This first alert of a multipart series provides practical tips to minimize legal risk arising from the following legal perils that await any unprepared or ill-informed employer.

As the world’s information about the Coronavirus (“COVID-19”) continues to quickly update, employers must remain aware of the many potential legal risks that can rapidly arise when grappling with COVID-19 in U.S.-based workplaces and workforces. This first alert of a multipart series discusses the following legal perils that await any employer who is unprepared or ill-informed.

Privacy Perils

The confidentiality provisions of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act impose legal obligations to keep medical information confidential, maintain it separately from the general personnel file, and limit access to those with a need to know.[1] Similarly, Family Medical Leave Act (“FMLA”) regulations mandate that “[r]ecords and documents relating to certifications, recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files.[2]” Although the Health Insurance Portability and Accountability Act (“HIPAA”) does not provide a private cause of action for individuals who believe their rights have been violated, HIPAA does provide both civil and criminal penalties for improperly handled or disclosed protected health information and also permits enforcement actions by the Department of Health and Human Services and states attorneys general.[3]

Practical Tips: Be very careful with medical information, including medical information regarding COVID-19 exposure. Keep track of whether the health information was voluntarily disclosed or provided in response to an employer inquiry or examination, and the details of any voluntary disclosure or employer inquiry or examination (e.g., date, time, place, location, identifications of the disclosers/recipients/requesters of information, the specific information disclosed and/or requested, etc.). Determine who can legally be allowed (in your management ranks, like HR, supervisors, or managers) to be informed about necessary restrictions on work or duties and the necessary accommodations. Even when dealing with fervent fears about COVID-19 exposure, realize that asking for health information and/or improperly protecting and sharing that information could create privacy issues. Read the EEOC’s guidance—Pandemic Preparedness In The Workplace And The Americans With Disabilities Act—that “identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning.”[4] Not determining what obligations are imposed by and ignoring the nuances of the ADA, Rehabilitation Act, FMLA, HIPPA, and privacy laws could create risk and obviate a defense.

Safety Perils

The Occupational Safety and Health Administration (“OSHA”) has issued guidance specific to COVID-19. OSHA's Guidance recognizes that, although “[t]here is no specific OSHA standard covering COVID-19[,] … some OSHA requirements may apply to preventing occupational exposure to COVID-19.”[5] Depending upon the workplace, COVID-19 safety measures may include personal protective equipment like gloves, eye and face protection, and respiratory protection.

For healthcare professionals in particular, COVID-19 safety measures also may include applying OSHA’s Bloodborne Pathogens standard. That standard “applies to all occupational exposure to blood or other potentially infectious materials as defined” by OSHA.”[6]

The Centers for Disease Control and Prevention (“CDC”) has issued separate guides for businesses and employers,[7] healthcare facilities,[8] communities (such as homes, schools and universities),[9] and mass gatherings.[10] Each CDC guide provides recommended strategies particular to the grouping.

The Environmental Protection Agency (“EPA”) has published a list of “EPA-registered disinfectant products” that “have qualified under [the] EPA's emerging viral pathogen program for use against SARS-CoV-2, a coronavirus that causes COVID-19.”[11] The EEOC’s emerging viral pathogen program “provides general guidance to registrants that can be used to identify effective disinfectant products for use against emerging viral pathogens and to permit registrants to make limited claims of their product’s efficacy against such pathogens.”[12]

Practical Tips: Plan for the likelihood of COVID-19 appearing in your workforce and workplace and regularly consult WHO, EPA, OSHA and CDC guidance as employers have a General Duty, under the Occupational Health and Safety Act, to provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”[13] Convene a task force to examine your preparedness and your current emergency response and safety plans. Clearly communicate with your employees; it is important to let them know that you are committed to providing a safe workplace.

Implement effective (and legal) strategies for managing your business and workforce and ensuring safety. CDC[14] recommended safety strategies[15] include:

• Encouraging sick employees to stay home;
• Separating sick employees in the workplace and sending them home;
• Issuing communications encouraging cough and sneeze etiquette[16] and hand hygiene etiquette.[17]
• Advising employees about risks before traveling to locations that have had a COVID-19 outbreak; and
• Informing employees of coworker exposure to COVID-19, but making sure to maintain the confidentiality of the coworker.

Other strategies are:

• Thoroughly cleaning and disinfecting the workplace;
• Contacting and remaining in contact with the CDC and state and local health departments if an employee develops or reports exposure to COVID-19;
• Educating the workforce about COVID-19 and pointing them to sources (e.g., OSHA,[18] CDC,[19] WHO,[20] and the EPA[21]) of evidence-based information;
• Reviewing travel programs and limiting non-essential, business travel to locations that have had a COVID-19 outbreak;
• Restricting workplace visitors;
• Providing telework options;
• Identifying essential staff and functions that must continue if and when a COVID-19 outbreak occurs;
• Installing hand sanitizer dispensers (automatic, not hand pump);
• Training employees on what to do if they think they have been exposed to COVID-19;
• Consulting preexisting, evidence-based healthcare guidance that identifies preventive measures for protecting employees from occupational exposure: (a) OSHA's recommended MERS-CoV guidance for employers and employees,[22] (b) OSHA’s Bloodborne Pathogens standard,[23] and (c) OSHA's Information Regarding Severe Acute Respiratory Syndrome (SARS),[24]
• Consulting OSHA's Respiratory Protection standards,[25]
• Recognizing that — depending upon the circumstances — some employees can refuse to work. Section 13(a) of the Occupational Safety and Health Act allows employees to refuse work if they believe they are in imminent danger, which is defined as “‘any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.’”[26] This right is not unlimited. The employee must “believe that death or serious physical harm could occur within a short time.”[27] However “[f]or a health hazard there must be a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency. The harm caused by the health hazard does not have to happen immediately.”[28]
  
  

Wage and Hour Perils

COVID-19 can create wage and hour issues that can be avoided. Failure to follow wage and hour laws, however, could result in having to compensate for unpaid wages and also paying “liquidated damages” equal to the amount of unpaid wages. For this reason, employers should know and comply with wage and hour laws, including any local laws dealing with sick time like Michigan’s Paid Medical Leave Act.[29]

Notably, guidance issued by the Department of Labor (“DOL”)—Pandemic Flu and the Fair Labor Standards Act[30]—is helpful in determining when an employee dealing with COVID-19 must be compensated. As the DOL’s guidance states, the Fair Labor Standards Act (“FLSA”) generally applies to hours actually worked.

• If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary.
• If this is not the case and you do not have a union contract or other employment contracts, under the Fair Labor Standards Act (FLSA) employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office.
• However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek.
• Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.[31]

Practical Tips: Review the collective bargaining agreement. Pay for hours actually worked unless there is some other legal reason (e.g. contractual provision) to not do so. Determine whether the employee is exempt or non-exempt. Keep track of the number of hours actually worked. Use, if you do not already, software that allows remote employees options (e.g., via laptop, mobile app, telephone, etc.) to record their time and attendance. Pay the appropriate regular and/or overtime rates. Consider being generous as your employees are one of the strengths of your business. Remember, the costs of litigation can far exceed amounts voluntarily paid as compensation.

Conclusion

COVID-19 is creating rapidly changing conditions. Mishandling labor and employment nuances arising from COVID-19 in the workplace and workforce can create costly legal risks. As each situation will be fast-moving and very fact-specific, proactive preparedness and swift consultation with your legal team is even more fundamental than before COVID-19.

Stay tuned for the next alert in this series, which will cover:

• Discrimination,
• Unionized Workforce, and
• Concerted Activities.

For more information on how to handle your labor and employment issues and minimize your risk when dealing with COVID-19 issues, please contact Bonnie Mayfield (248-302-5614 or [email protected]) or your Dykema relationship attorney.