The disruptive global impact of the Coronavirus has been felt by every employer regardless of size, industry or location. Employers have been overwhelmed with new laws, new ways of doing business and economic hardships. Because there is so much to consider during this time, Eastridge has compiled a list of the top ten concerns significantly impacting company operations for our series, Employer Guide to Covid-19, that should be considered by employers to ensure compliance during and after this unprecedented time.
1. WORKPLACE SAFETY
The Occupational Safety and Health Administration (OSHA) 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:
- Very High Exposure Risk - includes healthcare and/or laboratory employees who have exposure to known or suspected Coronavirus patients or specimens.
- High Exposure Risk - health care delivery or support staff that may have exposure to Coronavirus patients, medical transport staff and/or autopsy providers.
- Medium Exposure Risk- employees with high-frequency contact with the general public like grocery store workers, etc.
- Lower Exposure Risk- employees with minimum occupational contact with the general public.
These risk zones are useful in determining appropriate work practices and precautions, such as appropriate Personal Protective Equipment (“PPE”), cleaning/decontamination, and social distancing.
2. MEDICAL/HEALTH INFORMATION PRIVACY
Employers must strike a fragile balance between the need to protect their employees and worksites from COVID-19 outbreaks and the privacy of medical information.
For example, if any employee presents themselves at work with a fever or difficulty in breathing, an employer may ask them to go home and to seek medical evaluation for COVID-19. While 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, employers should still caution and train their 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.
Additionally, the EEOC confirmed that measuring employees’ body temperatures is temporarily 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 given the government’s pandemic declaration with respect to COVID-19.
If an employee tests positive for COVID-19, (or in cases where an employee believes they have COVID-19 but is awaiting confirmation of test results), you should send home all employees who worked closely with that employee to ensure the infection does not spread. Ask the employee to identify all individuals who worked in close proximity (within six feet) for a prolonged period of time (more than a few minutes) with them in the previous 14 days 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 then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).” Employees should remain at home for the recommended 14-day quarantine period and, if they exhibit any symptoms (even mild ones) should be symptom free (without medication) for an additional 72 hours before returning to work.
Please note that the federal government recently sent a stern reminder to all employers, especially those involved in providing health care, that they must still comply with the protections contained in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule during the COVID-19 outbreak. All medical information should be treated as confidential and afforded the same protections as those granted by HIPAA in connection with your group health plan. In certain circumstances, you can share such information with government officials (such as county or state health departments) acting in their official capacity, and with health care providers or officially chartered organizations such as the Red Cross.
3. DISCRIMINATION/HARASSMENT
The EEOC has confirmed that you may screen applicants for symptoms of COVID-19 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 related symptoms. According to current CDC guidance, an individual who has COVID-19 or related symptoms 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 related symptoms.
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 should monitor any potential discrimination or harassment concerns of employees of Asian descent. 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 based on the employee’s national origin. However, if an employee, regardless of their race or national origin has symptoms of COVID-19, you may have a legitimate reason to bar that employee from the workplace.
4. WAGE AND HOUR
During the COVID-19 crisis, employers may have workers who are not working. Whether an employee is entitled to payment of wages when not working is dependent on the employee’s classification as exempt or non-exempt. For non-exempt employees, they must be paid for hours actually worked. Accordingly, if non-exempt workers are not working, they do not have to be paid. Exempt employees (i.e., salary employees), on the other hand, must be paid their full weekly salary if they perform any work during the week. However, employers do not need to pay an exempt employee if the employee performs no work at all during a week. Further, for exempt employees, deductions from an exempt employee’s salary may be made if the exempt employee is absent from work for a full day or more for personal reasons other than sickness and accident, so long as work was available for the employee, had they chosen to work. However, deductions from the exempt employee’s salary are not permitted for absences of less than a full day for personal reasons or for sickness.
Employers may require all employees to use accrued vacation/PTO for full day absences and for partial day absences provided this is clearly stated in the employer’s policy. Employers cannot force employees to use sick leave.
Employers are permitted to temporarily reduce wages of their employees so long as they comply with the requirements in the applicable state or local jurisdiction. Many states, for example, require employers to provide notice (often in writing) to an employee whose wages will be changed. Most states require advance notice, while others permit notice within a specified time after the change is made. Further, some states require that the notice be signed by the employee, while others do not. When reducing wages, consideration must be given to whether a reduction in wages will affect the exempt status of any exempt employee, or minimum wage obligations. Further, employers still need to comply with state and federal wage and hour laws by setting very specific expectations with employees regarding hours of work, meal and rest breaks, reporting of any and all time worked, no off the clock work, and prior approval for overtime work.
5. TELECOMMUTING
Many employers have implemented telecommuting work arrangements during the COVID-19 crisis. It is important to develop a policy surrounding remote work that clearly outlines expectations for workers as they embark on their temporary remote work journey.
Consider the following when developing a telecommuting policy:
- Are workers simply encouraged to work at home or barred from coming to the office?
- Will there be exemptions for “essential” personnel that need to be at a physical location?
- Will workers need to be available at all times during working hours, or will remote meetings and appointments be scheduled ahead of time? Take into account that workers’ lives may be disrupted in other ways because of the COVID-19 outbreak, and therefore they may not be able to maintain normal working hours during this time or may be somewhat distracted by family or medical obligations during certain times of the day.
- Will remote meetings take place online, over the phone, or on camera? Will workers be prohibited from meeting together in person during this period?
- Will workers be prohibited from meeting with third parties while doing company business during this period of time?
- Will workers be prohibited from performing work outside of their homes (coffee shops, libraries, etc.) because of security concerns?
- Can workers perform work on their own devices, and if so, does the company have a comprehensive BYOD (bring your own device) policy in place?
In a telecommuting work arrangement, it is critical that the company work with its information technology (IT) department to ensure the cyber-security of its operation. To help secure corporate information, encourage workers to avoid public Wi-Fi and use a hotspot or encrypted web connection instead. Companies should ensure all computers/devices with access to company data have an up-to-date firewall. Consider using a virtual private network (VPN), which provides a direct connection to the company’s normal computer applications as if the worker was directly connected to the corporate network. Further, companies may want to consider additional remote security protections such as having the most up-to-date encryption software, requiring strong passwords, and requiring additional, different passwords for certain applications with particularly sensitive information.
Lastly, companies may also want to consider devising a policy regarding the physical security of property by warning workers to never leave a laptop or company-owned or leased device in cars/trunks or instructing workers not to lose or misplace equipment.
If a telecommuting work arrangement is required for workers who are not set up to do so, the company may need to reimburse workers for any additional phone, internet, or other expenses incurred (beyond what the worker would otherwise have paid for his or her personal use) to enable the worker to telecommute at the company’s request. In addition, the company should determine any additional expense reimbursement requirements imposed by applicable state law.