coronavirus (covid-19) prevention and preparedness for … powerpoint... · mega corp. just...

© Copyright 2020 Saul Ewing Arnstein & Lehr LLP

Coronavirus (COVID-19) Prevention and Preparedness for

Employers

Presented By: Robert L. Duston, Esq. & Lisa M. Koblin, Esq. Webinar March 11, 2020


Legal Disclaimer

This presentation has been prepared by Saul Ewing Arnstein & Lehr LLP for informational purposes only. The material discussed during this webinar should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The content is intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.


Saul Ewing Arstein & Lehr LLP COVID-19 Attorney Task Force

In recent weeks we have seen how significantly the Coronavirus outbreak is impacting US businesses: Labor and Employment General Contracts and Force Majeure Supply Chain Management; Ecommerce/Pricing Issues Food and Beverage Health Care Real Estate Financial Restructuring; UCC Enforcement Privacy Implications Risk Analysis/Prevention; General Torts/Negligence Litigation (contract/business disruption related issues)


1. Current Status of COVID-19 Outbreak 2. Related Public Health Agency Guidance (Pre- and Post-Outbreak) 3. Disease Preparedness & Management Planning 4. Responding to Anticipated Labor and Employment Scenarios 5. Questions

Roadmap


Cancel Your Travel Plans

Mega Corp. just announced that, until further notice, employees are not to engage in personal or business international travel, or any cruises, except for certain limited, pre-authorized work trips. Many employees are complaining about cancelled plans and losses. The next day, your employee Bob comes into work wearing a facemask and passes them out to several colleagues.


Cancel Your Travel Plans Questions: Can Mega Corp. enforce this new policy? Would it make any difference if this was a health care

company? Is it obligated to reimburse employees? Does Mega Corp. have to allow Bob and his friends to

wear facemasks at work?


Cancel Your Travel Plans Answers: • Mega Corp. can make any rules it wishes for employees

that are not illegal, and if they are applied equally, even if they appear unreasonable. It can enforce them through discipline or discharge of at-will employees.

• Employers do not have to reimburse employees for these personal losses. Some employers may choose to do so as an employee relations issues.


COVID-19

Coronavirus (Covid-19) is a respiratory illness that was first detected in China at the end of 2019. Its symptoms, which may be mild or severe, generally include fever, cough and shortness of breath (similar to pneumonia).

There are other kinds of seasonal coronaviruses (like the different kinds of

flu), which are fairly common and can cause illnesses like the common cold. The type of coronavirus that has recently emerged in China is a new type of

coronavirus that people are not immune to and for which there is no cure. A lot of information about COVID-19 is still unknown.


Updated Statistics Approx. 106,000 cases confirmed globally across more than 100 countries

(including over 3,000 deaths) 36 U.S. States that have confirmed COVID-19 cases, or cases still under

investigation Virus spread through community, person-to-person contact (within 6

feet), or possibly touching infected surfaces

CDC: most individuals with COVID-19 experience mild symptoms (fever, cough and shortness of breath) within 2-14 days of exposure Recent CDC report suggests that serious illness occurs in 16% of cases

More vulnerable populations: age 60+ population, individuals with underlying conditions like heart disease, lung disease and diabetes


According to the World Health Organization (WHO), a disease outbreak is when a disease occurs in excess of normal expectancy for a specific time and place. Factors used by Centers for Disease Control and Prevention (CDC) to detect outbreaks include: Identifying common signs and symptoms Is this an increased number for this area, time of year, or age group? Are the cases linked to a common source or agent? How many cases are there? Have the diagnosis been verified?

What is an Outbreak?


CDC’s Current Risk Assessment:

For most , the immediate risk of exposure to COVID-19 is thought to be low.

Increased risk for of exposure for: People in places where ongoing community

spread of COVID-19 has been reported Healthcare workers caring for patients with

COVID-19 Those in close contacts with persons who

have COVID-19 Travelers returning from affected

international locations where community spread is occurring


People in high-risk groups should consult with their healthcare provider about attending large events.

Event organizers may consider reassigning duties for high-risk staff to have minimal contact with other persons.

CDC recommends travelers, particularly those with underlying health issues, defer all cruise ship travel worldwide.

CDC Updates Risk Assessment for Vulnerable Populations


The Grocery Clerk

Julie is a 19-year-old cashier at a grocery chain. She is not eligible for benefits or leave. Her neighborhood has a several confirmed COVID-19 cases. She calls her supervisor to say she is not feeling well, has an upset stomach. The supervisor is very frustrated, and asks whether Julie has a fever. When she says she has a low fever, the supervisor tells Julie she better be back to work soon or she’ll be out of a job. Julie comes into work the next day, feeling worse.


The Grocery Clerk Questions: • Could Julie’s symptoms be COVID-19? • Was it legal for the supervisor to ask about Julie’s symptoms? Answers: • Yes, Julie’s symptoms be COVID-19. There are some reports that

cases initially present as stomach issues, not breathing issues. • The supervisor also had the right to ask about Julie’s symptoms.

Under EEOC guidance questions about flu/cold-type symptoms are permissible, and are not disability-related inquiries. The employer need to ensure all individuals reporting symptoms are asked similar questions


General COVID-19 Prevention Guidance

Avoid close contact with people who are sick. Avoid touching your eyes, nose, and mouth. Stay home when you are sick. Cover your cough or sneeze with a tissue, then throw the tissue away. Clean and disinfect frequently touched objects and surfaces Follow CDC’s recommendations for using a facemask. Wash your hands often with soap and water for at least 20 seconds Individuals who have symptoms that may be indicative of the virus should

.immediately call their healthcare provider before going to the doctor’s office Remember that disease prevention is about planning, not panicking.


Pre-Exposure Guidance Actively encourage sick employees to stay home

Posters/notices that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene

Employees who have symptoms of respiratory illness should stay home and not come to work until they are free of fever, signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines

Ensure that your sick leave policies are flexible and consistent with public

health guidance and that employees are aware of these policies Be flexible about requiring a doctor’s note for employees who are sick (non-

COVID-19) in order to return to work, as doctors offices are extremely busy and may not be able to provide the return to work note quickly

See CDC Interim Guidance for Businesses and Employers: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html


Pre-Exposure Guidance Separate sick employees who appear to have acute respiratory illness symptoms

(i.e. cough, shortness of breath) upon arrival to work or who become sick during the day and send employees home immediately.

Provide soap, alcohol-based hand sanitizer, tissues and no-touch trashcans in the

workplace. Ensure that adequate cleaning and hygiene supplies are maintained. Perform routine environmental cleaning:

Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs.

Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.


Advise employees before traveling to take certain steps: Check the CDC’s Traveler’s Health Notices for the latest

guidance and recommendations for each country to which you will travel.

Check themselves for symptoms of acute respiratory illness before starting travel, and notify their supervisor and stay home if they are sick.

Employees who become sick while traveling or on temporary assignment should notify their supervisor and should promptly call a healthcare provider for advice if needed.

Pre-Exposure Guidance


Restaurant No. 1

Michelle is an experienced Server at Regional Restaurant. Michelle notices that a customer at her newest table has been coughing and has a runny nose. Michelle tells her Floor Manager that she does not want to serve the customer due to fear for Coronavirus exposure. Michelle says that if her table is not reassigned to another Server, she is going home.


Restaurant No. 2

Questions: • Does Regional Restaurant have to comply with

Michelle’s request to switch tables? • Does the restaurant have to ask the customer to leave? • Is Michelle allowed to leave her shift early over (possibly

legitimate) concerns about COVID-19?


Answers: No. A risk assessment would likely determine that this customer has the cold or flu, and the customer should be treated just like any other customer with these symptoms. Michelle should continue serving the tables she was assigned in accordance with the restaurant’s regular policies, except that: - The restaurant should ensure that the customers have plenty of tissues and access to hand sanitizer.

Services should have access to disposable wipes and gloves (upon request). - If Michelle identified as being part of a high-risk population (due to age and underlying serious

health condition), the Restaurant may have reason to reassign Michelle’s table. - The restaurant can determine if it will be screening all customers for COVID-19 systems (through either verbal or written questionnaire (recent travel, symptoms, or contact with COVID-19 positive person). If the answer is yes, and if a Manager determines that Michelle’s concerns are legitimate, the Manager may talk to the guest about how they are feeling, or ask the guest to leave and return after they are symptom free.

Restaurant No. 2


Preparing for Workplace Meetings or Events Display hand sanitizer dispensers prominently around the venue. If possible, arrange seats so that participants are at least several feet apart. Identify space where someone who is feeling unwell can be safely isolated. Ensure that meeting room is well ventilated. Retain contact details of all participants to help public health authorities

trace people who may have been exposed to COVID-19 . If someone at the meeting or event was isolated as a suspected COVID-19

case, the organizer should let all participants know . They should be advised to monitor themselves for symptoms for 14 days and take their temperature twice a day.

See WHO, Getting Workplace Ready: https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf?sfvrsn=359a81e7_6

https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf?sfvrsn=359a81e7_6



Develop a preparedness plan Consider whether a face-to-face meeting or event is needed Determine essential in-person attendees Verify communication channels in advance with key partners such as

public health and health care authorities Consider preparing a limited questionnaire for meetings participants:

Recent travel to high-exposure areas? Recent contact with anyone who has COVID-19? Experience any symptoms of the virus in the last 14 days? If participants answer “yes” to any of the above, provide

alternative (remote) participation option

Before a Large Meeting or Event


Disease Preparedness Plan Must-Haves Determine line of communication to employees in the event of critical

updates, or exposure (email/text alert systems) Identify who will contact CDC/local public health agency

Create reporting structure for employees who may need to call out of work, or report potential exposure

Determine essential v. non-essential employees, contractors and vendors and who will notify employees whether their position is essential

Identify classifications of employees who have the capacity to work from home Require employees to bring laptops and work devices home in

advance Determine who will communicate with employees regarding any changes in business travel


Emergency contacts Phases of the plan and individual(s) responsible for each task

Sending out emergency notifications Preparing initial assessment of the impact of the situation Notifying public health agencies (identify what areas of the office to be

closed) Contacting building management Securing isolation room(s) Organizing staff away from potential exposure Assigning critical tasks to essential/non-essential staff Initiating remote-work policies Identify spokesperson for media communications

Disease Preparedness Checklist


Communicate current travel advisories, including any internal travel restrictions

Communicate about medical /testing resources for employees

Provide list of external resources for employees to review to stay informed

Put your insurance carrier on notice For onboarding, consider alternative

locations, or postpone in-person training

Disease Preparedness Checklist


What to Do During an Outbreak 1. The basics: team approach to managing decision-making and putting out

communications.

2. Follow your existing protocols as baselines: emergency response plan, business continuity plan, releases for student screenings, workers’ compensation and flexible leave, distance learning, viral illness plans.

3. Follow local/state public health department advice: CDC, WHO

4. Take reasonable steps to limit exposure, including heightened workplace hygiene, quarantines and notices of travel, altered onboarding and interviewing (videoconference), allow vulnerable populations to take time away, cancel non-academic activities.

5. Prepare for distance learning, be ready for closing. Who makes the call?

6. Communicate every step with the community


If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).

Instruct employees exposed to a co-worker with COVID-19 to contact your local

health agency; review CDC guidance on how to conduct a risk assessment. Key determinations for next steps:

Disease severity (i.e., number of people who are sick; extent of exposure in community where the business is located)

Whether the exposure impacts any vulnerable population Current recommendations by CDC, WHO and local public health agencies Coordinate response with public health agencies so that a full and thorough

investigation can be conducted

Post-Exposure Guidance


Personal Protective Equipment (PPE) Consult Occupational Safety and Health Administration (OSHA) standards for

COVID-19-related PPE, hazard communication plans, and COVID-19 reporting. Cleaning staff should wear disposable gloves and gowns for all tasks in the cleaning

process, including handling trash. Educate staff performing cleaning, laundry, and trash pick-up activities to recognize the

symptoms of COVID-19 . Staff should immediately notify their supervisor and the local health department if they

develop symptoms of COVID-19. Develop policies for worker protection and provide training (i.e. when to use PPE, how to

properly put on, use, and take off PPE, and how to properly dispose of PPE).


OSHA GENERAL DUTY CLAUSE Each employer shall: 1. Provide all employees with a place of employment which is free from

recognized hazards that are causing or are likely to cause death or serious physical harm; and

2. Comply with OSHA standards. An employer may violate the General Duty Clause if: The employer failed to keep the workplace free of a hazard to which

employees of that employer were exposed; The hazard was recognized; The hazard was causing or was likely to cause death or serious physical

harm; and There was a feasible and useful method to correct the hazard.


Cleaning After Suspected COVID-19 Exposure

Close off areas used by the ill persons and wait as long as practical before cleaning to minimize potential for exposure

Open outside doors and windows to increase air circulation.

Cleaning staff should clean and disinfect all areas used by the ill persons, focusing especially on frequently touched surfaces.


Kim’s Case

Kim returned from visiting her family in South Korea just as the outbreak began, and before any quarantine. She works as a sales consultant at a local clothing store. Certain customers starting saying they did not want Kim to pull merchandise for them, and walked out. After a few weeks, the Manager told Kim that there is nothing he can do, and he had to lay her off until some of the fear dies down.


Kim’s Case

Question: • Does Kim have a claim of discrimination? Answer: • Yes. This is just a new version of an old problem

of customer discrimination. It would be a violation of Title VII and state laws (national origin discrimination).


ADA – Direct threat/medical inquiry analysis

FMLA- Definition of “serious health condition” and respiratory illness

Wage/Hour issues

Consideration of existing PTO policies and state/local sick leave laws

No requirement that non-exempt employees be paid for time not worked

Exempt employees need not be paid for any week in which no work was performed, but deductions may not be made unless other factors met.

Employees who cannot work or have reduced schedule due may otherwise be eligible for unemployment in certain states

NLRA/Labor Relations

CBA agreements generally still apply, with exceptions for emergencies

Communicate with labor unions in advance

Legal HR Issues


Hypotheticals


The Restaurant Worker Samuel works in a restaurant franchise. He just came back from a trip to New York City. Samuel calls his manager to say he has a cold. The manager tells him he has to stay out for two weeks unless he gets a doctor’s note that he does not have COVID-19.


The Restaurant Worker

Questions: • Is the Manager assuming that Samuel has a disability? • Can the Manager do this legally? • Does Samuel have a right to be paid? • Does Samuel have FMLA rights?


The Restaurant Worker

Answers: • Under EEOC guidance, the manager is assuming that Samuel might have

COVID-19, a virus that will typically have a short duration for most people. That would not be a disability.

• The manager has the right to require that all sick employees stay home until he is symptom free, even if they just have a cold or flu. Samuel has no right to be paid unless he has accrued paid leave, or rights under some other Company policy or contract. If he is a covered employee under federal law, he may have unpaid leave rights under the FMLA.


The Road Warriors Pt. 1

The sales force at Acme manufacturing is on the road all the time, driving or flying to meet customers and man tables at trade shows. They primarily work on commission. John works a territory that includes Washington state. John asks his boss if he can handle his customers by telephone or skype. His boss says no.


The Road Warriors Pt. 1 Answers: • If John refuses, he is risking his job, unless he has other contract rights.

Employers can require business travel and other rules. If employees violate them they are subject to discipline or discharge if they are at-will. Even if John or a family member is at higher risk, while CDC recommends that individuals avoid crowds and engage in social distancing, no public health agency has prevented employers from continuing to require business travel.

• John may or may not have a workers’ compensation claim under state law. At a minimum, he would have to prove he contracted the virus while on business travel.



Fred’s widget company is taking a different approach and decides to make business travel an option for their sales force in areas where there have been COVID-19 outbreaks, but they want each employee to sign an assumption of risk statement. • Question: Is this enforceable?



Answer: • That depends on state law, but probably no.

Employers generally can’t require employees to waive, in advance, their rights under workers’ compensation schemes.


Mandatory Reporting

County officials want to require every employee to self-report all cold of flu-type symptoms, and then answer questions about their symptoms. Several of the unions questions whether this violates the ADA. • Question: Are these lawful questions?


Mandatory Reporting

Answer: • Yes. Under the EEOC 2009 guidance you can ask

employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. This information must be kept as a confidential medical record.


How Long Do I Have to Wait? A week after Harold came back from a cruise he came down with flu-like symptoms. He went to the hospital, and tested positive. Because his symptoms were mild, he was sent home to isolation. A week later, he feels better but still has a cough, which he thinks is his asthma. Harold asks to come back to work. • Question: Should Harold be allowed to come back?


How Long Do I Have to Wait?

Answer: • Good question. 14 days is the incubation period for COVID-19.

There is a lot that is unknown on how long an individual may be contagious.

• The CDC says that this is a case-by-case decision of doctors and public health officials. Individuals should be symptom free and have two negative tests 24 hours apart (which assumes such testing is available). Just like a bad flu, symptoms could continue for many weeks.



New-York based Jones Consulting has gone the other direction. In addition to making plans for mass telework, they have told all employees nationwide to start conducting all client meetings by Skype or other remote means, with no travel. Jessica and a group of other highly-paid consultants in their 20s and 30s are worried this will affect their sales, and are objecting to the new policy as overly restrictive for low risk employees, and has having a disparate impact on female consultants.



Question: • If this policy does result in lower compensation, do

Jessica and her colleagues have a viable claim? Answer: • Probably not. Jones has legitimate reasons for

reducing risks to employees. As long as this new policy applies equally, they have no claim.


Resources World Health Organization Advice for Getting Workplace Ready: https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf?sfvrsn=359a81e7_6

CDC Interim Guidance for Businesses and Employers: https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html

OSHA Standards and COVID-19: https://www.osha.gov/SLTC/covid-19/standards.html

EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act: https://www.eeoc.gov/facts/pandemic_flu.html

U.S. DOL, Pandemic Flu and the FMLA—Q&A: https://www.dol.gov/whd/healthcare/flu_FMLA.htm

Saul Ewing Arnstein & Lehr, Coronavirus Prevention and Preparedness Summary (for employers): https://www.saul.com/publications/alerts/coronavirus-prevention-and-preparedness-summary?utm_source=alert&utm_medium=email&utm_campaign=saul_alert















https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html










https://www.osha.gov/SLTC/covid-19/standards.html




https://www.eeoc.gov/facts/pandemic_flu.html

https://www.eeoc.gov/facts/pandemic_flu.html

https://www.dol.gov/whd/healthcare/flu_FMLA.htm

https://www.dol.gov/whd/healthcare/flu_FMLA.htm

https://www.saul.com/publications/alerts/coronavirus-prevention-and-preparedness-summary?utm_source=alert&utm_medium=email&utm_campaign=saul_alert












Thank you!

Robert L. Duston, Esq. (202) 342-3415

[email protected]

Lisa M. Koblin, Esq. (215) 972-7896

[email protected]


Baltimore Lockwood Place

500 East Pratt Street, Suite 900 Baltimore, MD 21202-3171

T: 410.332.8600 • F: 410.332.8862

Boston 131 Dartmouth Street

Suite 501 Boston, MA 02116

T: 617.723.3300 • F:617. 723.4151

Chesterbrook 1200 Liberty Ridge Drive

Suite 200 Wayne, PA 19087-5569

T: 610.251.5050 • F:610.651.5930

Fort Lauderdale 200 E. Las Olas Blvd.

Suite 1000 Fort Lauderdale, FL 33301

T: 954.713.7600 • F: 954.713.7700

Harrisburg Penn National Insurance Plaza

2 North Second Street, 7th Floor Harrisburg, PA 17101-1619

T: 717.257.7500 • F: 717.238.4622

Miami 701 Brickell Avenue

17th Floor Miami, FL 33131

T: 305.428.4500 • F: 305.374.4744

Newark One Riverfront Plaza

Newark, NJ 07102 T: 973.286.6700 • F: 973.286.6800

Philadelphia Centre Square West

1500 Market Street, 38th Floor Philadelphia, PA 19102-2186

T: 215.972.7777 • F: 215.972.7725

Pittsburgh One PPG Place

30th Floor Pittsburgh, PA 15222

T: 412.209.2500 • F:412.209.2570

Washington 1919 Pennsylvania Avenue, N.W. Suite

550 Washington, DC 20006-3434

T: 202.333.8800 • F: 202.337.6065

West Palm Beach 515 N. Flagler Drive

Suite 1400 West Palm Beach, FL 33401

T: 561.833.9800 • F: 561.655.5551

Wilmington 1201 North Market Street

Suite 2300 • P.O. Box 1266 Wilmington, DE 19899

T: 302.421.6800 • F: 302.421.6813

Chicago 161 North Clark

Suite 4200 Chicago, IL 60601

T: 312.876.7100 • F: 312.876.0288

New York 1270 Avenue of the Americas, Suite

2005 New York, NY 10020

T: 212.980.7200 • F: 212.980.7209

Princeton 650 College Road East, Suite 4000

Princeton, NJ 08540-6603 T: 609.452.3100 • F: 609.452.3122

Minneapolis 33 South Sixth Street, Suite 4750

Minneapolis, MN 55402 T: 612.217.7130 • F: 612.677.3844

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