Insights

It’s Friday the 13^th.  Sure feels like it.  And, COVID-19 is playing the role of “Jason.” 

Just this week, the World Health Organization declared COVID-19 a pandemic, the stock market plummeted, the NBA, MLB, and NHL suspended their seasons, colleges told students not to return to campus after spring break, high school sports programs were put on hold, and faith gatherings went online.  Even Disney World is closed. 

In a time of high anxiety like this, it is useful for both management and employees to focus on concrete steps that can be taken to mitigate risk and keep workers safe.  Here are thirteen (13) action items you can take right now to fight back against the potential impact of COVID-19 on your workforce:

• If you haven’t sent a communication out to all personnel yet, do it now.  We are way past the “let’s wait and see” stage.  We can provide sample communications for your use.

• Implement and practice safe work practices following Occupational Safety and Health Administration (OSHA) Standards and guidance, including providing all personnel with up-to-date education and training on COVID-19 risk factors and protective behaviors.  We all know that we should be washing our hands.  There is more to do.  OSHA guidance can be found here: https://www.osha.gov/Publications/OSHA3990.pdf. 

• Temporarily suspend non-essential business travel to highly affected areas.   Maintain a list of restricted areas in a location where employees can access it remotely, and regularly update it. 
  •  https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html.  The State Department has a 4-tier travel advisory system, with levels 3 (Reconsider Travel) and 4 (Do not Travel) as the highest:  https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/.  The White House has restricted travel from Europe.  Many US State agencies are providing state and local information and guidance.  For example, the NC Department of Health and Human Services (DHHS) recommends that all travelers returning from countries and US states impacted by COVID-19 follow DHHS guidance on self-monitoring.  https://www.ncdhhs.gov/divisions/public-health/coronavirus-disease-2019-covid-19-response-north-carolina/covid-19-travel.

• Cancel events and gatherings of more than 20 attendees until further notice.

• Temporarily limit on-site meetings and visitors, and off-site meetings with clients and third parties, to those necessary to meet pressing business needs.  Provide remote meeting capabilities to all affected personnel.

• Be flexible about work locations.  If consistent with business needs, allow personnel to change work locations within or among offices or facilities.  Support these moves with IT resources and mileage reimbursements if the company’s budget allows for it.

• Equip essential staff to work remotely and train them if they are not already proficient in the technology.  Take steps to prepare to equip additional staff if needed.
  • As a practical matter, if you require an employee to work remotely who is not normally set up to do so, you should consider whether you will need to reimburse the employee for any additional phone, internet, or other expenses incurred in order to enable the employee to telework at the company’s request where such costs are incurred beyond what the employee would have otherwise paid for his or her services.  FLSA requires that any costs to non-exempt employees not reduce their pay below minimum wage and required overtime.
  • Make sure that your software licenses allow for remote usage and acquire additional licenses if needed.

• Request all personnel to voluntarily self-report symptoms or exposure to COVID-19, and any travel (business or personal) to a highly affected area (see information above regarding maintaining a list).  Advise employees that they may be requested to self-quarantine upon return from some locations.

• Encourage sick employees to stay home.  Employees who exhibit known COVID-19 symptoms (fever and cough) should be sent home and advised to seek medical attention if their condition does not improve with over-the-counter treatments.  Some guidance states that employers should ask employees if they have any respiratory symptoms and send apparently sick employees home.  Be careful.  Employers may only make medical inquiries when there is an objective basis to believe that an employee’s “ability to perform essential job functions will be impaired by a medical condition”; or the employee’s medical condition poses a “direct threat,” and even then may not make them on a discriminatory basis (e.g., by stigmatizing a protected nationality or disability).  For context, in 2009, the H1N1 virus was not determined to be a “direct threat.”  Although it is not clear at this time whether COVID-19 will be considered a “direct threat,” given the recommendations of the CDC, WHO, OSHA, DHHS and State agencies, most experts agree that employees with a fever and cough may be sent home, even though these symptoms may not be the result of COVID-19.  Requiring doctor notes or fitness for duty certifications for return to work are not always appropriate, however. Bottom line: it is difficult to establish hard line send home/stay home policies in cases of respiratory illness; case by case determinations are better.  And, if you aren’t sure, get legal advice.

• Understand Fair Labor Standards Act (FLSA) requirements regarding paying employees. Employees who are sick or need to be out of work to take care of others can be required to use paid leave, consistent with your policies.  Absent paid time off, exempt employees generally must be paid for any week in which they perform any work, while non-exempt employees must only be paid for the time actually worked.  The Department of Labor has posted Q/A guidance on pay regulations related to COVID-19:  https://www.dol.gov/agencies/whd/flsa/pandemic.

• Implement and remind personnel of flexible leave policies that permit them to stay home when they or a family member is sick.  These may be a combination of accrued Paid Time Off, other paid or unpaid leave policies (FMLA, Sick Leave, Personal Leave, etc.), short term disability insurance, and other leave benefits.   
  • Consider a temporary policy to allow employees to use unaccrued paid time off and/or for a certain amount of unpaid leave to be taken on a paid basis for qualifying COVID-19-related reasons (e.g., COVID-19 or COVID-like symptoms of the employee or member of employee’s household, quarantine after exposure or suspected exposure, office closures, etc.)
  • COVID-19 may trigger FMLA rights if an employee is out of work for three days with continuing treatment by a health care provider, is hospitalized, and in certain other qualifying situations.  The Department of Labor has offered guidance for complying with FMLA:  https://www.dol.gov/agencies/whd/fmla/pandemic.
  • Americans with Disabilities Act accommodations and Short-term disability claims may be appropriate in some circumstances.

• Policies to review and consider for updating: contagious disease policies; telecommuting, work from home or remote work policies; paid or unpaid leave polices and required documentation to qualify; visitor policies (closed schools place parents in a difficult position); travel and reimbursement policies; and, office closure policies (consider whether to limit paid leave to closures of a length the business can sustain).  Review requirements of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) to ensure policies comply with federal laws. Evaluate FMLA criteria about whether an employee is eligible for leave.

• Be sensitive to workers’ concerns.  Expect higher-than-normal levels of stress, anxiety and distraction.  Provide information so employees are not left wondering how your company will respond.  Consider implementing or offering benefits of an Employee Assistance Program (EAP) for those struggling to cope with the situation.  Consider other perqs to ease the tension and help employees focus on essential tasks.

The COVID-19 pandemic is a rapidly changing situation. We will continue to provide you with guidance and updates on actions you can take to mitigate the risks to your workforce.

In the meantime, please do not hesitate to contact Morningstar Law Group Partner, Amie Flowers Carmack, if you have any questions or concerns.