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How are you advising employers to respond if they hear of someone testing positive to COVID-19?

Employers are responsible for providing a safe work environment for their employees.  Given the seriousness of the COVID-19 pandemic, many employers are heeding the advice of the experts and government officials and allowing or requiring employees to work remotely where possible based upon job duties.  Governor Sununu has not ordered all nonessential businesses to close and for businesses that are still open, if an employee tests positive for COVID-19, employers should remove the employee from the workplace so that he/she is not coming into contact with other employees and/or business associates, clients, or vendors until the employee is cleared by medical professionals after testing negative for COVID-19.  The question raises an important interplay between an employee’s privacy and protecting the health and safety of fellow employees and others in the work environment.  Employers should determine who the infected employee came into close contact with over the course of the last several weeks and, while maintaining the confidentiality of the identity of the infected employee, the employer should notify identified employees that they may have been exposed to COVID-19 and should self-quarantine and seek medical assistance as needed.  If any employees are exhibiting signs of the virus, they should be sent home.  In general. all workplaces should be cleaned and sanitized and employees should be reminded of personnel hygiene steps.  After COVID-19 was classified as a pandemic by WHO, the CDC and EEOC issued guidance for employers describing the steps that employers are permitted to make in handling infected employees and those suspected of being infected.  The Families First Coronavirus Response Act, which is effective on April 1, 2020, may provide paid leave for employees based upon the circumstances.

What is the advice being given to employers about working from home? Have you had any cases where employees are complaining that their employer will not allow them to work from home?

Consistent with the recommendations concerning social distancing, employers are being advised to transition employees to remote work to the extent that they can perform their duties and functions remotely.  For those whose duties require them to work on site at the employer’s place of business, employers should ensure that employees maintain social distances of at least 6 feet, which may include repositioning work stations or spaces, reconfiguring common area spaces such as lounges and cafeterias, modifying food and beverage options for employees, adjusting work schedules to reduce the number of employees on site at the same time, prohibiting travel, reinforcing person hygiene protocol, having plenty of soap and hand sanitizer for employees to use, limiting or prohibiting outside visitors and guests at the work site, and revisiting cleaning procedures to ensure that they are consistent with CDC recommendations.  We have not heard of many employee complaints about employers not allowing employees to work remotely yet but have heard of situations where employees are unhappy that some employees may work remotely while other employees cannot.  Shifting a large number of employees to remote working environments does raise other concerns such as confidentiality, online security vulnerabilities, wage and hour issues, and whether the employee has the proper equipment needed to perform their work.  To overcome equipment hurdles as employers scramble to transition employees to remote working environments, employers should consider allowing employees to take what they need from the work site or purchase any needed equipment if possible.

Is your firm establishing a task force of any kind to meet the challenges ahead economically?

We are closely monitoring the fluid situation as most employers are doing and keeping our team apprised every step of the way.

What are some of the types of cases that may arise out of the current situation?

There are a host of possible claims that could stem from the pandemic depending upon how things develop over the next few weeks and months.  For example, employers are worried about possible worker’s compensation claims stemming from COVID-19 exposure at work or during job-related activities.  There could also be an uptick in worker’s compensation claims for employees who suffer injury while working remotely (e.g. an employee trips on a cord in a makeshift home office, employee injures an arm because she does not have the proper work set up).  In weighing the risk of continuing to conduct business in light of the risk to employees’ health, it is foreseeable that employers could violate OSHA standards.  Employers may run afoul of the various wage and hour requirements when hourly employees are working from home and they are not paid for all hours worked or when a salaried employee’s weekly salary is pro rata because the full week was not worked.  Interestingly, the Families First Coronavirus Response Act provides that employers with less than 50 employees will not be subject to civil lawsuits for a violation of the paid leave Public Health Emergency Provision although the U.S. Department of Labor still has the authority to pursue employers for violations.  We anticipate that with high utilization of unemployment benefits, there will be mandatory higher contribution rates for employers in the long run.  Layoffs and employment terminations for employees with employment contracts may result in breach of claims which could result in employers dusting off the “force majeure” clauses in their employment agreements.  When laying off employees, employers should be prepared to address issues such as payout of accrued time or institute a policy to reinstate accrued time of rehired employees if they are rehired within a certain period of time (for example, by the end of the year).  This is a fast moving, fluid situation and recommendations are getting refined as the situation develops.

How is morale right now amongst your employees and in the labor force from what you know?

Everyone we know is nervous about the current situation in New Hampshire, the United States, and the world caused by the COVID-19.  They are nervous for the health and safety of themselves and their family and because of the global financial uncertainty.  Now more than ever, it is important to keep the lines of communication open with our teams, family, friends, clients, and community.  Fortunately, at our firm, we fully embraced technology and cloud computing when we opened the office and are taking full advantage of our capabilities to work remotely except for a skeleton crew at the office for the time being.  We have virtual morning check-ins and will be hosting a virtual happy hour on Friday afternoon to keep our team connected as we weather the storm.