COVID-19 And Minnesota Employers

By: Tom Marshall

The World Health Organization (WHO) recently declared a global pandemic. A pandemic occurs when a new disease spreads unexpectedly. By declaring a pandemic, WHO desires that governments and health systems prepare for the eventual spread of the disease, as most people have no immunity to the disease.

The Corona COVID-19 virus now dominates our fears and concerns as more cases appear and government, businesses and people take greater efforts to minimize contagion and exposure. As of Friday, the federal courts in Minnesota and state courts took efforts to minimize exposure by reducing and rescheduling trial calendars and other things to limit live appearances before the courts where practicable. Today, Sunday, as I am working on this article, Gov. Walz announced the closure of schools starting Wednesday, March 18, as Minnesota now has 35 confirmed cases. On Friday, a client sent me advisories and precautions it had sent to employees. She asked, “[w]e would appreciate if you have any additional thoughts or things we’re maybe not thinking about.” I responded that I was reviewing a number of sources and planned to share my thoughts on Monday. Frankly, the notice she provided was excellent. Here is my list of considerations for employers.

1. Be Informed

This virus has now existed for several months. It is international and, according to Vice President Pence today in a news conference, it is present in 49 states. You should be informed on what the virus is and what you should do about it. For information about the virus and what to do, the Centers for Disease Control (CDC) and Minnesota Department of Health (MDH) offer substantial information online at: https://www.cdc.gov/coronavirus/2019-ncov/index.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2Findex.html and https://www.health.state.mn.us/diseases/coronavirus/index.html respectively. These links provide information about the virus, symptoms, containment, and employer recommendations. Every employer should start there.

2. What Laws Apply

Many, except the smallest employers, are already covered by sick and safety leave laws. For example, Minn. Stat. § 181.9413 allows time off for an employee’s own illness or to care for a family member. Other leave laws, like the Family and Medical Leave Act, (FMLA) also apply. Cities like Minneapolis and St. Paul also have sick leave ordinances. Those laws remain unchanged and apply as they would apply had there been no pandemic.

The EEOC, several years ago, issued a guidance regarding a pandemic and possible issues under the Americans with Disabilities act (ADA). It can be found here: https://www.eeoc.gov/facts/pandemic_flu.html. This guidance provides helpful advice on what an employer can and cannot ask of employees. For example, the employer can tell employees to go home if showing symptoms and the employer can ask employees about potential exposure after travel and recommend they stay at home as per public health official advice. Remember, that medical information on employees who may have the virus is confidential and may not be disclosed.

The Occupational Safety and Health Administration (OSHA) also has a guidance on COVID-19. It can be found here: https://www.osha.gov/Publications/OSHA3990.pdf. OSHA requires that employers provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. This also includes viruses. Minnesota OSHA regulations also cover viruses that could be present in a workplace. See M. R. 5206.0600, which can be found here: https://www.revisor.mn.gov/rules/5206.0600/

There have been discussions, at least at the federal level, of revising the FMLA to provide a shorter eligibility period to allow more employees to be covered earlier and also reduce the size of employers who must offer FMLA. At this point, this appears unlikely but temporary measures of assistance to employees and employers of sick leave or reimbursements for certain industries are being contemplated.

3. So What Should I Do As An Employer?

The CDC makes the following recommendations for employers and businesses here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

– Actively encourage sick employees to stay home

– Separate sick employees

– Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees

– Perform routine environmental cleaning

– Advise employees before traveling to take certain steps (per CDC travelers’ health notices)

– Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19 (this concerns the ADA reminder about confidentiality of the employee’s medical condition, and assessing risks of exposure to the employee outside the workplace).

The MDH makes additional recommendations about sick leave policies, which can be found here: https://www.health.state.mn.us/diseases/coronavirus/businesses.html

– Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.

– Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.

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

– Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.

– Aside from ensuring that sick employees are staying home, it is important for organizations to identify critical functions and develop plans for how to staff those functions even with elevated absences.

– Some organizations may find it helpful to emphasize cross-training and develop backup plans for those “must-do” functions.

– Working from home is an option for some people, and we encourage employers to find ways to expand its use as much as possible during an outbreak.

My client offered most, if not all, of these suggestions. It identified sources of information, provided hygiene advice, how to recognize symptoms and recommendations should an employee become ill. One other thing offered was reassurance. You should tell your employees that you are on top of the issues and taking the appropriate actions recommended for their protections. Enlist their aid and offer to be responsive to their concerns. We will all get through this; it is only a matter of time.