The only certain thing that can be said so far about the extent of the novel coronavirus and its consequences is that we have no idea just how far reaching its impacts will be in both our personal and professional lives. With that being said, our lawyers remain on the front lines of developing efficient and effective responses to these unique issues, whether they arise in an employment law context or involve force majeure and contracts.
Employers in particular are being impacted by COVID-19 in an unprecedented fashion. Everything from moving an in-office workforce to remote locations to potential interruptions in cash flow to the various benefits available to employees can make an already trying financial time even more confusing for hard working business owners. Employment law issues directly impacted by this disease that must be considered by employers include:
An employer should evaluate whether it has adequate workers’ compensation insurance coverage and coverage limits that include occupational diseases. Right now, it appears there will be presumptive claims for people in the health care field, but not for those in other sectors of employment, even if deemed “essential workers.” Employee issues will arise with grocery stores, construction sites, and other sectors where businesses have been deemed essential.
In the event an employee contracts coronavirus as a result of occupational exposure – the illness “arises out of and in the course of employment” – which the employee must prove with competent medical evidence, the employee is entitled to receive temporary total disability benefits in lieu of wages, reasonable and necessary medical treatment, and an award for any resulting permanent disability (e.g., reduced respiratory capacity, etc.). Notably, Governor Abbott suspended Health and Safety Code Section 81.050(j) and 28 Texas Administrative Code Section 122.3(c) regarding 10-day testing requirements, as symptoms of COVID-19 exposure may take over 10 days to manifest.
Should an employee test positive for the novel coronavirus after being exposed outside of work, the associated benefits would not be available under the Texas workers’ compensation program, although the employee likely qualifies for other available benefits.
Disability insurance serves to replace a worker’s income if they become unable to work due to sickness or injury. COVID-19 should generally be covered under standard disability insurance policies.
If an employee contracts the disease in a manner unrelated to their occupation, the employee may be entitled to disability benefits if the employer provides them and the terms of the policy include coverage for such illnesses. Since the novel coronavirus is complex and currently somewhat medically difficult to manage, employers should work with competent professionals – like those at MehaffyWeber – to advise them on these issues.
Family and Medical Leave Act [FMLA]
The Family and Medical Leave Act (“FMLA”) has a cousin in the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA). Temporary rules issuing regulations have now been posted. In the past, FMLA was applicable only to employers who have more than 50 employees at the location where the employee works, and those employers are required to provide up to twelve (12) weeks of unpaid leave to a qualified employee with a “serious health condition.” An employee is also eligible under the FMLA in the event of a “serious health condition” affecting their spouse, child or parent(s). To qualify for coverage, an employee must have worked for their employer for at least 12 months and have at least 1,250 hours of service over the previous 12 months. Even under the old FMLA, if a qualified employee contracts the virus, it will likely be considered a “serious health condition,” entitling them to unpaid leave. Similarly, if an employee’s parent, spouse, child, or other dependent contracts the disease, this could serve as a qualifying event entitling the employee (with appropriate medical documentation) to utilize leave time to care for them.
Now, the Medical Leave Expansion Act extends these obligations to apply to non-federal employers under 500 and employers with less than 50 employees unless you are a small business with fewer than 50 employees and are exempted. Generally, the Act covers:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because they are quarantined pursuant to federal, state, or local government order or the advice of a health care provider, and/or they are experiencing COVID-19 symptoms and seeking a medical diagnosis. Paid sick leave is in addition to other leave provided under federal, state, or local law, an applicable collective bargaining agreement, or an employer’s existing company policy; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine pursuant to federal, state, or local government order or the advice of a health care provider, or to care for a child under 18 years of age whose school or childcare provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19. However, if your employer was covered by FMLA prior to April 1, 2020, your eligibility for expanded family and medical leave depends on how much leave you took during the 12-month period your employer uses for FMLA leave. You may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If you have taken some but not all of your 12 workweeks of leave under FMLA during the current 12-month period determined by your employer, you may take the remaining portion. If you have already taken 12 workweeks of FMLA leave during this 12-month period, you may not take additional expanded family and medical leave.
Health Insurance Portability and Accountability Act [HIPAA]
The Health Insurance Portability and Accountability Act, more commonly referred to by its acronym HIPAA, was designed to ensure entities and their business associates safeguard patients’ protected health information (PHI). Under normal circumstances, a covered entity must obtain patient consent or authorization before using or disclosing patient PHI; however, in a public health crisis, certain information may be disclosed.
During the current pandemic, as with most infectious disease outbreaks and other emergency situations, the protections of HIPAA’s Privacy Rule are not automatically set aside; however, the federal government issued emergency declarations under the Stafford Act, Public Health Service Act, and National Emergencies Act. As of March 13, emergencies have been declared under all three acts; therefore, covered entities should seek legal guidance when developing internal protocols for the handling of PHI for COVID-19 patients.
Providing a Safe Workplace During a Pandemic
The Centers for Disease Control and Prevention (CDC) and the Cybersecurity and Infrastructure Security Agency (CISA) recently issued a new Interim Guidance Document titled “Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.”
Information changes almost daily with regard to how to provide a safe workplace, but as of April 8, 2020, the CDC and CISA both recommended certain precautions for employees not exhibiting symptoms, but who may have been exposed to the coronavirus. Those recommendations include:
- Taking the employee’s temperature and inquiring about symptoms before an employee begins work;
- Suggesting the employee self-monitor under an existing occupational health program, should one exist;
- Requiring the employee to wear a face mask or other face covering for 14 days;
- Continuing social distancing of at least six feet as work duties permit in the workplace; and
- Continuing to disinfect and clean offices, bathrooms, common areas, and any shared electronic equipment.
If an employee develops a fever or other symptoms, they should be sent home and the areas they had contact with must be disinfected.
Additional safety tips to avoid the spread of the novel coronavirus include:
- Employees should not share headsets or other objects near their mouth or nose.
- Employers should increase the frequency of cleaning commonly touched surfaces.
- Employees and employers should consider pilot testing the use of face masks to ensure they do not interfere with work assignments.
- Employers should work with facility maintenance staff to increase air exchanges.
- Employees should physically distance when they take breaks. Stagger breaks, don’t congregate in the break room, and don’t share food or utensils.
Texas Labor and Employment Lawyers
We will continue to provide updates on the application and interpretation of additional legislation related to COVID-19 as more information becomes available. The MehaffyWeber Labor and Employment Practice Group continues to monitor the novel coronavirus (COVID-19), work collaboratively to stay current on developments, and counsel clients through the various legal and business issues across a variety of sectors.