The New Normal….Pandemic Insurance Products

It was only a matter of time before insurers began to develop products to cover pandemics.  The products range from traffic monitor apps that pay insureds based on a minimum threshold to relapse coverage that protects businesses forced to shut down a second time.  The complete article from Reuters is below.

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Insurers are creating products for a world where virus outbreaks could become the new normal after many businesses were left out in the cold during the COVID-19 crisis.

While new pandemic-proof policies might not be cheap, they offer businesses from restaurants to film production companies to e-commerce retailers ways of insuring against disruptions and losses if another virus strikes.

The providers include big insurers and brokers adding new products to existing coverage, as well as niche players that see an opportunity in filling the void left by mainstream firms that categorize virus outbreaks like wars or nuclear explosions.

Tech firm Machine Cover, for example, aims to offer policies next year that would give relief during lockdowns. Using apps and other data sources, the Boston-based company measures traffic levels around businesses such as restaurants, department stores, hairdressers and car dealers.

If traffic drops below a certain level, it pays out, whatever the reason.

“This is the type of coverage which … businesses thought they had paid for when they bought their current business interruption policies before the coronavirus pandemic,” the company’s founder Inder-Jeet Gujral told Reuters.

“I believe this will be a major opportunity because post-COVID, it would be as irresponsible to not buy insurance against pandemics as it would be to not buy insurance against fire.”

The company is backed by insurer Hiscox and individual investors, mostly from the insurance and private equity world.

Restaurants in Florida’s Miami-Dade County, where Mayor Carlos Gimenez on Monday ordered dining to shut down soon after reopening, are now reeling, said Andrew Giambarba, a broker for Insurance Office of America in Doral, Florida.

“It’s been like they made it to the ninth round of the fight and were holding on when this punch came out of nowhere,” said Giambarba, whose clients include restaurants that did not get payouts under their business interruption coverage.

“Every niche that is dealing with insurance that is affected by business interruption needs every new product they can have.”

Filling the Void

Pandemic exemptions have helped some insurers emerge relatively unscathed and the sector has largely resisted pressure to provide more virus cover. Indeed, some insurers that paid out for event cancellations and other losses have removed pandemics from their coverage.

British risk managers association Airmic said last week that the pandemic had contributed to a lack of adequate insurance at an affordable price and most of its members were looking at other ways to reduce risk.

To help fill the void in a locked-down world, Lloyd’s of London insurer Beazley Plc, started selling a contingency policy last month to insure organizers of streamed music, cultural and business events against technical glitches.

“These events are completely reliant on the technology working and a failure can be financially crippling,” said Mark Symons, contingency underwriter at Beazley.

Marsh, the world’s biggest insurance broker, has teamed up with AXA XL, part of France’s AXA, and data firm Arity, which is part of Allstate, to help businesses such as U.S. supermarket chains, restaurants and e-commerce retailers cope with the challenges of social distancing.

With home deliveries surging, firms have hired individual drivers to meet demand, but commercial auto liability insurance for “gig” contractors with their own vehicles is hard to find.

Marsh and its partners devised a policy based on usage with a price-by-mile insurance, which can be cheaper than typical commercial auto cover as delivering a pizza doesn’t have the same risks as driving people around.

“Even when the pandemic is over, we believe last-mile delivery will continue to grow,” said Robert Bauer, head of Marsh’s U.S. sharing economy and mobility practice.

A report by consultants Capgemini showed that demand for usage-based insurance has skyrocketed since COVID-19 first broke out and more than 50% of the customers it surveyed wanted it.

However, only half of the insurers interviewed by Capgemini for its World Insurance Report said they offered it.

Bespoke Cover

Since businesses are only now learning how outbreaks can affect them, some new products are effectively custom-made.

Elite Risk Insurance in Newport Beach, California, has been offering “COVID outbreak relapse coverage” since May for businesses forced to shut down a second time, its founder Jeff Kleid said.

The policies are crafted around specific businesses and only pay out when certain conditions are met, Kleid said.

For film and television production companies that could be when a cast member contracts the virus, forcing them to stop shooting. Another client, which raises livestock for restaurants, is covered for a scenario in which it would be impossible to get animal feed.

Such policies do not come cheap. A $1 million policy could cost between about $80,000 to $100,000 depending on the terms.

“The insurance … is costly because it covers a risk that does not have a historical basis for calculating the price,” Kleid says.

And in March, when COVID-19 ravaged northern Italy, Generali’s Europ Assistance offered medical help, financial support and teleconsultations for sufferers when discharged from hospital, on top of regular health insurance.

It sold 1.5 million policies in just two weeks and now has 3 million customers in Europe and United States.

Some insurers are also working on changes to employee compensation and health insurance schemes. With millions of workers not expected to return to offices anytime soon, some large insurers in Asia are preparing coverage to account for that, according to people familiar with those efforts.

At least one Japanese insurer has started work on a product to cover employees for injury while working at home, they said.

“Working from home will be the new normal for years to come. That would make the scope of the employee compensation scheme meaningless if a person suffers an injury while at home,” said a Hong Kong-based senior executive at a European insurer.

(Reporting by Noor Zainab Hussain in Bengaluru, Suzanne Barlyn in Washington Crossing, Pennsylvania, Carolyn Cohn in London and Sumeet Chatterjee in Hong Kong; additional reporting by Muvija M; Editing by Tomasz Janowski and David Clarke)

https://www.insurancejournal.com/news/international/2020/07/10/575081.htm

 

WCIRB Releases Cost Evaluation of Conclusive COVID-19 Presumption

See below from the WCIRB regarding the projected cost of COVID-19 claims to be filed by ‘Essential Critical Infrastructure Workers’….At the low end, if only 4.8% of California ECI workers file claims related to COVID-19, the cost to the system will be an astounding $2.2B!

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WCIRB Releases Cost Evaluation of Conclusive COVID-19 Presumption

Oakland CA, April 20, 2020 – The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) released its Cost Evaluation of Potential Conclusive COVID-19 Presumption in California Workers’ Compensation. The evaluation was completed in response to an April 8, 2020 request from the California State Assembly Insurance Committee to assess the impact of a conclusive presumption that COVID-19 claims arising from certain front line workers are presumed to be work-related. Specifically, the WCIRB was requested to provide the cost impact of a conclusive COVID-19 presumption for health care workers, firefighters, EMS and rescue employees, front line law enforcement officers and other essential critical infrastructure (ECI) employees.

The WCIRB estimates that the annual cost of COVID-19 claims on ECI workers under a conclusive presumption ranges from $2.2 billion to $33.6 billion with an approximate mid-range estimate of $11.2 billion, or 61 percent of the annual estimated cost of the total workers’ compensation system prior to the impact of the pandemic. The WCIRB noted that in developing this estimate it did not include a provision for non-ECI workers who may file a compensable workers’ compensation COVID-19 claim, nor did it adjust for the COVID-19 claims of ECI workers that may be compensable in the absence of a conclusive presumption.

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This and other important workers’ compensation topics will be discussed tomorrow during part 2 of NAPEO’s Coronavirus Updates webinar where our very own, Paul Hughes, will share his thoughts.  Click here for registration details.

 

Large Companies Tweaking Sick Leave Policies as the Coronavirus Spreads

Walmart, Uber and Others Tweak Sick-Leave Policies as Coronavirus Spreads

The companies, and other businesses, like Instacart, have also said they would compensate workers who contract the virus or are subject to quarantine orders.

Walmart, Uber and other major companies announced new policies this week to grant paid leave or other compensation to workers who contract the new coronavirus or are quarantined by order of the government or their companies.

The changes could help hourly and gig-economy workers in the service industry who do not normally receive paid time off, and who would bear an especially difficult burden of lost wages. But the policies may not go far enough to protect delivery people, store clerks, restaurant workers, taxi drivers and others whose public-facing and often low-paying jobs cannot be done remotely.

Walmart, the largest private employer in the country with 1.5 million workers, said on Tuesday that employees who contract the virus or who are subject to mandatory quarantines would receive up to two weeks of pay, and that absences in that time would not “count against attendance.”

Two weeks is generally the length of time that health experts recommend for quarantine or self-isolation. Workers who are infected and need more time to recover may be compensated for up to 26 weeks, the statement said. It added that workers who were not sick or quarantined, but who were uncomfortable reporting for work during the outbreak, would not be penalized.

Ride-hailing companies, whose drivers are generally classified as independent contractors and do not receive paid time off, offered few details about the compensation they promised to drivers affected by the coronavirus.

Uber said that drivers or delivery people who learn they have Covid-19 or who are asked to self-isolate by a public health authority “will receive financial assistance for up to 14 days while their account is on hold.” Lyft said that it would “provide funds” to drivers who are infected or placed under a quarantine.

The announcements came after calls from lawmakers and labor groups for companies to take action to ensure their workers’ health and safety — and after the first cases of coronavirus in workers for Walmart and Uber. (The Walmart employee worked at a store in Cynthia, Ky., and the company said she was recovering. The Uber driver, in New York City, was hospitalized.)

Darden Restaurants, the parent company of Olive Garden, LongHorn Steakhouse and other chain restaurants, also announced this week that all hourly employees would receive permanent paid sick leave benefits. Sick leave will accrue at a rate of one hour for every 30 hours worked, the company said in an email.

The company had previously opposed sick leave for its workers, and the announcement followed an article by the journalist Judd Legum published on Monday. Rich Jeffers, a company spokesman, said the new policy had been in the works before the outbreak, but that it was expedited “given the current environment.”

Instacart, which delivers groceries and other household items to customers through an app, announced this week that it was expanding its accrued-sick-time policy to all its part-time employees in North America. The company had previously offered sick pay in only some states. Instacart said it would also provide up to 14 days of pay to employees with diagnosed cases of Covid-19 or who are placed in quarantine.

Service industry workers, of course, are making it possible for other Americans to stock up on groceries or get deliveries as they stay home. Health experts say that preventing people who contract the virus from continuing to work is key to preventing widespread community transmission.

“Low-wage, hourly workers are already at greater risk of poor health because of their pre-existing condition of economic instability,” said Dr. Sandro Galea, dean of the Boston University School of Public Health.

“It is essential that our response to Covid-19 keeps a focus on the health of marginalized, vulnerable populations,” he continued. “By providing them with the necessary resources to be well — paid sick leave, etc. — we are not just supporting their health, we are supporting the health of whole populations.”

The specter of the new coronavirus has also spurred a renewed push for federally mandated paid sick leave. The United States is an outlier among rich countries for not requiring employers to provide it.

Democrats are promoting a new version of a bill that has been stalled in Congress for years — and trying to expand it to add 14 days of immediately accessible paid sick leave in the case of a public health emergency. Federal officials have also discussed a payroll tax cut and small business loans.

The A.F.L.-C.I.O. called on officials to act immediately to shore up resources for workers during the outbreak, including paid sick leave.

“This is a public health crisis that demands strong and decisive action,” said William Samuel, the federation’s director of government affairs.

 

 

FAQs For Employers On The COVID-19 Coronavirus

 

Please see below FAQ concerning the Coronavirus posted by our Friends and Partners at Fisher Phillips.

Fisher Phillips has assembled a cross-disciplinary taskforce of attorneys across the country to address the many employment-related issues facing employers in the wake of the COVID-19 coronavirus. The COVID-19 Taskforce has created a Frequently Asked Questions (FAQ) document, which has been continually updated since first published on March 3 and will continue to be updated as events warrant. It now includes sections on Remote Work Policies and Workers’ Compensation, added on March 9. You can contact your Fisher Phillips attorney or any member of the Taskforce with specific questions, and a full listing of the Taskforce members and their practice areas is at the end of this publication.

Table of Contents

  1. BACKGROUND
  2. WORKPLACE SAFETY ISSUES
  3. ISSUES FOR WORKFORCES THAT TRAVEL
  4. REMOTE WORK
  5. INTERNATIONAL WORKFORCES
  6. IMMIGRATION ISSUES
  7. HEALTHCARE/HIPAA ISSUES
  8. BENEFITS/GROUP HEALTH PLAN ADMINISTRATION
  9. WAGE AND HOUR ISSUES
  10. EMPLOYEE LEAVE/ADA
  11. DISCRIMINATION/HARASSMENT/EEO ISSUES
  12. LABOR RELATIONS
  13. WARN ACT/PLANT CLOSINGS
  14. WORKERS’ COMPENSATION
  15. EDUCATIONAL INSTITUTIONS
  16. FISHER PHILLIPS COVID-19 TASKFORCE MEMBERS

BACKGROUND

A new virus first identified in Wuhan, China in late 2019 has been spreading across the globe and is now in the United States. The new coronavirus, COVID-19, is not a flu but a pneumonia-like infection. Coronaviruses, so called because of their crownlike shape, range from the common cold to SARS-CoV and 2012’s MERS (Middle East Respiratory Syndrome). They differ from Avian (H1N1) influenza and swine flu.

What are the symptoms of the current COVID-19 coronavirus?

The virus symptoms manifest as a mild to severe respiratory illness with fever, cough, and difficulty breathing. The Centers for Disease Control (CDC) believes at this time that symptoms may appear in as few as two days or as long as 14 days after exposure. Unfortunately, at this point there is no easy way to test for the COVID-19 coronavirus. A CDC-developed laboratory test kit to detect the COVID-19 coronavirus began shipping in February to select qualified U.S. and international laboratories.

How is the current COVID-19 coronavirus transmitted?

People can catch COVID-19 from others who have the virus. The disease can spread from person to person through small droplets from the nose or mouth which are spread when a person with COVID-19 coughs or exhales. These droplets also land on objects and surfaces around the person. Other people then catch COVID-19 by touching these objects or surfaces, then touching their eyes, nose, or mouth. Therefore, it is important to stay more than 1 meter (3 feet) away from a person who is sick. The CDC recommends as much as 6 feet. It is possible to catch the virus from someone even before they have symptoms, but little is known about this aspect of the virus at this time.

Can the virus spread from contact with infected surfaces or objects?

It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads.

WORKPLACE SAFETY ISSUES

What if an employee appears sick?

If any employee presents themselves at work with a fever or difficulty in breathing, this indicates that they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having the COVID-19 coronavirus is extremely low, it pays to err on the side of caution.           Retrain your supervisors on the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.

Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19, and under most circumstances you can ask them to leave work.

UPDATED QUESTION & ANSWER (March 6, 2020)
Can I take an employee’s temperature at work to determine whether they might be infected?

The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

Taking an employee’s temperature may be unlawful if is not job-related and consistent with business necessity. The inquiry and evaluation into whether taking a temperature is job-related and consistent with business necessity is fact-specific and will vary among employers and situations. You should exercise caution before relying on media reports to in attempt to justify the taking of temperatures of your employees without objective evidence that there is an actual threat to your business. Moreover, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

UPDATED QUESTION & ANSWER (March 6, 2020)
An employee of ours has tested positive for COVID-19. What should we do?

You should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.

UPDATED QUESTION & ANSWER (March 5, 2020)
One of our employees has a suspected but unconfirmed case of COVID-19. What should we do?

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee has not tested positive for the virus but has been exhibiting symptoms that lead you to believe a positive diagnosis is possible.

UPDATED QUESTION & ANSWER (March 6, 2020)
How can we distinguish between a “suspected but unconfirmed” case of COVID-19 and a typical illness?

There is no easy way for you to make this determination, but you should let logic guide your thinking. The kinds of indicators that will lead you to conclude an illness could be a suspected but unconfirmed case of COVID-19 include whether that employee traveled to a restricted area that is under a Level 2, 3, or 4 Travel Advisory according to the U.S. State Department, whether that employee was exposed to someone who traveled to one of those areas, or similar facts. You should err on the side of caution but not panic.

UPDATED QUESTION & ANSWER (March 5, 2020)
One of our employees self-reported that they came into contact with someone who had a presumptive positive case of COVID-19. What should we do?

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee is asymptomatic for the virus but you are acting out of an abundance of caution.

UPDATED QUESTION & ANSWER (March 6, 2020)
One of our employees has been exposed to the virus but only found out after they had interacted with clients and customers. What should we do?

Take the same precautions as noted above with respect to coworkers, treating the situation as if the exposed employee has a confirmed case of COVID-19 and sending home potentially infected employees that he came into contact with. As for third parties, you should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.

UPDATED QUESTION & ANSWER (March 9, 2020)
If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC?

There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility.

What steps can we take now to minimize risk of transmission?

Repeatedly, creatively, and aggressively encourage employees and others to take the same steps they should be taking to avoid the seasonal flu, which is already one of the worst flus in the last 10 years. For the annual influenza, SARS, avian flu, swine flu, and the COVID-19 virus, the best way to prevent infection is to avoid exposure. Perhaps the most important message employers can give to employees is to stay home if sick. In addition, instruct your workers to take the same actions they would to avoid the flu. For example:

  • Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
  • Avoid touching your eyes, nose, and mouth with unwashed hands.
  • Avoid close contact with people who are sick.
  • Stay home when you are sick.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces.
  • Ensure that employees have ample facilities to wash their hands, including tepid water and soap, and that third-party cleaning/custodial schedules are accelerated.
  • Teleconference in lieu of meeting in person if available.
  • Educate your employees about COVID-19, its symptoms, and the potential health concerns associated with any travel at this time.
  • Have a single point of contact for employees for all concerns that arise relating to health and safety.
  • Wear personal protective equipment, such as gloves and goggles, if touching or working bloodborne pathogens.
  • Follow updates from the CDC and the World Health Organization (WHO) regarding additional precautions.

You may reference the Occupational Safety and Health Administration’s (OSHA’s) Guidance on Preparing Workplaces for an Influenza Pandemic for additional information on preparing for an outbreak.

Can an employee refuse to come to work because of fear of infection?

Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold.  Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.

In addition, Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to those employees (in union and non-union settings alike) to engage in “protected concerted activity for mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it has been extended to individual action expressly undertaken on behalf of co-workers.

On its own website, the National Labor Relations Board (NLRB) offers a number of examples, including, “talking with one or more employees about working conditions,” “participating in a concerted refusal to work in unsafe conditions,” and “joining with co-workers to talk to the media about problems in your workplace.” Employees are generally protected against discipline or discharge for engaging in such activity.

Can employers in the United States refuse an employee’s request to wear a medical mask or respirator?

Yes, under most circumstances. Under the OSHA respiratory protection standard, 29 C.F.R. 1910.134, which covers the use of most safety masks in the workplace, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Likewise, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard” (29 C.F.R. 1910.134(c)(2)). In almost all work situations, however, there is no currently recognized health or safety hazard – even when employees work near other people and thus there is no need for a mask or respirator.

The WHO has stated that people only need to wear face masks if they are treating someone who is infected with the COVID-19 coronavirus. The WHO has also said that wearing masks may create a false sense of security among the general public. Doctors agree that the best defense against the COVID-19 coronavirus and influenza is simply washing your hands. Thus, the consensus is that there are more appropriate measures of defense than wearing a surgical mask or respirator.

Can an employee refuse to work without a mask?

OSHA has addressed the common question of whether an employee can simply refuse to work in unsafe conditions. The safety agency provides the following guidance, which wouldn’t require the use of a mask or respirator in most situations. An employee’s right to refuse to do a task is protected if all of the following conditions are met:

  1. Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so;
  2. You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists;
  3. A reasonable person would agree that there is a real danger of death or serious injury; and
  4. There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Given the consensus that face masks are only necessary when treating someone who is infected with the COVID-19 coronavirus or influenza, masks are likely not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of the COVID-19 coronavirus or influenza. The use of the word “may” in OSHA’s respiratory protection standard makes it clear that when a respirator is not necessary to protect the health of an employee, it is within the discretion of the employer to allow employees to use a respirator. Accordingly, you are well within the applicable OSHA standard to deny an employee’s request to wear a surgical mask or a respirator in almost all situations.

Absent a legally recognized disability, unique physical condition, or an occupation where employees work directly with those impacted by a condition such as the COVID-19 coronavirus or flu, you are generally not required to allow workers to wear masks at work.

What steps should we take if we use chemicals to combat the COVID-19 coronavirus?

Be mindful of the specific requirements of OSHA’s Hazard Communication standard if new chemicals, or temporary employees, are introduced into work areas to combat the COVID-19 coronavirus. You are required to provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new chemical hazard the employees have not previously been trained about is introduced into their work area. A comprehensive hazard communication program should include contain labeling and other forms of warning, safety data sheets, and employee training. Now is also a good time to retrain employees under OSHA’s bloodborne pathogens standard, including revisiting and communicating the elements of your exposure control plan.

What should healthcare employers do to protect workers from exposure to the COVID-19 coronavirus?

Healthcare personnel caring for patients with confirmed or possible COVID-19 should adhere to CDC recommendations for infection control and prevention (ICP):

  • Assess and triage these patients with acute respiratory symptoms and risk factors for COVID-19 to minimize chances of exposure, including placing a facemask on the patient and isolating them in an Airborne Infection Isolation Room (AIIR), if available;
  • Use Standard Precautions, Contact Precautions, and Airborne Precautions and eye protection when caring for patients with confirmed or possible COVID-19;
  • Perform hand hygiene with alcohol-based hand rub before and after all patient contact, contact with potentially infectious material, and before putting on and upon removal of PPE, including gloves. Use soap and water if hands are visibly soiled;
  • Practice how to properly don, use, and doff personal protective equipment (PPE) in a manner to prevent self-contamination; and
  • Perform aerosol-generating procedures in an AIIR, including collection of diagnostic respiratory specimens, while following appropriate IPC practices, including use of appropriate PPE.

In addition, healthcare employers must comply with any state-specific requirements to protect healthcare workers from exposure. For instance, healthcare facilities in California are required to follow recommendations under CAL/OSHA’s Aerosol Transmissible Diseases (ATD) Standard, Title 8 of the California Code of Regulations Section 5199. Because COVID-19 meets the criteria for a novel aerosol transmissible pathogen under the ATD Standard, California healthcare employers must provide a powered air purifying respirator with a HEPA filter(s), or a respirator providing equivalent or greater protection, to employees who perform high hazard procedures on COVID-19 persons under investigation or confirmed cases.

ISSUES FOR WORKFORCES THAT TRAVEL

What current travel restrictions are in place?

In light of the COVID-19 coronavirus outbreak in China, President Trump issued a Presidential Proclamation limiting the entry of foreign nationals who were physically present in China during the 14-day period before their attempted entry into the United States. And while the U.S. had already instituted a travel ban related to Iran for political reasons, the administration announced that the ban is being expanded to include any foreign national who has visited Iran within the last 14 days due to the outbreak that has taken place in that country.

Does the Chinese travel restriction apply to those visiting Taiwan, Hong Kong, and Macau?

No. It only applies to those who were present in the People’s Republic of China, and specifically exempts Hong Kong and Macau. In addition, the U.S. immigration law and various other regulations treat Taiwan (a.k.a. Republic of China) separately from the People’s Republic of China. Therefore, Hong Kong, Macau, and Taiwan are all exempt from these travel restrictions.

Who is exempt from the travel restrictions?

The order provides a long list of exempt immigration statuses. For example, people traveling on crew member visas, or diplomatic or International Organization visas are exempt. It also exempts Lawful Permanent Residents (green card holders), spouses and children (unmarried under 21) of U.S. citizens and green card holders, and parents and siblings of unmarried under 21-year-old U.S. citizens and green card holders.

The proclamation also includes a provision that permits entry of any foreign national whose entry would not pose a significant risk of spreading the virus, as determined by the CDC. This provision would appear to allow anyone to otherwise seek entry. However, in reality, U.S. Customs and Border Protection may simply utilize the travel restriction rules to deny entry instead of deferring to the CDC’s conclusion.

Are there conditions for the return of those who are exempt from the travel restrictions?

Yes, any U.S. citizen returning to the United States who has been in Hubei province, China in the previous 14 days may be subject to up to 14 days of quarantine. Any U.S. citizen returning to the United States who has been in the rest of mainland China within the previous 14 days may undergo a health screening and possible self-quarantine.

Can employees returning from China fly into any airport?

No. The Department of Homeland Security (DHS) has directed “all operators of aircraft to ensure that all flights carrying persons who have recently traveled from, or were otherwise present within, the People’s Republic of China” only land at one of the following airports:

  1. John F. Kennedy International Airport (JFK), New York
  2. Chicago O’Hare International Airport (ORD), Illinois
  3. San Francisco International Airport (SFO), California
  4. Seattle-Tacoma International Airport (SEA), Washington
  5. Daniel K. Inouye International Airport (HNL), Hawaii
  6. Los Angeles International Airport (LAX), California
  7. Hartsfield-Jackson Atlanta International Airport (ATL), Georgia
  8. Washington Dulles International Airport (IAD), Virginia
  9. Newark Liberty International Airport (EWR), New Jersey
  10. Dallas/Fort Worth International Airport (DFW), Texas
  11. Detroit Metropolitan Wayne County Airport (DTW), Michigan

According to DHS, these are airports “where enhanced public health services and protocols are being implemented.”

UPDATED ANSWER (March 5, 2020)
Can we prohibit an employee from traveling to a non-restricted area on their personal time?

You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. While a federal court of appeals recently held that it is not necessarily a violation of the ADA to terminate an employee who refuses to cancel personal travel to an area of the world with a high risk of exposure to a deadly disease, you still could risk legal exposure, reduced employee morale, and negative publicity if you do so. This includes pregnant employees or those with medical conditions. However, you should educate your employees before they engage in travel to risky environments to try and work out a solution, and you can – and should – monitor those employees returning from such travel for signs of illness.

What should I do if an employee has recently traveled to an affected area or otherwise may have been exposed to the COVID-19 coronavirus?

As noted above, the ADA prohibits employers from making disability-related inquiries and requiring medical examinations unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

According to the EEOC, whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. The EEOC instructs employers that the assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination.

UPDATED QUESTION & ANSWER (March 4, 2020)
We have an employee who has recently traveled overseas to a country that is not on any restricted list, but we’re worried about the risk of transmission. Should we institute a “soft” quarantine?

There is likely no greater risk of this employee being infected with the COVID-19 coronavirus than any of your other employees. Follow the same preventive steps and guidance contained within this FAQ to put your organization in the best position.

Can employees refuse to travel as part of their job duties?

Employees who object on behalf of others or act in groups could be covered by the NLRA’s protection of concerted protected activity. You will want to proceed with caution and consult with your attorney before taking any steps in this regard. Moreover, under the federal OSH Act, employees can only refuse to work when a realistic threat is present.

Therefore, if employees refuse your instruction to travel for business to any other country for fear of catching the COVID-19 coronavirus, try to work out an amicable resolution. For example, the employer and the employee can check and discuss the CDC (avoid Nonessential travel), State Department (Do Not Travel to China), and DHS Travel Advisories, which provide guidance on China Travel.

The CDC is also advising that some individuals may be more at risk of infection than others in the general population. Thus, follow the CDC direction on pregnant employees or on related reproductive issues, and do not make decisions without medical support. Moreover, actions by other countries, especially in Asia, may cause employee concerns, and absolute warnings and restrictions like those on China may not exist.

REMOTE WORK

UPDATED QUESTION & ANSWER (March 9, 2020)
Should we institute a temporary remote work policy in light of the COVID-19 coronavirus outbreak?

Whether your company implements a remote work policy is entirely dependent on your organization’s circumstances and the area of the country where your workers reside. You may not want to introduce a new system in place if you have had not yet had time to test and develop your remote work capabilities. On the other hand, if you have established protocols in place, this could be a good opportunity to leverage them. Regardless of what you choose to do, you should make your decision based on objective evidence and not emotion or fear. Make sure your decision is educated and intentional, not reactionary and spur-of-the-moment.

UPDATED QUESTION & ANSWER (March 9, 2020)
What infrastructure should we have in place for a remote work plan?

You will want to identify the roles that are critical to your business operations and determine whether those individuals can carry out their jobs while working remotely. If you can proceed, the next critical component is assessing your technological capabilities. Do you have the support in place to assist with the inevitable questions and IT problems that will arise? Do you have sufficient security and privacy protocols in place? Considering these questions will help you determine whether you can move forward with a remote work plan.

UPDATED QUESTION & ANSWER (March 9, 2020)
What can we do to prepare for a possible remote work scenario?

There are a number of things you should do today to prepare for the possibility that your workers will need to operate remotely for a period of time.

  • Take an inventory of the types of equipment your workers would need to get their job done and ensure they have access to them. This could include laptops, desktop computers, monitors, phones, printers, chargers, office supplies, and similar materials.
  • Encourage your employees to prepare for the possibility of an immediate instruction to work at home. They may want to develop a “ready bag” that they take home with them at the end of each day that would allow them to begin working remotely at a moment’s notice. This would obviously include laptops, smartphones, and other related technology, but could also include physical items (such as binders, documents, materials).
  • Make sure you consider and clearly communicate with your workers about which physical items are acceptable to be taken from the workplace and which need to stay in your location at all times.
  • You might want to take the time now to digitize any relevant physical materials to make remote working easier.
  • You will also want to communicate with your workforce about whether they can or should take digital photos of physical calendars, whiteboards, Kanban boards with stickie notes, or similar items, or whether they are prohibited from doing so.
  • But perhaps the most important thing you should do is take the time to develop a remote work policy if you do not have one in place, or review and update your existing policy as it relates to this specific situation.

UPDATED QUESTION & ANSWER (March 9, 2020)
What should be included in a remote work policy?

Your policy should lay out the expectations you have for your workers as the embark on their temporary remote work routines. The number one item you should convey to them is that you expect them to help your organization maintain normal business operations during this period of time to the extent possible. Consider all aspects of their work and make sure they understand what is expected of them.

  • How strict will your policy be? Are your workers simply encouraged to work at home or absolutely barred from coming to the office?
  • Will there be exemptions for “essential” personnel that need to be at a certain physical location?
  • Will they need to be available at all times during working hours, or will remote meetings and appointments be scheduled ahead of time? (Take into account that your workers’ lives may be disrupted in other ways because of the COVID-19 outbreak, and therefore they may not be able to maintain normal working hours during this time or may be somewhat distracted by family or medical obligations during certain times of the day.)
  • Will remote meetings take place online, over the phone, or on camera?
  • Will you prohibit employees from meeting together in person during this period? Will you only restrict in-person meetings of a certain size (no more than three or five workers)?
  • Will you prohibit employees from meeting with third parties while doing company business during this period of time?
  • Will you prohibit workers from performing work outside of their homes (coffee shops, libraries, etc.) because of security concerns? If this kind of work is permitted, do you have sufficient security infrastructure in place (encryption, password-protection, log-out/lock requirements, etc.) and are your workers aware of your requirements to prevent data breaches or other loss?
  • Can workers perform work on their own devices, and if so, do you have a comprehensive BYOD (bring your own device) policy in place?

You should include an anticipated end date in your remote work announcement, and/or inform your employees that you will provide weekly updates regarding the status of the remote work period.

UPDATED QUESTION & ANSWER (March 9, 2020)
What are some concepts we should keep in mind to ensure our remote work time is productive and successful?

There are a number of steps you can take to ensure that the temporary remote work time goes well for your workers and for your organization.

  • From a functionality standpoint, you may want to agree on a single communications platform that all workers will be required to participate in. It could be email, instant messaging, Slack, Skype, Zoom Conferencing, or some other designated tool.
  • Take an honest approach with yourself about whether any concerns you have regarding reduced productivity among your workers while they are working at home are realistic or overblown. Recognize that you aren’t babysitting your employees while they are performing work at the office, so you shouldn’t begin to micromanage them while they are at home. Keep an eye on the bigger picture and track overall productivity, not moment-by-moment activities.
  • In fact, experts say that overwork is more likely for remote workers than a lack of productivity, especially in the first week of a remote work assignment. Keep an eye out for employee burnout and overstressed workers and address your concerns as appropriate.
  • Another concern for workers not used to working remotely is that they may feel untethered and disconnected from the organization during this time period. Some tactics to prevent and overcome this problem include:
    • Developing and distributing an agenda for all team get-togethers and meetings, as well as meeting minutes and task lists after they are completed, so that those unable to attend can feel part of the action;
    • Schedule virtual team lunches and digital social time where workers can interact on a social level;
    • Connect workers new to remote work with your experienced remote workers to serve as informal mentors, available to answer questions or give advice about best ways to cope with the change and handle work; and
    • Consider other ways to ensure your workers feel connected with each other and with the organization, whether that includes daily meetings, frequent phone calls or texts, or other actions that can go a long way towards ensuring their peace of mind.

INTERNATIONAL WORKFORCES

What should we do about expats working abroad and our global workforce?

Generally, the reaction to the COVID-19 coronavirus varies from country to country (or even jurisdiction to jurisdiction within a particular country). Employers with expats or other employees abroad should ensure copies of all expat assignment agreements and contracts are nearby if needed for reference. Most often the resolution of issues related to obligations with respect to these employees begin with reviewing applicable contractual obligations and agreements. You should also review all travel, medical, and other insurance policies to determine coverage limitations and to help assess risk.

Should we bring our expats home?

In some circumstances, it may be best practice to do so. You should undertake a careful evaluation of conditions in the location where they are living and working on a frequent basis. It would be a good practice to require your expat employees to regularly report back on conditions and their circumstances.

What if one of our expat employees becomes quarantined abroad?

If an expat or employee is quarantined abroad, you should seek legal and other advice regarding the particular facts and circumstances of the situation. You will need to develop a plan to meet your obligations to the employee and their family, as well as your company needs. Each situation will be different, so your advice will need to be tailored to the situation.

What about our expats located in an area that is heavily affected by the COVID-19 outbreak?

In areas currently heavily affected, you should undertake a thorough review of conditions as they pertain to all employees within the area on a daily basis. The applicable laws vary from jurisdiction to jurisdiction. Some countries impose significant obligations concerning a duty of care to employees on employers that are more comprehensive than U.S. rules. You should not assume the law in other jurisdictions applies as it does here.

IMMIGRATION ISSUES

What will happen to my foreign national’s immigration status if they are stuck outside the U.S.?

Generally speaking, U.S. immigration law only applies to a foreign national when that person is physically in the country. In most situations, a person is not considered to have failed to maintain lawful immigration status if they are not physically in the U.S. The employee’s absence from the U.S., however, could trigger other collateral immigration issues. It is important to seek specific legal advice for each impacted case.

Does the Presidential Proclamation mean that the U.S. consulates will deny all visa applications filed in China in those non-exempt categories?

The State Department has not yet made specific announcements. However, some U.S. consulates in China have already postponed interview scheduling. A blanket visa denial rule is unlikely, however, because the terms of this order make it permissible to depart from China, remain in a third country for 14 days, and then lawfully seek entry into the U.S.

At the very least, visa applications filed in China will likely be delayed.  On February 1, 2020, the U.S. Embassy in China announced: “Mission China will be closed to the public from February 3-7 in accordance with Chinese government guidance. Emergency American citizen services will be available.” On February 10, 2020, the U.S. Embassy posted: “As of February 10, 2020, regular visa services at the U.S. Embassy in Beijing and the U.S. Consulates General in Chengdu, Guangzhou, Shanghai and Shenyang are suspended. Due to the ongoing situation relating to the novel coronavirus, the U.S. Embassy and Consulates have very limited staffing and may be unable to respond to requests regarding regular visa services.”

Does the Presidential Proclamation affect those with visas?

The Proclamation specifically exempts any alien seeking entry into or transiting the United Sates pursuant to an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa.

If my foreign national employee is subject to these travel restrictions, what are my options to get them back to the U.S. as soon as possible?

This will be a case-by-case analysis, but most likely the employee will have to consider going to a third country, remain in that third country for at least 14 days, and then proceed to the U.S. This may require extra planning, such as dealing with a visa to go to the third country. In addition, when several other countries have started to implement similar travel restrictions, the situation remains in flux. It is also unclear if the administration would expand this order to include more countries and regions depending on the ongoing situation of the outbreak.

What issues can we expect green card holders to encounter?

Travel restrictions may cause issues for green card holders who have already been outside of the United States for an extended period of time. Extended absences from the United States by green card holders may lead to extensive questioning upon re-entry or a determination that the green card holder has abandoned their permanent resident status.

What happens to employees on temporary visas who cannot work?

Pending specific guidance from DHS, these workers would presumably be treated as if they were on an approved, unpaid leave, and therefore would not be out-of-status for failing to work.

Must I pay an H-1B alien the salary listed in the petition even if that person cannot now work?

Again, you could presumably put such a person on an unpaid leave of absence until they are able to work again.

HEALTHCARE/HIPAA ISSUES

Does the COVID-19 coronavirus emergency trump HIPAA privacy rules?

No, the government recently sent a stern reminder to all employers, especially those involved in providing healthcare, that they must still comply with the protections contained in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule during the COVID-19 coronavirus outbreak. The Office for Civil Rights of the U.S. Department of Health and Human Services (HHS) issued a reminder after the WHO declared a global health emergency. In fact, the Rule includes provisions that are directly applicable to the current circumstances.

What are our obligations under the HIPAA privacy rules if we are contacted by officials asking for emergency personal health information about one of our employees?

The privacy restrictions mandated by HIPAA only apply to “covered entities” such as medical providers or employer-sponsored group health plans, and then only in connection with individually identifiable health information. Employers are not covered entities, so if you have medical information in your employment records, it is not subject to HIPAA restrictions.

Nevertheless, disclosures should be made only to authorized personnel, and care should be taken even in disclosures to government personnel or other groups such as the Red Cross. Further, you should be careful not to release information to someone until you have properly identified them.

How should we treat medical information?

We recommend you treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with your group health plan. In certain circumstances, if you have plan information, you can share it with government officials acting in their official capacity, and with health care providers or officially chartered organizations such as the Red Cross. For example, you can share protected health information with providers to help in treatment, or with emergency relief workers to help coordinate services.

In addition, you can share the information with providers or government officials as necessary to locate, identify, or notify family members, guardians, or anyone else responsible for an individual’s care, of the individual’s location, general condition, or death. In such case, if at all possible, you should get the individual’s written or verbal permission to disclose.

However, if the person is unconscious or incapacitated, or cannot be located, information can be shared if doing so would be in the person’s best interests. In addition, information can be shared with organizations like the Red Cross, which is authorized by law to assist in disaster relief efforts, even without a person’s permission, if providing the information is necessary for the relief organization to respond to an emergency.

Finally, information can be disclosed to authorized personnel without permission of the person whose records are being disclosed if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.

May covered entities share protected health information with public health authorities?

When there is a legitimate need to share information with public health authorities and others responsible for ensuring public health and safety, covered entities may share PHI to enable them to carry out their public health responsibilities. This may arise with the current outbreak of COVID-19. The key, as always, is to limit disclosures to the minimum necessary to the purpose, strictly in accordance with these parameters.

For example, covered entities may share information as necessary with the Centers for CDC, as well as health departments authorized by law to receive such information, to prevent or control disease or injury. You may even disclose PHI to foreign government agencies that are working with authorized public health authorities.

BENEFITS/GROUP HEALTH PLAN ADMINISTRATION

UPDATED ANSWER (March 4, 2020)
If our employees are no longer working, are they still entitled to group health plan coverage?

Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.

UPDATED ANSWER (March 4, 2020)
What happens to group health plan coverage if employees are not working and unable to pay their share of premiums?

In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue.

First, the insurance carrier providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and until an employer reopens its doors. More likely, the employer may make an arrangement with the insurance carrier providing health coverage to pay the employees’ share of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each situation will be different, depending upon the insurance carrier and the relationship between the employer and the insurance carrier. Therefore, each factual situation will need to be individually assessed.

WAGE AND HOUR ISSUES

Must we keep paying employees who are not working?

Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working are typically not entitled to the wages the FLSA requires.

One possible difference relates to employees treated as exempt FLSA “white collar” employees whose exempt status requires that they be paid on a salary basis. Generally speaking, if such an employee performs at least some work in the employee’s designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. There can be exceptions, such as might be the case when the employer is open for business but the employee decides to stay home for the day and performs no work. A U.S. Department of Labor (USDOL) opinion letter addressing these matters can be accessed here.

Also, non-exempt employees paid on a “fluctuating-workweek” basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work. There are a few exceptions, but these are even more-limited than the ones for exempt “salary basis” employees.

Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.

Finally, we caution employers to consider the public relations aspect of not paying employees who may not be working if they have contracted or are avoiding the COVID-19 coronavirus. Given the publicity surrounding this outbreak, it is possible that situations involving these kinds of issues could reach the media and damage your reputation and employee morale. Consider the big picture perspective when making decisions regarding paying or not paying your employees.

Can we charge time missed to vacation and leave balances?

The FLSA generally does not regulate the accumulation and use of vacation and leave. The salary requirements for exempt “white collar” employees can implicate time-off allotments under various circumstances. The USDOL has provided some guidance on this topic in an opinion letter that is accessible here. Again, however, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.

EMPLOYEE LEAVE/ADA

Does family and medical leave apply to this situation?

Employees requesting leave could conceivably be protected by the Family and Medical Leave Act (FMLA) to the extent they otherwise meet FMLA-eligibility requirements. Even in the absence of state or federal protection, an employer’s internal policies may extend protection to such individuals. Of course, there is nothing to prevent you from voluntarily extending an employee’s leave, even in the absence of any legal obligation.

Generally, employees are not entitled to take FMLA to stay at home to avoid getting sick. As with many employment laws, the worst thing an employer (or as is often the case, an untrained supervisor) can do at times like this is to reject immediately an unorthodox leave request before the facts are in. When in doubt, the wisest approach is to work with counsel to ensure legal compliance, thereby minimizing exposure to costly litigation.

Does contraction of COVID-19 coronavirus implicate the ADA?

Generally, no, because in most cases the COVID-19 coronavirus is a transitory condition. However, some plaintiffs could make an argument that the ADA is implicated if the virus substantially limited a major life activity, such as breathing. Moreover, if an employer “regards” an employee with COVID-19 as being disabled, that could trigger ADA coverage.

Can I send employees home who exhibit potential symptoms of contagious illnesses at work?

Yes, sending an employee home who displays symptoms of contagious illnesses would not violate the ADA’s restrictions on disability-related actions.

May an employer encourage employees to telework as an infection-control strategy?

Yes. The EEOC has opined that telework is an effective infection-control strategy. The EEOC has also stated that employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

DISCRIMINATION/HARASSMENT/EEO ISSUES

Do we have any EEO concerns related to the COVID-19 coronavirus?

Employers cannot select employees for disparate treatment based on national origin. The CDC recently warned: “Do not show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have COVID-19.”

Employers will need to closely monitor any concerns that employees of Asian descent are being subjected to disparate treatment or harassed in the workplace because of national origin. This may include employees avoiding other employees because of their national origin.

An employer may not base a decision to bar an employee from the workplace on the employee’s national origin. However, if an employee, regardless of their race or national origin, was recently in China and has symptoms of the COVID-19 coronavirus, you may have a legitimate reason to bar that employee from the workplace.

LABOR RELATIONS

My workforce is unionized. Can my company make changes to unionized employees work schedules or duties in response to the COVID-19 coronavirus?

The NLRA imposes on employers the duty to bargain in good faith over mandatory subjects of bargaining such as wages, hours, and terms and conditions of employment. Generally speaking, employers who make unilateral changes to these facets of employment may be subject to unfair labor practice charges that would apply even in emergency situations such as this one, unless your collective bargaining agreement provides otherwise. Many collective bargaining agreements contain provisions that allow for employer flexibility in determining work assignments, scheduling, and layoffs. The first authority for determining your rights and obligations is your own collective bargaining agreement.

I have a “force majeure” clause in my contract.  Does it cover an outbreak such as the COVID-19 coronavirus?

Possibly. A “force majeure” clause is a contract provision that relieves the parties from performing their contractual obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible. Whether an outbreak like the COVID-19 coronavirus triggers the force majeure clause in a contract, and the effect of that clause on the provisions of the contract, will vary significantly with each employer.

There is no force majeure clause in my contract.  Does that mean I still have to abide by all of the contract provisions during the outbreak?

The general duty to bargain over changes in contractual terms may be suspended where compelling economic exigencies compel prompt action. The law views “compelling economic exigencies” as extraordinary, unforeseen events having a major economic effect that requires the employer to take immediate action and make a unilateral change.

Although an outbreak like the COVID-19 coronavirus would seem to fit the description of a “compelling economic exigency,” realize that its effect will be different for every employer. That is, while it may suspend the duty to bargain for one employer whose only facility was infected, it will likely not suspend the duty for an employer that has lost significant accounts or contracts as a result of the outbreak. In practice, the safest course of action (and the one most likely to avoid future litigation) is to notify the union in all cases, even if you believe that your particular situation fits into the “compelling economic exigency” category.

How much notice do I have to give the union before I make a change to my contract?

The law requires employers to give the union “adequate” notice of a proposed change to the collective bargaining agreement, so as to engage in meaningful bargaining over that change on request. There is no hard and fast rule as to how much notice is adequate. But where an employer can show a need for a prompt change and time is of the essence, a notice period as short as a couple of days might be considered adequate under the circumstances.

Wouldn’t our no-strike clause prohibit bargaining unit members from refusing to work?

That would likely depend on a host of factors ranging from the articulated rationale for withholding services to specific language within the no-strike clause itself. Most such provisions effectively preclude covered employees from striking or otherwise refusing to perform work as scheduled. By the same token, long-standing labor relations doctrine generally requires bargaining unit members to, “work now, and grieve later.”

That being said, such provisions do not necessarily trump those aspects within Section 13(a) of the OSH Act entitling all employees to refuse to work if they reasonably believe they are in imminent danger, and compelling employees (particularly in high risk industries) to report for work under such circumstances may also present adverse public relations implications. Consequently, circumstances like these are best examined on a case-by-case basis under advice of counsel and – in some circumstances, following dialogue with the authorized bargaining representative.

WARN ACT/PLANT CLOSINGS

Do we have an obligation to provide notice under the WARN Act if we are forced to suspend operations on account of the coronavirus and its aftermath?

Yes, if your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act. The federal WARN Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined extensively under WARN’s regulations, and that they are not intended to cover every single layoff or plant closing.

Generally speaking, employers must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff. Note, however, that if employees are laid off for less than six months, then they do not suffer an employment loss and, depending on the particular circumstances, notice may not be required. Unfortunately, in situations like this, it is hard to know how long the layoff will occur so providing notice is usually the best practice.

Fortunately, even in cases where its notice requirements would otherwise apply, the WARN Act provides a specific exception when layoffs occur due to unforeseeable business circumstances. This provision may apply to the COVID-19 coronavirus. But due to the fact-specific analysis required, this exception is often litigated.

Moreover, this exception is limited, in that an employer relying upon it must still provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” In other words, once you are in a position to evaluate the immediate impact of the outbreak upon your workforce, you must then provide specific notice to “affected employees.” You must also provide a statement explaining the failure to provide more extensive notice, which in this case would obviously be tied to the unforeseeable nature of the outbreak and its aftermath.

The WARN Act has specific provisions requiring notice to employees, unions and certain government entities. The Act further specifies the information that must be contained in each notice. Keep in mind that some states have “mini-WARN” laws that may apply. Please work with your employment counsel to ensure compliance notices are provided.

Will this law really be enforced this law in light of the outbreak?

In the aftermath of an outbreak, the extent to which the USDOL will focus upon enforcement of the WARN Act remains to be seen. Nonetheless, the law provides stiff penalties for non-compliance, including up to 60 days of back pay and benefits, along with a civil penalty of up to $500 per day. More importantly, it provides for a private cause of action in federal court, suggesting that employers may soon be responding to lawsuits arising under the WARN Act regardless of the enforcing agency’s official position.

Consequently, we advise that you evaluate your current situations to ascertain whether the most recent outbreak has triggered a WARN Act qualifying event in your organization. If so, provide as much notice to affected employees as is practicable under the circumstances. When in doubt, the best approach is to work through counsel to arrive at a safe but practical solution to a potentially thorny situation for many employers that are impacted by the outbreak, either directly or indirectly.

WORKERS’ COMPENSATION

UPDATED QUESTION & ANSWER (March 9, 2020)
My employee alleges that they contracted the coronavirus while at work. Will this result in a compensable workers’ compensation claim?

It depends. If the employee is a health care worker or first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact-specific.

It is important to note that the workers’ compensation system is a no-fault system, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work and was proximately caused by their employment. Additionally, the virus is not an “injury” but is instead analyzed under state law to determine if it is an “occupational disease.” To be an occupational disease (again subject to state law variations), an employee must generally show two things:

  • the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and
  • the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.

The general test in determining whether an injury “arises out of and in the course of employment” is whether the employee was involved in some activity where they were benefitting the employer and was exposed to the virus. Importantly, special consideration will be given to health care workers and first responders, as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. This would also include plant nurses and physicians who are exposed to the virus while at the worksite.

As for other categories of employees, compensability for a workers’ compensation claim will be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to their employment. Even if the employer takes all of the right steps to protect the employees from exposure, a compensable claim may be determined where the employee can show that they contracted the virus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.

Absent state legislation on this topic, an employee seeking workers’ compensation benefits for a coronavirus infection will still have to provide medical evidence to support the claim. Employers who seek to contest such a claim may be able to challenge the allowance if there is another alternative exposure or if the employee’s medical evidence is merely speculative.

Finally, employers should be aware that states are taking action on this issue. For instance, Washington Governor Jay Inslee recently directed his Department of Labor and Industries to “ensure” workers’ compensation protections for health care workers and first responders. The directive instructs the Department to change its policies regarding coverage for these two groups and to “provide benefits to these workers during the time they’re quarantined after being exposed to COVID-129 on the job.” We expect other states to follow Washington’s lead.

UPDATED QUESTION & ANSWER (March 9, 2020)
My employee contracted COVID-19 while on a business trip for my company. Is this a compensable workers’ compensation claim?

Again, it depends. While an employee who contracts a disease while traveling for business may be eligible for workers’ compensation benefits in many jurisdictions, the analysis will be very fact-specific. In most states, the worker will need to satisfy the test for compensability outlined above. States often differentiate between exposures that occur while “working” during a business trip versus exposures that occur during “down time.” Some states create almost strict liability for any injury that occurs on a business trip, whether the employee is working or not. But again, in order to have a compensable claim, the employee must, at a minimum, establish that they had an exposure to the coronavirus while traveling for business. Like other matters, these cases are best examined on a case-by-case basis under advice of counsel.

UPDATED QUESTION & ANSWER (March 9, 2020)
What are the likely benefits an employee will be eligible to receive if their coronavirus infection is found to be a compensable workers’ compensation claim?

The good news is that, except in rare situations, an employee diagnosed with the virus will have no significant long-term health care problems. Therefore, medical costs associated with the claim are likely to be limited to visits to the family physician and anti-viral medications. More significant cases may involve hospital stays of two to three weeks.

The compensation costs should also be limited to the lost time associated to any recovery time. They may also be associated with lost time due to quarantine as required by the employer or local, state, or federal government agencies.

There could be more significant costs in extreme and rare situations involving complications from the virus. However, these cases would usually be limited to claimants who are older or suffer from immune deficiencies.

https://www.fisherphillips.com/resources-alerts-comprehensive-faqs-for-employers-on-the-covid

 

Coronaviruses and the Workplace

Image result for coronavirus and workplace photo

Coronaviruses are fairly common and don’t typically affect humans. When they do, their effects are usually mild, as in the case of the common cold.

However, deadlier variations of these coronaviruses have cropped up in recent years. Two examples of these evolved strains are the SARS virus of 2003 and the novel coronavirus, which was first seen in 2019. In both instances, the viruses ravaged the populations they infected, illustrating why employers must stay alert to developing outbreaks.

It’s the responsibility of every employer to protect employees from these and other illnesses in the workplace. Taking even small precautions could save an organization countless hours of lost productivity.

Identifying Coronavirus Symptoms

Common coronaviruses typically cause mild to moderate upper-respiratory tract illnesses, and those affected exhibit cold-like symptoms. The most common symptoms include:

  • Headache
  • Cough
  • Fever
  • Sore throat
  • Runny nose

Some cases of coronavirus can be more severe, and individuals experience more serious lower-respiratory tract illnesses like bronchitis and pneumonia. For the elderly, infants and those with weakened immune systems, a coronavirus can be deadly.

Diagnosing a Coronavirus

More dangerous coronavirus strains elicit similar symptoms to the cold or flu, so identifying the virus can be difficult. If employees are suffering from flu-like symptoms—especially if they recently traveled to a country experiencing a coronavirus outbreak—they should call their doctors immediately. Doctors typically request initial phone calls, rather than visits, to properly prepare for a coronavirus patient.

Precautions for the Workplace

Employers should protect against coronaviruses much like they protect against the flu: Offer on-site flu shots, stock cleaning wipes and hand sanitizer, and educate employees on prevention methods.

According to the Centers for Disease Control and Prevention, individuals should take the following precautions to avoid person-to-person spreading of a coronavirus:

  • Avoid touching your eyes, nose or mouth with unwashed hands.
  • Avoid contact with those who are sick.
  • Wash your hands often with soap and water.

Unfortunately, there is no known vaccine for a human-contracted coronavirus, making precaution that much more critical.

Avoiding Potential Discrimination

As with any workplace policy, employers should be wary of inadvertent discrimination when it comes to a coronavirus prevention policy (e.g., ordering employees home when they seem sick). Just because an employee recently traveled to China and coughed in the elevator doesn’t mean an employer can send them home.

Whatever policy a company decides to pursue, it must be equally enforced. Discriminating against employees—or asking illegal health-related questions—can introduce a host of legal concerns.

Summary

Employee education is one of the best lines of defense for a workplace. General preventive health practices, like washing hands, can safeguard workers even when they’re at home.

Remind employees to keep up their hygiene and share their knowledge of coronavirus symptoms so they know what to look out for. Together, you and your employees can stay safe, healthy and productive.

Speak with Libertate Insurance for more information on staying healthy in the workplace.

California Workers’ Compensation Rates About to Drop in July

Last Thursday, the Workers’ Compensation Insurance Rating Bureau of California (“WCIRB”) testified before the California Department of Insurance that a 16.5% rate reduction was appropriate for the businesses of California effective 7/1/17.  California is a state where rates do not follow anniversary rating dates (“ARD’s) and therefore the impact of this reduction will be immediate for those that shop.

“WCIRB Executive Vice President and Chief Actuary Dave Bellusci and with President and CEO Bill Mudge presented the actuarial basis for the WCIRB’s average proposed July 1 advisory pure premium rate of $2.02, which is 16.5 percent lower than the corresponding industry average filed pure premium rate of $2.42 as of Jan. 1 2017 and 7.8 percent less than the insurance commissioner’s approved average Jan. 1 advisory pure premium rate of $2.19.”

http://www.insurancejournal.com/news/west/2017/05/04/450074.htm

A fertile market for aggressive carriers.

The California Department still has to approve, but that is anticipated in the next 30 days with the effective date of the proposed reduction less than 60 days from today.

While this is a sharp reduction, California still has and will have the highest workers’ compensation rates in the country by far and the State represents approximately 1/3 ‘rd of all workers’ compensation insurance premiums countrywide.  A fertile market for aggressive carriers.  For more info on national State rates and how they compare before credits/dividends and deductibles, review the following link…

Click to access report_summary.pdf

-Paul R. Hughes

Can Wearable Fitness Devices Lower Healthcare Costs?

Businesses have been trying to crack the corporate wellness code for years to no avail.  The below article published on www.crains.com speaks to what possibly could be a positive trend for wellness and healthcare costs.


 A study by a healthcare analytics firm that tracks corporate wellness efforts found that employees using wearable fitness monitoring devices had lower healthcare costs over a two-year period.

Indianapolis-based Springbuk Inc. evaluated medical-related claims of those using the devices at a healthcare company with 20,000 employees. The study comes at a time when most of the nation’s large health insurers have or are about to offer discounts to employees and employers using such devices. From an employer’s perspective, they may be most valuable in motivating healthy lifestyles among employees who are at higher risk of incurring substantial medical claims.

“The analysis shows that after two years, employees who opt-in to the wearable program cost on average $1,292 less than employees in the control group,” said Phil Daniels, co-founder and vice president of Springbuk.

That amounted to a 46 percent cost reduction for those using wearable devices at the company. Springbuk did not identify the employer but said it is in the healthcare industry and has an active wellness program that includes the option to use Fitbit devices.

Such wearable devices, from an increasing number of manufacturers, monitor activity such as heart rates and the number of steps walked.

ABI Research in late 2013 estimated that more than 13 million wearable devices with embedded wireless connectivity could be integrated into employer wellness plans by 2018.

Lots of devices, lots of questions

Use of such devices – including those from Apple, Google and Samsung – is still small relative to the overall population. Just 1 to 2 percent of individuals in the U.S. have used them, but annual sales could hit $50 billion in 2018, according to data cited in a study last year by physicians at the Philadelphia VA Medical Center at the University of Pennsylvania.

Currently, those who wear them tend to be young, early adopter-types and not necessarily those who need them most: older, less-healthy populations. The study suggests that affordability of such devices – some starting at around $100 – will be a determinant in usage, though increasingly insurers or employers are picking up part or all of the cost.

Wearables have the potential to engage “less motivated” individuals, according to the study.

“Some of these devices may justify that promise, but less because of their technology and more because of the behavioral change strategies that can be designed around them,” the study reported.

Data from wearables has become an exciting new stream of information for companies like Springbuk, which helps some of the nation’s largest employers find ways to reduce healthcare costs through efforts such as wellness programs.

About 500 companies use Springbuk’s health analytics platform, which assembles and analyzes disparate sources of data. Grouping employees’ medical claims and pharmacy and lab records into a dashboard for employers to view helps model and predict future healthcare costs and take steps to reduce them.

There’s still more that can be learned from data captured from wearable devices, Daniels said.

“Does taking, say, 10,000 steps a day actually matter? Does it lower obesity rates?” he asked.

Answering such questions is key in helping employers justify expenses for wellness programs, let alone help them get a grip on ever-rising healthcare costs.

So far, “We really view wearable devices as just one more piece of the wellness concept,” Daniels said. “For us, this wearable piece is one more data stream.”

Insurer, employer rollout

Insurers and employers have been slowly gaining experience with the devices.

Last March, Minnetonka, Minn.-based UnitedHealthcare and San Diego-basedQualcomm Life rolled out the “Motion” wearable device. It’s now used in UnitedHealthcare wellness programs offered to about 120,000 people in over 40 states.

Workers and spouses covered under the plans can earn up to $1,460 per year toward their health savings accounts if they reach certain fitness goals. They may earn a smaller amount, however, if they hit some of the goals. That’s important, as some research has shown employees doubtful about fulfilling a heath goal may simply give up entirely.

UnitedHealthcare also caps the amount at which an employer’s health insurance premiums rise each year if employees achieve certain goals.

Craig Hankins, vice president of digital products at UnitedHealthcare, said the insurer applied a great deal of clinical analysis in developing those targets, looking at factors such “frequency, intensity and tenacity” of fitness exercises.

That means participating employees not only had to take so many steps per day – say 10,000 – but also keep heart rates up throughout the day to produce meaningful health benefits.

The Qualcomm device was designed to provide “nudges” throughout the day, in some cases buzzing to remind folks to get moving.

“People need that nudge. They get busy,” said Hankins, who himself wears one. “This was a program that was developed over a couple of years, with a lot of thought.”

Most all other major health insurers have devices as well. One of the earliest efforts was that of Indianapolis-based Anthem Inc., which began wearable device implementation four years ago. It has relationships with several wearable device companies and offers discounts to health plan members for wearables from Fitbit and Garmin.

Anthem piloted fitness tracker engagement with its own employees in 2012.

“We found that our own associates who had a chronic disease or were at risk of a chronic disease and used the Fitbit tracker for a period of six months experienced increased activity levels and weight loss,” said Anthem spokeswoman Geraldine Rodriguez.

The devices by themselves, however, weren’t the only component in positive health results.

“We did learn that coaching support and incorporating reinforcement strategies was instrumental in its success,” Rodriguez added.

“As a result, we determined it would be best offered through our disease management programs.”

Devices alone not the answer

Anthem may be on to something.

A University of Pittsburgh study published last month involving more than 400 people over a two-year period found that while those using a wearable device lost 7.7 pounds, those who received traditional counseling lost 13 pounds.

“Devices that monitor and provide feedback on physical activity may not offer an advantage over standard behavioral weight loss approaches,” authors stated in the study published in The Journal of the American Medical Association.

Both test groups had “significant” improvements in fitness, physical activity, body composition and diet, however.

UnitedHealthcare said it still needs more time to study patient experiences with the wearable devices. So far, about 60 percent of individuals at employers offering the devices have at least registered them, the company said.

“It’s about getting to: ‘How does it work and what do we need to understand about how people interact with it?’” Hankins said. “The early indications are promising.”

Credit:
Chris O’Malley
www.crains.com

Workers’ Compensation for PEOs and Their Employees

WORKERS COMPENSATION | PEOs

A very good article on the history of the PEO industry and its ability to provide workers’ compensation to American small business and their employees through the legal doctrine of co-employment.  Really nails it.

By Christopher Boggs of the Insurance Journal

http://www.insurancejournal.com/news/national/2016/09/27/427413.htm

One of the more important take-aways from this article is it provides further clarity to the process of staffing/leasing, which involves a transfer of labor by a staffing company to a client employer; where the employee is placed without any employer-employee relationship.  Coemployment on the other hand, helps the employer by sharing many of the non-occupational segments of being an employer; such as payroll, reg compliance, HR, major medical and of course workers’ compensation.  It allows “Joe the Plumber” to focus on plumbing and not the procurement of insurance as well as the menagerie of federal regulations business must follow such as the Affordable Care Act, FMLA, COBRA, Fair Labor Standards and over fifty others overseen by the Department of Labor.

“PEO contracts are co-employment arrangements whereby the professional employer organization and the client with whom it contracts both retain some right of control over the individual worker or workers collectively. Such relationship is wholly different than a leased employee or the use of a borrowed servant. Leased employees and borrowed servants are under the absolute control of the special employer. “Co-employment vests responsibility and control with both parties to the contract.”

Unfortunately, the issue or staffing versus leasing versus coemployment is confused in states like Florida where PEO statutes have not been properly updated to recognize the differences in these vls.  nice work on reinforcing these differences.ery different business mode

For further information on staffing versus coemployment, NCCI.com provides some excellent educational resources on the PEO industry and the nuances of its unique business model.

—  PRH