CLIENT ALERT: Guidance for Employers on COVID-19 Preparedness

The COVID-19 virus, now officially declared a pandemic by the World Health Organization, presents the most complex public health challenge in decades. The uncertainty presented by COVID-19 impacts schools, sporting events, and public gatherings - and workplaces are not immune from the unprecedented challenges of this virus. Employers should be aware of what can and should be done to manage fears and expectations within the workforce, while still protecting the needs of the business.

The Basics

Public health issues like COVID-19 do not arise often. Here are some strategies to have in your playbook for public emergencies of any scale, particularly those involving this virus:

• Communicating during times of uncertainty is critical. Keep communications brief. Develop a short, bullet-point list of the essentials your workforce needs to know. Assure them that management is monitoring the situation and will provide updated instructions as the situation requires.
• Don’t try to be an expert, but do take actions to deflate rumors promptly. Limit the information you provide to workplace-specific instructions and defer to the experts for information on COVID-19. For substantive information about the virus, refer employees to the CDC’s website, here: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
• Focus on prevention to help employees stay healthy.
  • Use posters to remind employees about good hygiene and the need to stay home when sick. The CDC provides helpful posters for the workplace here: https://www.cdc.gov/nonpharmaceutical-interventions/tools-resources/educational-materials.html.
  • The CDC recommends washing hands thoroughly with soap and warm water for at least 20 seconds. Some light-hearted workplaces are posting the lyrics of 20-second songs near sinks.
  • Keep soap well stocked at all sinks. In addition, consider installing hand sanitizer stations at entrances and in areas where employees congregate, including conference rooms, reception areas, cafeterias and near water coolers.
  • Have surfaces cleaned frequently, focusing on desks, counters, railings, light switches, and door handles. Consider distributing cleaning supplies to employees to encourage them to keep their own work areas clean.
  • Avoid communal food. If a meeting occurs during lunch time, choose box lunches rather than a buffet. Consider brown bag (bring your own) lunches.
• Ensure accessibility. All communications, prevention tools, and the like must be accessible to employees regardless of language barriers or physical disabilities. Posters and emails should be translated to the languages spoken by your workforce. In addition, hand sanitizer stations should be accessible from a wheelchair.
• Begin planning now for the possibility that large numbers of employees may seek alternative work arrangements, such as remote work. Determine what your technological infrastructure can tolerate and consider upgrading – now – if those capabilities will be needed.
• If policy changes or alterations of work conditions are being considered, involve any necessary constituents in the decision-making process. For example, altering leave policies or implementing staggered shifts could result in a change that would require input from the bargaining unit. As another example, your clients or customers may demand or require a certain level of response to ensure their needs are met.
• Review your disaster response and operational continuity plans to ensure they are up to date in the event the situation deteriorates.
• Review all relevant insurance policies to determine whether coverage is in place for any COVID-19-related losses.

Handling Symptomatic Employees, Potentially Exposed Employees, and Quarantines

As allergy season begins, there is no shortage of non-serious health reasons why an employee might have a cough or sniffle. Your response to such symptoms in the workplace will depend on the needs of your business, the vulnerability of the individuals in your place of business, and your tolerance for risk. Your approach to symptomatic employees likely will evolve as the situation develops. If one of your employees is diagnosed with COVID-19, or if the virus becomes more prevalent in our community, more drastic measures may be in order to keep employees separated.

Here are some strategies to consider:

• You may ask employees who display symptoms consistent with COVID-19 (e.g., fever, coughing, shortness of breath) to go home. You also may suggest that the employee seek medical treatment. Although you may request medical clearance before the employee can return to work, it might not be feasible to require that the employee get tested for COVID-19. Whether a doctor or hospital has a test available and agrees to test the employee will be out of the employee’s control.
• Refrain from asking employees questions about chronic conditions, even in the context of inquiring whether they might be more vulnerable to COVID-19.
• Remember that any information solicited from the employee relating to their symptoms should be kept confidential and maintained in a file separate from the employee’s personnel records.
• Before adopting a policy that employees with symptoms will be asked to go home, be sure to communicate what those symptoms are when the policy is adopted, citing CDC guidance for support. Well-informed employees exhibiting these symptoms hopefully will stay home.
• If an employee tests positive for COVID-19, you cannot identify the employee to the rest of the workforce. However, you can (and should) inform employees at the same employee’s location that a case of COVID-19 has been confirmed. A positive test among the workforce also should trigger enhanced efforts to prevent the spread of the illness. At a minimum, employees who worked within a 3- to 6-foot radius of the infected employee should be sent home and notified of the potential exposure (without naming the affected individual). You should consider notifying vendors and clients who came into contact with the employee as well.
• Even before any of your workforce becomes impacted, make a plan for creating physical distance among your employees, just in case it becomes necessary later on.
  • For employees that must be physically present at work to perform their jobs, the following strategies can help employees maintain as much physical distance from co-workers as possible:
    • Move workstations farther apart. If needed, eliminate communal areas such as conference rooms in favor of creating more distance and barriers between employees.
    • Consider alternatives to group gatherings, such as meeting by teleconference or communicating by group chat or email. Now would be a good time to assess the viability and capacity of your video conferencing programs.
    • If business needs can support having fewer individuals in the workplace at a given time, stagger shifts to decrease the number of workers who must be together at one time. Doing so may require employees to work “off” hours.
    • Consider separating employees who perform similar functions or serve the same clients. If the virus does affect your workforce, having all members of a team sit together may detrimentally impact your ability to achieve certain tasks or fully serve certain clients, as individuals sitting near one another are more likely to get one another sick.
    • Employees who cannot telework and are non-exempt need not be paid if they are not working. Consider allowing those employees to use any accrued paid leave, however.
    • If an employee who cannot work from home is furloughed due to an inability to come to work (either due to quarantine or a state-mandated state of emergency), the employee may have a claim for unemployment benefits.
  • For employees that can work remotely, consider the following:
    • For non-exempt employees, develop procedures to ensure that hours are tracked accurately.
    • Exempt employees who work any part of the week (in the office or at home) must be paid a full week’s salary under the FLSA.
    • Employees with ADA accommodations should have those accommodations replicated when teleworking.
    • Remind employees about your acceptable use policies for employer-issued technology or systems.
    • Issues like secure access of company systems and vulnerability of employees’ personal devices must be evaluated and addressed before employees are permitted to work from home.

Modifications to Leave Policies

Review your policies addressing sick leave, FMLA leave, and leaves of absence—do these policies sufficiently address the current situation? If not, a temporary modification of an existing policy might be in order. Consider the following when deciding whether and how to modify leave policies to address COVID-19:

• General considerations for policy modifications:
  • Check whether any employment agreements, including collective bargaining agreements, apply to your employees. If so, involve the necessary parties, such as union representatives, in creating a plan for COVID-19 related leave.
  • Ensure that all policy modifications are applied in a uniform, non-discriminatory manner. Communication is essential to ensuring an even-handed approach across different supervisory groups.
  • Consider ways to encourage employees who are ill or who have been exposed to remain home. For hourly employees who will go without pay if they do not work, there may be a temptation to come to work to avoid a gap in income, even if they have been exposed to COVID-19. You can encourage these employees to stay home if they will be paid to do so (or at least permitted to use any accumulated PTO or sick time). Consider partial pay or a stipend, if feasible.
• Modifications to sick leave policies:
  • If you normally require medical documentation supporting an absence within a certain number of days, remember that doctors and hospitals may become overwhelmed, leading to delays in completing administrative tasks like work excuse notes. Consider waiving or extending deadlines as needed.
• Don’t forget about FMLA:
  • FMLA-eligible individuals who become sick with COVID-19 likely will qualify for FMLA-protected leave.
  • It is less clear whether an employee who has merely been exposed to COVID-19 or has other reasons to fear the virus would qualify for FMLA-protected leave.
  • The best practice in either case is to send the employee an FMLA eligibility notice and medical certification. From there, it is up to the employee’s medical provider to certify the employee for a qualifying leave or not.
  • If an ill employee is working from home, intermittent FMLA leave may apply.

Employee Travel

Many companies already have decided to defer business-related travel unless absolutely necessary, particularly to areas that have been identified by the CDC as problematic. With the upcoming Spring Break season, employers also should consider the best approach to employees’ personal travel. Although the optimal policy depends on factors specific to each employer’s business needs, there are some common considerations that should not be ignored.

• Presently the CDC has identified the following areas as experiencing community spread of the COVID-19 virus: China, Hong Kong, Iran, Italy, Japan, Singapore, South Korea, Taiwan, and Thailand. In addition, the CDC recommends that all individuals defer travel on cruise ships. You can continue to monitor travel guidance from the CDC, available here: https://wwwnc.cdc.gov/travel/.
• In determining whether to restrict travel, remember that employers cannot make disability related inquiries such as by asking whether an employee suffers from a condition associated with higher risk of COVID-19 complications.
• If you wish to require that employees remain home for a quarantine period after traveling to an affected country or on a cruise ship, communicate that policy now. Rather than list the affected areas, refer to the CDC and remind employees that, as the situation develops, additional destinations may be identified by the CDC as problematic.
• When an employee returns from personal travel via cruise ship or to a country that has been identified by the CDC as high risk, you may ask that employee to remain home for a period of time before returning to work.
  • Consider whether telework or other duties can be arranged so the employee can be paid during that period. Even if not, however, unpaid leave for this purpose is permissible, so long as employees are kept away from work on a reasoned, non-discriminatory basis.
  • Be sure to fulfill any paid leave obligations pursuant to your paid leave policies and any employment agreements, including collective bargaining agreements. In addition, be aware that employees who are instructed to stay home without pay may be entitled to unemployment compensation for the period during which they are not allowed to come to work.

Our Insurance Coverage, Labor and Employment, and Health Care lawyers stand ready to provide guidance on the many legal issues confronting companies dealing with this global pandemic.  We’re here to help, and invite you to contact the lawyers listed below should needs arise.

About Potter Anderson

Potter Anderson & Corroon LLP is one of the largest and most highly regarded Delaware law firms, providing legal services to regional, national, and international clients. With more than 100 attorneys, the firm’s practice is centered on corporate law, corporate litigation, intellectual property, commercial litigation, bankruptcy, labor and employment, and real estate.