By Martin Milita, Esq.
The novel coronavirus (“COVID-19”) is now a global pandemic. Clients are increasingly encountering a variety of regulatory and employment-related issues. Here are some specific steps employers-especially in highly regulated industries can take and general guidelines to keep in mind. The simple truth is that no one knows what will happen next. Every business needs to develop an infectious disease response plan. For many businesses that means protecting employees and satisfying regulators on compliance matters. Many regulated businesses now find they need to move quickly. They cannot wait for an agency to rule on proposed operational changes.
Think of administrative agencies, and you often think of their efforts to enforce the law, such as environmental regulators fining polluters or financial regulators taking inside traders to court. In fact, agencies sometimes do just the opposite: They excuse parties from compliance. Agencies can use either prospective waivers or exemptions to excuse regulated entities from compliance.
But, the topic can be tricky. On the one hand, waivers and exemptions can be good things. After all, agencies often need to grant flexibility when circumstances require. Emergencies like Hurricane Sandy, for instance, prompted the Federal Transit Administration to issue “blanket waivers for several statutory and regulatory provisions.” New technologies, like “unmanned aircraft systems,” or drones, similarly demand adaptability. In more established settings, such as energy, waste removal, construction, and mining operations, general rules do not always fit particular situations. And agencies sometimes just do not have the resources for full enforcement. In still other instances the law is silent on whether an agency can even grant a waiver or exemption. For instance, in New Jersey, many environmental laws make no mention of waivers or exemptions.
In those instances, a business must be prepared to make a case for deviating from accepted practices and convince an agency that the circumstances warrant the deviation. During the pandemic, it means doing some very practical things to convince an agency of the correctness of your operational changes.
Review the Public Health Information
Employers should familiarize themselves with the public health information published by the CDC, OSHA, and state and local health departments in their area. These materials provide useful information about the coronavirus, how it can be spread, and preventive measures.
The CDC has published general guidance for businesses; specific guidance for organizations with specialized concerns, such as healthcare facilities and schools; and guidance addressed to specific issues, such as travel to and from areas where the coronavirus has spread widely. OSHA has also published guidelines, available.
The EEOC has issued guidance about the coronavirus, available that incorporates the EEOC’s 2009 guidance regarding flu pandemics and also specifically states that the antidiscrimination statutes do not interfere with or prohibit employers from following the recommendations in the CDC’s guidance on the coronavirus.
Understand an Employer’s Obligations
OSHA’s General Duty Clause requires employers to take reasonable steps to keep the workplace free from recognized health hazards that are likely to cause death or serious physical harm.
Practical Steps to Minimize Risk and Protect Employees
There are many practical steps employers can and should take while honoring all of these obligations.
Share Public Health Information with Employees
Circulate the public health guidance to employees, particularly the CDC’s recommendations on precautionary measures, described below. This will not only provide employees with useful information but also let employees know that their employer is monitoring the situation and taking steps to address it.
Take Precautionary Measures
The CDC’s guidance recommends that employers take certain steps, including the following:
- Encouraging employees to wash their hands frequently and to avoid touching their noses, mouths, and eyes.
- Encouraging employees to cover their noses and mouths when coughing or sneezing, preferably by coughing or sneezing into a tissue or the crook of their elbow. Having tissues and hand sanitizer available to employees in the workplace is highly advisable.
- Employees should avoid close contact with co-workers, especially those who have been traveling in areas where the coronavirus is present or who are experiencing flu-like symptoms. Shaking hands should be avoided as well.
- Meetings in close quarters should be limited.
- Work surfaces like telephones and computer equipment should be regularly disinfected. Employees should be discouraged from using another’s phone or computer equipment.
- Encouraging employees who are sick to stay home.
- Employers should be flexible about granting leave, even if the leave would not ordinarily be required under the law or the employer’s policies. Denying leave may cause employees to feel compelled to come to work even if they are sick or to bring their children to work even if the children may be sick.
- Consider modifications to work arrangements to minimize contact in commuting, work, or social settings. Permit or encourage teleworking where feasible. Consider allowing modified arrival and departure times to reduce interaction with crowds during commuting.
The CDC guidance addresses how to assess the risk when employees have traveled to areas where the coronavirus is widespread or have been exposed to an individual who has tested positive for the coronavirus. Depending on whether the risk is high, medium, or low, the employer may require the employee to take steps ranging from self-isolation to self-monitoring to self-observation. These guidelines can provide answers about how to deal with many different employee situations.
In situations where answers are not readily apparent from the guidance materials, consult with public health officials or counsel to obtain proper guidance.
Addressing Specific Situations
Employers should designate an individual or committee to deal with specific situations. The EEOC recommends that employers identify a pandemic coordinator or committee for preparedness and response planning. While employees are to be protected from direct threats to their safety from other employees, the existence of a direct threat must be based, in part, on the severity of the illness. Committee members may also be called upon to determine when and how reasonable accommodations need to be made for employees who have disabilities or medical conditions that may be exacerbated by exposure to COVID-19, such as weakened or suppressed immune systems, who may seek permission to work from home or to limit travel on public transportation. These issues must be carefully considered under the patchwork of laws that may be implicated, including state and federal anti-discrimination laws, state and federal leave laws, and state and federal workplace safety laws.
Waivers, exemptions and programmatic changes in response to emergencies present a significant challenge. Even when waivers and exemptions may be available health and safety may require more immediate action. This requires diligence on the part of business owners and a thoughtful appeal to fairness. Most state courts recognize an agency’s authority to waive rules in certain circumstances and relax rules to achieve sensibility and consistency with legislative intent. (Robison v. New Jersey Dep’t of Human Services, 270 N.J. Super.191,636 A.2nd 1066 (App.Div.1994)). Agencies may have the authority to relax rules, channel reviews and constrain time limits in furtherance of agency responsibilities, but you must provide the arguments to achieve a fair result. Fairness is a continuum. Marshal your facts so that agencies can act closer to fairness than unfairness.