On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was enacted. The statute left many questions regarding its implementation and administration unanswered. Over the past several days, the U.S. Department of Labor (the “DOL”) has been publishing questions and answers addressing some of these unanswered questions. Here is a summary of some of the key information provided by the DOL.
The COVID-19 pandemic has already caused severe disruption to many businesses across the country. Employers will be required to continue to monitor developments and adjust to changing circumstances in the coming weeks and possibly months. We provide the following recommendations for employers in dealing with the many employment-related issues that will inevitably arise.
Two months ago, many Americans were unfamiliar with the term “Ebola." It’s amazing how quickly things can change. Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak. Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans. If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus. Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are: fever, fatigue, muscle pain, headache, and sore throat. As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to: nausea, vomiting, diarrhea, a rash, and impaired organ function(s). The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q: What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue. If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:
Americans With Disabilities Act (“ADA”) – e.g., disability-related inquiries, medical examinations, regarding employees as being potentially disabled, etc.;
Occupational Safety & Health Act (“OSHA”) – e.g., adhering to OSHA directives and guidelines regarding cleaning and decontamination, use of personal protective equipment ("PPE"), following blood-borne pathogen standards, complying with hazard communication requirements, other circumstances that may fall within the General Duty Clause, etc.;
Title VII of the Civil Rights Act (“Title VII”) – e.g., ensuring that employment actions and decisions do not result in discrimination, harassment, or retaliation on the basis of race, ethnicity, or national origin;
Family and Medical Leave Act (“FMLA”) – e.g., ensuring proper notification to employees of their FMLA leave rights and proper designation of FMLA leave, where applicable; and
National Labor Relations Act (“NLRA”) – e.g., respect employees’ rights to lawfully discuss and raise safety concerns regarding Ebola in the workplace.
Q: May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA. Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard? The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so. As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present: (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q: To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored. In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus. Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q: May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances. In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others. Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk. The governing standard here is one of reasonableness. For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms. Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q: What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury. Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm. According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States. Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern. Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q: What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed. In other words, don’t panic. Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:
Educate the workforce. Lack of information or misinformation spawns unnecessary hysteria. The more employees know about Ebola and how it is transmitted, the better equipped they will be to approach this outbreak in a pragmatic and reasonable fashion.
Remind employees about proper infection control practices (i.e., regular hand washing, sneezing/coughing etiquette, minimizing handshakes and other similar forms of contact where possible, etc.).
Follow OSHA guidance regarding cleaning and decontaminating work surfaces that may contain or have been exposed to blood or bodily fluids.
Consider whether telecommuting would be an effective infection control strategy for an employee who may need to remain out of the physical workplace due to Ebola-related concerns.
Review and consider whether any business that needs to be conducted abroad (to areas impacted by Ebola or close in proximity thereof) can either be postponed or conducted remotely.
Routinely monitor the workplace to prevent discrimination, harassment, and retaliation against employees as a result of this outbreak.
It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States. However, what is abundantly clear is that this situation is constantly changing. What may seem reasonable today may need to be modified tomorrow. As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.
On September 26, 2012, the Second Department Appellate Division held that an employer who hires undocumented aliens in violation of the Immigration Reform and Control Act of 1986 ("IRCA") is still shielded by the Workers' Compensation Law if those employees are injured on the job.
IRCA was adopted by Congress in an attempt to curtail illegal immigration. Toward that end, it imposed a duty upon employers to verify a prospective employee's identity and work eligibility by examining the individual's documentation prior to hiring. Absent the requisite documentation, employment cannot be offered. Employers who violate IRCA are subject to civil and criminal penalties.
The Workers' Compensation Law insulates employers from personal injury claims brought by their employees, and also precludes third party claims against the employer for contribution and indemnification except in instances of “grave injury” or where the employer contracted to provide such indemnification.
How do these federal and state provisions relate? In a matter of first impression, the Second Department Appellate Division was asked to decide whether the protection afforded employers under the Workers' Compensation Law was still available in the event that the employer violated IRCA. Yes, it was, according to the decision in New York Hospital Medical Center of Queens v. Microtech Construction Corp.
In arriving at that conclusion, the Court made several observations. First, it noted that in adopting IRCA, Congress expressly preempted all state and local laws that imposed civil or criminal sanctions upon employers for similar offenses. It also observed that the statute was silent as to any further preemptive effect. Indeed, to the contrary, IRCA’s legislative history demonstrated a lack of intent to diminish existing labor protections. Consistent with that conclusion, the Court determined that there could be no express preemption of the Workers' Compensation Law, as none of its relevant provisions seek to impose civil or criminal sanctions for employing undocumented aliens.
While the Court acknowledged that stripping away the protections of the Workers' Compensation Law from an IRCA-violating employer may support the federal statute’s ultimate goals, it held nevertheless that retaining such protections despite an IRCA violation did not present such an obstacle to attaining Congress’ objectives that the Workers' Compensation Law could be considered preempted. Thus, the Court ruled that an IRCA violation did not serve to diminish or remove the protections afforded an employer under the Workers' Compensation Law.
In an extremely important decision for employers, the United States Court of Appeals for the D.C. Circuit held that an employer can only be cited by OSHA for up to six months following the occurrence of an error or omission in its injury and illness record-keeping logs. In so holding, the Court restored the plain text of the Occupational Safety and Health Act (the "Act"), which provides that "no citation may be issued . . . after the expiration of six months following the occurrence of any violation." OSHA regulations require employers to maintain their injury and illness logs for five years from the end of the calendar year that those records cover. Relying on that regulation, OSHA had a longstanding practice of issuing citations up to five years following an alleged record-keeping violation. For the first time, an appeals court held that this practice is contrary to the explicit statute of limitations contained in the Act.
The Court's decision was unanimous, and none of the judges thought very highly of OSHA's arguments to extend the statute of limitations to five years for record-keeping violations. The Court stated that OSHA was "heroically attempt[ing]" to "tie this straightforward issue into a Gordian knot," and was "kick[ing] up" a "cloud of dust . . . in an effort to lead us to [the Secretary of Labor's] interpretation."
While employers may still be cited beyond the six-month statute of limitations if violations are continuing or ongoing, this decision will have a significant impact on OSHA's enforcement of employers' record-keeping obligations. OSHA has 90 days from the date of the decision to file a petition for writ of certiorari to the Supreme Court if it wishes to appeal the Court's decision.
On April 5, the Occupational Safety and Health Administration ("OSHA") announced a new National Emphasis Program ("NEP") for inspecting nursing homes and residential facilities. This is an important announcement, because for most employers, there are only a few reasons why OSHA may inspect an employer's worksite: (1) the worksite's injury and illness rate places it within OSHA's Site-Specific Targeting program; (2) the occurrence of a work-related accident that causes a fatality or hospitalizes three or more employees; (3) a referral from another law-enforcement agency; (4) an inspector withesses a possible violation in "plain view" or from media reports; (5) an employee complaint; or (6) a follow-up from a previous inspection.
However, OSHA also has the authority to create regional and national emphasis programs for particular industries. Using that authority, OSHA has announced that it will inspect nursing homes and residential facilities nationwide that had a Days Away, Restricted, or Transferred ("DART") rate in 2010 of 10.0 or more. The directive implementing the NEP also states that each Area Office will inspect at least three nursing homes or residential facilities within its jurisdiction each year under this program. Thus, nursing homes or residential facilities with a 2010 DART rate of 10.0 or more should consult with their safety personnel and legal counsel to prepare for the likelihood of an OSHA inspection.
Just in time for the Winter Solstice, the Occupational Safety and Health Administration ("OSHA") issued a press release on December 21, 2011, advising that the agency launched a web page devoted to hazards workers may face during winter storm response and recovery operations.
OSHA's new web page contains guidance on how employers and workers who are involved in cleanup and recovery operations can avoid injuries and illnesses related to snow storms and other weather conditions. For example, OSHA offers advice on how to prepare a vehicle for the winter season, how to avoid back aches and heart attacks while shoveling snow, how to safely walk on ice, etc. Industry-specific guidance on the new web page includes a section on utility workers' repair of downed or damaged power lines.
The web page also identifies several hazards that are associated with working in winter storms, including: being struck by falling objects, such as icicles, tree limbs, and utility poles; driving accidents; carbon monoxide poisoning; dehydration, hypothermia, and frostbite; and falling while walking on slippery walkways.
The new web page also includes links to guidance from OSHA, the Federal Emergency Management Agency ("FEMA"), the American Red Cross, the National Weather Service, the National Oceanic and Atmospheric Administration, the Centers for Disease Control and Prevention, the National Safety Council, and other agencies and organizations.
On October 22, 2009, New York State Commissioner of Health Richard F. Daines, M.D., suspended the mandatory influenza immunization requirement for New York State health care workers due to a shortage of available vaccines. In a letter dated October 23, 2009, the Commissioner wrote that the current emergency regulations requiring vaccination would expire on November 11, 2009, and that no new emergency regulations would be promulgated. Rather, the Department will propose a permanent regulation requiring vaccination of health care personnel in the facilities covered by the emergency regulation and post the draft for a period of public comment. The Department of Health now stresses that the limited vaccine supply should be prioritized for patients and those most at risk (pregnant women, and children and young people between the ages of 6 months and 24 years).
The emergency regulations went into effect on August 13, 2009, and required all covered health care facilities in New York State to ensure that health care personnel having direct patient contact were immunized against both seasonal influenza as well as the H1N1 virus. The mandate applied to personnel in hospitals, diagnostic and treatment centers, home care services agencies, certified home health agencies, licensed home care services agencies, long term home health programs, and hospice programs. The regulations required that personnel commencing employment on or after November 30, 2009, be immunized and that existing personnel receive annual vaccinations before November 30 of each year. The only health care personnel exempt from the vaccination requirement were those who provided documentation from a licensed physician or certified nurse practitioner certifying that vaccination would be detrimental to the health of the individual.
The Commissioner’s most recent action was permitted by the emergency regulations, which state that if “the commissioner determines the vaccine supplies are not adequate given the numbers of personnel to be vaccinated or vaccine(s) are not reasonably available, the commissioner may suspend the requirements(s) to vaccinate and/or change the annual deadline for such vaccinations.” This past summer, both the federal government and the Centers for Disease Control and Prevention (CDC) estimated that upwards of 120 to 200 million doses of H1N1 vaccine would be available nationwide by the end of November. After receiving reports from the CDC that New York would in fact only receive 23 percent of its anticipated H1N1 vaccine supply, and that the amount of seasonal flu vaccine available to the State would also fall short of the increased demand, the Commissioner of Health suspended the mandate.
The suspension comes just six days after three nurses filed suit in Albany County Supreme Court alleging that the mandatory vaccination requirement violates the civil rights of health care workers. After consolidating the nurses’ suit with two other lawsuits, the Court issued a temporary restraining order on the mandate and scheduled further hearings to take place on October 30.
Nicholas Fusco assisted in the preparation of this post.
The new Guidance stresses that employers should develop a flexible pandemic response plan which can be adjusted depending on the level of severity of the flu outbreak. The Guidance advises employers to key their level of actual response to advice from local public health authorities. As a baseline, the guidance stresses that “during an influenza pandemic, all sick people should stay home and away from the workplace, hand washing and covering coughs and sneezes should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly.”
If current flu conditions persist, the CDC’s recommended responses include: advising sick employees to go home; encouraging employees to get vaccinated; taking measures to protect employees who are at higher risk for complications of influenza (i.e. pregnant women, individuals with chronic lung disease, heart disease, diabetes, immune system disorders and other chronic medical conditions); advising employees who travel frequently to take certain steps in advance of their business trips; and preparing for the possibility of temporary closure of schools and child care programs.
If, however, the 2009-2010 H1N1 flu outbreak becomes more severe than the spring/summer 2009 outbreak, the CDC recommends additional responses, including: actively screening employees who report to work for flu like symptoms (e.g. asking employees at the beginning of shift about symptoms); considering alternative work environments for employees at high risk of complications of influenza; considering “social distancing” in the workplace (the goal should be at least 6 feet of distance between people at most times); and canceling all non-essential business travel.
The Federal Government’s flu website, www.flu.gov, contains a wealth of additional information to assist employers in developing a plan and communicating with employees, including, a variety of helpful checklists and forms. The website will be updated continually throughout the coming flu season.