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Legal Requirements and Exposure Created by COVID-19

In our previous posts, we’ve discussed some of the broader and insurance-specific concerns relating to the coronavirus pandemic. In this post, we’ll look a bit more closely at the legal implications that the ongoing situation generates for businesses like yours.

As with most legal issues, legal exposure created by COVID-19 is very complicated. However, much more so than in other cases, the constantly changing reality of the pandemic means that the extent of exposure and liability is continuously under reassessment, with obligations sometimes changing rapidly. As such, please use this post as a jumping-off point for research, and engage counsel before making any decisions.

To begin with, it’s worth determining what actions you are legally required to take. While it is highly advisable that you follow the OSHA guidelines that we discussed in our previous post, a disclaimer at the beginning clearly indicates that “This guidance is not a standard or regulation, and it creates no new legal obligations.” In addition, OSHA is exercising “enforcement discretion” with respect to coronavirus for businesses not engaged in healthcare, meaning that there is little chance of an on-site inspection or serious difficulties with the organization.

That being said, businesses are required by the Occupational Safety and Health Act to “furnish… a place of employment… free from recognized hazards that are causing or are likely to cause death or serious physical harm…” Given that this standard is somewhat arbitrary when applied to a pandemic, potential liability can be mitigated by following the guidelines, even if they are not a legal requirement in the strictest sense. Indeed, with OSHA absent, other entities may begin enforcing workplace safety, as has already happened in the case of the Illinois Attorney General. More generally, many questions about legal liability, not only to employees but also to customers, have still not been answered and may not be resolved for some time, so doing everything possible to limit liability now is a good idea.

Unlike the OSHA guidelines, the Families First Coronavirus Response Act (FFCRA) establishes specific legal obligations for covered businesses, which are, with some exceptions and exemptions, private companies with fewer than 500 employees. Generally, these companies must offer two weeks of paid sick leave, in full up to a certain rate, to any employees that are unable to work due to confirmed or suspected illness with COVID-19, or else due to orders related to the pandemic from a competent authority. Additional provisions are in place for employees caring for sick family members or children at home from school.

Of course, the FFCRA provides that these wages can then be counted as tax credits, meaning that the only cost of compliance is that of business disruption due to not having specific employee labor available. If the available credits exceed the total tax burden otherwise, businesses can even request an advance payment of the credits from the IRS.

Aside from legal requirements, there remains the question of how much flexibility employers have within the law. While employers both want to and are obligated to take measures to prevent the spread of disease within their businesses, there are certain restrictions that must be taken into account.

For example, in one of our previous posts, we mentioned the importance of segmenting the office population, particularly with respect to employees at a higher risk of severe illness. However, in order to determine whether employees are higher risk, it might sometimes be necessary for employers to ask their employees questions relating to their health status that are restricted by the Americans with Disabilities Act (ADA). Employers can only inquire with respect to medical conditions if they have “a reasonable belief, based on objective evidence, that: An employee’s ability to perform essential job functions will be impaired by a medical condition; or An employee will pose a direct threat due to a medical condition.” This standard might be met if the pandemic is classified as sufficiently severe by authorities; however, there is still a great deal of subjectivity involved. Employees can voluntarily provide this information; of course, any information obtained must be kept confidential.

The same confidentiality guidelines apply to information obtained from employees relating to body temperature or symptoms of infection; in cases where other employees who were in contact with an infected person must be instructed to stay at home, they must not be told who the infected individual was. All of this information can be collected by the employer, but must be done in a manner that is consistent for all employees.

Some final legal concerns apply to policing employee behavior. First, employees who refuse to come to work may have legal standing for doing so, as the right to do so given safety concerns is protected under the National Labor Relations Act; again, in the case of a pandemic, whether or not employees would be in imminent danger at their workplace is a matter of debate. In such cases, it would be best to work with the employee to resolve any concerns as equitably as possible.

Similar concerns apply to employees who insist on wearing personal protective equipment (PPE); while you could generally refuse to allow employees to wear masks, this is a particularly tricky decision given prevailing CDC guidelines. Likewise, requiring that employees travel for business, especially internationally, is so fraught with issues given government guidelines that it would be hard to get good advice outside of the context of a client-attorney relationship.

On the other hand, employers have slightly more flexibility in dealing with employees who refuse to follow safety protocols. Those who refuse to wear PPE (which must be provided by the employer when it is required by the workplace) or engage in social distancing can be terminated, although if their motivation for refusal is medically or religiously motivated, the employer is obligated to seek reasonable accommodation. The same goes for refusal to leave the workplace if told to do so due to potential or proven infection or exposure, as well as refusal to submit to testing – though note that antibody testing cannot be required by an employer. Of course, terminating employees in such cases is an extreme measure that should be avoided if possible.

The last and most complicated set of situations relates to employees who engage in risky behavior outside of work. For example, how to deal with employees who are known to not practice social distancing when not working will largely be influenced by the state that you are in. The same applies to employees who travel during vacation, especially if that travel is international and to areas with a high risk of infection. You can, however, require that employees stay at home if quarantine is mandated.

An image of the normally bustling main avenue in Tulum, Quintana Roo, Mexico, (near Cancun), taken June 28, 2020. While international tourism has been heavily affected by the COVID-19 pandemic, as shown in the picture, many countries that rely heavily on tourism are pushing hard to encourage international visitors to return. The Mexican state of Quintana Roo in particular is likely to draw many American tourists over the next few months, but the pandemic situation in that state specifically and across Mexico in general is very precarious. As of the date of this article, it seems that Americans may be even more likely to visit Cancun and the surrounding areas over other popular destinations in Europe for two reasons: first, Americans returning from most European countries must undergo a mandated two-week quarantine; and second, European countries will likely prevent entry to travelers from the United States upon reopening their borders.


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