COVID-19 has quickly become a malady of its own for human resources departments, as employers across the U.S. struggle to make sense of new HR and employment practices liability (EPL) issues.
In the wake of the pandemic which has affected more Americans than any other country to date, employee benefits (EB), pay continuation, employee medical information confidentiality, Family and Medical Leave Act, Americans with Disabilities Act, layoffs, furloughs and more are a concern for just about every industry. We have provided some HR department coronavirus considerations in this new, ever-evolving world.
OSHA General Duty Clause applies to all businesses, requiring employers to create a safe workplace for employees. Today, providing a safe working environment is no longer a simple or easy undertaking, most especially with respect to employees with high-risk medical conditions. Additionally, employers must mitigate the risk with respect to COVID-19 exposure and diagnosis.
BEST PRACTICE: Create standard operating procedures (SOPs) to deal with employees with high-risk medical conditions, those diagnosed with COVID-19 and fearful employees. What personal protective equipment (PPE) needs to be provided to keep workers safe on the job? Follow the CDC guidelines with respect to pre-screening and risk mitigation procedures for those employees still coming into the workplace.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of a protected class, including sex, race, color, age, religion, and/or national origin. Title VII also prohibits harassment and discrimination in the workplace. A hostile work environment, even when remote, can create liability for an organization. It’s harder to remember to act professional from your kitchen, dining room or bedroom than in the office. Employers must ensure employees are not discriminating against or harassing employees on the basis of any protected class. Most recently, the EEOC has seen an increase in inquiries regarding discrimination on the basis of national origin. For example, employers report an increase in workplace harassment against Asian employees.
BEST PRACTICE: Employers must ensure they are reinforcing their non-discrimination and non-harassment policies. It’s important to remind employees, especially those who now work from home, that the employer’s standards of conduct and workplace rules apply everywhere. Likewise, it’s a good idea to remind employees of the internal compliant procedures along with hotline contact information, if applicable.
Age Discrimination in Employment Act and Genetic Information and Nondiscrimination Act prohibits discrimination on the basis of age (over 40 years old federally with certain medical conditions). The CDC has provided guidance that suggests that employers send home “high-risk” employees (generally over age 65 with certain medical conditions). The EEOC has recently issued new guidance clarifying that:
- The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.
BEST PRACTICE: Create policies and procedures around high risk populations based on guidance issued by the Centers for Disease Control (CDC). For example, if an employee just returned from Italy, it’s OK to require they self-quarantine for 14 days. NOTE: Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
HIPAA (Health Insurance Portability and Accessibility Act), requires that employers ensure the confidentiality and privacy of employee medical information obtained through the employer’s health plan. This also includes the employee’s protected health information (PHI). For example, PHI documents should be retained in confidential files or shredded once no longer needed. Employers must be sure that employees working from home understand their HIPAA obligations and have the proper equipment and protocols to safeguard PHI.
FMLA (Family Medical League Act), ADA (Americans with Disabilities Act) and Workers’ Compensation (WC) each have their own confidentiality rules. More specifically, the FMLA, ADA and most state’s workers’ compensation laws require that the employer keep employee medical information strictly confidential. All medical information must be housed in a separate file and only those who “need to know” may be informed of the employee identity and medical information. “Need to know” is strictly construed – an employer must be able to demonstrate that those who were informed of the employee’s identity absolutely needed to know to provide appropriate responsive measures.
BEST PRACTICE: For example, if an employee is diagnosed with the coronavirus, his/her co-workers do not need to know the employee’s identity to be informed of possible exposure. Informing the employees of the exposure is the necessary step – the employee’s identity is not necessary information.
When put on furlough, or an unpaid leave of absence, an individual is still considered an employee. Many carriers are currently waiving active at work, minimum hours and leave of absence maximum provisions. For this reason, furloughed employees may (at the employer’s election) remain covered on the employer’s group health plan. If the employer chooses to extend the coverage in line with the carrier waivers, a reduction in hours or furlough would not trigger a loss of coverage and the employee would not be eligible for COBRA (or state mini-COBRA, for groups with less than 20 employees). If the carrier does not allow coverage to continue, the furloughed employee may be eligible for COBRA (or state mini-COBRA for groups with less than 20 employees) based on a reduction in hours.
Contact HUB Risk Services to learn how to develop a business continuity plan that will help protect your business and employees from the unexpected. Get the latest information, guidance and resources on Coronavirus (COVID-19) to help you protect what matters most on our Coronavirus Resource Center.