Please see an updated version of our FAQs as of April 18, 2020
The worldwide COVID-19 pandemic has had, and will continue to have, a substantial impact on the U.S. workplace. Below is a series of FAQs we have compiled based on some of the more common questions that clients with U.S.-based employees have posed to us within the past few days.
These general FAQs are current as of the date and time at which this article is published (and the answers may therefore be subject to change) and should not be used as a substitute for speaking with a Reed Smith employment lawyer. This is true especially because the COVID-19 situation is a fluid, rapidly evolving one, and there are many considerations that are unique to particular circumstances, industries, and jurisdictions (e.g., California and New York each have a bevy of state and local rules and regulations that far exceed the requirements of federal workplace law).
Please note that this is not a substitute for legal advice. To speak with a Reed Smith employment lawyer concerning any issue related to COVID-19, please contact us at rsCoronavirusEmploymentTeam@ReedSmith.com.
1. Am I required or allowed to have my employees to work remotely?
Generally speaking, we recommend that employers exert flexibility as it relates to employee remote working arrangements. Many businesses have therefore made and are making the decision to permit, or in many instances even require, employees to work remotely, and this is only likely to continue in the coming days and weeks (although, subject to the circumstances listed in question #3 below, it is not yet mandatory). If employers opt for this approach, they nevertheless can and should hold their employees to the same standards of performance while they work remotely.
Having said that, if there is a legitimate business reason why an employee needs to be physically present in a company’s offices – and assuming none of the circumstances identified in question #3 below apply – then the employer can likely require that the employee come into the office.
For all businesses and industries, but particularly those where it is more difficult to close some or all of their operations (e.g., the health care industry), constant monitoring of legal developments – at each of the federal, state, and local level – is of the utmost importance.
2. If I allow my employees to work remotely now, will that set a precedent for future employee remote working requests?
Some businesses have expressed concern that, by allowing remote work now, they will be setting a precedent for future requests for employees to work remotely. This concern can be mitigated with a clear message from the company that this arrangement is only temporary, that the company will reevaluate its decision every few days or as material developments occur, and that it is solely due to what the World Health Organization has now labeled as a pandemic.
The company can and should also make clear that this temporary arrangement will not have any impact or bearing on, and should not be construed as setting an expectation for, any future remote work requests or arrangements, and is only being instituted due to the extremely serious and unique health and safety concerns implicated by COVID-19.
3. What are the principal ways in which my business can expose itself to workplace-related liability as it relates to COVID-19?
At present, following are four of the more likely ways in which a business can expose itself to workplace-related liability as it relates to the COVID-19 pandemic.
- If you know or have reason to know that an employee has a confirmed case of the virus.
- If you know or have reason to know that a family member or an immediate contact of an employee has a confirmed case of the virus.
- If you know or have reason to know that an employee has symptoms consistent with the virus.
- If you know or have reason to know that an employee has recently traveled to high-risk areas.
Each of these scenarios will be addressed in turn below.
a. Employee has a confirmed case
If there has been a confirmed case of COVID-19 for an employee in the office, inform everyone who has had contact with that employee that they have been exposed (but do not disclose the employee’s name or any other identifying information), and send such employees home. Also strongly consider undertaking a deep cleaning and closing portions or all of the office. Office closure here is not mandatory; however, if anyone says they do not feel safe at work, strongly consider letting them work from home. Failure to do any of the foregoing could constitute exposing employees to a dangerous work environment, resulting in liability. Failure to accommodate people’s reasonable fears could also result in liability.
Lastly, under these circumstances, we also recommend contacting the local health authorities to confirm whether you have a duty to report the case.
b. Employee’s family member or intimate contact has a confirmed case
If there has been a confirmed case of COVID-19 for a family member or intimate contact of an employee in the office, inform everyone who has had contact with that employee that they may have been exposed (again do not disclose the employee’s name or other identifying information), and strongly consider undertaking a deep cleaning and closing portions or all of the office. Also consider requiring some or all employees to work remotely. Office closure here is not mandatory; however, if anyone says they do not feel safe at work, strongly consider letting them work from home. Failure to accommodate people’s reasonable fears could result in liability.
c. Employee is exhibiting symptoms consistent with COVID-19
If an employee is exhibiting symptoms consistent with COVID-19, we recommend that you send the person home, encourage them to consult with medical professionals, and implement and communicate clear parameters for when and how they can return to work (which parameters the company can set by, among other things, consulting with counsel as well as guidance issued by the U.S. Centers for Disease Control and Prevention (CDC) and local health authorities). If the employee seeks treatment and subsequently discloses to the company that they have been diagnosed with COVID-19, take the steps laid out in (a) above.
d. Employee recently traveled to a high-risk area
Any employee who has been in any high-risk area as identified by the CDC, or an area with community transition of COVID-19, in the past 14 days– whether for personal or business reasons – should be excluded from the office for 14 days. If such a person has been in the office within 14 days after returning from their travels, consider taking the steps laid out in (b) above (except for office closure) and immediately exclude the person who has traveled from the office for the rest of the 14-day period following the return from their travels.
4. Should I create a business continuity plan and what should it entail?
Given the many questions still surrounding the spread and effects of COVID-19, it is important for employers to create a business continuity plan for employees. Best practices include:
- Forming a response team to serve as the focal point of all COVID-19-related communications and decisions.
- Categorizing essential and nonessential employees.
- Begin having employees test a work-from-home setup to determine what, if any, equipment is needed to achieve a temporary remote working policy. This may include providing company-issued laptops, monitors, licenses for video-conferencing software, and so forth.
- If applicable, allowing employees to work remotely from offices in their local state (e.g. New Jersey residents can work in New Jersey offices instead of commuting to a New York office).
The more detailed a business continuity plan, the better.
5. What can I do if an employee refuses to travel for business reasons?
If an employee refuses to undertake business travel, employers should work with the employee to find alternative ways of accomplishing the same ends as the travel or inquire whether another employee will travel (voluntarily and without coercion). Compelling travel or punishing for refusal to travel stemming from COVID-19-related fears may lead to employer liability. We therefore recommend that employers accommodate employees’ COVID-19-related travel concerns as much as possible and refrain from punishing employees who are unwilling to travel.
6. What are some of the legal considerations that have or might come up as it relates to COVID-19 in the workplace?
The COVID-19 pandemic implicates an extensive list of workplace-related legal considerations that cannot all be covered in this article. Nevertheless, following are some of the more common legal considerations that have or might come up in this regard (please consult with a Reed Smith employment lawyer for further information on these considerations):
- Requests for leave pursuant to applicable leave laws (e.g., the federal Family and Medical Leave Act, state and local paid sick, safe, and/or family leave laws).
- Issues related to disability discrimination statutes, including requests for reasonable accommodations.
- Employers’ ability to request or require that their employees undergo medical testing or screenings, or get vaccinated.
- Employers’ ability to take their employees’ temperatures.
- Employers’ ability to implement special travel rules and other restrictions for some or all employees.
- Privacy- and confidentiality-related concerns arising from the disclosure of medical information, including a confirmed COVID-19 diagnosis.
- The implication of wage and hour laws, including paying nonexempt and exempt employees while they work remotely or if they cannot work due to illness, how to record nonexempt employees’ time while working remotely, the ability to furlough employees, whether any laws are triggered by a temporary or permanent mass layoff or other reduction in force (e.g., WARN Act).
- Whether employees who are permitted or required to work remotely should be required, to the extent they have not already done so, to sign a telecommuting agreement or acknowledge a telecommuting policy.
- Employers’ obligations under applicable health and safety laws (e.g., OSHA) and workers’ compensation laws.
- Employers’ obligations if local schools are closed.
- Special considerations for unionized workforces, including under the National Labor Relations Act.
- Any particular and unique considerations raised by the laws of the jurisdiction(s) in which the employer operates, or by the employer’s specific industry.
- This, of course, is not an exhaustive list and will likely continue to evolve in the coming days and weeks.
7. Are there any other commonsense guidelines for operating the workplace in the COVID-19 era?
Aside from permitting remote working to the extent possible, we recommend:
- Using videoconferencing for meetings when possible (instead of in-person meetings).
- When videoconferencing is not possible, holding meetings in open, well-ventilated spaces.
- Considering adjusting or postponing large meetings or gatherings.
- Staggering shift times to avoid large groups of employees, or swapping to an A-Team/B-Team staffing operation.
- Increasing cleaning of the workplace.
- Increasing the presence of Kleenex, hand sanitizer, disinfecting wipes, and the like.
- Increasing ventilation by opening windows or adjusting air conditioning.
Lastly, continuous communication with employees about these issues is paramount.
8. What do you anticipate to be the next wave of workplace-related issues arising out of the COVID-19 pandemic?
We anticipate that the next wave of workplace-related issues will focus on, among other things:
- Implementing H.R. 6021, a federal regulation that is likely to be enacted in the coming days and that will likely require that certain employers provide paid leave for certain FMLA-qualifying exigencies (more on this to come in a future article once H.R. 6201 is enacted into law).
- Assessing and, if necessary, implementing mass layoffs, furloughs, and other permanent or temporary reduction-in-force measures.
- Privacy and cybersecurity-related concerns arising from remote working arrangements.
- The impact of school and childcare facility closures on the workforce, including as it relates to school-provided meals and a potentially adverse impact on morale for parent-employees who may be distracted due to concern for their children’s nutritional well-being in addition to childcare concerns.
- Adverse impacts on worker productivity, efficiency, and morale.
- Sick employees attempting to return to work before they are medically cleared to do so.
- An influx of claims for unemployment insurance benefits (and not necessarily just from terminated employees, but potentially those who are furloughed as well).
- Workers’ compensation claims, both from employees who claim to have contracted COVID-19 through their workplace and also from employees working remotely.
- Employees stopping from self-disclosing – either to their existing employer or a prospective one – for fear of losing wages.
This too is not an exhaustive list and will likely change.