Coronavirus Guidance for Employers: Pandemic Declaration and Government Action

Mara B. Levin, Brooke T. Iley, and Taylor C. Morosco

COVID-19 (commonly referred to as the “coronavirus”) was declared a global pandemic by the World Health Organization (“WHO”) on March 11, 2020, and continues to impact businesses and public life around the world. The U.S. Center for Disease Control and Prevention (“CDC”) is monitoring the status of the coronavirus, and various state and local governmental agencies are issuing states of emergency and quarantine directives. The virus continues to spread without containment, creating a host of new real-time issues for employers to address as the general duty to provide a safe working environment has significantly increased.

WHAT IS A PANDEMIC?

WHO has described a pandemic as the worldwide spread of a new disease. For a general discussion of what constitutes a pandemic, review WHO’s general guidance here.

What did WHO say about the COVID-19 pandemic?

WHO’s Director General made his remarks in a briefing to the media about the pandemic and, among other things, outlined general steps that countries should take, which are available here.

WHAT IS THE LATEST FEDERAL RESPONSE TO COVID-19?

On March 11, 2020, President Trump issued a ban on travel from Europe (minus the United Kingdom) to the United States beginning Friday, March 13, 2020, at midnight.

Please click here for the full client alert. 

 

How to Approach Coronavirus-Related Workplace Scenarios

Mara B. Levin, Brooke T. Iley, and Taylor C. Morosco

COVID-19 (commonly referred to as the “coronavirus”), a respiratory illness that was first diagnosed in Wuhan, China, in late 2019, has hit the United States. The World Health Organization (“WHO”) has declared the outbreak a public health emergency of international concern and the virus is being classified as an epidemic. With the spread of the virus, employers face a series of constantly evolving questions regarding their competing legal obligations to provide a safe workplace.

While the immediate risk of contracting COVID-19 in most workplaces remains low, many federal agencies, including the U.S. Centers for Disease Control and Prevention (“CDC”), have issued specific guidance for employers to respond to the disease. This client alert discusses recommended approaches and alternatives to specific situations affecting employees in the workplace. Implementation of these recommendations may need to be tailored to your particular business, with consideration being given to workplaces with employees who work in concentrated spaces; employees who have greater exposure on a daily basis with the public; employers who can easily transition to remote working arrangements; and employers who can afford to pay healthy employees to stay home.

WHAT SHOULD AN EMPLOYER DO IF AN EMPLOYEE…

…is sheltering a self-quarantined person?

The CDC does not recommend testing, symptom monitoring, or special management for people exposed to asymptomatic people with potential exposures to the virus. These people are not considered to be exposed and therefore are categorized as having “no identifiable risk.” As a result, there are no extraordinary precautions that need be taken other than those imposed on all employees, which is to stay home if they are feeling sick. Of course, employers can take extra precautions that they deem necessary.

…is exposed to a symptomatic person?

Please click here for the full client alert. 

Guidance for Employers to Address Coronavirus in the Workplace

Brooke T. Iley, Jason E. Reisman, Susan L. Bickley, Anthony B. Haller, Mara B. Levin, and Taylor C. Morosco

COVID-19 (commonly referred to as the “coronavirus”), a respiratory illness that was first diagnosed in Wuhan, China, in late 2019, has hit the United States. The World Health Organization (“WHO”) has declared the outbreak a public health emergency of international concern and the virus is being classified as an epidemic. With the spread of the virus, employers face a series of constantly evolving questions regarding their competing legal obligations to provide a safe workplace, while protecting the privacy rights of their employees, and without violating anti-discrimination laws.

WHAT LAWS ARE POTENTIALLY IMPLICATED?

Before an employer responds to these challenges, they should be familiar with the laws implicated with an epidemic like the coronavirus:

Occupational Safety and Health Act (“OSHA”)

OSHA’s General Duty Clause requires employers to maintain a safe workplace for all workers and to distribute information and training about workplace hazards. It also bars employers from retaliating against employees for exercising their rights to safe workplaces.

The situation is constantly evolving. Employers must monitor the developments about the ongoing outbreak and assess government notifications to formulate appropriate workplace responses and preventative measures.

Americans with Disabilities Act (“ADA”)

The ADA protects employees from discrimination based on their disability, record of a disability, or perceived disability. “Disability” has a broad definition, which could cover the coronavirus. This means that those who have or are suspected of having the coronavirus could be covered by the ADA, depending on its impact on the employee, or, for instance, if an employee is perceived to be disabled. Employers must be sensitive to the risk of discrimination under the ADA. The ADA also requires employers to keep employee medical information and records confidential and in a separate folder from the employee’s personnel file.

Employers must balance these competing legal requirements as they adjust business practices to address coronavirus concerns. Employers should act to protect their workforce, with an eye toward discrimination laws, all the while maintaining tact and sensitivity towards those who have or may be suspected of having contracted the virus. This is not a science and often involves a case-by-case determination.

Please click here for the full client alert. 

As We Predicted, Challenges to NY Reproductive Health Decision-Making Law Have Begun

Stephen E. Tisman

In a December 17, 2019, Blank Rome Workplace post, we described the law enacted in New York expanding “protected status” to cover employee decision-making regarding reproductive rights matters. (See blankromeworkplace.com/2019/12/17/new-york-expands-discrimination-protection-to-reproductive-health-decision-making/). We concluded with the prediction that:

The law will undoubtedly be challenged by an employer claiming that providing such coverage violates the employer’s religious beliefs (think Masterpiece Cakeshop v. Colorado Civil Rights Commission). The ultimate fate of this statute will be resolved under federal First Amendment law.

That challenge has begun. On January 31, 2020, a lawsuit was filed in federal district court seeking a declaration that the statute is unconstitutional and void, and for an injunction to bar enforcing it against the plaintiffs. Christopher T. Slattery, et al. v. Andrew M. Cuomo, et al., U.S.D.C., N.D.N.Y., Case No. 5:00-at-99999.

Stay tuned for developments.

New York Expands Discrimination Protection to Reproductive Health Decision-Making

Stephen E. Tisman

On November 9, Governor Cuomo signed into law an amendment to the New York Labor Law making it illegal to discriminate against employees based upon the reproductive health decisions of employees or their dependents. The law went into effect immediately upon signing.

Specifically, the new law (N.Y. Labor Law § 203-e):

      • Prohibits an employer from accessing an employee’s personal information regarding reproductive health decision-making without the “employee’s prior informed affirmative written consent.”
      • Prohibits an employer from taking “retaliatory personnel action” against an employee with respect to compensation and terms of employment, because of the employee’s (or dependent’s) decision-making, including decisions regarding use of a drug, device, or medical service.
      • Prohibits requiring an employee to waive the right to make particular reproductive healthcare decisions.
      • Requires employee handbooks to include notice of employee rights and remedies under the new law.
      • Prohibits retaliation against an employee for protesting the violation of rights under the new law, filing an action under or related to the new law, or providing information to a public body.

The new law creates a legal right of action that an employee can pursue in any court of competent jurisdiction for damages, injunctive relief, reinstatement, attorneys’ fees, and liquidated damages equal to the damages awarded, with liquidated damages subject to a defense if the employer proves “a good faith basis to believe that its actions… were in compliance with the law.”

Immediate Takeaway

All New York employers must immediately revise employee handbooks to give notice of the law and available enforcement remedies.

Prediction

The Legislative Supporting Memorandum makes explicit the legislature’s intention to protect employees against employer efforts to deny them the benefit of the provision in the federal Affordable Care Act which requires that health insurance plans cover FDA-approved birth control methods, without out-of-pocket costs. The law will undoubtedly be challenged by an employer claiming that providing such coverage violates the employer’s religious beliefs (think Masterpiece Cakeshop v. Colorado Civil Rights Commission). The ultimate fate of this statute will be resolved under federal First Amendment law.

Workplace Safety Incentive Programs and Post-Incident Drug Testing—Still Okay under OSHA but Don’t Discourage Accident Reporting

Mark Blondman

Many employers have implemented workplace safety incentive programs in an effort to reduce time lost to injuries or illness. The programs generally reward workers for reporting near-misses or hazards and/or reward employees with a prize or bonus at the end of an injury-free period. The programs also may evaluate managers based on their work unit’s lack of injuries. Similarly, employers have implemented drug testing protocols with the same goals.

In May 2016, concerned that employers were not using incentive programs and drug testing policies to encourage safe practices but, instead, to punish employees who reported workplace safety issues, the Occupational Safety and Health Administration (“OSHA”) published a final rule prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The final rule also suggested that it might constitute retaliation for an employer to limit post-incident and post-accident drug testing to the employee who reported an injury as a result of a workplace incident/accident and not to test all of the employees involved in the incident. Continue reading “Workplace Safety Incentive Programs and Post-Incident Drug Testing—Still Okay under OSHA but Don’t Discourage Accident Reporting”

Warming Up to OSHA’s New Cold Stress Guide

Anna Svensson

Unless you spent the last month on a Caribbean island, you know that a majority of the country was in a deep freeze in late December and early January. Numerous record lows were set and some states, such as the Dakotas and Minnesota, experienced wind chills significantly below zero.

Although temperatures have returned to average in most parts of the country, winter will be with us for a few more months; and the recent freeze is likely to be repeated. The extreme temperatures serve as an important reminder that employers need to take appropriate measures to protect workers from cold stress before it causes harm. While the Occupational Safety and Health Administration (“OSHA”) does not have a specific standard that covers working in cold environments, under the Occupational Safety and Health Act of 1970, employers have a duty to protect workers from recognized hazards, including cold stress hazards. Continue reading “Warming Up to OSHA’s New Cold Stress Guide”