COVID-19: Be Prepared, Don’t Panic

To help you navigate some of the labor and employment issues that might arise in your firm with COVID-19 firmly in place in Arizona, we’ve asked ace labor and employment lawyer, Denise Blommel, of Denise M. Blommel, PLLC, for some guidance. This is general information and not intended to act as legal advice for your specific situation. If you need information on how to deal with your labor/employment issue, contact Denise, http://www.azlaborlaw.com

COVID-19: Be Prepared, Don’t Panic

By Denise M. Blommel

President Trump declared a National Emergency, Governor Ducey declared a State Emergency, Wall Street went into a tailspin, and shoppers have emptied shelves at the local supermarkets.  The COVID-19 crisis is here, hopefully just for a short while until our famous Arizona high temperatures kill the virus.  What should you and your law firm do about your employees?

First, do not panic.  As of this writing only 13 people in Arizona are infected and broader testing capacity is coming.  We cannot put everyone on Valium or single-malt scotch so we have to be calm and reasonable.

Second, immediately send a notice to your employees that you are taking every step to ensure them a safe and healthy workplace.  That is your duty under both Arizona and federal occupational safety and health law (OSHA).  Your notice should specify the following:

  1.  Cancel non-essential travel for 30 days.  If applicable, remind employees which courts have closed and which events have been postponed.
  2.  Employees are to stay home if they are sick.  If they are experiencing the COVID-19 symptoms of coughing, shortness of breath, fatigue, and fever, they cannot return to work until they are symptom-free for at least 24 hours.  Remind them about using sick leave, other paid time off, and any other employee benefit (like Short Term Disability) for pay.
  3. Emphasize how important it is to do what the CDC advises – here’s some language to use:
    1. Cover your cough or sneeze with a tissue, then throw the tissue in the trash.  We are providing tissue and trash cans.  As a last resort, sneeze or cough into your upper sleeve.  Remember to wash your hands after coughing or sneezing.
    1. Wash your hands often with soap and water for at least 20 seconds (you can sing Happy Birthday or show tunes). If soap and water are not available, use an alcohol-based hand sanitizer that contains at least 60% alcohol, which we are providing at all locations.
    1. Avoid touching your eyes, nose, and mouth with unwashed hands.
    1. Avoid close contact with people who are sick.  The new term is “social distancing.”  It is not rude to avoid handshaking.  You can politely bow, smile, and wave – or bump elbows.
    1. Clean and disinfect frequently touched objects and surfaces.  We are providing cleaning wipes to use on doorknobs, keyboards, remote controls, and desks.  Let the areas dry for at least four minutes to “kill all the bugs.”
  4.  How you will deal with clients – by phone, video-conference, or in person.

Third, be mindful of Arizona’s Fair Wages and Healthy Families Act which provides for use of Earned Paid Sick Time (EPST).  If you have 15 or more employees, be mindful of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).  If you have 50 or more employees or work for a public agency, you can use the Family Medical Leave Act (FMLA) to give job-protected leave.

Fourth, get the answers from employment counsel, Human Resources experts, and scientific experts and not the media.  Here are some resources from the federal government:

EEOC: https://www.eeoc.gov/facts/pandemic_flu.html

USDOL: https://www.dol.gov/agencies/whd/flsa/pandemic

CDC (for employers): https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html

CDC (for employees):  www.cdc.gov/COVID19

Fifth, here are some Frequently Asked Questions so you can “issue spot” (remember Law School?):

Q: Can I send employees home if they have COVID-19 symptoms?

A: Yes, if you have less than 15 employees.  Probably if you have 15 or more employees because there is a “direct threat” defense under ADA.  There may be risks so talk to the experts.

Q:  If I send employees home because they have COVID-19 symptoms, how do they get paid?

A:  They can use their EPST.  If ESPT is exhausted, they can use other paid time off.  Some law firms have Short Term Disability and the employee can apply for those benefits.

Q:  Can I send all employees home even if they don’t have symptoms?

A:  Sure, however, those who are exempt under the federal Fair Labor Standards Act (FLSA) must be paid their full salary.  FLSA nonexempt employees lose pay unless they have EPST or other paid time off.  Consider why or whether you want to do this.

Q:  Can I require an employee to have a doctor’s note to go on EPST for COVID-19?

A:  Not until the employee has been out for three consecutive days.  On the other hand, do you really want to bother the overworked healthcare providers with this requirement?

Q:  Can I require an employee to have a doctor’s note to return to work after a COVID-19 episode?

A:  Yes, but, again, do you really want to have the employee undergo that expense and bother the overwhelmed healthcare providers?  The employee can only return to work if s/he is symptom-free for 72 hours.

Q:  Can I inquire about an employee’s family member’s COVID-19 exposure or symptoms?

A:  Not if you have 15 or more employees.  This is forbidden by GINA.

Q:  Can my employees work from home?

A:  Sure.  This is a great ADA accommodation for employees who are immune-compromised and do not want to be with the public because of exposure to COVID-19.  Remember to apply telework consistently and to document that you are doing this due to the National/State emergency.  Are you permitting employees to use their own equipment or yours?  Check your Technology policy, or, if you don’t have one, get one and consult with your expert.  Also, require all work-from-home employees to keep careful track of their time.

Q:  What if my employee just came home from Italy?

A:  S/he needs to be in quarantine for 14 days before returning to work.

Q:  Can I take my employees’ temperature at work?

A:  Help me understand why you want to do this.  Fever is just one symptom of COVID-19.  If you have 15 or more employees, this is a medical exam under the ADA and you, as the employer, must be able to prove business necessity or job-relatedness.  Moreover, you must keep both the exam and results confidential.  In my humble opinion, all this does is add to the panic.

So…

Stay calm, don’t hoard toilet paper, stay away from those who have the COVID-19 symptom complex, wash your hands, read a good book, binge-watch your favorite programs, pray for heat, and bump those elbows.

Thanks, Denise. You can reach Denise through her firm website, http://www.azlaborlaw.com. As always, you can reach your Practice 2.0 practice management advisors at 602-340-7332, and check our resources at http://www.azbar.org/practice20.

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