Coronavirus Testing—Issues for Employers Reaching for Thermometer

By Jonathan Segal

Employers need to apply a measured approach to the new coronavirus. Some employers are considering measuring the temperatures of their employees before they report to work, since a fever may be a symptom of the coronavirus.

The Centers for Disease Control and Prevention defines a fever as 100.4°F/38°C or higher.

The following is a checklist of some of the more salient issues employers need to consider in determining whether to temperature test their employees. Continue reading “Coronavirus Testing—Issues for Employers Reaching for Thermometer”

Coronavirus (COVID-19) Considerations for Employers with Employees in Specific Employment-Authorized Nonimmigrant Visa Status

Travel and quarantine restrictions are being implemented swiftly and without warning around the world. To date, the U.S. government has banned the entry of foreign nationals who have visited China or Iran, but this list could grow. Similarly, thousands in China, Italy and the United States are under mandatory quarantine. As employers implement work from home and travel policies, it is important to consider the impact on foreign nationals with employer-sponsored work status, including those workers on E-3, H-1B, L-1, O-1 and TN visas. In general, polices on remote work, travel, vacation and sick time should be applied equally to all employees regardless of immigration status.

To read the full text of this Duane Morris Alert, please visit the firm website.

COVID-19: Dealing with Potential Symptoms

More and more employers are encouraging employees to stay at home if they are sick or if they have symptoms that may correspond with an acute respiratory illness. In the interest of efficiency, some employers are simply circulating (or cutting and pasting from) the recommendations as set forth in this: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html 

While employers need to move quickly, that is not mutually exclusive from thinking through with celerity legal and practical, such as:

  1. The CDC guidance does not specifically list in one place the symptoms that may indicate acute respiratory illness. Employers may wish to spell them out.  Ideally, an employer should check with a medical professional before doing so. Without my providing medical advice, it is my understanding that the following are three (3) of the more common symptoms of an acute respiratory condition.
    1. (100.4° F [37.8° C] or greater)
    2. Coughing
    3. Shortness of breath
  2. The CDC language speaks to “employees who have symptoms of acute respiratory illness.” […]
  3. Some of the symptoms, such as coughing or shortness of breath, may be consistent with conditions that are not contagious, such as asthma. […]
  4. An employer may wish to send an employee home who is experiencing symptoms that may be consistent with an acute respiratory condition. […]
  5. If an employer has a policy or practice relative to requiring employees to stay at home and/or sending them home if they have certain symptoms, employers need to consider whether to impose the same requirements on independent contractors and visitors as well as on employees employed by a temporary agency or contractor. […]

These are but some of the issues that an employer may wish to consider when dealing with an employee who has “only” possible symptoms of COVID-19 or another respiratory illness.

Now, wash your hands with soap and water for at least 20 seconds. Think of someone you love and the time will go quickly!

To read the full blog post by Duane Morris partner Jonathan Segal, visit the SHRM website.

Duane Morris Institute Webinar on Coronavirus (COVID-19): What Employers Should Do Now!

Duane Morris Institute will hold a two-part webinar on employment law aspects of the COVID-19 outbreak. The first webinar will be held on Wednesday, March 11, from 11:00 a.m. to 12:00 p.m. Eastern time.

About the Program

The World Health Organization has declared the Coronavirus a public health emergency. The Centers for Disease Control and Prevention has indicated that the spread of the Coronavirus is an emerging and rapidly evolving situation.

In the midst of this ever-changing public health emergency, employers must be careful not to under-react or over-react, while being sensitive to employee anxiety surrounding it. Employers should implement plans now, but the plans must be sufficiently agile to change with the trajectory of this public health emergency that has not only human but also business continuity consequences.

For more information or to register for this webinar, please visit the Duane Morris Institute website.

The Workplace In The Time Of Coronavirus (Part I): Legal Guidelines For Navigating The Upheaval

In the middle of last week, Twitter asked its 5000 employees to work remotely, and soon thereafter LinkedIn, Square and Lyft did the same. Microsoft, SAP, JPMorgan Chase and hundreds of other major employers have imposed sharp restrictions on travel, domestic as well as international. Facebook, Stanford University, and Google have canceled long-planned business conferences and events.

Workplace practices are shifting on a daily basis. So too are employment patterns: Doordash, Instacart, Amazon Prime and other delivery services report increases in demand for workers, while restaurants and entertainment venues are reducing hours and laying off workers. As this is written, United Airlines announces significant reductions to routes, and unpaid leaves of absence and/or reduced schedules for employees.

The other public health emergencies of the recent past—SARS in 2005, The H1N1 flu virus in 2009, and Ebola in 2014—brought only temporary workforce shifts. It’s too soon to say if the coronavirus will bring longer term workforce impacts, and how employers might respond. Employers though now are faced with responding to immediate workforce challenges.

To address these immediate challenges we can bring in Ms. Eve Klein, the head of the 75 attorney Employment Labor Benefits and Immigration (ELBI) Practice Group at Duane Morris LLP. There aren’t many labor and employment issues that Klein hasn’t addressed in the more than 30 years she’s been in practice. She has counseled employers through the previous public health emergencies, as well as other economic disruptions.

Over the past week she and other attorneys in the ELBI Group have received hundreds of inquiries from companies asking about their options and responsibilities in light of the numerous labor and employment laws on the local, state and federal levels (laws governing worker safety, worker privacy, wage and hour requirements, and protections for workers with disabilities to name a few). Coronavirus workplace management today, as might be expected, is the overwhelming employment concern of companies, large and small.

Klein and other ELBI attorneys have drafted a lengthy memo (updated regularly) summarizing the wide range of inquiries, and setting out very general guidelines. Here are five of the topic areas and guideline summaries—indicating the current main concerns, as well as the complexities in balancing business continuity with worker safety and preferences, and the legal edifice.

To read the full text of this article by Duane Morris attorney Michael Bernick, please visit the Forbes website.

Legal Implications for Cancelling Conferences and Events Due to COVID-19

By Dominica C. Anderson

Based on growing concerns over the spread of COVID-19, large public gatherings, such as conferences and other events, are being cancelled at an increasing rate throughout the United States, and internationally. More than 50,000 people signed an online petition requesting the cancellation of the multi-day South by Southwest event in Austin, Texas. That and other conferences and large events are being cancelled daily. With at least 3,300 world-wide deaths, and approximately 200 confirmed cases in the U.S., large public events will continue to be cancelled for the near future.

Impacting the decision to cancel conferences and other large public events, large corporations are issuing policies (changing almost daily) such as: no nonessential travel; employees can attend conferences only if the conference has a travel ban from certain countries (i.e., you, employee, can attend the conference, but only if the conference bans attendance of people from certain COVID-19 troubled countries); and no attending public events larger than 10 people (last week the policy was 1,000 people or more). Most recently, companies have issued bans on guests being allowed onto their premises, and/or issued a mandatory work from home policy.

What are the legal ramifications of each of these edicts? Or of cancellations of conferences and other large public events? What happens to the contracts for each of these events, such as contracts with the attendees, the site, the vendors, the airlines, consultants, speakers, performers etc. What are the legal ramifications and what will be the financial impact from these cancellations? Will you be able to make an insurance claim to protect you?

Insurance companies are starting to see numerous notifications under Event Cancellation insurance. But will the cancellation be covered by your policy? Are you trying to submit a claim for cancelling an event due to the attendees’ fear, or event organizer’s fear of spreading or catching COVID-19 even though there is no ban on the event going forward? That may not be a covered claim.  While you may decide to cancel the event, just know that the cancellation may not be covered because the cancellation was not beyond the control of the event organizer.  Additionally, the typical cancellation insurance policy likely contains exclusions that come into play (e.g., the Communicable Disease exclusion – excluding coverage where fear causes a cancellation due to the World Health Organization’s world epidemic determination). Don’t assume your Event Cancellation Insurance will cover your expenses related to canceling.

Other insurance companies are seeing notifications of claims for Business Interruption coverage.   Presenting a covered claim under a Business Interruption Insurance policy may be difficult. The first question will be: Does the cause of loss qualify under the policy for coverage?  Recently, the UK made COVID-19 a registered notifiable disease to allow insurance claims to be filed. What will happen in the U.S.? And, what is the “loss”? Are there applicable exclusions precluding coverage? Unless you have a specific and unusual insurance policy,  recovering under an insurance policy for expenses due to COVID-19 may be very difficult.

These are just some of the legal issued to be sorted out in the coming months. But without recourse to insurance coverage, the contract disputes become even more key.

For more on Force Majeure Contract Clauses and COVID-19, see the March 4, 2020 Duane Morris Alert.

What Law Governs Force Majeure in Your International Supply Chain Agreement?

By Thomas R. Schmuhl

If a U.S. company has a sales or supply agreement with a buyer or supplier outside of the United States which has been disrupted or otherwise impacted by circumstances relating to the COVID-19 situation now garnering world-wide attention, determining whether or not force majeure applies may not be governed by traditional domestic U.S. law.

Since January 1, 1988, such international commercial agreements have been governed by the United Nations Convention on the International Sale of Goods, commonly known as the CISG. The CISG is an international convention with the full force of federal law that preempts state contract law that would otherwise govern such commercial agreements, including both the Uniform Commercial Code and common law.  Under the CISG, a sale taking place between a seller in one country which has acceded to the CISG and a buyer in another country which has acceded to the CISG, will be governed by the CISG just as a sale between a buyer in New York and a seller in Illinois will be governed by the Uniform Commercial Code. Simply put, the governing law of the international contract between the buyer and the seller is the CISG when the parties are in different countries which have each acceded to the CISG.  Many of the countries most impacted by the COVID-19 situation (e.g. the United States, China, Japan, South Korea, Italy, Canada) have acceded to the CISG.

In the present context of COVID-19, this means that whether the impact of the virus constitutes force majeure will be determined by the CISG unless, pursuant to Article 6 of the CISG, the parties to the contract have explicitly and clearly excluded the application of the CISG from the contract in whole or in part.  Article 79 of the CISG sets forth the standards for determining if a force majeure condition has arisen.  Those standards bear a resemblance (but are not identical) to the standards found in many commercial laws around the world such as Section 615 of Article 2 of the Uniform Commercial Code.

One quick and obvious lesson to be drawn from this brief discussion is that is that the best protection available to buyers and sellers in an international context is a carefully drafted force majeure clause that will minimize the uncertainty that can arise from having to analyze real events like an epidemic in the context of the principles propounded in a state or nation’s commercial code or the international CISG.

Coronavirus and the Workplace: A Quick Reference Guide for Employers

With no signs of slowing down, the coronavirus, or COVID-19, presents a potentially serious risk to the safety and welfare of employees and the financial health of companies. Employers must be prepared to address COVID-19 related issues in the workplace without violating employees’ rights and without causing unnecessary confusion.

What Should Employers Do to Protect Their Workforce?

There is no known vaccine or treatment for COVID-19, and thus the best way to protect the workplace is to avoid exposure to the virus. Based on the Centers for Disease Control and Prevention’s (CDC) recommendations, employers should:

  • Encourage employees to cleanse their hands regularly and thoroughly with soap and water or with an alcohol-based rub, avoid touching their eyes, nose and mouth, and cover their coughs or sneezes with a tissue.
  • Review cleaning operations to ensure frequently touched surfaces are disinfected regularly.
  • Encourage employees to avoid contact with sick people and to stay home if they are sick.

Personal protective equipment is a must for healthcare workers, however, it is not likely necessary for employees who are well, according to the CDC. If an employer receives a request from an employee to wear masks or gloves, employers should consider the requests with three issues in mind: whether the employee (1) has traveled to or from an area where COVID-19 is prevalent; (2) is exhibiting symptoms of the virus or has an underlying health condition; or (3) has been in close contact with someone who has COVID-19. The employer may also consider directing such employee not to report to work for a period of at least 14 days or longer, based on current CDC advice.

View the full Alert on the Duane Morris LLP website.

When May Employers Require Workers to Self-Quarantine?

Spring break is near, and globe-trotting employees soon may return to the workplace from countries that the Centers for Disease Control and Prevention (CDC) and State Department have classified as areas where travelers could be at high risk for contracting COVID-19.

Employers can require workers to stay away from the workplace during the maximum incubation period of the virus—thought to be approximately 14 days—but may decide to not be so strict with employees returning from countries with low-risk assessment levels or low travel-alert levels.

[…]

Employers shouldn’t promise employees that they will be paid while in quarantine, said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. Whether the waiting period is paid will depend on whether work can be performed at home and the nature of the job classification, such as exempt or nonexempt. Some employers are saying that if employees must wait at home before returning to work, they will still be paid, but not every business can afford that, Segal said.

To read the full article, visit the SHRM.org website.

Does COVID-19 Outbreak Constitute a Force Majeure Event?

Unforeseeable circumstances – such as the outbreak of coronavirus – that prevent a party from fulfilling its contractual duties may fall under the force majeure clause of that contract.

Force majeure clauses are specific to each contract and operate as a risk allocation mechanism to govern situations that are beyond the parties’ control, such as the outbreak of war or natural disasters. Whether the COVID-19 outbreak constitutes a force majeure event depends on the exact wording and scope of the provision in the contract. For example, if the force majeure clause:

  • expressly specifies epidemics, diseases or public health emergencies, then COVID-19 likely qualifies as a force majeure event;
  • covers “acts of government,” then travel bans may be covered.

The party seeking to invoke force majeure usually must show a causal connection between the event – the outbreak of COVID-19 – that made it effectively impossible to perform its contractual duties. The clause may operate to excuse or suspend performance of a particular contractual duty.

Some companies are providing force majeure notices to their contract partners. The China Council for the Promotion of International Trade announced that it will offer force majeure certificates to help companies deal with overseas contractual requirements. The effectiveness of these certificates and notices will depend on the exact language of the contract’s force majeure clause.

If your contracts do not contain a force majeure clause, then the narrower doctrine of frustration of the contract purpose may apply. To qualify under this doctrine, the event must (1) be not reasonably foreseeable and (2) radically change the contract terms from what the parties agreed to.

Of course, there is no court guidance yet on how the COVID-19 outbreak may affect commercial contracts. The facts are still evolving. But as businesses prepare for the impact of the virus in the United States, they can look to the cases that arose out of past unexpected events like the September 11 terrorist attacks, previous changes in Chinese government policy or unprecedented weather events as a guide to how to deal with key contracts.

View the full Alert on the Duane Morris LLP website.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

Proudly powered by WordPress