COVID-19 FAQs for Employers

150 150 Karr Tuttle Campbell

We have prepared the following guidelines for our clients in these rapidly changing times. If you have any specific questions about how to handle a situation relating to COVID-19, please do not hesitate to call your KTC employment attorneys.

1. Unemployment Benefits & Paid Family Medical Leave for COVID-19 related absence/layoff.

New State of Washington emergency rules re: COVID-19 unemployment benefits were announced on 3/10/20. They are:

• Currently, employees who are not ill, but are under a coronavirus related quarantine do not have a “qualifying condition” under Washington’s Paid Family and Medical Leave Act.
• Workers will be able to receive unemployment benefits if an employer needs to shut down operations temporarily because workers become sick or quarantined as a result of COVID-19.
• A worker ordered to isolate or quarantine themselves as a result of exposure to COVID-19 and is not receiving paid sick leave may be eligible to receive unemployment benefits.
• If a worker is forced to quit because of COVID-19, they may qualify for Paid Family Medical Leave while ill, and they may apply for unemployment benefits once they have recovered.

2. Paid Leave for COVID-19 sickness or quarantine.

It is important to remember that employers cannot require employees to apply for Washington’s Paid Family Medical Leave benefits. Quarantine as well as school closures and childcare closures are not qualifying events at this time. However, employees who are sick or are caring for a sick family member due to coronavirus would be entitled to benefits under the state’s paid Family Medical Leave act as well as for accrued sick time under the state paid sick leave law.

A number of large employers have announced they will continue to pay employees up to two weeks if they are required to be away from work due to coronavirus sickness or quarantine, without dipping into their accrued leave banks. This should encourage employees to voluntarily report exposures to employers.

3. Do I have to continue to pay employees who go on leave during a quarantine period or because they have contracted coronavirus?

If an employee does not qualify for a paid leave (see Section 2), and the employee is not performing work (e.g. not working remotely), and not subject to a collective bargaining agreement or contract which would require payment, employers do not have to pay hourly at will employees. Exempt employees do not have to be paid if they are sent home for an entire workweek. However, if exempt workers work for any part of the workweek, they would have to be paid for the entire week. Employees may be eligible for unemployment benefits under the new rules (see section 1).

4. Does Family and Medical Leave Act (FMLA) leave apply for employees or immediate family members who may contract coronavirus?

Yes, assuming that the FMLA applies to the employer, coronavirus would qualify as a “serious health condition” under FMLA, allowing an employee to take FMLA leave if either the employee or an immediate family member contracts the disease. Generally, the FMLA would not apply to employees who are staying home to avoid infection. The employee would be entitled to job reinstatement as well. Washington Paid Family and Medical Leave also provides for job restoration rights for employers with over 50 employees.

5. Can employees file for workers’ compensation if they contract coronavirus?

Perhaps, if the employees contracted the disease in the course of their employment, such as work that requires employees to be exposed to persons who are infected (e.g. medical workers). If an employee incidentally contracts the disease from a co-worker, there likely will be no workers’ compensation liability. If there is workers’ compensation liability, employees may be eligible to receive the costs of reasonable and necessary medical care, temporary total disability benefits, and permanent disability (if any).

6. Are employees eligible for disability benefits if they contract the coronavirus?

Yes, if disability payments are provided in an employer’s benefit plan and the employee otherwise meets the requirements of the plan. Employers should review the limits of coverage in the benefit plan to answer employees’ questions.

7. Can I require my employees to be tested for coronavirus?

The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

During a global health emergency, employees can be required to be medically examined to determine if they have contracted the disease when an employer has a reasonable belief that employees will pose a direct threat due to a medical condition.

The Equal Employment Opportunity Commission has issued guidance to distribute to the workforce in the event of global health emergency. In the guidance, it states, “if the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations.

On February 29, 2020, Washington declared a state of emergency relating to COVID 19, noting “The worldwide outbreak of COVID-19 and the effects of its extreme risk of person to-person transmission throughout the United States and Washington State significantly impacts the life and health of our people, as well as the economy of Washington State, and is a public disaster.” The proclamation also noted that the CDC has identified the potential public health threat posed by COVID-19 both globally and in the United States as “high”, and the United States Department of Health and Human Services Secretary Alex Azar declared a public health emergency for COVID-19, beginning on January 27, 2020. This may provide objective evidence for a disability-related inquiry or medical examination. The lack of available testing, the assessment of the risk to other employees and the reasonableness for the inquiry should be individually weighed in each circumstance.

Employers must be mindful that the risk of novel coronavirus is not at all connected with race, ethnicity or nationality. Do not make determinations of risk based on race or country of origin. For accurate information on the disease, please consult the CDC or the Washington Department of Health websites.

Employers must also be sure to maintain confidentiality of people with confirmed coronavirus infection. If an employee meets the criteria for medical evaluation for COVID 19, the employer should immediately notify the local department of health.

8. Can I require an employee who has been out of work due to a coronavirus-related reason (exposure to an infected person, sick with an undiagnosed respiratory illness, recovery from coronavirus) to bring a provider’s note proving they do not have COVID19 or are not contagious?

The Washington Department of Health and CDC have advised employers not to require a health care provider’s note even for employees who have been sick with acute respiratory illness to validate their illness or to return to work. This is because health care provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way. Employees who have been out of work due to exposure to an infected person should be allowed to return after they have followed their doctor’s advice and CDC and Department of Health Guidelines.

9. Is contracting the coronavirus a disability?

Yes, if it is impairing. Under Washington law, a disability need not be of long duration if it is medically cognizable or diagnosable and impairs the person by, for example, making breathing difficult.

Employees may be entitled to an “accommodation” such as leave or be allowed to work remotely for a limited period. Employees who have contracted the virus must be treated the same as noninfected employees, as long as the infected employees can perform their essential job functions. If the employee poses a health or safety threat to the workforce, the employer may place the employee on leave.

10. Has the Occupational Safety and Health Administration (OSHA) provided guidance on how to handle coronavirus?

OSHA has issued a fact sheet regarding protecting workers in the case of a global health emergency. Employers should train employees on the following:

• Differences between seasonal epidemics and worldwide pandemic disease outbreaks.
• Which job activities may put them at risk for exposure to sources of infection.
• What options may be available for working remotely, or how to utilize an employer’s flexible leave policy when employees are sick.
• Social distancing strategies, including avoiding close physical contact (e.g., shaking hands) and large gatherings of people.
• Good hygiene and appropriate disinfection procedures.
• What personal protective equipment is available, and how to wear, use, clean and store it properly.
• What medical services (e.g., post-exposure medication) may be available to them.
• How supervisors will provide updated pandemic-related communications, and where employees should direct their questions.

11. How should employers ensure a safe workplace with respect to COVID-19?

OSHA requires employers provide a safe work environment. Employers, under OSHA must mitigate “recognized hazards” in the workplace. The CDC determines whether the employer’s industry knows that exposure to infected individuals in the workplace is a hazard. If so, the agency would expect the employer to take feasible measures to protect the employees and, if it not does not take such action, the employer could be subject to citation. Employers should conduct a hazard assessment for potential exposures and develop an action plan that includes hazard identification, hazard prevention procedures, employee training, medical monitoring surveillance and recordkeeping. Employers should follow guidance from the Washington Department of Health which can be found at: https://www.doh.wa.gov/Coronavirus/Workplace.

This guidance currently includes:

• If a staff member, or administrative personnel meets the listed criteria for “Who should seek medical evaluation for COVID-19”, it is important to place them in a private room away from others and ask them to wear a face mask. Immediately notify your local health department. They will provide you with guidance.

12. Should staff delay or suspend travel to affected areas?

Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which employees may travel. This can be found on the CDC website.

Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick.

Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.

If outside the United States, sick employees should follow your company’s policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A U.S. consular officer can help locate healthcare services. However, U.S. embassies, consulates, and military facilities do not have the legal authority, capability, and resources to evacuate or give medicines, vaccines, or medical care to private U.S. citizens overseas.

13. Should I consider quarantining employees who have traveled to countries near China, such as India or Japan, or who may have traveled with individuals from China on a plane or another carrier?

At the time of publication, no. Employers should consult the CDC and WHO for the most up-to-date information on quarantining employees from countries in close proximity to China. For those who have traveled with individuals with exposure to China or the virus, employers should consider having such employees screened by a health care provider before allowing them back to work.

14. What obligations exist to notify or negotiate with a union regarding coronavirus policies, including leave due to quarantine?

It depends on the terms of any collective bargaining agreement. There may be an obligation to negotiate with a union regarding the quarantine policies because they affect the terms and conditions of employment, which include wages and hours at work. Depending on the management rights clause in the contract, an employer may be able to send the employee home but may still have to pay the employee based on the union rights clause.

15. Is there an obligation to accommodate employees who do not want to work in public-facing positions due to risk of infection?

Employees who are deemed “high risk” by the CDC and the Washington Department of Health likely have objective evidence that they should avoid interfacing with the public which could expose them to infected individuals. The EEOC has opined that telework is an effective infection-control strategy. The EEOC has also stated that employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. If other suitable work is not available or the job cannot be performed in a way that minimizes the risk, the employee should be provided all available leave options, including paid leave.

Employees who are not in the high-risk categories are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as including the “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

The threat must be immediate or imminent, so that requiring the employee to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold, or requiring employees to attend large gatherings may be another example. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Employees should not be disciplined for refusing to work if they believe that there is a risk of infection because making such a complaint may be a protected activity.

In addition, Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to those employees (in union and non-union settings alike) to engage in “protected concerted activity for mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it has been extended to individual action expressly undertaken on behalf of co-workers.

16. Can I take an employee’s temperature at work to determine whether they might be infected?

Taking an employee’s temperature is considered a “medical evaluation” by the EEOC and therefore may be unlawful if is not job-related and consistent with business necessity. The inquiry and evaluation into whether taking a temperature is job-related and consistent with business necessity is fact-specific and will vary among employers and situations. You should exercise caution and determine if there is objective evidence that there is an actual threat to your business. Moreover, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

17. Our employee has tested positive for COVID-19. What should we do?

You should contact your local department of health immediately. You should also send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.

18. One of our employees has a suspected but unconfirmed case of COVID-19. What should we do?

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee has not tested positive for the virus but has been exhibiting symptoms that lead you to believe a positive diagnosis is possible.

19. How can we distinguish between a “suspected but unconfirmed” case of COVID-19 and a typical illness?

There is no easy way for you to make this determination, but you should let logic guide your thinking. The kinds of indicators that will lead you to conclude an illness could be a suspected but unconfirmed case of COVID-19 include whether that employee meets the Washington Department of Health’s criteria for medical evaluation for COVID-19 . You should err on the side of caution but not panic.

20. One of our employees self-reported that they came into contact with someone who had a presumptive positive case of COVID-19. What should we do?

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee is asymptomatic for the virus but you are acting out of an abundance of caution, while maintaining employee privacy.

21. One of our employees has been exposed to the virus but only found out after they had interacted with clients and customers. What should we do?

Take the same precautions as noted above with respect to coworkers, treating the situation as if the exposed employee has a confirmed case of COVID-19 and sending home potentially infected employees that he came into contact with. As for third parties, you should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.

22. If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC?

There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility. Employers who learn of confirmed or suspected cases are advised by the Washington Department of health to contact their local health department.

23. What steps can we take to minimize risk of transmission?

Repeatedly, creatively, and aggressively encourage employees and others to take the same steps they should be taking to avoid the seasonal flu. For the annual influenza, SARS, avian flu, swine flu, and the COVID-19 virus, the best way to prevent infection is to avoid exposure. Perhaps the most important message employers can give to employees is to stay home if sick. In addition, instruct your workers to take the same actions they would to avoid the flu. For example:

• Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
• Avoid close contact with people who are sick.
• Stay home when you are sick.
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
• Clean and disinfect frequently touched objects and surfaces.
• Ensure that employees have ample facilities to wash their hands, including tepid water and soap, and that third-party cleaning/custodial schedules are accelerated.
• Teleconference in lieu of meeting in person if available.
• Educate your employees about COVID-19, its symptoms, and the potential health concerns associated with any travel at this time.
• Have a single point of contact for employees for all concerns that arise relating to health and safety.
• Wear personal protective equipment, such as gloves and goggles, if touching or working blood-borne pathogens.
• Follow updates from the Washington, Department of Health, CDC and the World Health Organization (WHO) regarding additional precautions.

You may reference the Occupational Safety and Health Administration’s (OSHA’s) Guidance on Preparing Workplaces for an Influenza Pandemic for additional information on preparing for an outbreak.

24. Can employers in the United States refuse an employee’s request to wear a medical mask or respirator?

Yes, under most circumstances. Under the OSHA respiratory protection standard, 29 C.F.R. 1910.134, which covers the use of most safety masks in the workplace, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Likewise, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard” (29 C.F.R. 1910.134(c)(2)). In almost all work situations, however, there is no currently recognized health or safety hazard – even when employees work near other people and thus there is no need for a mask or respirator.

The WHO has stated that people only need to wear face masks if they are treating someone who is infected with the COVID-19 coronavirus. The WHO has also said that wearing masks may create a false sense of security among the general public. Doctors agree that the best defense against the COVID-19 coronavirus and influenza is simply washing your hands. Thus, the consensus is that there are more appropriate measures of defense than wearing a surgical mask or respirator. Note that exceptions may apply for individuals who are high risk or have a disability.

25. Can an employee refuse to work without a mask?

OSHA has addressed the common question of whether an employee can simply refuse to work in unsafe conditions. The safety agency provides the following guidance, which wouldn’t require the use of a mask or respirator in most situations. An employee’s right to refuse to do a task is protected if all of the following conditions are met:

1. Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so;
2. You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists;
3. A reasonable person would agree that there is a real danger of death or serious injury; and
4. There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Given the consensus that face masks are only necessary when treating someone who is infected with the COVID-19 coronavirus or influenza, masks are likely not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of the COVID-19 coronavirus or influenza. The use of the word “may” in OSHA’s respiratory protection standard makes it clear that when a respirator is not necessary to protect the health of an employee, it is within the discretion of the employer to allow employees to use a respirator. Absent a legally recognized disability, unique physical condition, or an occupation where employees work directly with those impacted by a condition such as the COVID-19 coronavirus or flu, employers are generally not required to allow workers to wear masks at work.

26. What steps should we take if we use chemicals to combat the COVID-19 coronavirus?

Be mindful of the specific requirements of OSHA’s Hazard Communication standard if new chemicals, or temporary employees, are introduced into work areas to combat the COVID-19 coronavirus. You are required to provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new chemical hazard the employees have not previously been trained about is introduced into their work area. A comprehensive hazard communication program should include contain labeling and other forms of warning, safety data sheets, and employee training. Now is also a good time to retrain employees under OSHA’s blood-borne pathogens standard, including revisiting and communicating the elements of your exposure control plan.

27. Can we prohibit an employee from traveling to a non-restricted area on their personal time?

You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee, but you still could risk legal exposure, reduced employee morale, and negative publicity. However, you should educate your employees before they engage in travel to risky environments to try and work out a solution, and you can – and should – monitor those employees returning from such travel for signs of illness.

28. Can employees refuse to travel as part of their job duties?

Employees who object on behalf of others or act in groups could be covered by the NLRA’s protection of concerted protected activity. You will want to proceed with caution and consult with counsel before taking any steps in this regard. Moreover, under the federal OSH Act, employees can only refuse to work when a realistic threat is present. See discussion at section 14.

Therefore, if employees refuse your instruction to travel for business to any other country for fear of catching the COVID-19 coronavirus, try to work out an amicable resolution. For example, the employer and the employee can check and discuss the CDC (avoid Nonessential travel), State Department (Do Not Travel to China), and DHS Travel Advisories, which provide guidance on restricted travel.

The CDC is also advising that some individuals may be more at risk of infection than others in the general population. Thus, follow the CDC direction, and do not make decisions without medical support.

29. Should we institute a temporary remote work policy in light of the COVID-19 coronavirus outbreak?

Whether your company implements a remote work policy is entirely dependent on your organization’s circumstances You may not want to introduce a new system in place if you have had not yet had time to test and develop your remote work capabilities. On the other hand, if you have established protocols in place, this could be a good opportunity to leverage them. Regardless of what you choose to do, you should make your decision based on objective evidence and not emotion or fear. Make sure your decision is educated and intentional, not reactionary and spur-of-the-moment.

You will need to identify the roles that are critical to your business operations and determine whether those individuals can carry out their jobs while working remotely. If you can proceed, the next critical component is assessing your technological capabilities. Other issues include:

• How strict will your policy be? Are your workers simply encouraged to work at home or absolutely barred from coming to the office?
• Will there be exemptions for “essential” personnel that need to be at a certain physical location?
• Will they need to be available at all times during working hours, or will remote meetings and appointments be scheduled ahead of time? (Take into account that your workers’ lives may be disrupted in other ways because of the COVID-19 outbreak, and therefore they may not be able to maintain normal working hours during this time or may be somewhat distracted by family or medical obligations during certain times of the day.)
• Will remote meetings take place online, over the phone, or on camera? Will you prohibit employees from meeting together in person during this period? Will you only restrict in-person meetings of a certain size (no more than three or five workers)?
• Will you prohibit employees from meeting with third parties while doing company business during this period of time?
• Will you prohibit workers from performing work outside of their homes (coffee shops, libraries, etc.) because of security concerns? If this kind of work is permitted, do you have sufficient security infrastructure in place (encryption, password-protection, log-out/lock requirements, etc.) and are your workers aware of your requirements to prevent data breaches or other loss?
• Can workers perform work on their own devices, and if so, do you have a comprehensive BYOD (bring your own device) policy in place?

You should include an anticipated end date in your remote work announcement, and/or inform your employees that you will provide weekly updates regarding the status of the remote work period.

30. The COVID-19 emergency does not preempt HIPAA privacy rules.

The Office for Civil Rights of the U.S. Department of Health and Human Services (HHS) issued a reminder after the WHO declared a global health emergency that HIPAA privacy rules still apply.

31. What are our obligations under the HIPAA privacy rules if we are contacted by officials asking for emergency personal health information about one of our employees?

The privacy restrictions mandated by HIPAA only apply to “covered entities” such as medical providers or employer-sponsored group health plans, and then only in connection with individually identifiable health information. Employers are not covered entities, so if you have medical information in your employment records, it is not subject to HIPAA restrictions.

Nevertheless, disclosures should be made only to authorized personnel, and care should be taken even in disclosures to government personnel or other groups such as the Red Cross. Further, you should be careful not to release information to someone until you have properly identified them.

32. How should we treat medical information?

We recommend you treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with your group health plan. In certain circumstances, if you have plan information, you can share it with government officials acting in their official capacity, and with health care providers or officially chartered organizations such as the Red Cross. For example, you can share protected health information with providers to help in treatment, or with emergency relief workers to help coordinate services.

In addition, you can share the information with providers or government officials as necessary to locate, identify, or notify family members, guardians, or anyone else responsible for an individual’s care, of the individual’s location, general condition, or death. In such case, if at all possible, you should get the individual’s written or verbal permission to disclose.

Finally, information can be disclosed to authorized personnel without permission of the person whose records are being disclosed if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.

33. If our employees are no longer actively working, are they still entitled to group health plan coverage?

Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan and whether they are on a form of leave of absence under which they may continue coverage. If the employee is eligible for a protected leave and they are at risk of losing their health coverage, you should contact your insurance carrier or self-funded plan sponsor to determine if they will agree to temporarily waive applicable eligibility provisions. If not, a COBRA notice must be sent. Note the Washington Health Insurance Exchange has announced a special enrollment period from March 9 to April 8, 2020, to permit individuals without health insurance to sign up for an individual marketplace plan. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.

34. What happens to group health plan coverage if employees are not working and unable to pay their share of premiums?

In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue.

First, the insurance carrier providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and until an employer reopens its doors. More likely, the employer may make an arrangement with the insurance carrier providing health coverage to pay the employees’ share of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each factual situation will need to be individually assessed.

35. Do we have an obligation to provide notice under the WARN Act if we are forced to suspend operations on account of the coronavirus and its aftermath?

Yes, if your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act. The federal WARN Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined extensively under WARN’s regulations, and that they are not intended to cover every single layoff or plant closing.

Generally speaking, employers must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff. Note, however, that if employees are laid off for less than six months, then they do not suffer an employment loss and, depending on the particular circumstances, notice may not be required. Unfortunately, in situations like this, it is hard to know how long the layoff will occur so providing notice is usually the best practice.

Fortunately, even in cases where notice requirements would otherwise apply, the WARN Act provides a specific exception when layoffs occur due to unforeseeable business circumstances. This provision may apply to the COVID-19 coronavirus.

This Client Alert was prepared by Medora A. Marisseau. Please feel free to contact her with any questions.

 

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