Memorandum
From: Phil Zipin
To: Zipin, Amster & Greenberg Corporate Clients
Re: Coronavirus / Covid-19
Date: March 13, 2020

We have received inquiries from a number of concerned clients regarding what actions they can and should take in light of the unprecedented disruption and potential threat posed by the Coronavirus.  Here is our guidance.

The international Coronavirus/COVID-19 pandemic presents substantial obstacles for employers in our area.  The purpose of this short memo is to provide a general overview of best practices you can take to reduce the risk of an outbreak in your workplace and avoid potential discontent and legal ramifications among your workforce.

For those of you with employees in Montgomery County, Maryland: you should be aware of the Montgomery County Sick Safe Leave Act.  This law requires employers to allow employees to earn paid sick leave of up to 40 hours per year.  More importantly, this law requires employers to allow employees to take their earned paid sick leave if the public schools close and the employee has a school-aged child at home.  Maryland has closed all public schools statewide from March 16, 2020, through March 27, 2020.  Accordingly, if one of your employees works in Montgomery County, has a school-aged child, and asks to use earned paid sick leave to care for that child, you must allow the employee to do so (Maryland has a state-wide Sick Safe Leave Act, but it does not include the school closure provision included in the Montgomery County law).  For more information, please click here.

To reduce the risk of an outbreak at your workplace, consider the following simple risk-prevention steps.  First, if you identify someone who appears to be sick, encourage that person to seek immediate medical attention.  Make sure your employees have an avenue to report when they are feeling ill or experiencing symptoms of COVID-19.  This reporting mechanism should aim to keep the employee as comfortable and reassured as possible.  Do not imply or suggest that your employee may be punished or terminated for disclosure.  Any punitive measures taken against an employee who discloses COVID-19 symptoms may comprise unlawful disability discrimination in violation of federal, state, and local laws.  Your goal is to encourage employees to disclose symptoms; not to hide them for fear of retaliation, and therefore increase the risk of an outbreak.

In an employee shows symptoms of influenza-like illness at work, you may direct the employee to leave the workplace to preserve the health of your workforce and ultimately your company’s productivity.  Instructing a worker to go home under these circumstances would be permitted under the Americans with Disabilities Act (“ADA”) if the illness, like Coronavirus, is serious enough to pose a direct threat (which, at this point, seems indisputable).

Along these lines, we recommend putting up a simple notice in a conspicuous place that says: “We care about everyone’s health.  Please report any symptoms of coronavirus to your supervisor or any other member of management so that you and we may take appropriate steps to deal with this situation.”

Next (to the best extent reasonably possible), promote workplace flexibility by allowing individuals to work remotely.  Avoid scheduling large gatherings (e.g., “all hands on deck” meetings and conferences).  Consider alternatives to holding meetings in person: videoconferencing or simple telephone conference calls.  Additionally, many administrative or clerical duties can be performed remotely from home — this should be encouraged as much as possible.  You do not want to risk an outbreak at the nerve center of your operation.  There are secure and inexpensive remote access solutions available.

Sick leave should be granted liberally and, to the extent feasible, should be paid leave.

What steps should I take right now to prepare my workplace?

The first thing you should do is have a plan in case there is an outbreak in your workforce.  There is no perfect plan that can be applied uniformly to all employers.  However, any plan is better than no plan at all.  We recommend that your plan include:

• An individual in charge of administering the plan that the entire workforce is aware of;
• Identification of essential personnel who must be able to access work resources at all times;
• A review of all leave policies, with an emphasis on relaxing them as circumstances require;
• Securing all documents, files, computer systems, etc. in case the workspace is quarantined, locked down, or otherwise inaccessible;
• Development of remote work procedures;
• Regular communication with employees about best practices to prevent the spread of COVID-19.

Do I risk violating anti-disability discrimination laws if I ask employees whether they are sick, or order them to go home to protect the workforce?

No.  The ADA allows employers to ask about flu-like symptoms generally, and to ask about any illnesses that are based on a reasonable belief that the illness poses a direct threat to the workplace.  The ADA also allows employers to require employees who might pose a direct threat to the workplace to stay home.  The Coronavirus/COVID-19 outbreak satisfies all these requirements.

Can I have volunteers fill in if I have a work shortage?

Not likely.  The Fair Labor Standards Act, which covers the vast majority of employers, generally requires that anyone who provides labor for a for-profit employer must be paid at least the minimum wage and cannot volunteer their services for free.  In short, you must pay someone if they do work for you.

Who are the trusted authorities for information on COVID-19?

Centers for Disease Control and Prevention: https://www.cdc.gov/coronavirus/2019-ncov/index.html

World Health Organization: https://www.who.int/news-room/q-a-detail/q-a-coronaviruses

What are other simple, cost-effective ways to prevent an outbreak at work?

By now, you know this drill.  The CDC recommends that individuals avoid any contact with people who are sick; wash hands regularly with soap for at least 20 seconds after using the restroom, before eating, and after blowing your nose, coughing, or sneezing; avoid touching your eyes, nose, and mouth; stay home if you feel flu-like symptoms, even if mild; and frequently disinfect surfaces.  Note: the CDC does not recommend the use of a facemask unless you yourself feel the symptoms of COVID-19.

What are the symptoms of COVID-19?

The CDC lists the symptoms as mild to severe respiratory illness with fever, cough, and difficulty breathing.

Do I have to pay employees who stay home because they are sick?

In Maryland, generally yes (to an extent).  Employers in Maryland must abide by the Maryland Sick Safe Leave Act, which mandates that hourly employees must earn paid sick leave, and be able to use that leave when necessary.  Furthermore, any contractual obligations to pay employees are still in effect.  Salaried employees are generally not covered.

Can I test my employees’ body temperatures as a precaution?

Yes, if the CDC determines that the COVID-19 pandemic has become widespread in the community.  Refer to the CDC website for the latest updates.

Can I require my employees to maintain good hygiene?

Yes.  You can require your employees to abide by the CDC hygienic recommendations, listed above.

Can I require my employees to wear personal protective equipment (masks, gloves, gowns, etc.)?

Yes, and if your employees work directly with food products, they should already be doing so.  Be mindful of employees who are allergic to latex—that is a disability recognized by the ADA, and you cannot force employees that are allergic to use it.  Consider the plentiful latex-free alternatives.

Are there other laws besides the ADA that can potentially be implicated by the COVID-19 outbreak?

Yes.  The Occupational Safety and Health Act (“OSHA”) requires all employers nationwide to protect their employees from recognized health and safety hazards that may cause death or serious injury.  The Family and Medical Leave Act (“FMLA”) generally applies to employers who have 50 or more employees, and requires those employers to allow employees to take up to 12 weeks of unpaid leave to care for their own serious medical condition, or that of an immediate family member.  The National Labor Relations Act (“NLRA”) is unaffected by the outbreak—do not interfere with union activity. These are all federal laws that generally apply to most employers.  Additionally, there are myriad state and local laws that may apply.

Can I consider the leave an employee takes due to COVID-19 during a performance evaluation?

Possibly, but doing so is asking for trouble.  If you have reason to give an employee a negative performance review, focus on measurable deficiencies unrelated to this outbreak.

Does insurance cover my losses due to the COVID-19 outbreak?

Maybe.  Check to see if you have “business interruption insurance”, which may apply in this instance.  You should also confirm whether your Employment Practice Liability Insurance (“EPLI”) extends to claims that originate from this outbreak.

What steps can I take to reduce any legal exposure I may have in this outbreak?

1. Review your leave policies to ensure they comply with all applicable federal, state, and local laws;
2. Consider temporarily relaxing your leave policies in light of this outbreak—you cannot violate the law if your policy is more generous than what the law requires;
3. Create and promote remote-work policies;
4. Ensure confidentiality relating to all employee health matters;
5. Regularly communicate with your employees regarding the steps you are taking to deal with COVID-19;
6. Carefully review requests for leave and accommodations, with a presumption in favor of granting the leave;
7. Encourage employees who are not feeling well to stay home.

The preceding advice is a good start towards minimizing the risks you may face as a result of this outbreak.  As always, the best policy is to exercise common sense and act reasonably.  Do not hesitate to contact us with any specific questions or concerns you may have.