Supporting Human Resource Managers in Preparing for a Coronavirus Pandemic

This article examines the many laws that a human resources manager must consider when implementing the practical business solutions required during a pandemic and provides a summary of recommendations from the CDC and other agencies, as well as some tips and resources for a comprehensive guide.

Background

The last pandemic in the United States occurred in 2009 when H1N1 swept across the country.  The CDC estimates that there were up to 60.8 million cases of H1N1 flu in the United States in 2009-10. Of these cases, more than 250,000 were hospitalized and about 12,500 deaths were attributed to H1N1.  Children and young adults were the most vulnerable to the 2009 pandemic.  Many remember that schools, daycare centers, summer camps and universities closed their doors to stop the spread of H1N1.  During this time, many federal agencies and corporations developed pandemic plans and policies. Given what is currently happening in the United States, it is time for companies to update these policies to prepare for a possible Covid 19 pandemic.

The Covid 19 virus is highly infectious, but its symptoms are mild in most people (80%). It does not manifest itself as a runny or stuffy nose. On the contrary, 90% of patients have a fever and 70% have a dry cough. Seriously ill people usually suffer from shortness of breath. For people with cardiovascular disease, diabetes, high blood pressure or a weakened immune system, Covid-19 leads to serious illness and for some to death.  As a result, older people are more affected by this potential pandemic than children and people who already suffer from chronic diseases. In fact, the World Health Organization has reported that in China, only a few children have been infected with the disease and none have died.

Summary of CDC Recommendations for Employers

When reviewing these CDC recommendations, keep in mind that they do not relieve an employer of its obligations under the American With Disabilities Act (ADA), the Family Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), the National Labor Relations Act (NLRA) or other applicable federal or state laws, some of which are discussed below as part of pandemic planning. It is also important to remember that public health orders may override all other relevant laws, particularly if they require quarantine.

1. Actively encourage employees suffering from respiratory diseases and fever to stay at home until they are fever-free for at least 24 hours. They can always request that they notify their supervisor daily
2. Ensure that your sick leave policy is modified flexibly enough; it is consistent with all public health policies and employees are aware of these modified policies
3. Talk to companies that provide contract or temporary workers to your organization about the importance of keeping their sick employees at home and encourage them to develop a policy of non-punitive leave that is consistent with CDC guidelines
4. Consider whether it is really necessary to require a doctor's note for employees with acute respiratory illness to validate their illness, as health care offices and medical facilities can be extremely busy and may not be able to provide these documents in a timely manner (a useful approach during a pandemic may be to require notes only from those who have excessive absences.
5. Employers should have a flexible policy that allows workers to stay at home to care for a sick family member. Employers should be aware that employees may have to stay home to care for a child or other sick family member in greater numbers than usual.
6. Be prepared to separate sick employees.  The CDC recommends that employees who appear to have acute symptoms of respiratory illness (cough, shortness of breath) upon arrival at work, or who become ill during the day, be separated from other employees and sent home immediately. Sick employees must be instructed to cover their nose and mouth with a tissue when coughing or sneezing (or an elbow or shoulder if a tissue is not available).
7. Post signs in the workplace that: (a) encourage employees to stay home when they are sick; (b) explain proper cough and sneeze procedures; (c) explain hand hygiene when entering the workplace or other work areas; (d) explain how to wash their hands; (e) explain the use of antibacterial gels; and (f) explain that employees must use soap and water when their hands are visibly dirty.
8. Provide tissues and non-contact disposal containers that can be used by employees Provide alcohol-based hand sanitizers containing 60-95% alcohol. Ensure that supplies are available in multiple locations or conference rooms.
9. Perform routine environmental cleaning of all frequently touched surfaces - workstations, work surfaces, door handles. Beyond routine cleaning, no additional disinfection is recommended at this time.
10. Provide disposable wipes so that frequently used surfaces (e.g. door handles, keyboards, remote controls, desks) can be cleaned by employees before each use.
11. Employees who travel can get advice from the CDC's travel health guides for each country of travel. Specific information for travelers to and from China and information for flight crews is available on the CDC website. Employees are advised to check themselves for symptoms of acute respiratory illness before travel, inform their manager and stay at home if they fall ill.
12. ensure that employees who become ill while traveling or on temporary assignments understand that they should inform their manager and, if necessary, seek immediate advice from a healthcare provider.
13. Employees who are healthy but have a family member at home who is ill with COVID-19 should inform their supervisor and refer to CDC guidelines on how to conduct a risk assessment of their potential exposure
14. If it is confirmed that an employee has COVID-19, employers must inform their employees of their potential exposure to COVID-19 and maintain confidentiality as required by the Americans with Disabilities Act (ADA) and HIPAA. Employees who are exposed to an employee who has been confirmed to have COVID-19 should consult the CDC guidelines for information on how to conduct a risk assessment of their potential exposure.
15. Consider how best to control the spread of acute respiratory disease and the effects of COVID-19 in your workplace in the event of a more serious outbreak in the United States identify and communicate targets, which may include one or more of the following employees and their families or layoffs or school closures;

1. Reduce the transfer between employees (e.g. through social distancing or working from home) ;

2. Protect those who are at higher risk of health complications (i.e. housing those at high risk until the pandemic situation is over);

3. Maintain a minimum level of commercial activity; and

4. Minimizing negative effects on other units in supply chains.

16. the main considerations to be taken into account when deciding on appropriate responses include the following:

(a) The severity of the disease in the community where the enterprise is located;

(b) the impact of the illness on workers who are vulnerable and more exposed to health complications;

(c) preparation for a possible increase in the number of employee absences due to illness; and

(d) Monitor and respond to absenteeism in the workplace. Implement plans to continue your essential functions in the event that you are absent from work more than usual;

(e) Train staff to perform essential functions so that the workplace can function when key employees are absent;

(d) Monitor and respond to absences from the workplace ;

(f) Assessing essential functions and the trust others place in your services or products. Be prepared to modify your business practices if necessary to maintain your essential activities (i.e. find alternative suppliers, give priority to customers or temporarily suspend some of your activities if necessary) ;

(g) If you have more than one site of operation, give local officials the authority to take appropriate action based on the conditions at their site; and

(h) coordination with health officials at the state and local levels.

Other possible suggestions not yet recommended by CDC

1. If your employees are traveling by car, consider providing them with supplies to protect them during the supply stop.
2. Encourage employees to practice the six-foot rule - if they notice someone with symptoms in public places, encourage them to keep a six-foot distance to reduce their risk.
3. During the 2009 H1N1 pandemic, when more and more people were becoming infected, the CDC suggested that employees be screened as soon as they arrived in the workplace. Currently, the CDC recommends it to employers in the health care, terminal care, waste management, waste sales, air travel, border patrol and international travel industries.
4. Another CDC recommendation from 2009 is a recommendation available through the ADA, which provides appropriate plans for changes in tasks, schedules or work time for workers at higher risk of complications from Covid-19.
5. If your company is looking for ways to increase social distance in the workplace, you should consider: (a) cancelling unnecessary face-to-face meetings; (b) cancelling unnecessary business trips; (c) using conference calls; and (d) offering telework or flexible working hours.

The Family Medical Leave Act (FMLA)

The FMLA applies to employers with 50 or more employees within a 75 mile radius. To qualify for the FMLA, an employee must have worked for the employer for 12 months (and at least 1,250 hours). Under the FMLA, employers must grant employees up to 12 weeks of unpaid leave to care for a spouse, son/daughter or parent with a serious illness or to care for their own serious illness. Employers should expect health care providers to ensure that quarantining because of Covid-19 or caring for people who are seriously ill because of the virus meets the definition of a serious illness.

Even if Covid-19 is involved, the employer may still require the employee to leave as soon as possible, follow the employer's daily objection procedures and provide information that demonstrates that the absence is due to a serious illness and the expected duration of the absence. If your community is particularly affected, employers may need to consider easing some of the FMLA deadlines for returning various medical information if providers are simply overwhelmed.

Employers must inform their employees if their vacation is covered by the FMLA and how much vacation they should count towards their FMLA leave. If the employer determines that the requested leave is not covered by the FMLA, the employer must also inform the employee.   At the employee's or employer's option, the FMLA may replace the unpaid leave with accumulated paid leave. In effect, the employer may require the employee to take the accumulated paid leave, in which case the absence will also count as FMLA leave.

Americans with Disabilities Act (ADA)

The ADA generally applies if the employer has 15 or more employees.  The ADA protects a person with a disability against discrimination in the workplace if he or she is qualified for the essential tasks of the workplace, with or without reasonable accommodation. A disability is a physical or mental impairment that significantly restricts one or more activities in a person's life. Reasonable accommodation may include the following: Reorganisation of existing facilities or workplaces; redesign of workplaces; part-time, modified or flexible working hours; adjustments to policies; reassignment to a vacant post; and/or leave. However, accommodation is not appropriate if it imposes undue hardship on the employer.

Determining what is reasonable requires an informal, interactive process. An employer is not obliged to accept a particular accommodation request if it is unreasonable. If an employee refuses reasonable accommodation and is unable to perform the essential duties of his or her job, the employee is no longer a qualified person within the meaning of the ADA.

People with chronic illnesses (diabetes, cancer, coronary heart disease, immune disorders, etc.) may be considered or perceived as disabled, depending on their individual circumstances, and there is no question that with Covid-19 they have a higher risk of complications.  ADA is therefore likely to play an important role for employers during this potential pandemic.

This raises the question: If you know about the chronic health condition of an employee, can you legally inform others about the health of an employee and the possible need for accommodation? Once a person is hired, an employer can inform supervisors and managers of any restrictions or accommodation needs. The law also allows the employer to inform security and first-aid personnel when necessary.  However, the ADA remains silent on allowing the exchange of information with employees.  Therefore, if the employee is looking for accommodation, you can discuss this with the employee and his or her supervisor in order to find accommodation that reduces the risk.

How about taking the initiative, with the best of intentions, to identify people with chronic diseases in advance so that we can help them? While the ADA permits pre-recruitment testing of a candidate's ability to perform job-related duties, it does not allow an employer to require answers to medical questions from current employees unless it is job-related and consistent with the needs of the business. The good news is that the ADA allows for some planning in such situations.  An employer may conduct medical tests on a voluntary basis, subject to confidentiality requirements. In particular, an employer may ask staff for personal information necessary to prepare for a pandemic, but only if the employer asks general questions that are not limited to disability-related requests.

Appendix A is an example of an exemplary ADA-compliant survey that was accepted in 2009. Such an ADA-compliant investigation could be prepared by a company for a potential Covid 19 pandemic.  You may also want to consider whether it would be useful to announce in advance that absences of up to seven days will be excused for all individuals who are revealed in the survey.

Finally, nothing in the ADA prohibits the employer from using non-invasive infection control practices in the workplace, such as : 1) the regular application of labels for hand washing, coughing and sneezing; 2) the application of labels for the use and disposal of tissues; 3) the use of personal protective equipment (i.e. face mask, gloves, gowns), although the employer may need to take precautions and provide modified gowns for wheelchair use due to latex allergies; and 3) encouraging or requiring telework.

Separate workspaces and teleworking can also be considered appropriate arrangements for people who need accommodation during the pandemic. It should also be noted that employers should not discriminate against any protected category by demanding, granting or denying telework opportunities.

Fair Labor Standards Act (FLSA)

The FLSA regulates the working hours and wages of workers engaged in international trade. It sets statutory minimum wages for all hours worked and requires payment for overtime for more than 40 hours in a working week. To employ someone means "suffer or let work", which becomes important in these situations. Workers who perform unsolicited work with the employer's knowledge must be paid, and this includes "duties" performed with the employer's knowledge, unless the work is performed by an employee on leave.

Under the FLSA, it is the employer's duty to prevent an employee from performing work that the employer does not want the employee to perform.  The FLSA also requires that these guidelines be "published" with specific instructions to employees regarding working hours.  The FLSA does not require paid sick leave. As such, according to FLSA, paid absences do not count as working hours.  However, time spent waiting for work counts as working time, and "compensatory time instead of overtime" must be limited to the same pay period, which naturally limits the future use of compensatory time.  All this requires very careful accounting.  Employees are not allowed to waive their right to overtime or minimum wage, even in emergency or crisis situations.  Finally, employees cannot offer their time to an employer.

If an employer has to allow non-exempt workers to work at home, he must give clear written instructions on the number of working hours, including waiting times. For all employees who are paid on an hourly basis because they will be working from home, there must be clear instructions on whether meal times and breaks are paid while the employee is working from home.  Accurate records of working hours should be kept and regularly reviewed.

During this time, overtime records should be kept on return to the office or business for those who have to stay longer due to significant absence of others. Monitor released workers who work longer hours so that they do not fall below the minimum wage.  Remember that tax-exempt employees who perform manual tasks for non-tax-exempt employees may be subject to overtime regulations. (Even if the exempt employee does not complain or request it, a union official or disgruntled employee can report the situation to the USDOL). Finally, the FLSA does not limit the types of work that can be assigned to or required of employees, except for those who are 17 years old or younger.

Employee compensation issues

State workers' compensation laws are designed to provide medical and financial benefits to workers "injured" in the course of their employment.  These include physical injuries resulting from work-related accidents (many states have removed the "accident" requirement) and occupational diseases resulting from causes and conditions characteristic and inherent to a particular occupation.  Benefits have been granted to workers who report having been exposed to communicable diseases at work and whose tests have been positive or negative. The typical worker is usually a health care worker, prison guard or housekeeper in an institution where persons with communicable diseases are housed.

In the event of an accidental injury, an employee must demonstrate when and where transmission occurred (i.e., in the workplace). In the case of an occupational disease, an employee must prove a substantial link between his or her occupation and the transmission of the disease. Employers will need to examine how their state deals with claims for occupational diseases related to HIV/AIDS, tuberculosis and other communicable diseases in order to better understand what can happen to Covid-19.  Because Covid-19 can be widespread, it can be difficult to determine exactly when and where it was infected. Expected claims will be limited to those who have a significant link between their occupation and the transmission of the disease (i.e. health care workers, possibly foreign flight attendants).

National Labour Relations Act (NLRA) and unionized employers
There will be issues specific to unionized employers, ranging from negotiated attendance control policies, outsourcing of collective bargaining unit work, supervisors performing collective bargaining unit work, prohibition of assignments outside of job classifications, contractual restrictions on overtime and restrictions on required flexibility.

If the employer is unable to obtain the union's cooperation at this stage, the employer should consider what emergency provisions are included in its collective agreement and any previous arbitral awards interpreting emergency situations under its previous agreements. Consider negotiating a Memorandum of Understanding with the union to cover a possible need to maintain operations in the event of a pandemic. If this does not work, expect demands for unilateral changes and defence of urgent circumstances.  If urgent circumstances are invoked, the burden of proof is on the employer.

Consider negotiating with the union on this issue:

1. Temporary changes in absence policies and procedures, and
2. Temporary changes to workplace rules and award of contracts to maintain activity in the event of a pandemic

The situation of each employer with its trade union is different; there is no one size fits all. However, it is to be expected that most arbitrators will not uphold dismissals for excessive absenteeism if, despite an employee's history, there is evidence of pandemic illness in a particular workforce or community.

Occupational Safety and Health Act (OSHA)

OSHA requires employers to provide safe and healthy working conditions. With this mandate in mind, OSHA has the authority to create standards for employers to follow and can issue guidance, including standards for Covid-19 in the workplace.

For employers whose workers do not present a high risk of exposure, OSHA has simply referred employers to the CDC guidelines summarized above.  However, other guidance is available for employers who work in companies that are considered high-risk (health care, cadaver care, laboratories, airlines, international travel, border patrol, waste management and sanitation) or who work in a company with someone who has already been diagnosed with Covid-19.  These companies should consult the OSHA hazard identification website for guidance on assessing exposure risk, implementing and ensuring that workers use controls to prevent exposure, and taking various control measures, which may include technical and administrative controls, safe work practices, and the use of personal protective equipment (PPE).

HIPAA Considerations on Employer Privacy during the Covid19 Outbreak
At such times, employers may want to know if an employee who has left work with a fever or cough and does not come to work is ill with a suspicion or diagnosis of Covid-19, and whether they can notify employees who have been in close contact with that employee. To what extent does HIPAA cover this type of information?

HIPAA's Privacy Policy applies to disclosures made by employees, volunteers, and other personnel of an affected company or business partner. Covered entities" are health plans, health care clearinghouses, and health care providers that conduct one or more covered health care transactions electronically, such as submitting health care claims to a health plan. Trading Partners" are generally persons or organizations (other than employees of a Covered Entity) that perform functions or activities on behalf of a Covered Entity or provide certain services to a Covered Entity that involve the creation, receipt, retention or transmission of Proprietary Health Information or "PHI". Employer health plans are covered by HIPAA's Privacy Policy, but employers are generally not otherwise insured (unless their industry qualifies them as either an Covered Entity or a Business Partner).

However, the HIPAA Confidentiality Policy allows covered entities to disclose the required PHI without individual authorization if the disclosure is made to promote the following public health activities :

• Disclosure to a public health authority, such as CDC or a state or local health authority that is legally authorized to collect or obtain such information for the purpose of preventing or controlling disease, injury, or disability ;
• Disclosures made on the direction of a public health authority to a foreign government agency acting in cooperation with the public health authority; and
• Disclosure to inform a person who may have been exposed to a communicable disease or who is at risk of contracting or spreading a disease or condition, where the disclosure is authorized by law or otherwise applying the minimum standard required.

The Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS), the agency responsible for monitoring and enforcing HIPAA's regulations, has issued a bulletin on how facilities may disclose patient information in accordance with HIPAA's Privacy Policy in the event of an infectious disease outbreak or other emergency situation.  

In short, the HIPAA privacy policy will have limited applicability when planning the Covid 19 response from employers, but concerns about employee privacy are always important! The key is to ensure that employers' Covid 19 plans do not include or rely on personal medical information from the employer's health plan. For example, if an employee with Covid-19 submits a request for a leave of absence at the same time as his or her virus test results, the HIPAA privacy policy will NOT come into play. Why is this? Because the information has been voluntarily provided to the employer by the employee for employment purposes unrelated to the activities of the employer's health plan. This information was provided to the employer and not to the health plan.  Once the employer comes into possession of HIPAA, HIPAA's confidentiality policy does not in itself impose any obligation to keep the employee's information confidential.  However, regardless of good intentions, do not consider this an authorization to share this information with other employees. Why not?

Some will say that the ADA is the reason why it should not be disclosed. But the ADA prohibits an employer from sharing medical information about an employee's disability with his or her colleagues. However, it does allow such disclosure to supervisors, managers and emergency personnel on a need-to-know basis. A diagnosis of Covid-19 on its own would not normally be considered a disability under the ADA. This is still not a reason for full disclosure.  Such disclosures would probably still be considered a violation of privacy rights under customary law or could support a libel action, and these elements are recognized in many state jurisdictions. For this reason, it is best to avoid identifying a person to colleagues. Rather, we recommend that the Human Resources Manager train supervisors in maintaining confidentiality and provide guidance on how to answer employees' questions. Consider whether it makes sense for the company to appoint a person responsible for handling all information and inquiries from Covid-19 employees, such as a human resources manager or a security manager. Notify the employee in writing in an appropriate manner if it becomes necessary to disclose information about an employee's Covid-19 status to protect employees who have been in close contact with that employee, especially if the situation requires quarantine or home monitoring of employees. In fact, it may become imperative to inform some employees who have been in close contact (employees who have worked within six feet of each other for long periods of time) that they should be tested for Covid-19). Check if there are any special rules on medical confidentiality in your state and which public health prescriptions have been issued.

Conclusion

When the word "crises" is written in Chinese, it is composed of two characters.  One stands for danger and the other for opportunity.  Because your company is facing the possibility of a threat to its valuable human resources, this is an opportunity for human resources managers to mitigate the potential and actual burden on both your employees and the company.  We hope this article will help you in this effort.

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