As stay-at-home orders begin to lift across the country, many employers are faced with tough ques- tions: How should we bring back our workforce? How do we safely reopen businesses? What is daily work life going to look like?
If you are an employer asking yourself these questions, you are not alone and, unfortunately, there are no “one size fits all” answers. However, working with legal counsel, we at SCALE have developed some core guidelines that we believe can help each employer begin its own sustainable and defensible “back to work” strategy.
Co-Founder and CEO
Associate
Partner, Nixon Peabody, LLP
Partner, Nixon Peabody, LLP
As physicians reopen their offices and staff begin to return, the safety of individuals (including not just employees and patients, but visitors, vendors, and any other third parties) is paramount. Critically, however, it will not just be important to make sure that individuals are safe, but also that they feel safe.
The keys to achieving these objectives will be knowledge, preparation and communication. Each employer needs to know and understand at least the following about its internal and external environments:
Once the employer has answers to these questions, the employer can begin to prepare to return em- ployees to the workplace, beginning only with those that cannot perform their duties at home, and/or that are required to resume operations, and bringing the rest back gradually over time to keep density low and allay employee safety concerns. The employer must also develop policies and procedures to minimize population density within the workplace, promote social distancing, and minimize the risk of workplace exposure to COVID-19. Employers, particularly in the health care field, also must consider the propriety of implementing health screening procedures for those onsite. Such health screenings can range from self-reporting of symptoms, to temperature screening, to regular COVID-19 testing (ideally performed by in-house medical staff or a third-party provider).
By thinking through the above considerations and preparing to adjust to a new “socially distant” reality within the workplace, employers can mitigate the risk of workplace exposure to COVID-19 and any other infectious diseases. More than just establishing new setups, policies, procedures, however, employers must effectively communicate their process to employees and perhaps even create anon- ymous internal complaint procedures to gain insight into employee sentiment regarding the safety of their work environments. To this end, employees should not need to rely on the news to know what is going on at their respective workplaces. Instead, employees should be hearing from their leaders regarding reopening plans and how their specific role fits within those plans. Given the volume of information to be collected and assessed, and the number of decisions involved, it may be useful for the employer to assemble an internal “task force” of individuals responsible for developing, communicating, implementing, and monitoring compliance with, its “reopening plan.”
In addition, the establishment of clear communication channels is always helpful during uncertain times. If employees know to whom to go for questions or where they can expect to find information, panic is reduced. Such communication will further build trust, reduce employee anxiety about return- ing to work, and increase productivity as they resume operations.
Understand that, no matter what, this work will remain ongoing. Employers must continue to monitor changes in government orders, state and federal health guidelines, and their own workforces and update procedures as necessary. There is no way to get this perfect, but the considerations above should help employers think about the best way for their business to reopen. It will require a significant amount of time, manpower, and oversight, but will be worth the effort. Leaders need to consider not only what is best for the business, but also what is best for the customers and employees. Indeed, throughout this process, employers must remember that just because they may be allowed to reopen under a certain government order does not mean that they must reopen immediately and/or at full pace. The goal is to create the safest work environment possible with the hopes of mitigating the hazard of COVID-19.
Under the OSH Act, employers have an obligation to maintain for their employees a “safe working environment,” which is defined as a “workplace free from recognized hazards likely to cause death or serious physical harm.” Although this duty has not required perfection, it does require advance thought and analysis, reasonably feasible action (including communication and training), and enforcement of employer safety policies.
In the post-shutdown era, the definition of “safe working environment” will not necessarily change. Instead, the way in which the workplace is judged to be “free” from harm likely will evolve to reflect a new hazard within every workforce – potential exposure to COVID-19 through community spread. To this end, employers must be mindful of, and make efforts to protect against, the possible presence of infected employees in the workplace, including, in many cases, by determining whether an employees’ COVID-19 infection was work-related. They also must address a potentially insufficient supply of nec- essary safety equipment such as masks and gloves, and make all reasonable efforts to reduce to the largest extent possible employment-required travel to any and all geographic areas with a high rate of infection (such as New York City, at least presently).
As mentioned above, the OSH Act holds employers responsible for keeping employees safe on the job through a range of potential consequences, from citations, to fines, to jail time (in the most egre- gious of cases). It further provides employees with certain rights to refuse to work under hazardous conditions (and protects them from retaliation for raising safety concerns under its whistleblower protections).
Although there is hope that the OSH Administration will be flexible in its enforcement, even under the best of circumstances, a flexible enforcement approach will still require that an employer be able to demonstrate that it has made best efforts to comply with all applicable standards for safety protocols, including the maintenance of social distance, the provision and wear of proper and/or necessary protective equipment, and the implementation of regular and consistent sanitation practices. Such best efforts further will diminish an employee’s ability to identify any hazardous conditions and,accordingly, refuse to work. Therefore, to protect their employees from harm and themselves from potential OSH Act violations, and to be able to render any employee’s refusal to work unreasonable, employers should do all that they can to make employee safety the highest priority. The more proactive an employer can be in implementing new guidelines and procedures and working with OSHA to ensure worker safety, the better.
As a result of “exclusivity” bars incorporated into workers’ compensation regimes, employees seeking to recover damages (such as lost wages, medical expenses, or other costs or damages) for contracting COVID-19 at work must pursue such claims through workers’ compensation insurance, and not through the courts. Typically, for a claim to be compensable under the workers’ compensation schemes, an employee has had the burden of proving that his illness or injury was sustained or contracted in the workplace. Given the significant community spread of COVID-19 in many regions, this burden would seem near impossible for most employees. In addition, in most states, employees must also demonstrate that the nature of their employment places them at high risk of contracting the dis- ease (as opposed to simply contracting the illness through “ordinary contact with a fellow employee”).
Workers’ compensation boards in certain states (including at least California, Kentucky, and Illinois), however, have recently issued directives stating that this burden of proof (particularly for healthcare workers) will be shifted in the case of COVID-19, and that instead there will be a presumption that employees who contract the virus will be presumed to have contracted the virus at work (and thus eligible for workers’ compensation), unless the employer can prove that the employee contracted the virus elsewhere. The potential workers’ compensation liability could be significant, particularly in regions that have expanded eligibility as described above, increasing the need for employers to prevent employee exposure in the workplace as, even though most employers are insured for workers’ compensation claims, such significant liability almost assuredly will cause premiums to rise.
The ADA also presents compliance challenges, particularly amidst the imposition of requirements that employers implement health screening procedures. Specifically, the ADA prohibits an employer from discriminating against an applicant or employee on the basis of his/her disability or perceived disability. It also obligates employers to provide reasonable accommodations to employees with dis- abilities (absent undue hardship to the employer), and imposes obligations to maintain the confidentiality of employee health and/or medical information.
Incorporated in these obligations under the ADA is a prohibition on employers from making disability-related inquiries, and from requiring medical examinations of employees, unless they are job-re- lated and consistent with business necessity. Such inquiries and examinations are not considered job-related or consistent with business necessity unless the employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition or, as more relevant here, (2) an employee will pose a direct threat due to a medical condition.*
Note, however, that although these approaches have been condoned, they must still be performed in a manner consistent with applicable state and federal guidance (e.g., social distance must be maintained and/or proper personal protective equipment must be provided), employee privacy rights under the ADA (e.g., all medical information obtained must be kept confidential and in files separate from the employee’s personnel files, and all tests or screens must be conducted privately), and wage and hour laws (e.g., employers must consider whether the time spent waiting for such tests is “compensable” time, even though most often employees will not be able to clock in prior to the test or screen). This is particularly important given that any claims for violations will likely be brought on a class, as opposed to individual basis, increasing the employer’s potential exposure.
To be sure, however, the EEOC has not endorsed the use of antibody testing, nor would a requirement that an employee test positive for an antibody as a requirement for returning to work likely be lawful under the ADA or practical. To this end, the presence or absence of the antibody has no relation to the employee’s ability to perform the essential functions of his or her position (as would be required for the test to be lawful under the ADA), and refusing to permit those that lack the antibodies to work likely would constitute discrimination against them on the basis of a “perceived disability.” In addition, as a practical matter, those who test negative for the antibody would have little recourse or ability to return to work, other than to either find a new job or try to contract the virus (a perverse outcome to say the least).
Finally, employers must be aware of employee rights to protected leaves under state and federal leave laws. First, under the Family and Medical Leave Act (“FMLA)”, eligible employees have leave rights to care for themselves and qualifying family members with “serious health conditions.” To the extent an employee’s (or employee’s qualifying family member’s) case of COVID-19 it is sufficiently severe or incapacitating, the employee may very well be entitled to twelve (12) weeks of unpaid job-protected leave for this purpose.
Employees working for employers with fewer than 500 employees also have COVID-19 specific leave rights under the Families First Coronavirus Response Act (“FFCRA”), which includes the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”).
Specifically, the EFMLEA expands the FMLA to require employers to give employees 12 weeks of paid EFML (10 of which need to be paid) if the employee needs to provide care for a child due to school or care facility closures, or because a care provider is unavailable. Generally, employees on EFML are entitled to two-thirds of their regular rate of pay, with a daily cap of $200 per day, or $10,000 total.
In addition, the EPSLA requires employers to provide two weeks of paid sick leave to employees who are unable to work (or telework) because:
EPSLA leave for any of the first three qualify reasons must be paid at the employee’s regular rate, up to a maximum of $511 per day. EPSLA leave for any of the latter three qualifying reasons must be paid at two-thirds of the employee’s regular rate, up to a maximum of $200 per day. (If it’s any consolation, all payments required by the FFCRA are fully tax-refundable to employers).
The FFCRA expressly incorporates for its enforcement existing FMLA and Fair Labor Standards Act (“FLSA”) remedies provisions. This means that an employee who is denied EFML or not paid during
the leave per the law will have a cause of action to recover damages (lost wages, salary, benefits, and other compensation) or actual monetary losses resulting from the denial of leave (e.g., the costs of child care), with interest. If the employee is successful, the employee may also be entitled to liquidated damages in an amount equal to the damages plus interest (essentially doubling the lost compensation or costs incurred), as well as the employee’s attorneys’ fees and costs, reasonable expert witness fees, and other reasonable costs of the litigation. Again here, these claims can (and likely will) be brought as class, as opposed to individual actions, increasing potential exposure.
Given all of the nuances in this very nascent, yet complicated legislation, and the significant potential exposure, this leave presents a virtual minefield for employers, particularly as employees return to work and seek to take advantage of such leave.
Notably, however, no law currently provides any employees with any leave rights to avoid contracting the virus (and, in most circumstances, assuming the employer is taking all reasonable precautions, an employee’s fear of contracting the virus is no basis to refuse to work and likely would disqualify an employee from the right to continuation of any unemployment benefits).
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This is a collaborative piece written by SCALE and our legal partners at Epstein Becker & Green.
Roy Bejarano, Co-Founder & CEO, SCALE Physician Group
Emma McGregor, Associate
Elizabeth Scoda, Villanova University MBA ’20 Candidate, Intern, SCALE Physician Group
Gary Herschman, Health Care and Life Sciences Attorney, Epstein Becker & Green
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