What Companies Are Looking for Before You Can Come Back to Work

At some point, the biggest American companies are going to tell their employees it’s time to leave home and return to work.

That decision will be fraught with risk without widespread testing for the COVID-19 virus. For some industries, such as Wall Street banks, ubiquitous testing is essential to bringing back their workforce to offices around the globe. For other industries, such as automakers, plans are already being made to open factories as early as May.

The tension between getting up and running as soon as possible versus taking chances with the health of employees is both a moral and a legal quandry. Employers have a relatively low legal risk, but a high reputational one, if they rush people back to the office, said Jonathan Segal, an employment attorney at law firm Duane Morris who specializes in human resources and minimizing companies’ legal and business risks.

To read more of Mr. Segal’s comments, please visit the firm website. To read the full text of the article, please visit the CNBC website.

COVID-19 Guidance for Employers in Vietnam

Employers the world over are facing unprecedented issues brought about by the COVID-19 pandemic. Vietnam employers are no different. They need to be able to both respond rapidly and decisively to actual facts and formal and information government direction as it arises and simultaneously comply with legal obligations set out in law and statute. What trumps what?

To read the full post from Duane Morris Vietnam partner Giles Cooper, please visit the Duane Morris Vietnam Blog.

High-Demand Workers See Benefits Boost Amid Pandemic

President Donald Trump signed a $2 trillion coronavirus relief bill Friday, but some employers stepped up and started enacting or strengthening policies meant to help protect and provide for their workers before the federal government got in gear.

Temporary pay increases and expanded paid leave policies are among some of the benefits employers started offering as the nation grapples with the spread of COVID-19, the disease caused by the novel coronavirus that emerged at the end of 2019. […]

W. Michael Gradisek, who chairs the employee benefits and executive compensation practice at Duane Morris LLP, said that he has been fielding a lot of questions about continuing benefits to furloughed employees.

Companies are trying to do the right thing for their workers, Gradisek said, but while that might seem simple, it can actually be quite complicated.

Some employers have been trying to convey that while they can’t pay employee salaries while shut down, they still value the workers and want them to return when things are up and running again, he said.

“There’s a lot of uncertainty, but I don’t think people are totally throwing in the towel yet,” Gradisek said.

To read the full article, visit the Law360 website (subscription required).

WFH USA. It’s the End of the (Work) World As We Know It

Shelter-in-place. Social distancing. Elbow bumping instead of handshakes.

No more shared boxes of pizza. Massive stockpiling. Obsessive washing of hands.

The new habits and lexicon of the American workforce reflect the vocabulary of the COVID-19 coronavirus that was first identified in Wuhan, China, in December and has spread globally, striking home in all 50 states and ushering in new habits and social awareness — along with fear and anxiety. […]

‘Seismic’ changes ahead

Welcome to Remote America, a world in the making that is constantly in flux, with widespread flex-time and WFH adoption, unexpected tech challenges for benefits professionals, greater emphasis on mental health benefits and attention from HR on a myriad of new issues. […]

Michael Gradisek, the head of the benefits group at Philadelphia-based Duane Morris, said his employer clients have been asking mostly about the legal differences between layoffs and furlough, COBRA healthcare plans and compensation issues.

“Furlough is a term of art that is a temporary layoff, where we can keep staff on health, mental and vision, but those benefits depend on the insurance contract,” which is typically classified as unpaid leave, he says.

Benefits coverage is “case-by-case by each company and each contract. No good deed goes unpunished. What happens if we keep you on the plan, and someone ends up on a ventilator for two months? Those are the questions insurance carriers will be asking. That’s their job,” he noted from his home office, where he’s been in self-isolation since returning on Friday from a business trip from London.

Gradisek noted that in Europe, many of the bars and restaurants were open, and the crisis didn’t hit home for many Europeans until owners canceled the Premier League soccer games, similar to the NBA, NHL and preseason baseball shutdowns in the U.S. “My company said, ‘Glad you made it back. Don’t come in for two weeks,’ ” he says.

Their benefits practice has been “crazy busy and going berserk with calls” during the crisis, he says.

“Employers are starting to hoard cash, which is a smart thing. Can we voluntarily not make payments for executive comp plans and large payments? These are the questions we’re getting,” he says. “Some CEOs don’t want to take bonus money and put the company in a cash-strapped position.”

He noted various questions about delayed comp plans, and cited IRS code 409A, which does not allow for voluntary deferrals. “The IRS wants executives to take the money and pay the tax,” he says, noting that there are exemptions only if not deferring payments or paying bonuses may “jeopardize the solvency of the service recipient” or the company as a going concern.

“Is a million bucks going to stop the company from being a going concern? Employers are talking about it in reviews and discretionary bonuses. Those are all based on company and market conditions,” he says, noting one client that was weighing layoffs and reduction of certain staff salaries by 30%. […]

To read the full article, visit the Employee Benefit News website.

Employees Working from Home to Avoid Coronavirus? Protect Your Data

With the coronavirus threat having moved on from disrupting your business’s supply chain to threatening your employees’ health at home, now is the time to implement that company-wide remote workplace plan.

While there are a host of considerations in transitioning to a fully remote workplace—hardware, software, securing a connection, training employees, and maintaining productivity among them—perhaps the most pressing issue is protecting your company’s sensitive data.


Remote employees are more susceptible to hackers and allowing unauthorized access.

And while top management may have secure connections, company laptops, and adequate training, other employees may not. They may be working remotely for the first time, trying to get acclimated with a host of new protocols and be productive while working from home. Converting an entire workplace to remote work is certainly a challenge, said Gregory Bombard, a partner with the law firm Duane Morris.

Bombard offered several “speed bumps” for bad actors that could help prevent the theft or loss of company data by remote workers.

First, limit access to particularly sensitive information, he said, by increasing the permissions necessary to access it.

Then, “monitor employee accounts for unusual activity like large or rapid downloading, printing, or emailing of data. There is rarely a legitimate business purpose for large-scale transfers of data,” he said.

“Even adding a minor speed bump can help limit the risk,” Bombard said. “For example, implementing a system where employees have to get approval before using file sharing websites, downloading significant amounts of data, or accessing particularly sensitive information.”

Lastly—and this might be difficult in a rapid scale-up of a remote workplace—make sure all employees have appropriate non-disclosure agreements in place and receive training on the proper handling of confidential information. Employees should be regularly reminded of the company’s policies for protecting its data and the consequences for failing to do so.


To read the full article, visit the Compliance Week website.

Is It Allergies or COVID-19?

Allergy season is here. And so is the coronavirus outbreak, which the World Health Organization declared a global pandemic March 11.

How can employers tell the difference between allergies and COVID-19, and when should they send sick workers home?

While the symptoms of hay fever include sneezing, runny or stuffy nose, and itchy eyes, according to the Mayo Clinic, the symptoms of coronavirus include fever, cough and shortness of breath, according to the Centers for Disease Control and Prevention (CDC). Hay fever also can cause coughing, according to Harvard Medical School’s Harvard Health Publishing.

The possibility that employees may only have—or claim they only have—allergies may make sending them home more contentious. But experts say you may need to err on the side of caution and send sick employees home.

‘Hard Judgment Calls’

Allergies are “hard judgment calls,” said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. Employers should talk with their workers, encourage them to be honest and, if employers don’t trust what they are saying, insist on some verification.

Bear in mind, though, that in a pandemic, medical verification may not be possible. The CDC is asking employers not to overburden the health care system by asking workers to show them doctors’ notes.

“It’s not horrible to say, ‘go home for the day,’” especially if you pay the person for the day, Segal said. Employers should be sending the message anyway that if employees are sick, then they should stay home, according to the CDC.


Approval Requirement


Requiring HR to approve the order to send someone home ensures managers are not engaged in conscious or implicit bias, Segal said. For example, if an Asian American who coughs is sent home but a white employee isn’t, that may be conscious or implicit bias.


To read the full article, visit the SHRM website.

Three Things Employers Should Do Now in Face of the Pandemic

Gregory Bombard, a Boston-based partner at law firm Duane Morris LLP, recommends employers don’t wait until an employee has coronavirus to figure out what to do about it.

“Waiting until one of your employees is diagnosed with coronavirus or gets quarantined is not the best possible strategy that you could put in place,” Bombard said. “You want to be getting a plan in place today, so that when that happens, you know what to do.”


Bombard is a member of a group of 15 lawyers the firm has made available to answer questions related to the coronavirus from their clients, from an employment and health law standpoint. Here are the top three things he recommends employers and their HR departments do now.

Have an action plan in place. Health and safety should be the primary motivating factors of any decision, which should be promptly communicated to employees. The plan should answer questions like, “How to determine whether an employee is at risk” and “Under which circumstances might employees be asked not to come to the office.”


Have a senior level manager in charge of travel decisions. “One thing we’re recommending is that every business, to the extent feasible, appoints a senior level management employee to be what you could call a ‘travel czar’ — somebody who’s going to make the decisions about whether business travel is necessary and safe,” Bombard said.


Make sure your employees have the tools to work remotely. When possible, employers should encourage work from home, or flexible work arrangements. “I mean, it’s just a good business idea. You keep your employees happy, you keep the potential risk of spreading the infection down,” Bombard said. With one warning: “You want to be ensuring that decisions about who can work from home and when are being made in an objective way — another reason to have a plan in place ahead of time,” he added.

To read the full article, please visit the Boston Business Journal website (subscription required).

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.

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.

© 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.

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