15, with specific guidance relating to HDHP qualification and HSA contribution deductibility. In Notice 2020-15, the IRS (1) clarified that vaccines are considered “preventive care” under Internal Revenue Code Section 223; and (2) provided that, until further notice, health benefits, medical services and items purchased in association with testing for or treatment of COVID-19, may be provided by a HDHP, without disqualifying the HDHP or covered individual from making HSA contributions. This latter provision essentially expands the preventive care exception to items and services purchased to test or treat this particular COVID-19 illness.  

UPDATED QUESTION & ANSWER (March 12, 2020)
How can we better leverage existing group health benefits for our employees?

Employers should consider enhanced promotion of current benefit offerings to ensure employees take advantage of all existing healthcare services offered, such as:

  1. Telemedicine services. Telemedicine may be an ideal option for persons seeking medical consultation for mild-non-emergency care. If telemedicine services are offered as part of your group health plan, services may include coordination of diagnosis and treatment plans and or specialist referrals. Telemedicine services may be utilized from the comfort of an employee’s own home and may be a valuable option for persons who want to minimize external exposure.
  2. Employee Assistance Programs. Employee assistance programs often provide great benefits that impact not only physical but mental health – stress management, elder care, personal finance, and substance abuse consultation are just some of the services commonly provided.
  3. Wellness Program Services. Wellness programs are a rich resource of education relating to disease prevention. Many offer basic education on a variety of pertinent topics such as basic hygiene and traveling tips. Wellness programs often include nurse phoneline programs that can be utilized to obtain confidential responses to various health topics.
  4. Disease Management Programs. Disease Management Programs are often tailored to employees and/or families at risk of developing chronic medical conditions, such as high blood pressure or diabetes. Individuals in these programs may be more susceptible to COVID-19, so ensure they have opportunity to consult with their coach or case monitor as necessary to manage their health conditions.
  5. Free or Discounted Preventive Care. Flu shots and other vaccinations as well as diagnostic testing are often provided at no or low cost (via reductions or waivers in employee premiums, co-pays or deductibles) via a group health plan or wellness program.

In addition to what is currently available under your plan, plan sponsors may consider permitting the plan to cover a larger range of preventive care benefits. Last year, in Notice 2019-45, the IRS and HHS expanded the types of preventive care that will not interfere with HSAs for individuals diagnosed with asthma, heart disease and diabetes – individuals that are at a higher risk of getting very sick from COVID-19. Plan sponsors may permit the plan to cover these and other specified preventive care benefits at no cost or with some form of cost sharing.

UPDATED QUESTION & ANSWER (March 12, 2020)
If we utilize contractors or temporary employees to supplement our labor force, may those individuals participate in our group health plan?

It depends on plan terms. Independent contractors are most often excluded from group health plan eligibility because of potential tax issues and the risk of inadvertently creating a multiple employer welfare arrangement. By contrast, the law allows an employer to include, or exclude, temporary employees so plan terms must be examined for guidance.

However, for ACA employer mandate purposes, temporary employees may trigger liability under the employer mandate even if hired through a staffing agency. Applicable large employers recall that ACA health insurance benefit obligations arise when an employee is reasonably expected to or actually performs 130+ hours of service in a calendar month. As a result, employers who engage temporary employees to fill short-term needs relating to COVID-19 should ensure they are classified properly for eligibility purposes and that hours are measured in compliance with the employer’s ACA measurement method for full-time employees.

WAGE AND HOUR ISSUES

Must we keep paying employees who are not working?

Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working are typically not entitled to the wages the FLSA requires. 

One possible difference relates to employees treated as exempt FLSA “white collar” employees whose exempt status requires that they be paid on a salary basis. Generally speaking, if such an employee performs at least some work in the employee’s designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. There can be exceptions, such as might be the case when the employer is open for business but the employee decides to stay home for the day and performs no work. A U.S. Department of Labor (USDOL) opinion letter addressing these matters can be accessed here.

Also, non-exempt employees paid on a “fluctuating-workweek” basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work. There are a few exceptions, but these are even more-limited than the ones for exempt “salary basis” employees. 

Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law. 

Finally, we caution employers to consider the public relations aspect of not paying employees who may not be working if they have contracted or are avoiding the COVID-19 coronavirus. Given the publicity surrounding this outbreak, it is possible that situations involving these kinds of issues could reach the media and damage your reputation and employee morale. Consider the big picture perspective when making decisions regarding paying or not paying your employees.

Can we charge time missed to vacation and leave balances?

The FLSA generally does not regulate the accumulation and use of vacation and leave. The salary requirements for exempt “white collar” employees can implicate time-off allotments under various circumstances. The USDOL has provided some guidance on this topic in an opinion letter that is accessible here. Again, however, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law. 

EMPLOYEE LEAVE/ADA

Does family and medical leave apply to this situation?

Employees requesting leave could conceivably be protected by the Family and Medical Leave Act (FMLA) to the extent they otherwise meet FMLA-eligibility requirements. Even in the absence of state or federal protection, an employer’s internal policies may extend protection to such individuals. Of course, there is nothing to prevent you from voluntarily extending an employee’s leave, even in the absence of any legal obligation.

Generally, employees are not entitled to take FMLA to stay at home to avoid getting sick. As with many employment laws, the worst thing an employer (or as is often the case, an untrained supervisor) can do at times like this is to reject immediately an unorthodox leave request before the facts are in. When in doubt, the wisest approach is to work with counsel to ensure legal compliance, thereby minimizing exposure to costly litigation.

Does contraction of COVID-19 coronavirus implicate the ADA?

Generally, no, because in most cases the COVID-19 coronavirus is a transitory condition. However, some plaintiffs could make an argument that the ADA is implicated if the virus substantially limited a major life activity, such as breathing. Moreover, if an employer “regards” an employee with COVID-19 as being disabled, that could trigger ADA coverage.

Can I send employees home who exhibit potential symptoms of contagious illnesses at work?

Yes, sending an employee home who displays symptoms of contagious illnesses would not violate the ADA’s restrictions on disability-related actions.

UPDATED QUESTION & ANSWER (March 12, 2020)
During a pandemic, may an ADA-covered employer ask employees who do not have symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications?

Generally, no. However, if the pandemic becomes severe or serious according to local, state, or federal health officials, ADA-covered employers may have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19. Only then may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to determine which employees are at a higher risk of complications.

May an employer encourage employees to telework as an infection-control strategy?

Yes. The EEOC has opined that telework is an effective infection-control strategy. The EEOC has also stated that employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. 

DISCRIMINATION/HARASSMENT/EEO ISSUES

Do we have any EEO concerns related to the COVID-19 coronavirus?

Employers cannot select employees for disparate treatment based on national origin. The CDC recently warned: “Do not show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have COVID-19.” 

Employers will need to closely monitor any concerns that employees of Asian descent are being subjected to disparate treatment or harassed in the workplace because of national origin. This may include employees avoiding other employees because of their national origin. 

An employer may not base a decision to bar an employee from the workplace on the employee’s national origin. However, if an employee, regardless of their race or national origin, was recently in China and has symptoms of the COVID-19 coronavirus, you may have a legitimate reason to bar that employee from the workplace. 

WARN ACT/PLANT CLOSINGS

UPDATED ANSWER (March 30, 2020)
Do we have an obligation to provide notice under the federal WARN Act if we are forced to suspend operations on account of the coronavirus and its aftermath? 

Yes, if your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act. The federal WARN Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined under WARN’s regulations, and that they are not intended to cover every single layoff or plant closing.

Generally speaking, employers must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff — which can be triggered with a layoff of as few as 50 employees under federal law (potentially less under applicable state laws). Note, however, that if employees are laid off for less than six months, then they do not suffer an employment loss and, depending on the particular circumstances, notice may not be required. Unfortunately, in situations like this, it is hard to know how long the layoff will occur and notice cannot be provided retroactively, so providing notice is usually the best practice.

In cases where its notice requirements would otherwise apply, the WARN Act provides a specific exception when layoffs or plant closings occur due to unforeseeable business circumstances, or are the result of a natural disaster. These provisions may apply to the COVID-19 coronavirus. But due to the fact-specific analysis required, these exceptions are often litigated. 

Moreover, these exceptions are limited, in that an employer relying upon them must still provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” In other words, once you are in a position to evaluate the immediate impact of the outbreak upon your workforce, you must then provide specific notice to “affected employees” (as well as unions and government entities, as discussed below) as soon as practicable. You must also provide a statement explaining the failure to provide more extensive notice, which in this case would obviously be tied to the unforeseeable nature of the outbreak and its aftermath.

The WARN Act has specific provisions requiring notice to employees, unions and certain government entities. The Act further specifies the specific information that must be contained in each notice. Even a seemingly minor deviation from these requirements can trigger a violation. Also keep in mind that some states have “mini-WARN” laws that may apply. Please work with your employment counsel to ensure compliant notices are provided.

Will this law really be enforced in light of the outbreak?

In the aftermath of an outbreak, the extent to which the USDOL will focus upon enforcement of the WARN Act remains to be seen. Nonetheless, the law provides stiff penalties for non-compliance, including up to 60 days of back pay and benefits, along with a civil penalty of up to $500 per day. More importantly, it provides for a private cause of action in federal court, suggesting that employers may soon be responding to lawsuits arising under the WARN Act regardless of the enforcing agency’s official position.   

Consequently, we advise that you evaluate your current situations to ascertain whether the most recent outbreak has triggered a WARN Act qualifying event in your organization. If so, provide as much notice to affected employees as is practicable under the circumstances. When in doubt, the best approach is to work through counsel to arrive at a safe but practical solution to a potentially thorny situation for many employers that are impacted by the outbreak, either directly or indirectly.

USERRA AND MILITARY LEAVE ISSUES

UPDATED QUESTION & ANSWER (March 23, 2020)
What are our obligations with respect to uniformed service members who are called up to serve in response to the COVID-19 crisis?

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a broad pro-employee statute that provides certain employment rights to active and reserve military personnel called to active duty. Under USERRA, returning service members have a virtually unfettered right to re-employment with their pre-service employers upon timely application for return to work. USERRA also requires employers to provide eligible employees with up to five years of unpaid leave during the life of their employment. Throughout this period, the employee’s seniority, health care, and pension benefits must be maintained.

The National Guard has been activated in many states to provide medical and logistical support to governments contending with COVID-19. It is important to note that National Guard members may perform service under either federal or state authority, but only Federal National Guard service is covered by USERRA. Nonetheless, military employees on active state duty may qualify for protection under broader state laws patterned after USERRA, or under state laws protecting emergency relief workers.

UPDATED QUESTION & ANSWER (March 30, 2020)
What about those service members who otherwise would have been caught up in a company-wide reduction in force?

To establish USERRA eligibility, an employee must have a reasonable expectation that employment will continue on an uninterrupted basis. USERRA regulations make clear that uniformed service members are not legally insulated from a uniformly applied reduction in force, which may be implemented while the employee remains on active duty or other protected service. 

If a service member is laid off with recall rights before commencing uniformed service or while fulfilling their service obligations, they remain an employee for purposes of USERRA, and may be entitled to reemployment on return if the employer would otherwise have recalled that employee during the period of service.

Even if the employee is otherwise eligible for reemployment benefits under USERRA, the employer is not required to reemploy them if it can establish that circumstances have changed as to make reemployment impossible or unreasonable, such as when there has been an intervening, uniformly applied reduction in force that would have included that employee. The employer may not, however, refuse to reemploy that employee on the basis that another employee was hired to fill the reemployment position during the employee’s absence, even if reemployment might require termination of that replacement employee.

WORKERS’ COMPENSATION

UPDATED QUESTION & ANSWER (March 9, 2020)
My employee alleges that they contracted the coronavirus while at work. Will this result in a compensable workers’ compensation claim?

It depends. If the employee is a health care worker or first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact-specific.

It is important to note that the workers’ compensation system is a no-fault system, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work and was proximately caused by their employment. Additionally, the virus is not an “injury” but is instead analyzed under state law to determine if it is an “occupational disease.” To be an occupational disease (again subject to state law variations), an employee must generally show two things:

  1. the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and
  2. the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.

The general test in determining whether an injury “arises out of and in the course of employment” is whether the employee was involved in some activity where they were benefitting the employer and was exposed to the virus. Importantly, special consideration will be given to health care workers and first responders, as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. This would also include plant nurses and physicians who are exposed to the virus while at the worksite.

As for other categories of employees, compensability for a workers’ compensation claim will be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to their employment. Even if the employer takes all of the right steps to protect the employees from exposure, a compensable claim may be determined where the employee can show that they contracted the virus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.

Absent state legislation on this topic, an employee seeking workers’ compensation benefits for a coronavirus infection will still have to provide medical evidence to support the claim. Employers who seek to contest such a claim may be able to challenge the allowance if there is another alternative exposure or if the employee’s medical evidence is merely speculative.

Finally, employers should be aware that states are taking action on this issue. For instance, Washington Governor Jay Inslee recently directed his Department of Labor and Industries to “ensure” workers’ compensation protections for health care workers and first responders. The directive instructs the Department to change its policies regarding coverage for these two groups and to “provide benefits to these workers during the time they’re quarantined after being exposed to COVID-129 on the job.” We expect other states to follow Washington’s lead. 

UPDATED QUESTION & ANSWER (March 9, 2020)
My employee contracted COVID-19 while on a business trip for my company. Is this a compensable workers’ compensation claim?

Again, it depends. While an employee who contracts a disease while traveling for business may be eligible for workers’ compensation benefits in many jurisdictions, the analysis will be very fact-specific. In most states, the worker will need to satisfy the test for compensability outlined above. States often differentiate between exposures that occur while “working” during a business trip versus exposures that occur during “down time.” Some states create almost strict liability for any injury that occurs on a business trip, whether the employee is working or not. But again, in order to have a compensable claim, the employee must, at a minimum, establish that they had an exposure to the coronavirus while traveling for business. Like other matters, these cases are best examined on a case-by-case basis under advice of counsel. 

UPDATED QUESTION & ANSWER (March 9, 2020)
What are the likely benefits an employee will be eligible to receive if their coronavirus infection is found to be a compensable workers’ compensation claim?

The good news is that, except in rare situations, an employee diagnosed with the virus will have no significant long-term health care problems. Therefore, medical costs associated with the claim are likely to be limited to visits to the family physician and anti-viral medications. More significant cases may involve hospital stays of two to three weeks.

The compensation costs should also be limited to the lost time associated to any recovery time. They may also be associated with lost time due to quarantine as required by the employer or local, state, or federal government agencies. 

There could be more significant costs in extreme and rare situations involving complications from the virus. However, these cases would usually be limited to claimants who are older or suffer from immune deficiencies. 

INDUSTRY-SPECIFIC AND PRACTICE GROUP GUIDANCE

Our COVID-19 Taskforce has also created industry-specific guidance for auto dealerships, educational institutions, healthcare employers, hospitality industry businesses, and the mining industry. Our Labor Relations Practice Group has also developed a guidance document for unionized workforces, and our International Practice Group is continually updating our Cross Border Employer Blog.

FISHER PHILLIPS COVID-19 TASKFORCE MEMBERS

WORKPLACE HEALTH AND SAFETY
Travis Vance, co-chair, Workplace Safety and Catastrophe Management Practice Group
Todd Logsdon, co-chair, Workplace Safety and Catastrophe Management Practice Group
Howard Mavity
Nick Hulse

LEGISLATIVE AFFAIRS
Ben Ebbink
Samantha Monsees
Samantha Saltzman

WARN ACT COMPLIANCE
Hagood Tighe
David Kresser

ADA/FMLA COMPLIANCE
Hagood Tighe
Myra Creighton

LABOR RELATIONS
Steve Bernstein, co-chair, Labor Relations Practice Group
Letitia Silas

WAGE AND HOUR LAW
Hagood Tighe, co-chair, Wage and Hour Law Practice Group
Marty Heller
Caroline Brown

50-STATE COMPLIANCE ISSUES
Jennifer Sandberg
Michelle Anderson

USERRA AND MILITARY LEAVE ISSUES
Steve Bernstein

UNEMPLOYMENT INSURANCE ISSUES
Bob Robenalt
Samantha Saltzman

SBA LOAN ASSISTANCE
Rick Grimaldi
Michael Elkon
Samantha Monsees 

PEO/JOINT EMPLOYMENT ISSUES
John Polson
Sheldon Blumling

CALIFORNIA COMPLIANCE
Lonnie Giamela
Spencer Waldron
Aymara Ledezma

INTERNATIONAL LAW
William Wright, chair, International Employment Practice Group
Nan Sato

IMMIGRATION LAW
Shanon Stevenson, co-chair, Global Immigration Practice Group
Ralph Hua

EMPLOYEE BENEFITS
Tiffani Greene
Melissa Shimizu 

ESSENTIAL BUSINESS DESIGNATION SUPPORT
Michael Elkon

WORKERS’ COMPENSATION
Bob Robenalt
Jerry Cline

HEALTHCARE INDUSTRY
Kevin Troutman, co-chair, Healthcare Practice Group
Laurel Cornell, co-chair, Healthcare Practice Group
Daniel Kanter
Jaklyn Wrigley

HOSPITALITY INDUSTRY
Andria Lure Ryan, co-chair, Hospitality Industry Group
Alden Parker, co-chair, Hospitality Industry Group

EDUCATION LAW
Suzanne Bogdan, chair, Education Practice Group
Susan Guerette
Kristin Smith

CONCLUSION

We will continue to monitor this rapidly developing situation and provide updates as appropriate, including updating this FAQ on as-needed basis. Make sure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information. For further information, contact your Fisher Phillips attorney or any member of our COVID-19 Taskforce, and please visit our FP COVID-19 Resource Center for Employers.

This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

Copyright ©2020 Fisher Phillips LLP. All rights reserved.

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