To Work Or Not To Work...That Is The Question.

Partner Jeff McLucas explores Employment Issues in the Age of Coronavirus. For more information, we encourage you to contact Jeff and visit the Employment Litigation section of the MG+M website. 

COVID-19 has impacted the entire planet and the daily lives of all. The pandemic has turned our valued first responders into heroic warriors on the front lines of the battle against the virus. COVID-19 has wreaked a tragic toll upon the population, taking lives and destroying families. At the micro-level, the Coronavirus has turned the incidents of daily life into a herculean task. Social distancing requirements, stay-at-home orders, the closures of schools, businesses and places of social gathering and recreation, restricted travel and limited public transportation have completely disrupted the daily routines and habits of everyone.

Beyond the obvious health related issues, the initial impact of COVID-19 was widely felt through the closures of schools and the closure or severe operational limitations on government and private businesses. Closures, layoffs, furloughs and other austerity measures have become the rule and not the exception. The closures or limited operations of courts both state and federal as well as the disruption to the functioning of law firms may have slowed or delayed various civil employment actions ranging from unemployment claims to discrimination charges to cases under the federal Worker Adjustment and Retraining Notification Act (“WARN”). However, the litigation of such claims by employees is inevitable through individual suits and class actions.

Multiple complaints relating to Coronavirus workplace exposure have been filed with the United States Occupational Safety and Health Administration (“OSHA”). OSHA has issued advisory guidance with recommendations for the workplace and descriptions of health and safety standards including how existing regulations apply to the circumstances created by the COVID-19 pandemic. OSHA issued an interim enforcement response plan for OSHA Area Offices and compliance safety and health officers for handling complaints and reports of Coronavirus. An array of OSHA guidance is available at www.osha.gov.

Like OSHA, the United States Equal Employment Opportunity Commission (“EEOC”) has issued a variety of publications relating to COVID-19, available on its website: www.eeoc.gov. The EEOC emphasizes that despite the closure of its physical offices to the public, the agency remains “virtually” open and accessible by phone and through the EEOC’s website.

The remote work environment fashioned by private and public employers alike in response to the Coronavirus does not mean a suspension of discrimination and equal opportunity laws. There are large, multi-state employers actively seeking to hire tens of thousands of workers to adjust to the overwhelming increase in e-commerce demands. Equal opportunity laws that apply to the hiring process remain in effect. Physical workplace environments already complicated by the internet and smartphones have evolved into virtual workspaces where electronic harassment and discrimination remain a constant issue for employers to monitor.

With reports of new infection rates slowing and evidence of some states of “flattening of the curve,” plans for and initial steps of easing back of restrictions are now evolving and taking place. Following measures taken in countries such as New Zealand and various European nations, some U.S. states are easing lockdown rules and announcing plans to re-open of businesses. In apparent anticipation of the re-opening of vast sectors of the American economy and a corresponding increase in travel, airlines are announcing protective measures ranging from heightened sanitation measures in airports and planes to the wearing of masks by flight attendants and crews to distributing masks to passengers for mandatory or recommended use.

The inconsistencies and contradictions of executive orders, governmental guidelines and regulations from state-to-state and even from one city or town to the next in the U.S. for the “closure” already created a patchwork of ad hoc laws. As a result, the easing of practices going forward creates uncertainty for employers and employees alike for the “opening.”

Georgia has already eased restrictions for certain types of business, some of which are now open, although schools will remain closed through the end of the academic year. At the same time, Massachusetts has extended the Commonwealth’s limits on gatherings and closures of non-essential businesses through May 18^th with a stay-at-home advisory remaining in effect. A Massachusetts municipality (Somerville, the most densely populated city in New England) announced a mandatory facial covering order for all public places that becomes effective April 29^th that will permit the issuance of a $300 fine for willful non-compliance after a week-long grace period for community adjustment.

Employers with operations in multiple states will face the initial challenge of developing a consistent and coherent plan for returning to operation or full operation while still respecting the divergent guidelines of various states and even adjacent municipalities. Smaller employers and those operating in a single state will still face the challenges of complying with state-wide and local rules as well as the impact created by differing regulations impacting suppliers in other states and other countries.

Irrespective of the size and scope of a particular business, all employers are facing a number of common issues. The multitude of problems encountered by businesses that have continued to operate throughout the COVID-19 crisis with employees physically present in the workplace are instructive and include:

• workplace rules & guidelines on safety, personal protective equipment (“PPE”), social distancing and enhanced sanitary practices
• training and internal education on sanitary practices and proper wearing of PPE
• job and risk classification for possible exposure to individual employee and co-workers
• adequate supplies of personal protective equipment
• mandated PPE versus optional PPE
• employer issued PPE versus privately owned PPE
• standards for PPE used in the workplace including the question of re-use
• procedures for donning & doffing of PPE
• proper storage of PPE
• proper handling and disposal of used PPE
• adequate sanitary supplies in the workplace including anti-bacterial soap
• sanitation practices including disinfecting of the workplace
• enhanced training where required for handling of cleaning chemicals
• preventing sick workers from entering or re-entering the workplace
• screening and testing of workers
• contact tracing to eliminate the spread or further spreading of the virus
• reconfiguring the work environment
• installing barriers and partitions
• guidelines and training on safe interaction practices between employees and customers or members of the public
• protocol for common areas and shared spaces including parking areas, entrances & exits, time-clocks, locker rooms and restrooms
• modifying or eliminating timekeeping procedures such the use of biometric fingerprinting time-clocks

For employers contemplating and planning for the return to a physical work environment amid plans to “re-open” the U.S., the above-listed concerns must be part of a cogent and comprehensive plan tailored to the unique circumstances of each business and work environment with guidelines issued to all employees in advance of any return to work or return to a common work space.

There is a brewing political storm that may have far-reaching consequences for potential liability issues. Concerns over the U.S. food chain triggered a Presidential Executive Order under the Defense Production Act mandating that meat processing plants remain open. In an industry that has seen infections and deaths significant enough to close numerous facilities, the question arises as to the legal and financial responsibility for illness, medical care, death and even potential contamination of the food chain stemming from such orders in accordance with guidance governmental agencies such as OSHA and the Centers for Disease Control (“CDC”).

The U.S. Chamber of Commerce and other business groups are calling for a comprehensive liability shield covering businesses from virus related claims and lawsuits. In March, Congress agreed to a liability shield for the makers of face-masks in order to encourage increased production. Some states have already passed legislation proving healthcare workers with immunity. Whether broader legislation at the state or national level will address the potential immunity from liability businesses beyond healthcare is unclear.

COVID-19 raises both new unique concerns and variations of evolving employment issues. For example, the EEOC issued updated guidelines for the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and other related laws indicating that employers may make inquiry of employees to inquire if they are suffering from COVID-19 symptoms, but this information must be treated as a confidential medical record. The EEOC guidance makes a number of recommendations, observations and cautionary comments, including:

• The list of associated symptoms concerning which an employer may make inquiry includes fever, chills, cough, shortness of breath, newly developed loss of smell or taste, gastrointestinal issues, nausea, diarrhea, vomiting and sore throat; a list which may be expanded based upon public health authorities such as the CDC and reputable medical sources.
• Employers may take the temperature of employees during the pandemic, but the information must be treated as confidential and such a measurement is considered a form of a medical examination.
• Employers can require employees with symptoms of COVID-19 to leave the workplace or to stay home.
• Employers can request some form of medical clearance for employees to return to work.
• An employer is permitted to administer COVID-19 testing to employees before they enter the workplace. Positive results can be disclosed (including the name of the employee) to a public health agency.
• Employers may keep and maintain a log of daily temperature checks of employees entering the workplace as long as the log is maintained as confidential.
• New hires may be subject to inquiry and screening regarding symptoms of COVID-19 as long as it does so for all new employees in the same type of job. This may include taking a potential employee’s temperature as part of a post-offer, pre-employment medical examination.
• If an employer requires an employee to start immediately, but the new employee as a positive test result or discloses symptoms of COVID-19 then the employer may withdraw a job offer. However, an employer may not withdraw a job offer because an individual is in a high-risk category but without symptoms of the virus.
• Employers are recommended to require that employees observe “infection control practices” such as social distancing and regular handwashing in the workplace.
• The reasonable accommodation requirements of the ADA remain in full force and effect during the pandemic. The mandatory dialogue between employer and employee and flexibility by both employer and employee remain crucial factors in assessing whether accommodation is possible under the current circumstances including temporary job restructuring, temporary transfer to a different position or modified work schedules. At the same time, the case-by-case of reasonable accommodation for an employee and undue hardship upon an employer remain in place but must be treated as flexible in concept and application.
• The designation of employees as “critical infrastructure workers” or “essential critical workers” as defined by the CDC, does not eliminate the coverage and protections of the ADA or the Rehabilitation Act or any other equal employment opportunity law.
• Employers should reiterate to their workforce that workplace harassment on the basis of national origin, race and other prohibited bases stemming from the COVID-19 pandemic are unlawful. Reinforcement of these principles to the employer’s supervisors and managers as part of their prevention and monitoring roles is recommended.
• Employers may require employees to wear PPE in the workplace and observe infection control practices. However, reasonable accommodations under the ADA and religious accommodation under Title VII are still applicable to these rules and requirements.
• An employer may exclude employees from the workplace with a medical condition that poses a “direct threat” to health or safety of co-workers in the workplace. Employers are required to follow the advice and implement steps that are consistent with the advice of the CDC and public health authorities for the workplace environment at issue.
• Employers should not engage in unlawful disparate treatment based upon protected characteristics when making decisions relating to screening processes and exclusion of workers from the workplace.

There are a myriad of statutory rights that come into play as a result of the complex regulatory scheme created by federal and state legislation in addition to the ADA and the Rehabilitation Act that have a bearing on an employer’s obligations. These include, but are not limited to, the Family and Medical Leave Act (“FMLA”) and the newly enacted Families First Coronavirus Response Act (“FFCRA”). Many states have legislation that parallel or supplement the FMLA, for example, further complicating decisions by employers.

The FFCRA covers private employers with fewer than 500 employees and is enforced by the federal Department of Labor. The FFCRA, for example, provides a qualified employee with paid sick time if an employee is unable to work at the employer’s place of business or remotely because the employee:

• is subject to a federal, state or local quarantine or isolation order related to COVID-19;
• has been advised by a healthcare provider to self-quarantine due to COVID-19;
• is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• is caring for an individual subject to a quarantine order or has been advised to self-quarantine;
• is caring for a child whose school or place of care is closed for reasons related to COVID-19; or
• is experiencing any substantially similar condition specified by the Secretary of Health and Human Services.

Employers contemplating the return to a physical office environment, for example, where the employer is one of many tenants sharing certain common space will be impacted by the decisions of property owners and managers concerning protective measures that may further complicate the employer-employee relationship. These factors may include:

• policies and procedures for social distancing in common areas as well as entrances/exits to buildings
• mandatory wearing of face shielding or masks in common areas
• closure of restrooms or limitations with respect to restrooms in common areas
• enhanced PPE including disposable gloves for certain common service areas such as mail centers located within common areas of the building
• modification of delivery services
• modification of janitorial services

The same or similar issues will arise within the confines of the employer’s tenant space and must be contemplated by any employer planning for a return to work. Such issues should be part of the employer’s guidelines looking ahead to this process and due consideration should be given to:

• provision and supply of PPE by employers to employees where mandated
• storage, handling, use and disposal of PPE
• common area policies within the employer’s space including restrooms and kitchens
• provision of sanitary supplies within the workplace including anti-bacterial hand wash and soap and wipes
• mandatory handwashing policies and procedures

Any employer that has transitioned to a remote work platform and now faces the return to a physical work environment should contemplate additional issues beyond benefits and safety including:

• which employees or class/categories of employees to recall to the physical workspace and which can/should continue to work remotely
• staggered or layered return to work plans using objective criteria
• notification to employees regarding return to work including instructions as to conditions or requirements for physical presence in the workplace as a result of COVID-19
• clear communication to employees regarding returning to work and a response plan for handling refusals to return to the workplace
• health screening questionnaires or inquiries including disclosure of infection or exposure to infected individuals
• modified work schedules including rotation of employees between the physical work environment and virtual or remote work platform
• possible accommodations of employees who refuse or object to returning to the physical work environment
• internal reporting mechanisms for reporting health and safety concerns including actual or alleged violations of governmental regulations and/or employer policy
• recognition of and accommodation for modified availability of public transportation in terms of work hours and attendance policies
• modified policies and procedures for employee travel

Employers must also be cognizant of potential retaliation and whistleblower actions stemming from employee complaints about an employer’s handling of COVID-19 related situations ranging from unsafe sanitary practices, hazardous workplace environments, failure to enforce health measures and retaliatory employment action based employee internal complaints, reporting of violations or concerns to governmental agencies and even social media postings. Retaliation and whistleblower cases are predominantly based on statutes containing anti-retaliation provisions. There are such provisions contained in most employment civil rights statutes for employees who engage in so-called “protected activity” including filing internal complaints of unlawful workplace discrimination and harassment. In addition, actions can be filed in many jurisdictions for common law wrongful termination on the basis of a clearly articulated public policy.

Worker complaints to OSHA about safety issues will garner employee protection against retaliation through the ability to file a claim based on adverse retaliatory employment action. Some states have existing laws providing similar protections such as Massachusetts General Laws Chapter 149 §187 which makes unlawful any retaliatory employment action against healthcare workers by their employers including hospitals, clinics and nursing homes for an employee’s reporting of public health concerns internally or to a public agency.  New Jersey specifically enacted legislation in March of this year barring employers from taking adverse employment action against employees taking or requesting time off from work as a result of an infectious disease (i.e., COVID-19) that could affect others in the workplace based on a written recommendation of a licensed medical professional.

The employer-employee relationship has grown increasingly complicated over the last half-century. The COVID-19 pandemic has magnified and multiplied the levels of complexity already inherent in these relations. The uncertain path of the pandemic and the constantly evolving response and guidance on the attendant issues from federal, state and local government and agencies create substantial uncertainty for employers in the management of risk already incurred as a result of austerity measures, in the present environment and moving forward into the future. Comprehensive legal advice based upon the best available information is a necessity for all employers now more than ever.

For more information, we encourage you to contact Jeff and visit the Employment Litigation section of the MG+M website.