{Community Resources} COVID-19 Employment Law Guidance, Littler Mendelson

Member news | March 23, 2020

As cities and states across the country work to adapt their office spaces for the safety of their employees and clients, employers face a number of new challenges. We reached out to FACC-NY member Philip Berkowitz for insights on occupational health and safety in face of a pandemic and with a remote workforce. How can employers adapt in a timely manner and ensure their compliance in such an unprecedented situation? What rights and or obligations do they have? 

Littler Mendelson is the nation's largest employment and labor law firm representing management. Phil joined the NYC practice in 2010 and previously headed Nixon Peabody's international labor and employment specialty team, is widely respected for his work in labor and employment law. He works for many global companies, conducts worldwide training for multinational companies on labor and employment matters, and is a frequent speaker before the American Bar Association, the International Bar Association, the Japan Society and many other organizations. He also serves as vice-chair of the ABA's Employment Law Committee (International Law Section).

Philip Berkowitz, U.S. Practice Group Co-Chair, International Employment Law

FACC: As early as January 29th, Littler Mendelson had already established a task force on the subject of Coronavirus and published employer action items. What is the opportunity for employers in light of this current situation, and the risk?

PB: The opportunities may be few, but we do think that communicating truthfully and frankly with employees is the best approach and the one that will help build employee loyalty.  The risks in mishandling the current situation may be in differentiating between terminating employees and furloughing them, or laying them off with the intent of rehiring.  In the former situation, there may be very significant obligations to pay unused PTO and vacation, while in the latter there may be a way to avoid these obligations, at least in the short term.  However, the situation changes daily if not hourly, and the considerations of businesses differ, and so it is critical to seek advice from your employment lawyers to determine your best way forward.

FACC: There’s a lot of information circulating at this time, with the situation changing hourly. Early on March 14th, the House of representatives and Speaker Nancy Pelosi celebrated legislation that passed to give paid sick leave to American workers affected by the pandemic. However, it seems there may be some loopholes and the ruling will only apply to about 20% of all workers. How can employers and employees decipher where they land?

PB: Again, and as you point out, the situation is in a continued state of flux.  Reading the government bulletins, staying on top of news developments, and consult with counsel are the best ways to stay ahead of the problem.

FACC: Many of us are fortunate to have technology at our disposition, and thus the ability to work remotely with only minor interruptions to our roles. Do you have any advice for retail, service sector or hourly employees who do not have this luxury and whose companies have not been asked to close operations?

PB: Employees who can work at home obviously may be treated differently from employees who cannot.  It may be possible to separate employees who cannot work at home, or to place them on a furlough which may be paid or unpaid, or which may provide access to health insurance or other benefits.

FACC: On March 15th, Littler published an regionally-focused article on OSHA compliance and reporting of cases of COVID-19. Now that many companies are moving to remote operations, does this change the responsibility towards OSHA if the work is being conducted off-site?

PB: This past week, the federal Occupational Safety and Health Administration issued a new guidance discussing the current emergency.  Its focus was on the preparing the traditional workplace for COVID19, and not remote working.  See https://www.osha.gov/Publications/OSHA3990.pdf

However, the duty to provide a safe workplace does not end if an employee is working remotely.  Employers who are required, because of their size or industry classification, by OSHA to keep records of work-related injuries and illnesses, continue to be responsible for keeping such records, regardless of whether the injuries occur in the factory, in a home office, or elsewhere, as long as they are work-related, and meet the recordability criteria of federal regulations.  Under prior guidance, OSHA had recommended that employers require employees working at home-based worksites to complete a safety checklist covering the following items: 1. Functioning smoke detectors 2. Multiple exits from the work area (e.g., door and window) 3. Proper ergonomic set up of desk areas 4. Hall, aisles and passageways free of debris, cords and spills 5. Adequate illumination 6. Effective grounding and insulation of electric equipment.

Even in the absence of federal regulation, employers are well advised to provide employees with a checklist of items to review and consider. Employers in most states are covered by workers’ compensation laws that require payment of compensation in case of personal injury arising out of and in the course of employment. There are very few reported cases involving workers’ compensation claims of home-based workers, but the law does not distinguish between home-based and office-based worksites. Employers should ensure that workers’ compensation coverage is provided for home-based worksites and that policies and procedures are in place for reporting any at home injuries.

Interested in connecting with Phil? Log into the FACC Member Directory to send him a message and discuss your specific employment law situation and needs.