Managing HR Through COVID-19
A Practical Guide for Multinational Employers
Prepared by Mayer Brown
As at May 7, 2020
This guide will help employers manage HR legal and practical issues arising from COVID-19. It covers:
- Good Practice Guidance giving high-level consideration;
- An Action Point Checklist drilling down into the detail; and
- Answers to Key Questions facing employers in the United States.
This publication has been written by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.
CONTACTS: Mayer Brown
There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:
1. Keep up-to-date with accurate information
It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO”) website, and check that the information they receive is factually correct.
2. Know where your employees are and where they have been
An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.
3. Communicate with your employees
Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.
4. Provide a safe platform for employees to raise concerns
Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.
There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.
5. If you can be flexible, then be flexible
Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).
This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.
6. One size may not fit all
While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.
Action Point Checklist
In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.
- Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
- Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
- Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
- Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
- Ensure contact details for all staff are up-to-date.
- Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
- those who travel frequently to countries where there is currently or may well in future be a risk of infection.
- those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
- Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
- Review planning for the possibility of large scale absenteeism. For example:
- Identify the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required.
- Identify employees with transferable skills so that these essential positions can always be temporarily filled.
- Consider flexible work patterns, such as employees working from home.
- Identify those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).
- Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
- What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
- Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
- Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
- Ensure managers are aware of the relevant workplace policies.
- Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
- Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
- Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.
- Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
- Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
- How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
- Who will have the authority to determine changes to policy and issue any new communications to staff?
- Log employee travel before it is booked and check against the latest travel protocols.
- Ensure staff know that this applies to personal travel as well as business travel.
- Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
- Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
- Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.
As at May 7, 2020
1. What are an employer’s main legal obligations?
The main areas of an employer’s legal liability associated with coronavirus in the workplace include:
- Ensuring so far as reasonably practicable the workplace health and safety of employees (i.e., obligations under the Occupational Safety and Health Act);
- Complying with applicable stay-at-home orders and other directives restricting movement and business activities;
- Complying with wage-and-hour obligations under the Fair Labor Standards Act and applicable state laws (e.g., continuing to pay wages);
- Complying, where applicable, with the Americans with Disabilities Act (“ADA“) and related state laws;
- Complying with the federal Family Medical Leave Act (“FMLA“) and analogous state laws;
- Complying with the Families First Coronavirus Response Act (“FFCRA”) (for employers with fewer than 500 employees), as well as state and local sick leave laws; and
- Ensuring that employees are covered by Workers’ Compensation insurance and timely reporting illnesses/death under OSHA and analogous state laws.
Employers may also wish to review existing insurance policies and consider any applicable business interruption insurance, medical insurance and evacuation coverage. In addition, to the extent employers are considering laying employees off or reducing the size of their workforce, they should consider their potential obligations under the federal and analogous state WARN Acts. Employers contemplating salary or wage reductions should be cognizant of applicable notice requirements under applicable state laws.
2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?
There is no legal obligation in the United States for an employer to specifically have a workplace COVID-19 response plan. However, the “General Duty” clause of the Occupational Safety and Health Act generally requires US employers to provide employees with a safe and healthy workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm, and to comply with occupational safety and health standards promulgated under the Act.
There are several practical steps that employers should take in connection with COVID-19:
- Implement a Communicable Diseases Policy which sets forth the general manner in which the employer will address communicable diseases in the workplace.
- Develop a specific plan dealing with workplace health and safety issues associated with COVID-19 and implement it. The more detailed the plan, the better prepared an employer will be to cope with any COVID-19 outbreak in their workplace. A plan should deal with preparations to prevent an outbreak, what will happen during an outbreak, and the steps to be taken after the outbreak. Workplace health and safety issues and business continuity issues should be covered in the plan.
- Appoint a central point of contact and cross-functional emergency management team (“EMT”) to address all of the workplace issues arising from a COVID-19 outbreak, including employee health and safety; internal and external messaging; medical and sick leaves; workers’ compensation; short-term disability; the interactive process and potential accommodations under the ADA; confidentiality and privacy protections; technology support; and legal compliance. Where feasible, the EMT likely should include, at a minimum, representatives of the HR, communications, IT, and legal departments. The EMT should be given sufficient authority (or access to authority) to act nimbly and decisively in the face of quickly changing information and circumstances while possessing the flexibility to make adjustments as time goes on and business needs may require.
- Ensure that the EMT monitors the news and governmental websites on a daily basis for reliable information in this highly fluid situation.
3. What should a workplace COVID-19 response plan cover?
The U.S. Centers for Disease Control and Prevention (“CDC“) has issued Interim Guidance for Businesses and Employers (the “Interim Guidance“), which sets out the guidelines on preventive measures that may be taken by employers. A COVID-19 response plan should also address continuity of business operations in the event employees need to work from home or businesses need to work at decreased staffing levels as a result of quarantine orders or otherwise.
4. Can I direct my employees to go home or stay at home if there is an outbreak?
Yes, but any work-from-home policies must be implemented in a nondiscriminatory manner so that there is no disparate treatment of employees in any particular protected classes. Consistent with CDC guidance, employers should actively encourage employees to stay home if they are sick or have been exposed to someone who is sick, and to remain home until they meet evolving CDC guidelines for returning to work.
Similarly, consistent with CDC guidance, individuals who have returned from certain countries must be quarantined for a period of 14 days. Employers should require that if any employees become ill during a quarantine period, they should seek medical care and may return to work only after they have received appropriate clearance from their medical provider, in accordance with CDC guidelines.
When deciding whether to quarantine any employees and when dealing with employees required by governmental authorities to be quarantined, employers may need to address how to compensate such employees, particularly those who cannot work remotely during the quarantine period. Generally, subject to any contractual obligations that an employer may have, employers are permitted to require quarantined employees to use paid time off, provided that they do not work during that time.
Further, if the employer is dealing with unionized employees, there may be an obligation to negotiate with the union regarding quarantine policies because they may alter the terms and conditions of employment, which include wages and hours of work. Depending on the terms of the collective bargaining agreement, the employer may have the right to send an employee home but may still have to pay the employee based on the union-rights clause.
Importantly, the federal government and a number of state and local governments have taken steps to enact new paid sick leave laws that will benefit workers impacted by COVID-19. These laws generally expand existing sick leave and family leave rights and add protections for infected or quarantined employees. For example, the FFCRA, which took effect on April 1, 2020, and expires on December 31, 2020, applies nationwide to employers with fewer than 500 employees. The FFCRA generally requires employers to: (a) provide employees with two weeks of paid emergency sick leave for those unable to work (or telework) as a result of certain COVID-19 reasons; and (b) provide employees with up to 12 weeks of emergency leave in the event they have a “qualifying need” (limited to school closures and related childcare problems) because of COVID-19; the first 10 work days are unpaid, but the following leave period of up to 10 weeks is paid leave. Both the paid sick leave and the paid family leave provisions are subject to daily and aggregate caps on the amounts paid to employees. Employers who are required to provide these paid leaves pursuant to the FFCRA are entitled to dollar-for-dollar tax credits to cover the costs of paying for the FFCRA leave benefits. We prepared an initial Legal Update providing an overview of the FFCRA shortly after it was passed, as well as a supplemental Legal Update with a more comprehensive analysis of the FFCRA and subsequent guidance and regulations regarding the law that were issued by the Department of Labor.
As the coronavirus continues to spread, employers may encounter an increasing number of employees who wish to self-quarantine or self-isolate to protect themselves from workplace exposure to the virus. While employers are not required to grant such requests if they are not subject to a government stay-at-home directive or similar order, employers may want to permit them, to the extent employers have the flexibility to allow employees who wish to self-quarantine to do so. Notably, employees generally are not entitled to leave under the ADA, FMLA, FFCRA, the Occupational Safety and Health Act or sick leave laws if they wish to stay at home for the purpose of avoiding the risk of getting sick if there is no indication of any imminent danger of being exposed to the virus.
5. Can I direct an employee to see a doctor?
If an employee misses work for the employee’s own illness due to the coronavirus, employers may (and arguably should) require a medical certification from the employee’s physician before permitting the employee to return to work.
6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?
It depends on whether the employee is working and/or whether your business is subject to the FFCRA and related emergency state and local laws. Strictly speaking, subject to any contractual obligations that an employer may have and statutory sick and family leave laws, employers are generally permitted to require employees to use paid or unpaid time off in the event they miss work, provided that they do not perform any work during that time. Employers generally must continue to provide employees with group health insurance and other coverage, even if they are temporarily on leave. As noted above, employers may also have contractual obligations to certain employees, such as unionized employees.
As mentioned above, Congress recently passed the FFCRA to provide employees who work for companies with fewer than 500 employees with paid sick leave and paid family leave related to COVID-19. But all employers, regardless of their size, should pay close attention to emergency legislation on family and sick leave at the state and local levels. For example, New York State’s emergency paid sick leave law applies to all private employers with employees in New York, regardless of the employer’s size.
7. Can I quarantine certain staff to certain parts of an office or send them to a different office?
Possibly. Under the Occupational Safety and Health Act, employers have an obligation to maintain a safe and healthy workplace, and the CDC has recommended separating sick employees from those who are not exhibiting symptoms. However, employers must be mindful of their obligations under the ADA and related state laws. While the coronavirus is, for many infected individuals, a temporary and mild condition that may not progress to the level of a disability, the ADA prohibits employers from discriminating against employees whom the employer perceives as disabled. It also is possible that employees infected with COVID-19 may develop more serious problems that constitute a “disability” under the ADA. If so, employers will need to consider the required “interactive process” under the ADA and whether reasonable accommodations, such as an additional leave of absence, might enable the employees to return to work or otherwise perform the essential functions of their jobs, as well as any corresponding undue hardships.
Depending on the circumstances, an employer may ask an employee to work from a particular part of an office if it is to ensure the health and safety of the employee or their co-workers. The question whether an employer can send an employee to work in a different office may be more complicated depending on the circumstances, such as the extent of the travel required and inconvenience suffered by changing the work location. For example, it may not be permissible to change an employee’s workplace to a different state or country when the employee does not usually travel as part of their duties. Recent travel restrictions also would need to be considered.
8. Can I direct my employees to report suspected cases of COVID-19?
Yes, it is permissible and reasonable to ask employees to report if they suspect that they or other employees have COVID-19. However, employers should be mindful of their obligations to maintain confidentiality with respect to employee medical information. Employers should not disclose or disseminate the name of any infected employee(s) to their co-workers or any information regarding their medical condition or history, including the fact that an employee shows symptoms of an illness or has (or had) been diagnosed with an illness. However, the Equal Employment Opportunity Commission (“EEOC”) has issued a technical assistance document on COVID-19 that permits employers who learn of an employee with COVID-19 to disclose the name of that employee to public health agencies.
9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?
Maybe. An employee can only lawfully refuse to attend work if there is an “imminent danger,” i.e., a danger exists that could reasonably be expected to cause death or serious physical harm immediately or before OSHA can investigate it. But an employee may not be disciplined or discharged for refusing to report to work if the employee genuinely believes that there is an imminent danger of being infected with COVID-19 by coming to work, and a reasonable person would conclude that there is a real danger of being infected. However, other than using accrued vacation or paid time off, the employee would not be entitled to be paid for the time missed from work. As noted above, employees generally are not entitled to leave under the ADA, FMLA or sick leave laws if they wish to stay at home for the purpose of avoiding the risk of getting sick, absent any imminent danger of being exposed to the virus. But an employee-by-employee analysis is the best approach when employees raise concerns, as each employee may have unique circumstances that should be considered.
10. Can I screen employees and customers before allowing them to enter the workplace?
Yes. On March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a pandemic. On March 13, 2020, President Trump declared the COVID-19 outbreak a “national emergency.” In light of these declarations, the screening of employees and other workplace visitors is a reasonable step for an employer to take to reduce the risk of its employees being exposed to harm
With respect to employees, the ADA generally prohibits covered employers from requiring medical examinations of employees unless they are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that (i) an employee’s ability to perform essential job functions will be impaired by the medical condition or (ii) an employee will pose a direct threat to others due to the medical condition.
In 2009, in conjunction with the H1N1 flu pandemic, the Equal Employment Opportunity Commission (“EEOC“) issued a technical assistance document on how employers should handle the workplace implications of that pandemic in conjunction with the requirements of the ADA. The EEOC emphasized that whether a pandemic influenza rises to the level of a “direct threat” (such that it cannot be eliminated or reduced by a reasonable accommodation) depends on the severity of the illness. At the time, the EEOC added that if the CDC or state or local public health authorities determine that a pandemic influenza is significantly severe, it could rise to the level of a direct threat.
After the WHO declared COVID-19 a pandemic, the EEOC issued a technical assistance document on COVID-19 titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, which specifically advises employers that they may measure the body temperatures of employees. The EEOC’s guidance also permits employers to inquire about employees’ symptoms, such as fever, chills, cough, shortness of breath, sore throat, and loss of sense of taste and smell.
In addition, relying on the “direct threat” analysis, the EEOC’s guidance also specifically permits employers to administer COVID-19 tests (to detect the presence of the virus) before permitting employees to enter the workplace. This may be an important consideration for employers as they contemplate how best to reopen their physical workplaces after the requirements of many current stay-at-home directives have either been loosened or lifted altogether. The EEOC has cautioned, however, that employers “should ensure that the tests are accurate and reliable.” And, since no testing is perfect, and there may be false-positives and false-negatives associated with any form of testing, the EEOC suggests that employers “may wish to consider the incidence of false-positives or false-negatives associated with a particular test.” The EEOC further notes that employers should keep up-to-date on guidance from the CDC or other public health authorities, as well as the U.S. Food and Drug Administration “about what may or may not be considered safe and accurate testing.”
Employers should be mindful that inquiries and testing may only go so far in trying to prevent the spread of COVID-19. For example, a fever is only a symptom of COVID-19. Thus, even if a temperature test were to reveal that an employee has a high fever (in excess of 100.4 degrees, as noted by the CDC), the test will not necessarily establish that the employee has or may have COVID-19. Furthermore, as noted by the EEOC, just because a test shows that an employee is free from a fever does not mean that the employee is not infected with the COVID-19, as some people with COVID-19 do not have a fever. For these reasons, testing will have its limits.
Importantly, all medical information gathered about any employees, either as a result of questions about their health or that result from temperature testing, should be kept confidential and maintained separate from an employee’s personnel records. Further, there are a variety of practical considerations that employers need to assess if they wish to implement screening or testing. Accordingly, we recommend that employers consult with their counsel before implementing such procedures.
CONTACTS: Mayer Brown
Appendix: Workplace COVID-19 Response Plan
A plan should deal with the following:
BEFORE AN OUTBREAK
- Preventive measures.
- Disinfecting the workplace regularly.
- Maintaining good indoor ventilation.
- Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
- Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
- If employees are required to travel to areas known to have the virus, whether such travel is necessary.
DURING AN OUTBREAK
- The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
- Communication strategies, such as how and what information will be communicated to employees, suppliers and customers.
- Where employees will work, e.g., home, in the office or in alternative temporary offices.
- How to deal with infection and/or deaths of colleagues, e.g., counselling.
- A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
- What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).
AFTER AN OUTBREAK
- Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
- Rehabilitation for sick employees returning to the workplace.
Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:
- Discuss with staff the possibility of a workplace closure prior to closing.
- Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
- Allow employees to work from home.
- Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.
Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.
- Employment Risks and COVID-19 Webinar
- Emerging From Lockdown: Checklist for Multinational Employers
- Temperature Screenings May Trigger the California Consumer Privacy Act’s Notice Requirement
- US Department of Labor Issues Guidance Concerning COVID-19 OSHA Reporting Requirements and Unemployment Compensation Under the CARES Act
- US Department of Labor Issues Temporary Regulations and Further Guidance on COVID-19 Paid Sick and Family Leave
- CARES ACT – Employment, Compensation, Payroll Tax and Paid Leave Provisions
- California Governor Partially Suspends Cal-WARN’s 60-Day Notice Period for COVID-Related Closures
- Guidance for Visa Holders and Visitors to Seek Additional Time in the United States Because of COVID-19 Travel Restrictions
- New York Enacts Emergency COVID-19 Paid Sick Leave Law
- US Employers Should Pay Close Attention to New Legislation Requiring Paid Leave Related to the COVID-19 Pandemic
- Coronavirus: 10 Steps US Employers Should Take to Maintain a Safe Workplace in the Face of a Public Health Emergency
- Worldwide Travel Disruption Due to the Coronavirus: What Employers Need to Know
For more information relevant to Coronavirus COVID-19, please visit our website.
This publication by Mayer Brown provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.