MARCH 3, 2020 – PITTSBURGH/RICHMOND – As the novel coronavirus (COVID-19) continues to spread, two labor and employment attorneys with the law firm of Eckert Seamans are available for interviews guiding employers toward proactive measures as well as being cognizant of applicable legal issues.
Both Clare Gallagher and Karen Elliott are extremely experienced interviewees and welcome the opportunity to help employers navigate complicated issues around this outbreak. Employers should remember that it is not possible to predict what will happen with COVID-19 or how it will impact their organization and in sharing these tips via interview strongly encourage employers to prepare themselves, to be flexible, and to work with counsel as this situation develops.They are available for discussion on the following:
Worldwide spread of a new disease:
Declarations of the World Health Organization, Department of Health & Human Services as a public health emergency of international concern, defining epidemic and pandemic, interpreting warnings and guidelines issued by these organizations.
• Making disinfectants available, disinfecting surfaces
• Education on proper hygience
• Advisable distances in personal space
• Encouraging employees to stay home when they are sick, encouraging employees to follow physician’s guidance for testing, self-quarantine.
What can employers do under the ADA?
Opportunity Commission (EEOC) has published Guidelines on “Pandemic Preparedness in the Workplace,” which clarify what employers can do before and after COVID-19 is declared a pandemic. Before such a declaration, employers need to engage in a case-by-case analysis to determine, among other things, what they can ask their employees about their health, if they can send employees with virus-like symptoms home, etc.
After such a declaration, which renders COVID-19 a direct threat, employers can ask more direct questions about employees’ health/COVID-19, can send them home if they are symptomatic, and may need to offer reasonable accommodations, such as unpaid leave and teleworking. Due to the importance of COVID-19’s classification, employers must keep current with governmental directives to determine the proper nature of inquiries and personnel actions.
Employers should consider eliminating or limiting all non-essential business trips to countries or geographic areas with high incidence rates of COVID-19. They also can ask employees to postpone non-essential personal trips to such locations. Every day, the CDC and other government agencies are issuing or updating travel advisories. Employers should consult these Notices before making any decisions. Employers also need to comply with the ADA with respect to travel. While COVID-19 is an epidemic, they can ask about employees’ exposure to the disease on a case-by-case basis. If it becomes a pandemic, employers have a greater ability to make inquiries regarding employees’ exposure. In both instances, employers may need to think about limiting travel as a reasonable accommodation based on an employee’s health condition.
Dealing with absences?
Federal, state, and local laws may require some employers to grant employees paid or unpaid leave if they or their family contract COVID-19 and need to care for themselves or their family. Leave laws also might afford employees protections if the government declares a state of emergency and orders the mandatory closure of businesses. In addition, employees who volunteer as first responders or serve in the National Guard may be entitled to leave under federal, state, or local law if they are responding to a public health emergency in those capacities. In general, leave laws do not permit employees to take time off simply to avoid a disease.
What about unemployment compensation?
If employees lose their employment due to COVID-19, they may be eligible to receive unemployment compensation benefits depending on where they work and reside.
The General Duty Clause of the Occupational Safety and Health Act (“OSH Act”) requires employers to provide each worker with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The Occupational Safety and Health Administration (“OSHA”) does not have a specific standard that pertains to COVID-19; so, the General Duty Clause is controlling at this time. OSHA, however, has provided resources for employers regarding COVID-19: Resources and
What are some best practices?
Due to the dynamic and evolving nature of COVID-19, employers should consider the following:
§ Consulting with counsel to determine whether they need to provide leave or reasonable accommodations.
§ Creating or updating their policies regarding leave/absences, working remotely, mandatory or voluntary closures, etc.
§ Ensuring that they have accurate contact information for their employees and their employees’ emergency contacts.
§ Using an e-mail or a text messaging service to share important and time-sensitive information with their staff, such as mandatory closures.
§ Permitting their employees who are able to work remotely from home to do so for up to 2 weeks (or some other time period as recommended by public health directives), if they exhibit symptoms or think that they have come into contact with someone who has COVID-19.
§ Encouraging their employees to call their health providers and to follow their instructions.
§ Posting signs and distributing information to their employees about COVID-19, prevention practices, and where and how to seek treatment if they think that they might have symptoms.
§ Educating their staff on the nature of COVID-19 to avoid potential stigmatization, misunderstanding, or overreactions. Informational videos that the CDC created are accessible by clicking on the following: CDC –Videos.
§ Training their staff on proper hygiene, such as washing one’s hands with soap and water or an alcohol-based hand sanitizer or covering one’s mouth and nose when coughing or sneezing.
§ Posting signs about proper hygiene practices in common areas, such as bathrooms, lunchrooms, and breakrooms. To obtain posters, visit: WHO – Washing your hands, CDC – Washing your hands; and WHO –Protecting Others.
§ Sanitizing the workplace regularly or when there is a confirmed case of COVID-19.
§ Providing hand sanitizer, tissues, masks, and no-touch receptacles for employees to use.
§ After the declaration of a pandemic, encouraging their employees to notify their supervisor or Human
Resources when they have symptoms so that they can take appropriate measures.
§ Limiting the number of non-essential visitors, vendors, etc. at their workplace.
§ Encouraging employees to use videoconferencing instead of traveling where appropriate.
§ Developing a plan to continue the business, such as designating certain employees to fill in for their colleagues and supervisors, and using temporary workers for appropriate certain positions.
§ Checking the WHO’s, HHS’s, and CDC’s websites for updates, announcements, and guidance. For further information, visit: WHO, HHS, CDC. In fact, the CDC recently issued guidance on how businesses and employers should respond to this disease: Interim Guidance. The WHO also has issued guidance for the workplace: Getting your Workplace ready for COVID-19.
Karen S. Elliott is a Richmond-based attorney with the law firm of Eckert Seamans Cherin & Mellott. She focuses her practice on labor and employment law and commercial litigation matters. She strives to provide practical legal advice to help employers craft reasonable business solutions for their human resource challenges. Her clients span all sizes, from start-ups to the Fortune 500, in industries ranging from nursing homes, physician practices, and health and rehab centers to construction, travel and entertainment, fast food, and retail. As a labor and employment lawyer, Karen helps clients navigate the alphabet soup of the 40 or more employment laws from the ADA, FMLA, GINA, OSHA to USERRA, and the myriad federal agencies such as DOL, EEOC, and NLRB. Because Karen is a trial lawyer, she understands the complexities involved in going to court, and helps clients work to resolve issues before they become legal issues. But as an experienced trial lawyer, she knows how to navigate agency investigations as well as courtroom drama. Karen empathizes with businesses facing difficult employment issues. She has firsthand experience from when she had to act on her own legal advice while serving as president of a not-for-profit when its business office staff walked out. She understands that the legal answer is not always the practical business solution. Karen dedicates time each day to honing her legal skills and keeping up with the fast-changing area of labor, employment, and benefits law. She has been recognized with an AV preeminent peer rating from Martindale Hubbell. This is its highest level rating for professional excellence for both ethical standards and legal experience. She is also proud to claim similar recognition from Best Lawyers, Super Lawyers, and Virginia Business magazine’s “Legal Elite.”
ABOUT CLARE M. GALLAGHER
Clare M. Gallagher is a Richmond-based attorney with the law firm of Eckert Seamans Cherin & Mellott. She concentrates her practice in traditional labor law, employment law, and litigation. Prior to joining Eckert Seamans, Clare served as legal counsel and director of human resources for a large title agency in the real estate services industry. There she managed legal matters, including class action litigation and oversight of outside counsel, acquisitions, corporate finance, governance, and employment-related legal matters. As director of human resources, Clare supervised all aspects of human resources management, including payroll and benefits administration; employee orientation and training; legal compliance in employee recruitment and selection, compensation, discipline, and discharge; reduction in force planning and implementation; employee retention programs; employee safety and security; and workers’ compensation cost containment.