The COVID-19 (coronavirus) has changed all our lives. Employers and employees are rightfully concerned about the COVID-19 virus and how it will affect each one of us. Employers, like you, are concerned with how to address the challenges presented by COVID-19. Meanwhile, employees are concerned with what it will mean for them. We have been carefully monitoring events and are prepared to help you navigate this unchartered territory.
We wanted to share with you our current thoughts on how best to manage the COVID-19 situation.
COMMUNICATION WITH EMPLOYEES
First, we believe that it is critical to communicate to employees in a clear, calm and accurate manner. This can be accomplished by relying on guidance from the Centers for Disease Control (the “CDC”), federal, state and local officials as well as other public health officials.
When communicating to your employees, we suggest:
- You communicate to employees that the safety of the workplace, and their safety, is paramount;
- You communicate that circumstances involving COVID-19 are evolving and the company is taking steps to maintain a safe workplace and you will continue to update them as things progress;
- You tell employees to stay home if they are sick;
- You encourage employees to wash their hands frequently with soap and water for at least 20 seconds;
- You remind employees to cover their mouth when they sneeze and to discard used tissues in the trash;
- You advise employees to avoid close contact with others, to avoid shaking hands with others and to avoid touching their eyes, nose and mouth with unwashed hands;
- You encourage employees to clean frequently touched surfaces;
- You ask employees to inform you immediately if they, or someone they have been in contact with, contracts or may have been exposed to COVID-19. Please know that you must maintain employee’s privacy during this process. Employers may not share personal health information regarding an employee to other employees. In such a case, you should let employees know that possible exposure has occurred without informing employees any identifying information about the employee;
- You should remind employees of your employee assistance program (EAP), if applicable.
- You should make sure that you have facilities available for employees to wash their hands and that measures are in place to ensure the facility is cleaned.
- Sick Employees and Returning to Work. Employees who are sick should stay home. If an employee has a sick family member in their home, they should stay home. Or, if an employee becomes sick at work, they should be sent home. The current guidelines from the CDC state that employees should not return to work until at least 24 hours after they are free of fever (100.4 degrees F or 37.8 degrees C) or signs of a fever without the use of fever reducing medications. Currently, it is not recommended that you require an employee to provide a doctor’s note when returning to work for a COVID-19 related illness. The CDC has made this recommendation to avoid overtaxing the system and overwhelming doctors and health care providers.
- Employees and Non-Essential Travel. Although this may be out of employers’ hands shortly, the safest policy would be to suspend all non-critical / non-essential work travel. We can provide a sample policy.
- Communication with your Clients. Plainly, your clients’ and customers’ safety should be at the forefront as well. We would encourage you to communicate with them to let them know of the steps you are taking to ensure their (and your employees’) safety. We suggest encouraging employees to use telephone (or, if available, video) conferencing whenever possible.
- Sick Leave for Employees. The Families First Coronavirus Response Act (the “Act”) that goes into effect on April 2, 2020 provides that employers under 500 pay full time employees up to 80 hours of sick leave (and part time employees the number of hours they worked, on average, over a two week period) if they cannot work (or telework) for several reasons related to COVID-19. More specific details on this requirement are provided in our FFCRA Publication.
- Potential workers’ compensation claims. We are closely monitoring whether an employee’s contraction of COVID-19 may constitute a valid workers’ compensation injury. Nebraska and Iowa both recognize limited circumstances under which contraction of a disease could be regarded as a compensable claim. While cases are extremely fact-specific, it is probably unlikely that an employee will be able to prevail on such a claim. Under the Workers’ Compensation Acts of both Nebraska and Iowa, contraction of a disease through exposure is generally compensable only if it satisfies the definition of an “occupational disease,” which must be specific to the industry in which the work is being performed. The biggest hurdle under each state’s laws would likely be proving the necessary degree of causation, i.e. that the virus was actually contracted in the workplace, as opposed to at home or in the community. Some claimants, such as medical professionals or first responders who contract COVID-19 while attending to infected patients, may be able to meet an exception to these general guidelines. It is also possible that a state could expand its interpretation of compensable injuries, or pass new legislation recognizing further exceptions, given the scope of the pandemic. In the event an employee does claim he or she was exposed at work, we’d recommend documenting the claim and following your company’s internal reporting procedures.
- Child Care and School Closures. The Families First Coronavirus Response Act provides that employers with fewer than 500 employees must provide employees who have been on the payroll for at least 30 calendar days and can’t work (or telework) up to 12 weeks of paid leave because the employee’s minor child’s school or childcare is closed due to a COVID-19 emergency declared by federal, state or local authority. More specific details on this requirement are provided in our FFCRA Publication.
- Paying for Employees Off Work. Generally, non-exempt employees are not required to be paid when they are not working (assuming they do not have any paid time off available and there is no obligation under a collective bargaining agreement). This is different for “exempt” workers. Generally, an exempt employee must be paid their normal salary if they perform any work during the work week. There are certain exceptions to this rule and the rules related to paying employees can become very complicated, very quickly, so don’t hesitate to reach out if you have questions.
- Remote or Teleworking. Consider if remote work is possible. Clearly, this solution may not be practical or feasible for every employee or every employer, but if it is, a formal policy may help to outline the expectations and conditions of such an arrangement.
- Discrimination. As always, it is critical that employers do not make decisions based on disability, race, national origin, gender, age or any other protected characteristic during the COVID-19 crisis. This includes, but of course is not limited to, sending home persons from specific races or national origins because the employer believes they are more likely to have COVID-19.
- WARN Act. Employers should also keep in mind the provisions of the federal WARN (Worker Adjustment and retraining Notification Act) and, if applicable, state law if a layoff is anticipated or occurs. Employers covered under the Federal WARN Act – those who have 100 or more full time workers – generally must provide 60 days of advanced notice to employees of plant closings and mass layoffs. Note that under Iowa law the threshold for covered employers is 25 or more employees. There are certain exceptions to this general federal rule which may apply in these circumstances, but even in such a case employee must be provided with notice as soon as “practicable.” If you face such circumstances, please let us know and we can help.
This is a time of unprecedented change for the United States and the world. Things are changing not only day to day, but sometimes hour by hour. We are here to help. We will continue to monitor and update you with any new news. In the meantime, please do not hesitate to reach out to us if you have any questions.
The above article was authored by Eric W. Tiritilli, Senior Counsel Attorney at Lamson Dugan & Murray LLP.