March 16, 2020
Whatever industry you are in, you are undoubtedly concerned about preparing your business to face the threat of the novel coronavirus (COVID-19). Both the Centers for Disease Control (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) have recently encouraged employers to develop employee protection plans. OSHA’s guidance in particular cautions that “existing OSHA standards may apply to protecting workers from exposure to and infection with” the virus; among other things, the guidance invokes the “General Duty Clause” of the Occupational Safety and Health Act (which imposes certain obligations to protect employees from “recognized hazards”).
Below, we identify some of the key considerations for businesses working to reduce the risk of employee exposure. We also outline key steps to take when an employee tests positive for COVID-19 or must care for someone with the disease.
The government response to the outbreak evolves daily, and we encourage employers to monitor federal, state, and local health department updates; legislative developments; executive actions; and Department of Labor guidance. Among other things, employers should monitor developments regarding paid leave for employees affected by COVID-19; the bill that passed the House late Friday is addressed below.
Options for Reducing the Risk of Employee Exposure to COVID-19
Employers have many options for reducing the risk of employee exposure, and each comes with its own risks that should be managed carefully. The list below is not intended to be exhaustive, and is also focused on managing employee exposure to the virus. Additional considerations may apply to customers, vendors, contractors, and others with whom you interact.
Workplace Adjustments: Both OSHA and the CDC recommend that employers promote good hygiene and infection control practices. Employers can promote handwashing by either providing a place for employees to wash their hands thoroughly with soap or, if running water is unavailable, provide alcohol-based hand rubs containing at least 60% alcohol. Both agencies encourage employers to ensure the availability of adequate tissues and trash receptacles (preferably of the “no-touch” variety). Employers who operate set shifts or other fixed work schedules may want to consider (where feasible) added flexibility around employee breaks or other opportunities for employees informally to take time that may be needed to attend to increased hygiene concerns. Housekeeping practices may also need to be adjusted in light of the pandemic. In some workplaces, it may be appropriate to install high-efficiency air filters, increase ventilation rates, or install physical barriers like sneeze guards. OSHA has offered other recommendations depending on the expected level of exposure and hazard assessment for the particular workplace and job—for example, health care workers obviously are in a different position than office workers and may need additional protection (such as airborne infection isolation rooms).
The CDC also recommends placing posters in the workplace that advocate good hand-washing practices, cough-and-sneeze etiquette, and staying home when sick. Where employers are increasing the availability of telecommuting, it may be helpful to provide this information electronically as well.
Restricting Travel: Many employers are restricting business travel, and the CDC is regularly updating its travel notices. Views regarding the appropriate level of travel restrictions may vary by industry.
Employees may also be exposed to COVID-19 through personal travel. When considering creating guidelines on employees’ personal travel, employers should be mindful that some jurisdictions limit employer regulation of off-duty conduct. Rather than restrict personal travel to affected areas, employers may instead elect to require that employees traveling to those areas self-report to Human Resources and, if their travel indicates an elevated risk, excluding them from the workplace for an appropriate period of time.
Restricting or Screening Visitors: Employers may also wish to restrict visitors or screen visitors for exposure to COVID-19. When doing so, employers should take into consideration visitors’ potential privacy rights (e.g., by posting clear notices of any screening policies, dealing with screening results discreetly, and storing disclosure forms securely). If employers use any screening tools that capture biometric identifiers, they should also be mindful of enhanced privacy rights under state laws such as the Illinois Biometric Information Privacy Act. Many courthouses and other public buildings have banned entry by persons who have traveled to high-risk countries, are ill, or are quarantined, and many employers, office buildings, and other facilities have implemented parallel restrictions for employees and visitors.
Instituting Work-from-Home/Telecommuting Policies: Where some or all of an employee’s work may be performed remotely, employers may consider permitting employees to work from home on a short-term basis.
For many employers, although short-term changes may be feasible in pandemic conditions, permanent changes would pose an undue hardship. Therefore, when implementing a new work-from-home/telecommuting policy or expanding an existing one, employers should take steps to mitigate the risk that these temporary changes create an unworkable precedent for the future. Communicating the short-term and emergency nature of policy changes is one way to limit risk. Furthermore, employers should retain the right to monitor, modify, or withdraw the policy at any time.
Employers should also be mindful that when employees work from home, doing so may raise its own exposure to potential liability for employment law violations. Key considerations include:
Employers should separately consider the increased cybersecurity risk of remote work and ensure that their networks are prepared for increased traffic and risk.
Instructing Employees Not to Work:
Where telecommuting is not an option, employers may instruct employees to stay home and not come to work at all.
Some employers may conclude that entire facilities should be temporarily shut down, in which case the primary concern will be the question of payment during the shut-down; that is addressed below. In the event that COVID-19 requires a long term or potentially permanent closure of any facilities or layoffs of workers, employers should consult the Worker Adjustment and Retraining Notification (“WARN”) Act and its state counterparts in order to determine whether advance notice is required (and, if so, whether it is excused by the circumstances). At the federal level, temporary lay-offs, hours reductions, or shut-downs will generally only trigger WARN if they last longer than six months.
Other employers may identify specific people or groups of people who should stay home on a temporary basis. For these employers, additional considerations include:
Employers will also need to decide whether to pay employees for unexpected time off due to COVID-19. In so doing, employers should be mindful of the following:
We expect that the Senate will act promptly on the bill, and there may be further changes to the bill before it is passed. In the meantime, both the CDC and OSHA encourage employers to explore flexible leave policies in response to this pandemic and many larger employers are considering programs similar to those required for smaller employers under the House bill.
Staggering Shifts and Split Shifts: Both OSHA and the CDC have suggested that employers consider staggering employee shifts to reduce the number of people on-site at any given time. Employers may also consider splitting shifts, rotating who will come to the office and who will work remotely. When considering this approach, employers should check for applicable state and local laws that affect the timing of meal and rest periods. If the use of staggered shifts results in longer shifts for some employees, employers should also follow state and local laws regarding payment of overtime. And when staggered shifts result in some employees working late at night, employers should also consider OSHA guidance on minimizing fatigue-related injuries and preventing workplace violence.
What to Do If an Employee Tests Positive or Needs to Care for an Ill Family Member:
Contact local health agency and clean affected areas appropriately: In the event your employee tests positive for COVID-19, you may instruct them to go home or avoid the workplace. You should also contact your local health agency. They will need to know about all positive tests in the area, and they may also be able to advise you on your response. In particular, they may have the most up-to-date guidance about what steps you need to take to clean the worksite.
Inform exposed employees: The CDC has advised employers to inform fellow employees of their possible exposure to COVID-19, without disclosing the identity of the person who tested positive. You may also wish to advise customers, vendors, and visitors of their exposure.
Determine whether the employee qualifies for FMLA leave: The Department of Labor has issued informal guidance regarding COVID-19 and the Family and Medical Leave Act (“FMLA”). The FMLA “would not . . . protect” an employee staying home “for the purpose of avoiding exposure.” The FMLA would protect an employee who tests positive (or who is caring for a relative who tests positive) if the individual’s COVID-19 becomes a “serious health condition” as defined by the statute and regulations (e.g., if it causes serious complications for the employee or the relevant family member).
Maintain confidentiality: A number of federal laws, including the FMLA, the ADA, and the Genetic Information Nondiscrimination Act (GINA), impose confidentiality requirements that may be relevant to records regarding COVID-19, employees’ symptoms, and co-morbidities. In general, the EEOC has advised that, “[e]mployers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.” Furthermore, employers should avoid involuntary disclosure of confidential information to employees’ supervisors, although employers may share information about the specific accommodations needed by employees.
Record the incident if needed: In recent guidance, OSHA advised that its recordkeeping requirements may apply to employee cases of COVID-19. Regulations require employers to record “fatalities, injuries, and illnesses” that are “work-related” and meet certain other criteria. If an employee contracts COVID-19 while on the job, it is possible that the illness would be recordable.
Prepare for workers compensation claims: Workers compensation eligibility varies by state. In the event an employee was exposed to COVID-19 in the workplace, it is possible—though far from guaranteed—that workers compensation would apply.
Manage return-to-work certifications carefully: Generally speaking, an employer may require a doctor’s note or similar certification before allowing a previously-affected employee to return to work. Be aware that the CDC, OSHA, and the EEOC have all advised that, during a pandemic, it may be more difficult for employees to obtain doctor’s notes. Specifically, OSHA and the CDC state, “Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.” (Emphasis added). However, it seems likely that this advice was drafted primarily to address employees needing to absent themselves from work. The EEOC and Department of Labor both acknowledge the likely need for return-to-work certifications, and although CDC and OSHA urge consideration of “alternative” certifications where possible, it is unclear what non-traditional options will actually be available to employers in the coming weeks. Separately, in the event that a COVID-19-affected employee did qualify for FMLA leave or state paid leave, employers should follow the standard procedures for requiring return-to-work certifications under those laws.
Be mindful of discrimination risks: When an employee is ready to return to work, employers should avoid treating them differently on the basis of their prior infection.
Seek counsel before requiring vaccinations: Currently, no vaccine for COVID-19 is available. However, in the event that a vaccine is developed, employers will need to structure any vaccine policy carefully to account for accommodations on the basis of disability or sincerely held religious beliefs.
Gibson Dunn’s lawyers are available to assist with any questions you may have regarding developments related to the COVID-19 outbreak. For additional information, please contact any member of the firm’s Coronavirus (COVID-19) Response Team.
Gibson Dunn attorneys regularly counsel clients on the compliance issues raised by this pandemic, and we are working with many of our clients on their response to COVID-19. Please also feel free to contact the Gibson Dunn attorney with whom you work in the Labor and Employment Group, or the following authors:
 CDC, Interim Guidance for Businesses and Employers, https://www.cdc.gov/COVID-19/ 2019-ncov/community/guidance-business-response.html (Last visited March 12, 2020); OSHA, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/ Publications/OSHA3990.pdf. OSHA’s guidance was issued jointly with the Department of Health and Human Services. The CDC has also created a one-pager for employers, available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/workplace-school-and-home-guidance.pdf.
 The National Conference of State Legislators is tracking COVID-19 legislation, but this may not cover emergency regulations issued by state labor departments. See NCSL, State Action on Coronavirus (COVID-19), https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx.
 Id. at 13; OSHA is separately updating industry-specific guidance on its COVID-19 webpage: https://www.osha.gov/SLTC/covid-19/.
 CDC, Travel Health Notices, https://wwwnc.cdc.gov/travel. There are currently “Level 3” notices for South Korea, Iran, China, and parts of Europe. “Level 3” means that the CDC is encouraging Americans to avoid non-essential travel to these areas. See also OSHA, Guidance on Preparing Workplaces for COVID-19, 13 (advising companies to discontinue non-essential travel).
 See, e.g., N.Y. Labor Law § 201-d (prohibiting discharge on the basis of lawful “recreational activities”); Reiseck v. Universal Comms. of Miami, No. 06-0777, 2009 WL 812258, at *4 (S.D.N.Y. Mar. 26, 2009) (determining that employer did not violate statute by firing employee who was traveling to Florida weekly because employer fairly determined the work could not be performed from Florida), vacated in part on other grounds by 591 F.3d 101 (2d Cir. 2010).
 See, e.g., New York Supreme Court, Coronavirus – Revised Courthouse Procedures (March 12, 2020), https://www.nycourts.gov/legacypdfs/courts/1jd /supctmanh/PDF/cv19-procedures.pdf; United States District Court for the Eastern District of Michigan, Notice of Courthouse Visitor Restrictions (March 11, 2020), http://www.mied.uscourts.gov/PDFFIles/NtcCourthouseRestrictions.pdf.
 As in the context of other laws, the fact that an accommodation was made for one person may be relevant to whether that accommodation is “feasible” under the ADA for another employee. Cf. Equal Employment Opportunity Commission v. TriCore Reference Laboratories, 849 F.3d 929, 941 (10th Cir. 2017) (discussing role of precedent under the Pregnancy Discrimination Act). However, it is not dispositive; interpretive guidance under the ADA acknowledges that a particular accommodation may impose an undue hardship on an employer in one circumstance but not another. 29 C.F.R., Appendix to Part 1630 (Interpretive Guidance on Title I of the Americans with Disabilities Act) (“Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis. Consequently, an accommodation that poses an undue hardship for one employer at a particular time may not pose an undue hardship for another employer, or even for the same employer at another time.”).
 See Department of Labor, Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA), https://www.dol.gov/agencies/whd/fact-sheets/21-flsa-recordkeeping.
 Department of Labor, COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers, https://www.dol.gov/agencies/whd/flsa/pandemic.
 EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act § III.B.8, https://www.eeoc.gov/facts/pandemic_flu.html (“If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.”).
 EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act § III.B.9; id. at § III.A.1 (stating, in the context of pre-pandemic guidance, that “[a]n inquiry asking an employee to disclose a compromised immune system or a chronic health condition is disability-related because the response is likely to disclose the existence of a disability. The ADA does not permit such an inquiry in the absence of objective evidence that pandemic symptoms will cause a direct threat.”).
 Id. at § III.B.9; see also id. at n.33 (“When pandemic influenza symptoms only resemble those of seasonal influenza, they do not provide an objective basis for a “reasonable belief” that employees will face a direct threat if they become ill.”).
 H.R. 6201, Division C (March 13, 2020), https://docs.house.gov/ billsthisweek/20200309/ BILLS-116hr6201-SUS.pdf.
 CDC, Interim Guidance for Businesses and Employers (“Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies” and “[t]alk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies”); OSHA, Guidance on Preparing Workplaces for COVID-19, 11 (same).
 DOL, Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA), https://www.dol.gov/agencies/whd/fact-sheets/17a-overtime; Department of Labor, Field Operations Handbook § 22g11 (“A prospective reduction in the predetermined salary amount to not less than the applicable minimum salary due to a reduction in the employee’s normal scheduled workweek is permissible and will not defeat the exemption, provided that the reduction in salary is a bona fide reduction that is not designed to circumvent the salary basis requirement (e.g., a 20 percent reduction in an exempt employee’s salary while assigned to work a normally scheduled 4-day reduced workweek due to the financial exigencies of the employer and/or to avoid layoffs would not violate the regulations as long as the reduced predetermined salary amount is at a rate that is not less than the applicable minimum salary of $455.00 per week)”).
 See, e.g., San Francisco, Formula Retail Employee Rights Ordinances, https://sfgov.org/olse/formula-retail-employee-rights-ordinances; see also HR Dive, Predictive Scheduling Laws (Dec. 2, 2019), https://www.hrdive.com/news/a-running-list-of-states-and-localities-with-predictive-scheduling-mandates/540835/.
 See, e.g., Cal. Code Regs., tit. 8, § 11010(5) (“Reporting Time Pay”) (“Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage”); 7 D.C. Admin. Code § 907.1 (“The employer shall pay the employee for at least four (4) hours for each day on which the employee reports for work under general or specific instructions but is given no work or is given less than four hours of work, except that if the employee is regularly scheduled for less than four hours a day, such employee shall be paid for the hours regularly scheduled. The minimum daily wage shall be calculated as follows: payment at the employee’s regular rate for the hours worked, plus payment at the minimum wage for the hours not worked, as described above.”); 454 MA Admin. Code 27.04(1) (“When an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage. 454 CMR 27.04 shall not apply to organizations granted status as charitable organizations under the Internal Revenue Code.”); NJ Admin. Code 12:56-5.5 (“(a) An employee who by request of the employer reports for duty on any day shall be paid for at least one hour at the applicable wage rate, except as provided in (b) below; (b) The provisions of (a) above shall not apply to an employer when he or she has made available to the employee the minimum number of hours of work agreed upon by the employer and the employed prior to the commencement of work on the day involved”); 12 CRR-NY 142-2.3 (“An employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.”).
 See New Jersey Earned Sick Leave Act Notice, https://www.nj.gov/labor/forms_ pdfs/mw565sickleaveposter.pdf.
 Colorado Department of Labor and Employment, Colorado Health Emergency Leave with Pay, 7 CCR 1103-10 (March 11, 2020), https://www.colorado.gov/pacific/cdle/ colorado-health-emergency-leave-pay-%E2%80%9Ccolorado-help%E2%80%9D-rules.
 Department of Labor, U.S. Department of Labor Announces New Guidance on Unemployment Insurance Flexibilities During COVID-19 Outbreak (March 12, 2020), https://www.dol.gov/newsroom/releases/eta/eta20200312-0.
 DOL Opinion Letter, FLSA2005-3 (discussing prepayment plan for overtime wages), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2005_01_07_3_ FLSA_PrepaymentPlan.pdf; Cal. DLSE, Opinion Letter (Nov. 25, 2008), https://www.dir.ca.gov/dlse/opinions/2008-11-25-1.pdf.
 See Department of Labor, State Minimum Wage Laws, https://www.dol.gov/agencies/whd/minimum-wage/state (identifying, by state, the number of hours after which premium pay is required). Note that under federal law, extra pay for night or weekend work is not automatically required. See DOL, E-Laws Adviser, https://webapps.dol.gov/ elaws/faq/esa/flsa/ 005.htm?_ga=2.39763365.725891313.1583959806-662641776.1578432998.
 See OSHA, Long Work Hours, Extended or Irregular Shifts, and Worker Fatigue, https://www.osha.gov/SLTC/workerfatigue/index.html; OSHA, Workplace Violence, https://www.osha.gov/SLTC/workplaceviolence/.
 Department of Labor, COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers, https://www.dol.gov/agencies/whd/fmla/pandemic.
 OSHA, Guidance on Preparing Workplaces for COVID-19, 18; see OSHA, COVID-19, https://www.osha.gov/SLTC/covid-19/standards.html.
 See, e.g., Washington State Department of Labor and Industries, Workers’ Compensation Coverage and Coronavirus (COVID-19) Common Questions, https://lni.wa.gov/agency/outreach/workers-compensation-coverage-and-coronavirus-covid-19-common-questions; California Labor & Workforce Development Agency, Coronavirus 2019 (COVID-19) Resources for Employers and Workers, https://www.labor.ca.gov/coronavirus2019/#chart.
 EEOC Guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act § III.C.16 (“such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees”).
 EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act § III.B.13; Department of Labor, COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers; OSHA, Guidance on Preparing Workplaces for COVID-19, 11; CDC, Interim Guidance for Businesses and Employers.
 EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act § III.B.13. This guidance also states that, “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”
Gibson Dunn attorneys regularly counsel clients on the compliance issues raised by this pandemic, and we are working with many of our clients on their response to COVID-19. Please feel free to contact any of the Gibson Dunn lawyers listed above.
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