By Jaimee K. Wellerstein, Esq. and
Annette M. Barber, Esq.
The outbreak of COVID-19 has multiple implications for today’s workplace, including the effect on business continuity, health and safety issues, leaves of absence, discrimination and travel. The U.S. Centers for Disease Control and Prevention (CDC) has been publishing information daily, but with constant social media coverage, it is difficult for employers to get accurate information to its workforce and to determine the best way to respond. We recommend you regularly refer to the CDC website, the California Department of Health website and your county Department of Health website for the latest information. (See links below for resources.)
This is a fluid situation and changes are occurring daily. The President has declared a national emergency and legislation is in the process of being passed that will provide relief on many different levels. Further, many cities and counties in California are mandating that schools and certain types of businesses shut down for a period of time. Stay informed as to what is required of your business and any financial protections that may be available.
Based on information to date, we have put together this guidance to provide you with recommendations on addressing the various aspects of this crisis.
What to do first:
1. Establish a COVID-19 Response Team or, for smaller operations, a key contact person, to implement crisis management. This requires a focus on people, places and things. You need to stay informed of all developments as they are changing daily. Determine and agree on what staff, facilities and resources are needed to run your most critical business processes if things get worse in your location. Make sure that those responsible have the equipment and resources to stay connected. Determine what suppliers and/or vendors are required to maintain your business operations. Your primary mission should be protection of the health and safety of your workforce first, followed by business continuity.
2. Manage communication to employees and clients. If you have separate channels or teams communicating, make sure the teams are aware of what is being communicated by the others. The team(s) should stay informed by reviewing the CDC guidance daily along with the California state and local health department sites specific to COVID-19. The World Health Organization (WHO) is providing international updates. The messaging strategy should cover what you know, what you are doing about it, and what to expect next. Attorneys at Bradley & Gmelich, LLP are assisting employers with their communication pieces, so please do not hesitate to reach out for legal guidance. Communication is the key to keeping your workforce informed, working together, and to maintain calm.
3. Review your human resources policies and implement practices in the workplace to provide a safe and healthy workplace.
OSHA Duty of Care
Employers have a general duty of care to provide a safe and healthy workplace for all employees. These means keeping the work environment clean and free from “hazards that are causing or are likely to cause death or serious physical harm.” This means that employers need to identify any possible work-related exposure and health risks to employees and take all reasonable measures to prevent occupational exposure to COVID-19. This includes the following which may require temporarily modifying current human resources policies:
- Good Hygiene in the Workplace: Place posters in the workplace that encourage employees to practice good hygiene – see https://www.cdc.gov/coronavirus/2019-ncov/downloads/workplace-school-and-home-guidance.pdf for an example. Stop handshaking, use proper hygiene such as regular hand washing and coughing and sneezing etiquette. Provide hand sanitizer throughout the premises and bleach and/or antiseptic wipes to wipe down surfaces. Ensure common areas are thoroughly disinfected throughout the day and provide protective equipment for those responsible for the cleaning.
- Temporary Pool of Workers: If possible, start building a pool of temporary employees to cover for those employees that may become ill and cannot report to work.
- Sick Employees Must Stay Home: Encourage all sick employees to stay home and if employees arrive sick, send them home immediately. Make sure your sick leave and attendance policies are flexible and modify them as needed and communicate the policies to employees. If you need guidance on how flexible you should be, contact an attorney at Bradley & Gmelich for advice.
- Leave Policies: Provide leave for eligible employees under the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) for those employees who are sick or need to care for family members that are sick. Employees should be able to use their paid sick leave and vacation or PTO. There may be more information coming out soon from the federal government regarding extending the FMLA and providing paid leave. There may also be additional information regarding assistance to affected workers from California State officials, so please contact Bradley & Gmelich LLP for guidance once more information is released.
- Incubation Leave: Allow employees to work remotely during the incubation period if they need to be quarantined due to contact with an infected person. If unable to complete their responsibilities remotely, consider permitting the employees to use available sick and/or PTO/vacation time. There should not be additional quarantine requirements imposed on people simply because of their nationality.
- High Risk Employees: For those employees in the high risk categories as defined by the CDC and/or local health departments, consider a way for those employees to work remotely, if possible, or provide leave under the FMLA/CFRA, or if not eligible, under the Americans with Disabilities Act. This can be a difficult area to address, so please contact an attorney at Bradley & Gmelich LLP to provide guidance with questions and implementing leave policies.
- Notification of Illness: If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure and refer employees to the CDC guidance on how to conduct a risk assessment of potential exposure. Quarantine may be required under the specific facts surrounding the exposure. Contact your local health department for reporting requirements.
- Remote Workers and/or Flexible Schedules: With schools closing, many parents will need an accommodation. Consider the feasibility of telecommuting, flexible work hours (staggered shifts) and ensure your IT infrastructure can support multiple employees who are working remotely. Based upon your unique business set-up you may even want to consider allowing employees to bring children temporarily to the workplace.
- Layoffs: If short term layoffs or furloughs are needed, ensure that selections are not based on protected categories such as race, gender, national origin, etc. Also, stay informed of possible protections for businesses that are required to shut down completely.
- Limit Travel for Employees: For those employees who need to travel, check the CDC’s Traveler’s Health Notices for the latest guidance and consider rescheduling all non-essential travel where possible.
Being informed is the key to being prepared and managing this crisis. Here are some resources for more information. Please contact your attorneys at Bradley & Gmelich LLP if you have any questions or need further guidance.
Jaimee K. Wellerstein, Esq. is a Partner and the firm’s Employment Team Head. Representing employers in all aspects of employment law, Ms. Wellerstein collaborates with her clients to develop proactive business and legal strategies to try to avoid workplace conflict and employment disputes. She provides legal advice and counsel to numerous businesses, including conducting individualized training programs for both management and employees. Ms. Wellerstein performs internal audits of her clients’ employment practices to ensure compliance with the rapidly-changing world of employment laws, and guides investigations of employee allegations regarding harassment, discrimination, and employee misconduct.
When litigation cannot be avoided, Ms. Wellerstein aggressively defends her clients against employment law claims in the state and federal courts, as well as at administrative hearings, arbitrations, and mediations. Having defended numerous representative and individual lawsuits on behalf of her clients, Ms. Wellerstein is a skilled litigator and negotiator with a broad spectrum of experience upon which to draw.
A frequent speaker on numerous topics, including employment law and contract law, Ms. Wellerstein regularly conducts training seminars and programs for managers and employees in all areas of employment practices and policies.