Goldstein Law Group, S.C. is a law firm that specializes
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Coronavirus

Frequently Asked Questions (FAQ) 3-17-20

This page was first posted on March 4, 2020. In light of all the new and extraordinary developments, we have updated it to speak to new best practices and respond to the various inquiries we have received. Please keep your questions and comments coming. By sharing this information, we can actively support one another at this very difficult time.

COVID-19 (aka Coronavirus or CoV), previously declared a Public Health Emergency of International Concern, has now been declared a pandemic by the World Health Organization (WHO) and a public health emergency by President of the United States, the Governor of the State of Wisconsin, and others.

This FAQ is intended to address common questions regarding CoV in the workplace. Our understanding of the virus is evolving, but current estimates indicate that the mortality rate is higher than the flu. Recent information also indicates that the virus can survive on some surfaces up to 72 hours. CoV is virulent and spreading rapidly with no vaccine available at present. As a result, it is important to have a plan in place. Feel free to call or email should you have questions not addressed below, and we will update this space as additional information becomes available and best practices evolve. We will also address future legislative and other developments as they gain traction or are enacted. For example, click here for information on H.R. 6201 (federally mandated paid sick leave).

Please consider checking the following sources for up-to-date medical information and other advice:

A quick update regarding the common practice of requiring a physician’s note/confirmation for an employee’s return to work: CDC now advises against it.

"Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way."

Accordingly, we recommend you consider each employee’s leave on a case-by-case basis and determine whether a physician’s note is feasible or necessary. Further, consider shifting from a points-based or strict attendance policy to a temporary policy that encourages employees to (1) be forthcoming about their physical condition and that of those in their household; and (2) stay home should they have any symptoms, have relatives with symptoms, or are susceptible to illness.

Q: What is it?

  • SARS-CoV-2 refers to the virus first reported in China in December 2019 which has since spread nationally and internationally . SARS is shorthand for Severe Acute Respiratory Syndrome.
  • Coronaviruses refers to a group of viruses (including the common cold, SARS, and MERS), to which SARS-CoV-2 belongs.
  • COVID-19 refers to the disease caused by the virus SARS-CoV-2, so named by WHO on February 11, 2020.
  • Common symptoms of CoV include fever, cough, and shortness of breath.
  • CoV is particularly dangerous for the elderly and individuals with underlying ailments (e.g., asthma, high blood pressure, diabetes).
  • Approximately 80% of those infected recover without requiring special treatment.
  • One in six of those infected become seriously ill, including experiencing difficulty breathing.

Questions?

Call 414-446-8800, or email us at adam@goldsteinsc.com for more information or to schedule a consultation.

Q: What can we do in anticipation of the potential spread of CoV?

A: CoV spreads when "respiratory droplets," released by sneezing, coughing, or talking, are ingested or inhaled by people in close contact with an infected person. The transmission distance of these droplets is an estimated six feet. CoV can also be transmitted when people touch surfaces upon which droplets have landed and subsequently touch their eyes, noses, or mouths. To combat transmission:

  • Split management team in half, such that if one or more are ill, it does not affect all of management;
  • Install hand sanitizer stations, including at the primary visitor entrance, and ensure that hand sanitizer has 60% or more alcohol content;
  • Make disinfectant wipes available in shared areas and near frequently touched objects and surfaces;
  • Create adequate space for your employees to spread out; consider staggering hours and shifts (such that density is < 50% capacity);
  • Restrict travel to regions with high infection rates;
  • Reconsider travel;
  • Actively encourage those who have any symptoms, have relatives with symptoms, or are susceptible to illness to stay home;
  • Encourage employees to regularly clean their cell phones (as phones are considered quite dirty and touch both the face and mouth);
  • Be a source of truthful information. Generally speaking, employees look to their employer for guidance and reassurance;
  • As to the "all clear" to return, look for medical clearance, no temperature and no respiratory issues;
  • Instruct any independent contractors, contract workers, or temporary employees to follow the same guidelines.
  • Ensure that all of your trash receptacles are "no touch;"
  • Encourage all employees to:
    • Avoid touching their eyes, noses, and mouths;
    • Wash hands regularly, particularly after using a restroom, before eating, and after coughing/sneezing/blowing one’s nose (and immediately dispose of used tissues, napkins, or other paper products);
    • Schedule phone calls instead of in-person meetings;
    • Minimize the passing of physical items between themselves;
    • Eliminate non-work-related meetings;
    • Limit travel;

If you have not already done so, now is the time to revisit your policies regarding absences (excused v. unexcused, paid v. unpaid, those who can work remotely v. those who cannot, what sort of medical documentation you accept or require) and emergency preparedness.

Consider the ways in which an outbreak might disrupt or otherwise affect your business. This is especially critical for environments that may be particularly susceptible—schools, daycares, and camps; assisted living facilities; fitness centers; food service areas; and employees who work in close quarters. How might the following issues impact your business/workforce?

  • Production shutdown;
  • Supply chain disruption (i.e., raw materials);
  • Clients who cannot pay;
  • Maxing out your credit, or line of credit;
  • Travel restrictions or interruptions, including public transportation.

Q: Should we revisit our approach to remote work?

A: Yes. How might you maximize remote work to (1) accommodate employees with CoV, (2) accommodate workers who may be more susceptible to illness or severe symptoms (due to, for example, asthma, diabetes, immuno-suppression, pregnancy), or (3) minimize the effects of a facility closing? Revisit remote work policies, procedures, and technology, and clearly communicate any changes to your employees. Audit those tasks not presently done remotely to determine if they could be, if need be.

Q: What does remote work look like?

A:This is dependent upon several variables. On the technology side, setting up employee access to requisite files, programs, etc., is the first step. Next is the extent you wish to track time, progress, and communications (internal and external). Set clear job expectations and establish firm timekeeping requirements—particularly for employees with flexible schedules. Keep communication channels open and schedule phone meetings as needed (replacing all in-person meetings as warranted).

Q: Should we revisit our sick leave (or equivalent) policy?

A: Yes. Some businesses already have specific policies in place for highly communicable illnesses such as the flu, requiring employees to remain home during an "incubation period." However, many businesses have more general policies which do not anticipate an outbreak of this sort. As a business owner/executive, one of your top priorities is to prevent the spread of CoV by keeping infected employees out of the workplace. Accordingly, it is time to revisit existing policies, or perhaps draft new policies (which may be a sharp departure from what you currently have, i.e., encouraging employees to stay home and perhaps suspending any negative repercussions for doing so).

Your policy should also speak to the employee’s return to work. Stay in contact with the employee regarding his/her prognosis and anticipated return date. Wisconsin’s first confirmed case (an infected person in Madison, Wisconsin) was deemed healthy and was released from isolation though multiple others have been diagnosed in Milwaukee and elsewhere.

Q: An employee has upcoming travel plans. What do we do?

A: Limit travel as much as possible. Resources include CDC’s Travel FAQ, WHO’s Travel Advice, or DHS’s General Travel Guidance. While the CDC has not issued domestic travel recommendations at the time of this publication, DHS suggests avoiding travel to states with "sustained community transmission" (at this time: California, New York, and Washington). As the situation in the U.S. continues to evolve, check these resources, and those such as CDC’s Traveler’s Health Notices, for up-to-date information and advice for travelers.

Upon return, the employee should monitor his/her health and any symptoms, continue to follow precautionary procedures, and self-quarantine as needed.

Q: An employee recently returned from traveling to a region with a high infection rate. What do we do?

A: Presuming there is a reasonable belief of exposure, you have a few options. In some circumstances, you may require a set period away from the office and medical clearance to return. If feasible, the employee may work remotely during this period. Some employers have enacted a paid incubation period for employees (e.g., fourteen days away from the workplace without showing symptoms of CoV) before they can return to the workplace. Keep in mind that these decisions should be made on a case-by-case basis and based on the facts of each case. The Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and Worker’s Compensation law may also come into play.

Q: An employee has exhibited signs of sickness (e.g., lingering cough, sneezing) at work. What do we do?

A: Send the employee home. Asking an employee who is showing symptoms of a contagious illness to leave the premises is not illegal. When exiting the building, the employee should avoid all contact with others and minimize contact with work surfaces, tools, furniture, and any other objects. Contact professionals to disinfect the employee’s workspace and counsel other employees to avoid the workspace until disinfected. Communicate regularly with the employee as to his/her prognosis and make available any work they can do remotely (if working remotely is feasible and the employee is not incapacitated).

Q: An employee has been diagnosed with CoV. What do we do?

Assess who has been in close contact with the employee and/or their work area. As to these employees, consider sending them home as well and, at a minimum, closely monitor their health and restrict their contact with others. Contact professionals to disinfect the employee’s workspace and counsel other employees to avoid the workspace until disinfected. Communicate regularly with the employee as to his/her prognosis and make available any work they can do remotely (if working remotely is feasible and the employee is not incapacitated).

Q: How do we handle an employee’s CoV-related time off from work?

A: If (1) the employee is capable of working, and (2) the employee can do the work remotely, provide the employee with the opportunity to continue working. Accordingly, this would not be considered leave. If the employee does not regularly work remotely, be sure they have the technology they need, and set clear expectations and guidelines for such work.

If an employee diagnosed with CoV is incapacitated or is otherwise unable to work remotely, the employee may qualify for FMLA leave or emergency FMLA leave. Keep in mind that this may also apply if your employee is responsible for the care of a family member with CoV (which raises other issues).

Beyond FMLA and emergency FMLA, reference your current sick leave, leave of absence, and/or paid time off policies. If your current policies do not adequately address the situation, consider amending them to speak to this circumstance (and consider that your new policy may go against the old one—in favor of staying away versus encouraging a prompt return to work). For example, an employee who is not cleared to return but has used all their paid leave may require a special accommodation (paid or unpaid, suspension of attendance points).

Keep in mind that employees may choose not to report an illness, or try to return to work prematurely, as they do not want to confront the possibility (or inconvenience) of being sick, or because they believe they cannot afford to take the time off of work or go unpaid. With CoV, employers must prioritize keeping infected employees out of the workplace to prevent it from spreading. Accordingly, your new policy may be a sharp departure from other established paid/unpaid time-off policies and protocols (i.e., encouraging employees to stay home and perhaps suspending any negative repercussions for doing so).

Q: My employee’s child’s school/daycare closed and my employee now has childcare duties during standard work hours. How do we handle this?

A: While we encourage you to consult with counsel prior to making a significant employment or leave decision, consider the following:

  • Is the employee at issue able to work remotely? If not currently, can the role be adapted, or the employee be accommodated to enable remote work?
  • Is it possible to use a more flexible schedule for the employee at issue? What about a temporarily reduced schedule?
  • If leave is required, and FMLA or other leave does not apply, how might you modify or suspend your existing policies to find a solution that works for all parties?

Q: What about emergency preparedness?

A: CoV may result in temporary facility shutdowns. For businesses that can continue operating remotely, be sure to reinforce remote work policies and procedures among applicable staff. You may wish to reengage your employees now on pertinent policies, such as evacuation procedures and emergency closing procedures. As with weather-related closings, the Fair Labor Standards Act may come into play relative to paying exempt/nonexempt employees in the event of a closure.

If you do not already have an emergency response procedure, establish one now and assign roles (and backup roles). Consider, for example:

  • Internal and external communications (including client communications regarding delays in production and other business challenges)
  • Internal and external point(s) of contact
  • Continuation of critical business operations

Q: What are other considerations?

A: There are several:

  • Masks do not necessarily inhibit the spread of CoV. Per WHO and CDC, masks need only be used by uninfected individuals when caring for a person suspected to have CoV and are only effective when used with other preventative measures (e.g., washing your hands). Masks are more effectively used by those showing symptoms of CoV and who are actively coughing and sneezing. See WHO’s mythbusting advice for an analysis of other purported treatments and preventative measures.
  • While CoV was first reported in China, and most documented infections and deaths have occurred in China, CoV has spread to all continents (except Antarctica).
  • CDC and WHO both maintain that there is low risk of infection from receiving packages from areas of high exposure. That said, just over the last few days, thoughts on surface survivability have changed dramatically—while previously believed to have "low survivability," CoV surface survivability is now considered unknown, ranging from a few hours to a few days (dependent upon surface material, temperature, humidity, etc.).
  • Antibiotics work against bacteria, not against viruses such as CoV.
  • While older people and those with certain medical conditions (e.g., asthma) are more susceptible to severe symptoms, CoV can affect people of all ages.