Employee Benefits in the Time of COVID-19

The coronavirus, or COVID-19, presents a potentially serious risk to the safety and welfare of employees and the financial health of companies. With employers facing the prospect of government-mandated business closures and employees who need time off to care for children unexpectedly home for multiple weeks due to school closures, COVID-19 presents numerous employee benefit-related questions and challenges. This Alert will provide employers with a roadmap for addressing COVID-19 concerns that affect health insurance plans (including potential HIPAA privacy obligations thereunder), welfare benefit plans and retirement plans.

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

Remote Work and Best Practices: The Coronavirus Workplace Series

(This is the second in a series on the impacts of the coronavirus on employment and the workplace. Read the first part.)

In the old economy (three weeks ago), remote work was a growing but still limited part of the workforce. Only around 5.3% of American employees worked primarily from home in 2018.

Within the past three weeks companies have moved at Mach-2 speed to restructure workplaces, with the emphasis on remote work. The major tech employers (Facebook, Google, Twitter) were the high-profile early adapters in the first days of March, and other employers, in a range of sectors outside of tech, have followed.

It’s too early to say whether the current spike will lead to greater remote work following COVID-19. Many of the new remote workers say they miss the creativity, ideas and collaboration of the congregate workplace, as well as the social connections. At the same time, they may celebrate the absence of a time-consuming and draining commute, or travel-required meetings outside the office. We’ll see over the next few years. Continue reading “Remote Work and Best Practices: The Coronavirus Workplace Series”

COVID-19 Based Contractual Rows Not Inevitable, Claim Lawyers

Contractors should take steps that are suitably appropriate to manage the spread of Covid-19 first and foremost.

They are being urged to achieve between themselves and their employers an approach to coronavirus-related issues that is fair to both parties and avoids disputes down the line.

Guidance on NEC contractual matters came from UK-based lawyers working for the American legal firm Duane Morris. Continue reading “COVID-19 Based Contractual Rows Not Inevitable, Claim Lawyers”

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).

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.

© 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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