Something different this month, and necessarily so. This column ordinarily discusses noteworthy solid waste or recycling court cases. But these are not normal times.
Over the past couple of months much of the day-to-day life and activity in this country has ground to a halt as a result of the coronavirus pandemic. By fits and starts, states and local governments, through physical-distancing measures and stay-at-home orders, have closed schools, businesses, cultural and entertainment venues and banned other gatherings and pursuits.
Fittingly recognized as an essential public service, solid waste management and recycling operations face extraordinary challenges in keeping things running, protecting workers’ health, safety and well-being, and otherwise coping with this catastrophic public health emergency. The tempo and number of media reports, interviews, briefings and advisories are staggering.
Briefly presented here, for general information purposes only, are some legal aspects of the situation. The content does not, and is not intended to, constitute legal advice. Employers should consult with counsel for guidance on the specifics of their circumstances.
Federal laws have a lot to say about employers’ obligations to their employees. These laws provide leave for medical reasons, regulate what employers may ask about their employees’ medical conditions and give the government additional authority in times of emergency. The Centers for Disease Control and Prevention (CDC) has “Interim Guidance for Businesses and Employers” on its website. https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
Back in March, Congress passed the Families First Coronavirus Response Act (FFCRA). Besides appropriating funds for a nationwide coronavirus response, including free coronavirus testing, the bill addresses both paid and unpaid medical leave. One provision -- the Emergency Paid Sick Leave Act (EPSLA) – requires covered employers to provide 14 days’ paid sick leave to workers affected by the pandemic. Under another section -- the Emergency Family and Medical Leave Expansion Act (EFMLA) -- the unpaid leave provisions of the existing Family and Medical Leave Act (FMLA) are expanded. EPSLA and EFMLA apply only to companies and organizations with fewer than 500 employees. For smaller businesses – not more than 50 employees -- where EFMLA or EPSLA compliance would threaten “the viability of the business as a going concern,” a hardship exemption may be sought. Unless Congress extends these two leave-related parts of FFCRA, they expire at the end of 2020.
Under FMLA, employers with at least 50 employees must still offer up to 12 weeks of unpaid leave to individuals who have worked a minimum number of hours over a preceding 12-month period. How much paid and unpaid leave an employer must offer and when it is available under EFMLA and EPSLA vary with the circumstances. Only three scenarios qualify: (1) quarantine, isolation, or treatment for COVID-19 exposure or symptoms; (2) care for a quarantined or sick family member; and (3) care for a child due to school or daycare closure. These apply to workers who cannot perform their jobs at home.
Besides these health-related requirements, employers cannot discriminate on the basis of disability and must reasonably accommodate disabled workers in the performance of their jobs. Although COVID-19 does not qualify as a disability under the Americans with Disabilities Act (ADA), employers nevertheless must proceed with care. Generally, employees who call in sick can be asked about their symptoms. According to the federal Equal Employment Opportunity Commission (EEOC), employers may ask job-seekers about their medical history related to COVID-19 only after making a conditional offer of employment. An offer may be withdrawn or a start date postponed if an employer reasonably concludes that the applicant would threaten an otherwise healthy workplace.
Employers also must cope with how to handle information regarding their employees' exposure to or positive testing for COVID-19. As mentioned earlier, federal law has much sway over employer-employee relations. However, unlike the European Union or Canada, the U.S. has no standardized system of data or personal information protection laws. Yes, an employer’s group health plan and its claims-related information are subject to privacy rules under the Health Insurance Portability and Accountability Act, but employers themselves are not covered. The same is true for state health information privacy laws. Where these laws fall short, simple candor and fairness – to the workforce as a whole and to the affected employee -- must prevail.
An employer can require its employees to disclose if they have tested positive for COVID-19 or have been in contact with someone who has tested positive. Such individuals can be required to work from home and not be allowed in the workplace until a physician has cleared them to resume work. In addition, an employer might reasonably ask employees – whether working in the office or remotely -- to disclose if they or someone they live with are experiencing any coronavirus-related symptoms. Upon receiving such a report, the employer should require the employee to work from home, if they are not already doing so.
If an employee has tested positive for COVID-19, the employer should disclose this fact to other employees but not the identity of such employee nor anything more about his or her medical condition or symptoms. Under the ADA, any information regarding the medical condition or history of an employee that an employer obtains as part of an examination or inquiry into a disability could be considered a confidential medical record that can be disclosed only to certain individuals in limited circumstances. However, where an employee poses a “direct threat” to the health or safety of others in the workplace – it’s fair to say COVID-19 infection or exposure clearly poses such a threat -- the ADA allows employers to discreetly question the employee. The FMLA, where applicable, also prevents the disclosure of records related to medical histories in connection with an employee's leave request or eligibility. As the EEOC can be strict about disclosures, the safe approach would be to operate on the basis that information about an employee's medical condition is protected under the ADA or FMLA.
A worker who has tested positive can be asked to provide a list of employees, contractors, vendors, etc., with whom the employee came in contact in the last 14 days on company business, as well as to identify the facilities and work areas where he or she has been. Without revealing the identity of the individual, an employer may disclose this information to the workforce. Even without prior consent from an employee who has tested positive, the employer should notify the parties named by such employee -- co-workers, contractors, etc. -- that a person with whom they were recently in contact has now tested positive.
Finally, Congress is poised for a battle on whether to immunize businesses from liability for COVID-19-related claims. Republican lawmakers, with support from the White House, are already drafting proposed legislation to limit lawsuits. “If you’re a marginal small business and you’re making the decision whether to hang in there and try to survive, or whether you’re just going to give up . . . this could make the difference,” Sen. John Cornyn (R-Tex.) told The New York Times. Tort reform has always been on the GOP agenda, and Senate Majority Leader Mitch McConnell (R-Ky.) apparently sees an opening to move it forward.
For their part, Democrats, together with their supporters including the AFL-CIO and the National Consumers League, say they will oppose any blanket protections. At the same time, Democrats are seeking increased coronavirus assistance for state and local governments. Sen. McConnell would likely block any such legislation unless, for starters, Democrats sign onto curbing lawsuits. As the process grinds forward, what’s foreseeable is conditional lawsuit protection, where eligibility depends on whether a business has in good faith heeded state and federal health and safety requirements.
The question on everybody’s mind: When will things take a turn for the better? Some governors are easing social distancing restrictions and allowing some business activity to resume, making many workers anxious about their safety. Experts say the U.S. cannot safely re-open until the level of coronavirus testing is massively scaled up. But even then, there’s no assurance that we’ll be able to quickly and reliably identify those who can safely enter or re-enter a workplace.
Meantime, keeping one’s distance seems to be flattening the curve, and we need to continue with this so we can work toward the restoring life as we’ve known it. To save lives and livelihoods, it will take a tenable plan. Although the disruptions and misery are far from over, the time will come when we will all be together again.