As member companies continue to try to deal with the ever-changing landscape created by the coronavirus, UCANE will endeavor to provide you with updated information as you prioritize the health and safety of your employees and assess the impact this crisis will have on your business.
Please find attached an employer alert from longtime UCANE member Attorney Richard Wayne of Prince Lobel Tye LLP, that outlines how COVID-19 affects OSHA, state, and federal employment and laws.
We have been informed that the cities of Boston and Cambridge have suspended construction activity. Other feedback from public officials and UCANE contractors is that projects currently underway are proceeding without interruption. However, this is also a very fluid situation and is changing daily. We are in constant contact with state and local officials about how the coronavirus may affect public works projects and utility construction. Upcoming projects may be delayed by cancellation and postponement of pre-construction meetings, issues with permitting and bid processing due to town/city hall closures, and other factors. Please contact the UCANE office if you have encountered any of these issues. While public health is certainly the number one priority, we will continue to work with state and local officials and awarding authorities so that they may share best practices and implement any procedure that may mitigate these potential delays and work stoppages.
A crisis like this reinforces the importance of our water and underground utility infrastructure. With so many residents being asked or required to stay home and the potential of our health care facilities to be overwhelmed, access to clean water, energy, properly working sewer systems, and utilities will be critical to helping us get through this pandemic.
Thank you for the work you do.
Here are links to relevant government agency websites for more information:
- CDC: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public
- CDC: https://www.cdc.gov/nonpharmaceutical-interventions/pdf/gr-pan-flu-work-set.pdf
- CDC: https://www.osha.gov/Publications/OSHA3990.pdf
- NIH: https://www.nih.gov/health-information/coronavirus
- OSHA: https://www.osha.gov/SLTC/healthcarefacilities/infectious_diseases.html
- OSHA: https://www.osha.gov/Publications/influenza_pandemic.html
- U.S. State Dept. https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/china-travel-advisory.html
- WHO: https://www.cdc.gov/coronavirus/COVID-19/index.html
Coronavirus: Employer Alert
By Richard D. Wayne Prince Lobel & Tye firstname.lastname@example.org 617-456-8071 (direct) 617-823-1682 (cell)
This alert was authored on March 16, 2020
The fast spreading 2019 novel coronoavirus (“COVID-19”) is a national and international crisis. First identified in 2019, it is believed to have originated in Wuhan, China. By March 2020, over a hundred thousand persons are confirmed to be infected in scores of countries and there have been thousands of deaths in China and Europe. The infection rate and the death toll are rapidly rising. Infections and deaths are now occurring across the United States from Massachusetts to the state of Washington. On March 11, 2020, the World Health Organization (“WHO”) declared a pandemic. The Commonwealth of Massachusetts declared a public state of emergency. The Massachusetts COVID-19 outbreak originated from a corporate meeting in Cambridge. On March 13, 2020, President Trump declared a National Emergency. On March 14, 2020, the House of Representatives passed H.R. 6201 Families First Coronavirus Response Act. The Bill proposes a limited federal family and medical paid leave and expansion of unemployment compensation. This Bill has yet to be passed by the Senate and signed into law.
Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS) were both coronaviruses. The health and economic damage from these diseases was contained. Today, governments, employers, and citizens are scrambling to effectively respond to COVID-19. Public health and human resources are expected to be strained past their limits. Employers should be sensitive to the numerous health and legal issues that will arise. During this period, employers must be prepared to be flexible. The sooner an employer and its employees and their families recognize and address the hazard, the more likely they are to weather the storm. It is more likely conditions will worsen before they get better.
Similar to SARS and MERS, COVID-19 is a betacoronavirus. Originally, many of the COVID-19 patients had links to a large seafood and live animal market; suggesting animal-to-person spread. Today, our understanding has evolved. It is now accepted that COVID-19 spreads person-to-person through respiratory secretions or droplets, especially from coughing or sneezing by an infected person upon others within 6’. The incubation period after exposure, but before symptoms appear, is 2 to 14 days but the median is five days. Some of the infected have minimal symptoms while others experience fever, cough or shortness of breath. Symptoms often mimic the seasonal flu or less severe respiratory viruses. Asymptomatic persons are believed contagious. The most vulnerable persons are over age 60 and persons who suffer from chronic medical conditions, such as heart disease, diabetes or immuno-compromised. Employers in scheduling or granting time off should take into consideration the risks posed to the vulnerable population.
There is no COVID-19 vaccine to prevent infection. Optimistic estimates of a vaccine approved for the public are 18 months away (Spring 2021). Some persons believe the virus will be greatly reduced by warm weather. Others experts are not so sure. They believe COVID-19 could ease but will reemerge in the Fall and restart the cycle. Early reports estimated the mortality rate at .09% to 2% as compared to seasonal influenza which stands at .01%. On March 3rd, WHO reported the COVID-19 mortality rate at 3.4%. On March 11, 2020, Anthony Fauci Director of the National Institute of Allergy and Infectious Diseases (“NAID”) testified before Congress that COVID-19 “is probably about ten times more lethal than the seasonal flu.” The numbers greatly vary because of the newness of the illness and lack of testing equipment. The Centers for Disease Control and Prevention (“CDC”) fears tens of millions of Americans could become infected.
Precautions and Prevention
To minimize the spread of contagion, employers and employees should exercise common sense in the workplace, at public or social events, and at home. Employers should circulate and post, in conspicuous places, precautions that can be taken to minimize the risk of contracting the virus. Posters are readily available online from the CDC and other health agencies. In addition, employers should advise their employees on practices to minimize, at work and at home, the spread of the virus. Suggested best practices include:
- Educate employees on the signs and symptoms of COVID-19.
- Wash hands frequently with soap and water for 20 seconds. Make hand sanitizer readily available.
- Clean and disinfect frequently touched surfaces. This includes doorknobs, light switches, handles/ knobs, desks, phones, and keyboards. It may be possible for a person to contract COVID-19 by touching a surface or object that has the virus and then touching your face.
- Maintain social distancing, a space of 6’ or greater (the practicable efficacy of this suggestion is questionable).
- Minimize meetings. Telecommuting is a better solution.
- Avoid shaking hands.
- Avoid touching eyes, nose, and mouth.
- Practice respiratory hygiene. Cover your mouth and nose with a tissue or bent elbow when coughing or sneezing. Dispose of tissue immediately. Make tissues readily available.
- Avoid close contact with persons who are ill or have traveled to infected regions.
- Employees should not travel. (In a recent federal Court of Appeals decision involving Ebola, the Court held that an employer could terminate an employee who refuses to cancel personal travel to an area with a high risk of exposure to the deadly disease. Nonetheless, employers should not take adverse action against an employee for violating travel rules without discussing the matter with their legal counsel.)
- Employees should be allowed to work remotely. This issue should be addressed early because of ongoing business, school and daycare closings. To make remote communication efficient, group meetings should have prepared agendas and attendees should be assigned specific tasks. Remote tools include email, IM, Skype, Zoom Conferencing, and telephone conferencing.
- Employees should be told to stay at home if they have a respiratory-like illness, fever over 100.4°F, dry cough, general malaise, or other associated symptoms. Encourage the employee to seek immediate medical attention.
- The CDC guidelines state a person can come out of isolation when s/he is fever free, has no symptoms and has tested negative on at least two consecutive respiratory specimens collected at least 24 hours apart. (Additional issues will arise if testing is unavailable.) Allow the employee to return to work only after a doctor has confirmed, in writing, s/he is not contagious.
Under the Americans and Disability Act (“ADA”), employers are permitted to make medical-related inquiries, or even obtain a medical examination of the employee, where the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot be otherwise eliminated or reduced by reasonable accommodation. A “direct threat” determination must meet a very high standard. The CDC presently states that during the pandemic employers may direct employees to get tested and seek medical attention. Employees may now be tested for free per an agreement with the President and health insurers.
OSHA and Other Safety and Health Regulators
The Occupational Safety and Health Administration (“OSHA”) has no express standard explicitly addressing COVID-19 or like illnesses. OSHA does have standards addressing respiratory use and personal protective equipment. Before respirators can be used in the workplace, the employee will need to be fit tested and receive respirator training. OSHA has published a Guidance on Preparing Workplaces for COVID-19 (“Guidance”) a supplement to its Guidance on Preparing Workplaces for an Influenza Pandemic. The Guidance divides workplaces and work operations in four risk zones according to the likelihood of employees’ exposure. Updates to the Guidance are published on a regular basis.
OSHA’s General Duty Clause does require employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm.” Due to widespread publicity, COVID-19 has arguably become a recognized hazard, placing a duty upon employers to protect employees from contracting or spreading the illness. Employers should familiarize themselves with OSHA, CDC, federal and state health and safety protocols and guidelines. Because of the extraordinary nature of the pandemic, governmental announcements are being issued on a daily and hourly basis.
OSHA has the extraordinary authority to post a workplace as an “imminent danger”. If a workplace is posted as an “imminent danger”, a wise employer will not let its employees be exposed until it abates the hazard. Upon posting, contact your OSHA counsel and open a line of communication with OSHA. After posting, unless the hazard is abated or employers agree not to let employees return to the worksite, OSHA has ten days to have its order confirmed in a United States District Court.
OSHA may deem an infected employee as a reportable “workplace illness.” OSHA reporting requirements for an illness are much less stringent than an injury. You may be required to record and log each illness. Maintain good records. Recordkeeping violations may have significant penalties.
As the situation evolves, it will be imperative for employers to regularly address their employees’ concerns. Employees may report their COVID-19 fears to persons inside and outside their workplace. OSHA Section 11(c) prohibits employers from retaliating against workers for raising concerns about safety and health issues. Disciplining or terminating an employee because of fear of COVID-19 may violate state and federal laws. Employees are entitled to refuse to work if they have a good faith believe they are in “imminent danger” in the workplace. “Imminent danger” under the OSHAct is defined as an immediate threat of death or physical harm that will shorten life or reduce physical or mental efficiency.
If one of your employees is diagnosed with COVID-19, contact state and local health authorities and the CDC (the inter and intra governmental communication appears to be at best irregular). Contact a hazmat company to clean the infected workspace. If a hazmat company is coming into your workplace, their employees should be OSHA trained by their employer. That company should provide you with their employees’ training certifications and a list of the chemicals they are introducing into your workplace. Your employees may need updated supplemental HAZCOM training.
Per the CDC, an employer “should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality [of the infected person]” as presently required by the Family and Medical Leave Act (“FMLA”), Americans with Disability Act, discrimination laws and HIPAA regulations. Likewise, the internal or external report by an employee of their COVID-19 health concerns made on behalf of themselves and others is likely protected activity under the National Labor Relations Act (“NLRB”). Employees acting in concert with one another about a workplace issue are engaged in “protected activity” under Section 7 of the Act. The remedy for retaliation could be reinstatement and backpay.
COVID-19 Will Implicate Numerous State and Federal Employment and Labor Laws
Employers should develop a COVID-19 action plan in consultation with human resources, operations, risk managers, their insurers, healthcare specialists, labor relations specialists, and attorneys. Plans may vary greatly based upon the business of the employer and from department to department. The plan should be regularly reviewed and updated. Employers should consider assigning a COVID-19 coordinator and designate the contact person who will be responsible to answer questions regarding leave and health insurance benefits.
COVID-19 is likely to touch upon numerous state and federal employment laws, such as leave laws, discrimination laws, worker’s compensation, unemployment, and HIPAA. Employers will need to apply their personnel policies and apply state and federal laws in a coordinated and non-discriminatory manner. Responses to many individual employee questions will likely need to be on a case by case basis.
Subject matters and issues may include, but are not limited to:
- Employees will likely have many questions regarding what benefits they are entitled to under the employer handbook, benefit programs, insurances, and state and federal law.
- Wage and hour questions will arise. For example, under the federal Fair Labor Standards Act, if a non-exempt employee is required to stay home, ordinarily the employer would not be required to pay him his lost wages. If the employee is ready, willing and able to go to work, he would be eligible for unemployment. To relieve the hardship on ordinary employees from lost wages the state or federal government may intervene to offer workers some form of relief.
- Regarding salaried exempt employees, the quid pro quo for the promised weekly salary is relief from being required to pay one and one half times the employees regular hourly rate for hours worked in excess of 40 hours in a given workweek to avoid loss of their overtime exemption. Employers must continue the employee’s salary during partial workweeks. If the employee does not have work in a workweek, the employer is not responsible for payment provided the employer gives the employee timely notice.
- Employment contracts may need to be readdressed to take into consideration the impact of COVID-19 especially regarding incentive contracts.
- COVID-19 will trigger short-term (and long-term) disability or wage continuation policies. Answers to questions arising under disability policies will likely need to be resolved with your broker and outside insurance benefits contact persons.
- Most employers with 50 or more employees are required to provide their employees up to 12-weeks of unpaid leave under the Family and Medical Leave Act for their own serious health condition or serious health conditions suffered by their immediate family.
- The Massachusetts Earned Sick Time Law (“MAEST”) entitles a qualified employee working for a covered employer up to 40-hour of paid time per year for the employee’s absence due to their serious health condition or the serious medical condition of an immediate family member. The definition of “immediate family” under the MAEST is not the same as the FMLA. (MA paid sick leave becomes effective January 1, 2021. That effective date may change based upon the severity of the COVID-19)
- An employee who contracts COVID-19 in the workplace may have suffered a compensable worker’s compensation illness. In consultation with your worker’s comp broker and insurer, you should determine whether this absence is a recordable and reportable event and, if so, complete the First Report of Injury or Illness. A First Report of Injury may satisfy the OSHA Form 301 requirement.
- Under unemployment compensation law, an employee, to be entitled to benefits, must demonstrate his loss of employment was due to no fault of his own and he is ready, willing, and able to work . Unavailability due to illness is a disqualifying event. However, if the employer is not allowing him to come to work or because the employer has substantially changed his hours of work, he may be eligible for unemployment benefits. The Department of Employment and Training will decide these issues.
- To limit exposure, employers with collective bargaining agreements (“CBA”) have the duty to bargain with their employee’s labor organization before making changes in terms and conditions of employment. Unilateral changes in a CBA could trigger an unfair labor charge. Before changes are made, it would be best to notify the union and bargain.
COVID-19 is perhaps the most significant labor and employment event over the last 75 years. Employers must be extra vigilant during these trying times to maintain their workforce and their workforce’s morale. COVID-19 may require you to do things that under ordinary circumstances you would never have considered.