webinar coronavirus in the workplace: new challenges ......customer-facing positions, from wearing...

Copyright 2020 – Not to be reproduced without express permission of benefitexpress

Coronavirus in

the Workplace:

New Challenges

for Employers

WEBINAR


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Webinar Presenters

PRESENTER

Lawrence (Larry) Grudzien, JD, LLM is an attorney

practicing exclusively in the field of employee benefits.

MODERATOR

Julia Goebel is Chief Marketing Officer, benefitexpress

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Copyright benefitexpress. All rights reserved – Not to be reproduced without express permission

Pulse Survey


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Pulse Survey

1. How has the Coronavirus (COVID-19) affected standard business operations in your organization?

• Business operations cannot continue

• Business operations are severely restricted

• Business operations continue at a reduced level

• There is little disruption to business operations

• Business operations continue as normal

• Business operations have increased


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Common large employer revisions to employee compensation and benefits policies to help mitigate risks associated with COVID-191

• Offering pay continuation to employees that have been exposed to coronavirus or who are exhibiting cold/flu symptoms and can’t work from home.

• Offering emergency leave/pay continuation to employees with cold or flu-like symptoms (but who have not tested positive for coronavirus) until they are cleared to return to work.

• Supporting employees with pay continuation in certain circumstances, if they are not currently eligible for paid leave benefits.

• Implementing benefits and resources to assist employees with childcare benefits and needed flexibility as a response to school closures due to coronavirus

1Large Employer Response to Coronavirus (COVID-19) Quick Survey Part II, The Business Group On Health

https://ww2.businessgrouphealth.org/acton/attachment/32043/f-06888473-a0f0-43e8-8b80-07c7921d5720/1/-/-/-/-/Coronavirus%20Survey%20Part%20II.pdf


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What is COVID-19, and what isn’t it?

Data as of 3/30/2020 via WHO, CDCVia @siouxsiew @XTOTL via the spinoff.co.nz


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Tips for Benefits Communication in uncertain times

1. Communicate early, communicate often

2. Promote relevant benefits offerings

3. Use content to comfort

4. Make it personal

5. Be consistent

According to a recent report from Gallup, large employers have used these tools most frequently throughout last month:Email, direct mail, text messages, hotlines and internal systems such as intranets and microsites to promote pertinent information

Takeaway: Use the tools at your disposal and meet employees where they are.

https://www.gallup.com/workplace/292334/covid-strategies-policies-world-largest-companies.aspx


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Title goes here

• Understanding the Coronavirus

• Work Rules

• FMLA, Sick Leave and other Leaves of Absences

• HIPAA and Healthcare Issues

• Contract and Agreement Issues

• Other Issues

• Action Plans

• Questions

Agenda

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Understanding Coronavirus


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How can an individual protect themselves?

• Because there is currently no vaccine to prevent infection, the best way to

protect yourself is to avoid being exposed to this virus.

• The CDC recommends the following additional steps:

- Wash your hands often with soap and water for at least 20 seconds.

- Use an alcohol-based hand sanitizer that contains at least

60 percent alcohol if soap and water are not available.

- Avoid touching your eyes, nose and mouth with unwashed hands.

- Avoid close contact with people who are sick.

- Stay home when you are sick.

- Cover your cough or sneeze with a tissue,

then throw the tissue in the trash.

- Clean and disinfect frequently touched objects and surfaces.


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What happens if I suspect I or someone

I know has coronavirus?

• If an individual exhibits symptoms of Coronavirus, he or

she should contact a health care professional ASAP.

• If an individual has had close contact with someone

exhibiting Coronavirus symptoms, he or she should call

ahead to a health care professional and mention his or

her close contact.

• A health care professional will work with a state's public

health department and CDC to determine if he or she

needs to be tested for Coronavirus.


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As of March 30, what is the current state of the virus?

COVID-19: U.S. at a Glance

Total cases: 140,904

Total deaths: 2,405

Jurisdictions reporting cases: 55

(50 states, District of Columbia, Puerto Rico, Guam, Northern Marianas, and US Virgin Islands)

Many states have implemented social distancing or stay-at-home measures; Federal Government extending recommendation through 4/30


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Work Rules


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Work Rules

• Review your human resources policies and

practices to ensure that they are flexible and

comply with applicable laws and public

health recommendations, as well as develop

a communications plan for sharing critical

information with employees.

• In advance of any outbreak, an employer

should remind employees of its sick leave

policies, including their rights under

applicable laws, and share details of your

response plan.

• Review with IT department the need if

employees are working remotely.


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Title goes here

Can an employer ask employees to stay home if it suspects they may have Coronavirus

or have been exposed to Coronavirus?

• Employers are obligated to protect their employees from known hazards, which may

include Coronavirus.

• However, employers should tread very carefully if employees do not voluntarily divulge

that they have the Coronavirus and employers are acting on mere suspicion.

• To contain the spread of Coronavirus, an employer should actively encourage sick

employees to stay home and remind sick employees of any rights that they may have to

paid time off when they are sick or caring for an ill family member.

• If employees have symptoms of an acute respiratory illness (e.g., fever, cough, shortness

of breath), you can ask them not to return to work until they no longer have a fever for at

least 24 hours.

Work Rules


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Work Rules

Do employees need clearance to return to work?

Can an employer request documentation?

• Currently, there is no formal clearance process for employees to return to work

from Coronavirus.

• However, employers may request documentation under certain circumstances.

• For example, under some state and local leave laws, if an employee has been

absent for more than three consecutive workdays, an employer may request a

doctor’s note from a licensed healthcare provider.

• If the employee did not have any fever, cough or shortness of breath during these

14 days, there is no medical reason to exclude that employee from the workplace

and the employer should allow him or her to return to work.

• As a reminder, all medical documentation should be maintained confidentially and

separately from the employee’s personnel file.


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Work Rules

What does an employer do if an employee arrives at work presenting

symptoms of Coronavirus?

• If an employee arrives at work displaying symptoms of respiratory illness, an employer should

immediately separate the employee from the other employees and send him or her home.

• An employer cannot subject the employee at issue to medical examinations to

determine if he or she is sick (taking an employee’s temperature is considered by the

EEOC to be a “medical examination”).

• It can be if doing so must be job-related and consistent with business necessity.

• That evaluation should be made on objective evidence and not simply general news reports,

personal experience, fear or assumptions.

• Even if the employee does not perform any work on the date in question, the employer should

be mindful of any legal requirements to provide the employee sent home with call-in pay.


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Work rules

How can an employer prevent Coronavirus

from spreading to its workplace?

An employer should:

• encourage employees to stay home and seek medical

care when they are sick.

• encourage employees to partake in good hygiene by

washing their hands often with soap and water (for at

least 20 seconds) and covering their mouths and noses

with a tissue (or their sleeve) when coughing or sneezing.

• make alcohol-based hand sanitizer and disposable

cleaning wipes available, provide tissues and no-touch

trashcans and disinfect frequently touched surfaces such

as doorknobs, countertops and workstations.

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Work Rules

Can an employer prohibit employees from wearing medical masks or

respirators?

• Under most circumstances, an employer can prohibit employees, particularly

customer-facing positions, from wearing medical masks or respirators.

• Further, the current consensus is that masks are not necessary to protect the

health of most employees and are needed only if a person is treating someone

infected with the coronavirus.

• Therefore, unless an employee has a disability requiring the use of a mask or

works directly with individuals affected by the coronavirus, an employer likely

can prohibit employees from wearing masks at work.


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Work Rules

Can we impose travel restrictions on our employees?

• Employers may require employees to limit all non-essential business travel to CDC-

designated countries and strongly encourage employees to limit all non-essential

personal travel to CDC-designated countries.

• In constructing such a policy, employers are advised not to impose a ban on all travel or a

ban on travel to only one cohort of the several CDC-designated countries (e.g., banning

travel to Level 4 countries, but not to a specific country

• Additionally, employers should be mindful that certain state and local laws prohibit

discrimination against employees based on their lawful off-duty conduct (including legal

recreational activities), and, if it is lawful to travel to CDC-designated countries, then there

may be legal concerns with prohibiting employees from personal travel to those areas.


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Work Rules

If a vaccine for Coronavirus becomes

available, can an employer

require our employees to get it?

• No, you cannot require employees to

be vaccinated for the coronavirus

if a vaccine becomes available.

• However, if a vaccine becomes

available, you can educate employees

about the vaccine, consider making it

available at no cost to employees, and

consider offering employees leave to

obtain the vaccination.


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Work Rules

• An employer should be very careful in taking any

action, particularly if its beliefs are mere suspicion,

because it is against the law to deny a person entry to

your establishment and refuse service based on a

person’s actual or perceived race, ethnicity, national

origin or disability.

• Thus, an employer cannot treat persons differently if,

for example, they are of a nationality or ethnicity

(Italian, Chinese, Iranian) because those countries have

areas with widespread or sustained community

transmission of Coronavirus.


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Work Rules

What should an employer do if a client or customer makes inquires

about whether any employees have Coronavirus or recently traveled to

a CDC-designated area?

• An employer must maintain the confidentiality of any employee’s

medical information.

• However, in response to a client or customer inquiry, you may choose to inform

that client or customer as to whether any employees recently traveled to a

CDC-designated area and/or have been diagnosed with Coronavirus.

• The employer also may choose to inform the client or customer of the

precautions that you have taken to minimize the risk of transmission to any

person who enters the establishment.


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Work Rules

Must an employer keep paying employees who are not working?

• Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.”

• FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so

employees who are not working are typically not entitled to the wages the FLSA requires.

• One possible difference relates to employees treated as exempt FLSA “white collar”

employees whose exempt status requires that they be paid on a salary basis.

• Generally speaking, if such an employee performs at least some work in the employee's

designated seven-day workweek, the salary basis rules require that they be paid the entire

salary for that particular workweek.

• There can be exceptions, such as might be the case when the employer is open for

business but the employee decides to stay home for the day and performs no work.


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Work Rules

• Also, non-exempt employees paid on a “fluctuating-workweek” basis under the FLSA

normally must be paid their full fluctuating-workweek salaries for every workweek in

which they perform any work.

• There are a few exceptions, but these are even more-limited than the ones for exempt

“salary basis” employees.

• Of course, an employer might have a legal obligation to keep paying employees because

of, for instance, an employment contract, a collective bargaining agreement, or some

policy or practice that is enforceable as a contract or under a state wage law.


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Work Rules

• Finally, caution employers to consider the public relations

aspect of not paying employees who may not be working if

they have contracted or are avoiding the COVID-19

coronavirus.

• Given the publicity surrounding this outbreak, it is possible

that situations involving these kinds of issues could reach

the media and damage your reputation and employee

morale.

• Consider the big picture perspective when making decisions

regarding paying or not paying your employees.


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Work Rules

Can an employer charge time missed to vacation

and leave balances?

• The FLSA generally does not regulate the accumulation and use of

vacation and leave.

• The salary requirements for exempt “white collar” employees can

implicate time-off allotments under various circumstances.

• Again, however, what an employer may, must, or cannot do where

paid leave is concerned might be affected by an employment

contract, a collective bargaining agreement, or some policy or

practice that is enforceable as a contract or under a state wage law.


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Work Rules

Can an employee refuse to come to work because of fear of infection?

• Employees are only entitled to refuse to work if they believe they are in imminent danger.

• Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent

danger” to include “any conditions or practices in any place of employment which are

such that a danger exists which can 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.”

• OSHA discusses imminent danger as where there is “threat of death or serious physical

harm,” or “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.”

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Pulse Survey #2


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Pulse Survey #2

After the COVID-19 disruption subsides, when do you expect standard business operations in your organization to return to "normal"?

• Less than 3 months

• 3-6 months

• 6-12 months

• 12+ months

• Never


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FMLA, Sick Time & Leaves of Absence


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Under what situation will an employer need to provide paid sick leave to its employees?

Employers with fewer than 500 employees and public agencies with at least one employee must provide paid sick leave.

• Full-time employees can be provided with up to 80 hours of paid leave and part-time employees with a number of hours that would equal the hours that such employee works over a 2-week period.

• Employees are allowed to immediately use such leave, regardless of how long they have been employed by the employer.

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What are the qualifying reasons for the leave?

1. The employee is subject to a federal, state, or local quarantine or

isolation order related to Coronavirus

2. The employee has been advised by a health care provider to self-

quarantine due to concerns related to Coronavirus.

3. The employee is experiencing symptoms of coronavirus and seeking a

medical diagnosis.

4. The employee is caring for an individual who is subject to either

number 1 or 2 above.

5. The employee is caring for his or her son or daughter if the school or

place of care of the son or daughter has been closed, or the childcare

provider of such son or daughter is unavailable, due to Coronavirus

precautions.

6. The employee is experiencing any other substantially similar condition

specified by the Secretary of Health and Human Services in

consultation with the Secretary of The Treasury and the Secretary of

Labor.

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What are the pay requirements?

• Paid sick leave must be paid at the employee's regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 1-3.

• An Employee taking leave for reasons 4-6 may be compensated at two-thirds of his or her regular rate of pay, or minimum wage, whichever is greater.

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RECAP - Pay Requirements based on the qualifying reasons for the leave:

1. The employee is subject to a federal, state, or local quarantine or

isolation order related to Coronavirus

2. The employee has been advised by a health care provider to self-

quarantine due to concerns related to Coronavirus.

3. The employee is experiencing symptoms of coronavirus and seeking a

medical diagnosis.

4. The employee is caring for an individual who is subject to either

number 1 or 2 above.

5. The employee is caring for his or her son or daughter if the school or

place of care of the son or daughter has been closed, or the childcare

provider of such son or daughter is unavailable, due to Coronavirus

precautions.

6. The employee is experiencing any other substantially similar condition

specified by the Secretary of Health and Human Services in

consultation with the Secretary of The Treasury and the Secretary of

Labor.

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Reasons 1-3:

Employee's regular

rate of pay, or

minimum wage,

whichever is greater,

for leave taken

Employee taking

leave for reasons 4-6

may be

compensated at

two-thirds of his or

her regular rate of

pay, or minimum

wage, whichever is

greater.


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Are there any limitations on the amount of pay provided?

• For an employee who is unable to work because of Coronavirus quarantine

or self-quarantine or has Coronavirus symptoms and is seeking a medical

diagnosis:

• Eligible employers may receive a refundable sick leave credit for sick

leave at the employee's regular rate of pay, up to $511 per day and

$5,110 in the aggregate, for a total of 10 days.

• For an employee who is caring for someone with Coronavirus, or is caring

for a child because the child's school or child care facility is closed, or the

child care provider is unavailable due to the Coronavirus:

• Eligible employers may claim a credit for two-thirds of the employee's

regular rate of pay, up to $200 per day and $2,000 in the aggregate,

for up to 10 days.

• Eligible employers are entitled to an additional tax credit determined

based on costs to maintain health insurance coverage for the eligible

employee during the leave period.

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What if the employee has other paid leave available from the employer?

• An employer may not require an employee to use other types of paid leave provided by the employer before the employee uses the paid sick time available under this law.

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When does employer have to comply?

• April 1, 2020

• DOL issued a temporary non-enforcement policy that provides a period of time for employers to come into compliance with the Act.

• Under this policy, DOL will not bring an enforcement action against any employer for violations of the Act so long as the employer has acted reasonably and in good faith to comply with the Act.

• DOL will instead focus on compliance assistance during the 30-day period.

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Are there any exceptions to providing paid sick leave?

• DOL will issue rules to exempt small businesses with fewer than 50 employees from the requirements of providing paid leave to care for a child who is out of school (#5 on the above list of permitted purposes) when the imposition of such requirements would jeopardize the viability of the business as a going concern.

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• Does an employer need to pay employees who are being quarantined, self-monitoring at home or are otherwise ill with the coronavirus or caring for a family member with the coronavirus?

• Initially, an employer would be required to pay employees who are absent from work for these reasons if they have accrued paid time off pursuant to any paid safe/sick leave law.

• Additionally, employees may be entitled to paid leave benefits pursuant to state or local leave laws if the employees are caring for a family member with the coronavirus.

• However, after employees exhaust any paid safe/sick leave, the obligation to pay them depends on whether they are classified as exempt or non-exempt employees and whether you are requiring them to be absent from work.

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• Generally, an employer is only required to pay non-

exempt employees for the actual hours that they

work.

• Therefore, legally, an employer do not have to pay

these employees if they are unable to return to

work after they exhaust any applicable paid leave

entitlement.

• However, an employer likely would be required to

grant them an unpaid leave of absence.

• As for exempt employees, an employer is required

to pay them their full weekly salary if they perform

any work during a given week.

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FMLA, Sick Time, & Leaves of Absence

What are an employer obligations for offering an employee

a leave of absence related to Coronavirus?

• If an employee requires time off from work, you should engage in a cooperative dialogue

and interactive process with that employee regarding his or her individual situation and

consider granting that employee an unpaid leave of absence (after exhausting any paid

leave to which the employee may be entitled) until the employee is able to return to work.

• An unpaid leave of absence should be considered regardless of whether the employee is

eligible for leave pursuant to the Family and Medical Leave Act (FMLA).

• Employers that are covered by the FMLA should determine whether employees who are

out of work due to Coronavirus qualify for FMLA leave for their own serious health

condition or the serious health condition of a covered family member.

• The employer also should extend the protections of any state or local leave laws to any

eligible employees suffering from coronavirus or taking leave to care for an infected

family member or other qualifying dependent.


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Can an employee stay home under FMLA leave to avoid getting pandemic influenza?

• The FMLA protects eligible employees who are incapacitated by a serious health

condition, as may be the case with the flu where complications arise, or who are needed

to care for covered family members who are incapacitated by a serious health condition.

• Leave taken by an employee for the purpose of avoiding exposure to the flu would not be

protected under the FMLA.

• Employers should encourage employees who are ill with pandemic influenza or are

exposed to ill family members to stay home and should consider flexible leave policies for

their employees in these circumstances.


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What legal responsibility do employers have to allow parents or care givers time off

from work to care for the sick or children who have been dismissed from school?

• Covered employers must abide by the FMLA

as well as any applicable state FMLA laws.

• An employee who is sick, or whose family members

are sick, may be entitled to leave under the FMLA.

• The FMLA entitles eligible employees of covered

employers to take up to 12 weeks of unpaid,

job-protected leave in a designated 12-month leave

year for specified family and medical reasons which

may include the flu where complications arise that

create a “serious health condition” as

defined by the FMLA.


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• There is currently no federal law covering non-government employees who take off from

work to care for healthy children, and employers are not required by federal law to

provide leave to employees caring for dependents who have been dismissed from school

or child care.

• However, given the potential for significant illness under some pandemic influenza

scenarios, employers should review their leave policies to consider providing increased

flexibility to their employees and their families.

• Remember that federal law mandates that any flexible leave policies must be

administered in a manner that does not discriminate against employees because of race,

color, sex, national origin, religion, age (40 and over), disability, or veteran status.



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• Moreover, if an employer is requiring them to be absent from work—such as to self-

monitor for the coronavirus at home—the employer must pay them their full weekly salary.

• On the other hand, if they are diagnosed with the coronavirus and unable to work due to

their medical condition, then you likely would not have to compensate them after they

exhaust any applicable paid leave entitlement.

• However, granting such employees an unpaid leave of absence is advisable.

• An employer also should extend any state-provided, or employer-provided, disability

benefits to eligible employees who are absent from work due to coronavirus.


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Is an employer required by law to provide paid sick leave to employees who are out of

work because they have pandemic influenza, have been exposed to a family member

with influenza, or are caring for a family member with influenza?

• Federal law generally does not require employers to provide paid leave to employees who are absent

from work because they are sick with pandemic flu, have been exposed to someone with the flu or are

caring for someone with the flu.

• Pursuant to Executive Order 13706, some federal contractors may be required to provide such leave to

employees under certain circumstances, such as if the employee or a family member is sick with the flu

or seeking care related to the flu.

• Certain state or local laws may have different requirements, which should be independently considered

by employers when determining their obligation to provide paid sick leave.

• If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect

or the employer to require the substitution of paid sick and paid vacation/personal leave

in some circumstances.

• Employers should encourage employees that are ill with pandemic influenza to stay home and should

consider flexible leave policies for their employees.


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May employers change their paid sick leave policy if several employees are out

and they cannot afford to pay them all?

• Federal equal employment opportunity laws do not prohibit employers from changing their paid sick leave

policy if it is done in a manner that does not discriminate between employees because of race, sex, age (40

and over), color, religion, national origin, disability, or veteran status.

• Be sure also to consult state and local laws.

• In addition, an employer should consider that if its workforce is represented by a labor union and the

collective bargaining agreement covers sick leave policies, an employer may be limited in either the manner

in which its change the policy or the manner of the changes themselves because the collective bargaining

agreement would be controlling. In a workplace without a collective bargaining agreement, employees may

have a contractual right to any accrued sick leave, but not future leave.

• An employer’s sick leave policy also must follow the requirements of the FMLA (if your employees are

covered by the Act), and it needs to be consistent with federal workplace anti-discrimination laws, such as

the Americans with Disabilities Act (ADA). (See the U.S. Department of Labor, Wage and Hour Division or call

1-866-487-9243 for additional information on FMLA. See the U.S. Equal Employment Opportunity

Commission or call 1-800-669-4000 if you have questions on ADA.)


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Some employees may not be able to come to work because they must take care of sick

family members. May an employer lay them off?

• It depends. If an employee is covered and eligible under the FMLA and is needed to care for

a spouse, child or parent who has a serious health condition, then the employee is entitled

to up to 12 weeks of job-protected, unpaid leave during any 12-month period.

• Some states may have similar family leave laws.

• In those situations, covered employers must comply with the federal or state provision that

provides the greater benefit to their employees. (See the U.S. Department of Labor, Wage

and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

• In lieu of laying off employees in this situation, we would encourage you to consider other

options such as telecommuting and to prepare a plan of action specific to your workplace.



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What types of policy options do employers have for preventing abuse of leave?

• Both the FMLA and the Americans with Disabilities Act affect the provision of leave.

• Under the FMLA, employees seeking to use FMLA leave are required to provide 30-day

advance notice of the need to take FMLA leave when the need is foreseeable and such

notice is practicable. In addition, employers may require employees to provide:

- medical certification supporting the need for leave due to a serious health

condition affecting the employee or a spouse, son, daughter or parent, including

periodic re-certification;

- second or third medical opinions (at the employer's expense);

- periodic reports during FMLA leave regarding the employee's status and intent

to return to work; and

- consistent with a uniformly-applied policy or practice for similarly-situated

employees, a fitness for duty certification.



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• The FMLA also allows the employee to elect or the

employer to require the substitution of paid sick and paid

vacation/personal leave in some circumstances.

• Under the Americans with Disabilities Act, qualified

individuals with disabilities may be entitled to unscheduled

leave, unpaid leave, or modifications to the employer sick

leave policies as “reasonable accommodations.”

• These are modifications or adjustments to jobs, work

environments, or workplace polices that enable qualified

employees with disabilities to perform the essential

functions (i.e., fundamental duties) of their jobs and have

equal opportunities to receive the benefits available to

employees without disabilities.

ADA



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• The FMLA also allows the employee to elect or the employer to require the substitution

of paid sick and paid vacation/personal leave in some circumstances. (See the U.S.

Department of Labor Wage and Hour Division for additional information on the FMLA

or call 1-866-487-9243 if you have questions.)

• Under the Americans with Disabilities Act, qualified individuals with disabilities may be

entitled to unscheduled leave, unpaid leave, or modifications to the employer sick leave

policies as “reasonable accommodations.”

• These are modifications or adjustments to jobs, work environments, or workplace polices

that enable qualified employees with disabilities to perform the essential functions (i.e.,

fundamental duties) of their jobs and have equal opportunities to receive the benefits

available to employees without disabilities. (See the U.S. Equal Employment Opportunity

Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship

under the Americans with Disabilities Act for additional information.)



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Do employer-instituted quarantines or temporary shutdowns or

mass layoffs entitle workers to unemployment benefits?

• Yes, workers are generally entitled to unemployment insurance if they are

furloughed when a business temporarily shuts down and all other

unemployment requirements are met.

• Depending on the size and length of the temporary shutdown, the

jurisdiction may require notification to the applicable unemployment

department as a mass separation.


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Pulse Survey #3


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Pulse Survey #3

What degree of impact do you expect COVID-19 will have on your organization’s 2020 revenue?

• Extremely High

• High

• Medium

• Low

• No Impact


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HIPAA and Healthcare Issues


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Does the COVID-19 Coronavirus emergency override HIPAA privacy rules?

• No, the government recently sent a stern reminder to all employers, especially those

involved in providing healthcare, that they must still comply with the protections

contained in the Health Insurance Portability and Accountability Act (HIPAA) Privacy

Rule during the COVID-19 coronavirus outbreak.

• The Office for Civil Rights of the U.S. Department of Health and Human Services

(HHS) issued a reminder after the WHO declared a global health emergency.

• In fact, the Rule includes provisions that are directly applicable to

the current circumstances.


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What are our obligations under the HIPAA privacy rules if we are contacted by officials

asking for emergency personal health information about one of our employees?

• The privacy restrictions mandated by HIPAA only apply to “covered entities” such as medical

providers or employer-sponsored group health plans, and then only in connection with

individually identifiable health information.

• Employers are not covered entities, so if you have medical information in your employment

records, it is not subject to HIPAA restrictions.

• Nevertheless, disclosures should be made only to authorized personnel, and care should be

taken even in disclosures to government personnel or other groups such as the Red Cross.

• Further, an employer should be careful not to release information to someone until you

have properly identified them.


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How should an employer treat medical information?

• It is recommended that employers treat all medical information as confidential and afford it

the same protections as those granted by HIPAA in connection with your group health plan.

• In certain circumstances, if an employer has health plan information, it can share it with

government officials acting in their official capacity, and with health care providers or

officially chartered organizations such as the Red Cross.

• For example, an employer can share protected health information with providers to help in

treatment, or with emergency relief workers to help coordinate services.

• In addition, an employer can share the information with providers or government officials as

necessary to locate, identify, or notify family members, guardians, or anyone else

responsible for an individual’s care, of the individual’s location, general condition, or death.

• In such case, if possible, an employer should obtain the individual’s written or verbal

permission to disclose.


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• However, if the person is unconscious or incapacitated, or

cannot be located, information can be shared if doing so

would be in the person’s best interests.

• In addition, information can be shared with

organizations like the Red Cross,

which is authorized by law to assist in disaster relief efforts,

even without a person’s permission, if providing the

information is necessary for the relief organization to

respond to an emergency.

• Finally, information can be disclosed to authorized personnel

without permission of the person whose records are being

disclosed if disclosure is necessary to prevent or lessen a

serious and imminent threat to the health and safety of a

person or the public.


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May covered entities share protected health information with public health authorities?

• When there is a legitimate need to share information with public health authorities and

others responsible for ensuring public health and safety, covered entities may share PHI to

enable them to carry out their public health responsibilities.

• This may arise with the current outbreak of COVID-19.

• The key, as always, is to limit disclosures to the minimum necessary to the purpose, strictly

in accordance with these parameters.

• For example, covered entities may share information as necessary with the Centers for CDC,

as well as health departments authorized by law to receive such information, to prevent or

control disease or injury.

• An employer may even disclose PHI to foreign government agencies that are working with

authorized public health authorities.


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If employees are no longer working, are they still entitled to

group health plan coverage?

• Not necessarily. An employer will need to check your group health plan document

(or certificate of coverage if your plan is fully insured) to determine how long employees

who are not actively working may remain covered by your group health plan.

• Once this period expires, active employee coverage must be terminated (unless the

insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive

applicable eligibility provisions), and a COBRA notice must be sent.

• If the health plan is self-funded and you would like to waive applicable

plan eligibility provisions, you should first make sure that any stop-loss coverage

insurance carriers agree to cover claims relating to participants who would

otherwise be ineligible for coverage.


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What happens to group health plan coverage if employees are not working and

unable to pay their share of premiums?

• In the normal course of events, group health plan coverage will cease when an employee’s

share of premiums is not timely paid.

• However, several actions might be taken that could allow coverage to continue.

• First, the insurance carrier providing the health coverage may voluntarily continue the

coverage while the disaster is sorted out and until an employer reopens its doors.

• More likely, the employer may arrange with the insurance carrier providing health

coverage to pay the employees’ share of premiums to keep coverage in place (at least

temporarily) and possibly until the employer can reopen its doors.

• Each situation will be different, depending upon the insurance carrier and the relationship

between the employer and the insurance carrier.

• Therefore, each factual situation will need to be individually assessed.


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Contract & Agreement Issues


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If an employer’s workforce is unionized, can it make changes to unionized employees

work schedules or duties in response to Coronavirus?

• The NLRA imposes on employers the duty to bargain in good faith over mandatory

subjects of bargaining such as wages, hours, and terms and conditions of employment.

• Employers who make unilateral changes to these facets of employment may be subject to

unfair labor practice charges that would apply even in emergency situations such as this

one, unless your collective bargaining agreement provides otherwise.

• Many collective bargaining agreements contain provisions that allow for employer

flexibility in determining work assignments, scheduling, and layoffs.

• The first authority for determining your rights and obligations is your own collective

bargaining agreement.


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An Employer has a “force majeure” clause in my contract.

Does it cover an outbreak such as Coronavirus?

• Possibly.

• A “force majeure” clause is a contract provision that relieves the parties from performing

their contractual obligations when certain circumstances beyond their control arise,

making performance inadvisable, commercially impracticable, illegal, or impossible.

• Whether an outbreak like Coronavirus triggers the force majeure clause in a contract,

and the effect of that clause on the provisions of the contract, will vary significantly

with each employer.


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There is no force majeure clause in a contract. Does that mean an employer still has to

abide by all the contract provisions during the outbreak?

• The general duty to bargain over changes in contractual terms may be suspended where compelling

economic exigencies compel prompt action.

• The law views “compelling economic exigencies” as extraordinary, unforeseen events having a major

economic effect that requires the employer to take immediate action and make a unilateral change.

• Although an outbreak like the Coronavirus would seem to fit the description of a “compelling

economic exigency,” realize that its effect will be different for every employer.

• That is, while it may suspend the duty to bargain for one employer whose only facility was infected, it

will likely not suspend the duty for an employer that has lost significant accounts or contracts as a

result of the outbreak.

• In practice, the safest course of action (and the one most likely to avoid future litigation) is to notify

the union in all cases, even if you believe that your situation fits into the “compelling economic

exigency” category.


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Other Issues


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Other Issues

If an employee alleges that they contracted Coronavirus while at work,

will this result in a compensable workers’ compensation claim?

• It depends.

• If the employee is a health care worker or first responder, the answer is likely yes

(subject to variations in state law).

• For other categories of employees, a compensable workers’ compensation claim is

possible, but the analysis would be very fact-specific.

• It is important to note that the workers’ compensation system is a no-fault system,

meaning that an employee claiming a work-related injury does not need to prove

negligence on the part of the employer.

• Instead, the employee need only prove that the injury occurred at work and was

proximately caused by their employment.


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Other Issues

If an employee alleges that they contracted Coronavirus while at work,

will this result in a compensable workers’ compensation claim?

• Additionally, the virus is not an “injury” but is instead analyzed under state law to

determine if it is an “occupational disease.”

• To be an occupational disease (again subject to state law variations), an employee must

generally show two things:

- the illness or disease must be “occupational,” meaning that it arose out of and

was in the course of employment; and

- the illness or disease must arise out of or be caused by conditions peculiar to the

work and creates a risk of contracting the disease in a greater degree and in a

different manner than in the public generally.

• The general test in determining whether an injury “arises out of and in the course of

employment” is whether the employee was involved in some activity where they were

benefiting the employer and was exposed to the virus.


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Other Issues

Do employers have any EEO concerns related to Coronavirus?

• Employers cannot select employees for disparate treatment based on national origin. The CDC

recently warned: “Do not show prejudice to people of Asian descent, because of fear of this new

virus. Do not assume that someone of Asian descent is more likely to have COVID-19.”

• Employers will need to closely monitor any concerns that employees of Asian descent are being

subjected to disparate treatment or harassed in the workplace because of national origin.

• This may include employees avoiding other employees because of their national origin.

• An employer may not base a decision to bar an employee from the workplace on the

employee’s national origin.

• However, if an employee, regardless of their race or national origin, was recently in China and

has symptoms of the COVID-19 coronavirus, you may have a legitimate reason to bar that

employee from the workplace.


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Other Issues

Do employers have an obligation to provide notice under the WARN Act if it is forced

to suspend operations on account of the coronavirus and its aftermath?

• Yes, if the employer is covered by the

Worker Adjustment and Retraining

Notification (WARN) Act.

• The federal WARN Act imposes a notice

obligation on covered employers (those with

100 or more full-time employees) who

implement a “plant closing” or “mass layoff”

in certain situations, even when they are

forced to do so for economic reasons.

• It is important to keep in mind that these quoted terms are

defined extensively under WARN's regulations, and that they are

not intended to cover every single layoff or plant closing.


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Action Plans


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Recommended Actions

• Start planning now for a possible partial or full shutdown

• Actively encourage sick employees to stay home

• Separate sick employees

• Emphasize staying home when sick, respiratory etiquette and

hand hygiene by all employees

• Perform routine environmental cleaning

• Advise employees before traveling to take certain steps

• Additional measures in response to currently occurring sporadic importations

of the Coronavirus


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Recommended Actions

• Educate employees on the Coronavirus

• Review sick leave and leave of absence policies

• Restrict travel plans for the next 3 months

• Limit attendance at any large meetings

• Require employees to report contact with sick family members or friends

• Speak to insurance broker or TPAs regard to changes that can be made to coverages

• Review all service agreements


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Questions?


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Contact Information

Larry Grudzien, Attorney at Law

• Phone: 708-717-9638

• Email: [email protected]

• Website: www.larrygrudzien.com

• Address: 708 South Kenilworth Ave,

Oak Park, IL 60304

Howard Lapin, Attorney at Law

• Phone: 224-402-0932

• Email: [email protected]

• Address: 521 Harris Ct,

Buffalo Grove IL 60089

http://www.larrygrudzien.com/

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