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PH COVID-19 Client Alert Series: Employment Issues

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Last updated 3/27/20

Information, agency guidance, and potential response to COVID-19 is changing rapidly. This piece has been updated to reflect the most recent guidance (as of March 27, 2020) issued by the DOL, EEOC, CDC, OSHA, and CalOSHA. For more information relating to the Families First Coronavirus Response Act, see our March 18, 2020 and March 27, 2020 Client Alerts.

This communication constitutes the first installment of our Client Alert series considering the legal and business impacts of the 2019 Novel Coronavirus (“COVID-19”), commonly referred to as the “Coronavirus.” This communication focuses on those issues facing employers with respect to their U.S. operations. For issues involving other operations outside of the U.S., please contact Suzanne Horne.

The spread of COVID-19 has raised significant issues for employers throughout the world. At core, employers face uncertainty around what they can and should do to promote the health and well-being of their workforce while navigating federal, state, and local regulations. Employers must consider ever-changing government warnings, travel restrictions (including potential exit and reentry detentions), and privacy concerns regulated by federal, state, and local laws, including:

  • The Occupational Safety and Health Act (“OSH Act”), which requires employers to provide “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm”;
  • The Health Insurance Portability and Accountability Act (“HIPAA”), which protects the safety of personal health information with respect to health plans, but not general employment information;
  • Federal and state disability statutes, which limit medical inquiries and protect against discrimination based on perceived and actual disability;
  • The Families First Coronavirus Response Act (“FFCRA”) and other federal and state leave laws, and local sick pay requirements;
  • Federal and state wage and hour laws; and
  • Federal and state anti-retaliation provisions protecting employees who raise safety concerns or perceived violations of state or federal regulations or laws.

Against this backdrop, we first summarize available resources for employers considering steps to take in light of COVID-19, outline actions that promote workplace safety (and may allow employers to fall into safe harbors), and address recurring questions.

Stay Current (Information and Guidance)

The Federal government has issued guidance, based on its then-informed assessment of the risks posed by various situations and the benefits of various employment practices. Employers who rely on this guidance can protect themselves from allegations that they failed to take reasonable steps to protect employees; they also can protect themselves from claims that they took actions based on unjustified fears or stereotypes. See Equal Employment Opportunity Commission (“EEOC”), Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (Oct. 9, 2009) (“During a pandemic, employers should rely on the latest Centers for Disease Control (“CDC”) and state or local public health assessments.”).

Moreover, while the Equal Employment Opportunity Commission (“EEOC”) recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information. Id.see also Abbott v. Bragdon, 912 F. Supp. 580, 590-91 (D. Maine 1995) (holding that defendant who acted beyond CDC guidelines for reducing the risk of transmission of infectious diseases, and refused to treat patient with HIV in a dental setting, acted unreasonably in violation of the ADA; if defendant implemented the CDC recommended precautions, treatment of plaintiff would pose no direct threat to health or safety or others); U.S. v. Morvant, 898 F. Supp. 1157, 1166-67 (E.D. La. 1995) (analyzing an Americans with Disabilities Act (“ADA”) claim, the court looked to expert testimony presented by the government that the CDC’s recommendations, if implemented, would significantly mitigate any risk).

Thus, as a first step, employers should regularly check current guidance, including:

Employers should also check the U.S. Department of Labor’s (“DOL”) guidance relating to the FFCRA, which the DOL is continuing to issue. The DOL has also issued fact sheets and model posters. See https://www.dol.gov/agencies/whd/pandemic.

Assessing the Risk to the Workplace and Employee: Employee Exposure

A primary, recurring issue is what to do when:

  • An employee is confirmed to have COVID-19 (the disease caused by the virus);
  • An employee was exposed/in close proximity to a person with COVID-19 but is not symptomatic;
  • An employee was exposed to such a person but not in close proximity; or
  • An employee traveled to a Level 2 or 3 region, as defined by the CDC.

Relying on the CDC’s guidance, the appropriate action is based on the risk exposure presented by the employee. Essentially, the level of risk exposure informs whether the employee may be permitted to work onsite. The CDC categories and definitions of risk exposures currently are:

  • Low risk exposure: Being in the same indoor environment as a person with symptomatic laboratory-confirmed COVID-19 for a prolonged period of time but not meeting the definition of close contact.
  • Medium risk exposure: Close contact with a person with symptomatic laboratory-confirmed COVID-19; on an aircraft, being seated within six feet (two meters) of a traveler with symptomatic laboratory-confirmed COVID-19 infection; this distance correlates approximately two seats in each direction; living in the same household as, an intimate partner of, or caring for a person in a non-healthcare setting (such as a home) to a person with symptomatic laboratory-confirmed COVID-19 while consistently using recommended precautions for home care and home isolation; travel from a country with widespread sustained transmission; travel from a country with sustained community transmission; travel on a cruise ship or river boat.
  • High risk exposure: Living in the same household as, being an intimate partner of, or providing care in a non-healthcare setting (such as a home) for a person with symptomatic laboratory-confirmed COVID-19 without using recommended precautions for home care and home isolation.

Applying these levels of risk exposure, the CDC’s guidance for the workplace is:

  • Low-risk exposure: 
    • Asymptomatic: Not applicable.
    • Symptomatic:  Self-isolation, social distancing; person should seek health advice to determine if medial evaluation is needed; if sought, medical evaluation and care should be guided by clinical presentation; diagnostic testing for COVID-19 should be guided by CDC’s PUI definition.
  • Medium-risk exposure:  Consider on a case-by-case basis, after consultation with state or local public health authorities, whether the employee may be able to work onsite. Consider individual employees’ work responsibilities and locations to determine whether they could remain separate from others during the entire work day. If they are permitted to work onsite, employers should not permit them to enter crowded workplace locations such as meeting spaces or cafeterias.
    • Asymptomatic
      • If medium-risk due to close contact reason: recommendation to remain at home or in a comparable setting; practice social distancing; active monitoring as determined by local priorities; recommendation to postpone long-distance travel on commercial conveyances;
      • If medium-risk due to travel from country with widespread sustained transmission or travel on a cruise ship or river boat, recommendation to remain at home or in a comparable setting; practice social distancing; self-monitoring; recommendation to postpone additional long-distance travel on commercial conveyances after they reach their final destination;
      • If medium-risk due to travel from country with sustained community transmission, practice social distancing; self-observation.
    • Symptomatic:  Self-isolation; public health assessment to determine the need for medical evaluation; if medical evaluation warranted, diagnostic testing should be guided by CDC’s PUI definition; if medical evaluation is needed, it should ideally occur with pre-notification to the receiving HCF and EMS, if EMS transport indicated, and with all recommended infection control precaution in place; controlled travel, meaning air travel only via air medial transport, and local travel only allowed by medical transport (e.g., ambulance) or private vehicle while symptomatic person is wearing a face mask.
  • High-risk exposure: 
    • Asymptomatic:  Quarantine (voluntary or under public health orders) in a local to be determined by public health authorities; no public activities; daily active monitoring, if possible based on local priorities; controlled travel.
    • Symptomatic:  Immediate isolation with consideration of public health orders; public health assessment to determine the need for medical evaluation; if medical evaluation warranted, diagnostic testing should be guided by CDC’s PUI definition; if medical evaluation is needed, it should occur with pre-notification to the receiving HCF and EMS, if EMS transport indicated, and with all recommend infection control precautions in place; controlled travel, meaning air travel only via air medical transport, and local travel is only allowed by medical transport (e.g., ambulance) or private vehicle while symptomatic person is wearing a face mask.

Employers who apply these guidelines will have prima facie evidence that they have taken reasonable and not excessive steps to protect their employees. See, e.g.Abbott v. Bragdon, 912 F. Supp. 580 (D. Maine 1995); U.S. v. Morvant, 898 F. Supp. 1157, 1166-67 (E.D. La. 1995), supra. That does not mean that greater or lesser steps are never appropriate; however, employers should be careful to base their decisions to take a different action on a sound foundation.

Considering Specific Questions: Individual Employee Issues

As noted above, an employer must navigate a labyrinth of regulations while protecting its workplace, its workers, and its productivity. Below are recurring questions and general responses. They are provided for general information only. As each situation will be fact-intensive and driven by the particular circumstances, we recommend you consult with your Paul Hastings partners to discuss specific fact patterns before you take action.

  1. If an employee discloses that he or she has been exposed to or diagnosed with COVID-19, with whom should the information be shared (e.g., secondary reporting requirements)?

    Employees exposed to or diagnosed with COVID-19 should be directed to either disclose their exposure or diagnosis to a designated person or department prepared to take the appropriate steps in response or allow an employee to provide a doctor’s note indicating that he or she is unable to return to work for a specified time. Employers should check with state and local public health departments as some may require employers to report cases of COVID-19. As with other health issues, employers should not disclose the identity of the employee to others such as the employee’s manager, supervisor, or other employees (outside of those addressing the disclosure).

  2. May an employer require an employee to take a leave/quarantine? If so, is that employee entitled to pay, job protection, and/or other leave/sick time benefits?

    Employers cannot require any employee to stay in quarantine while not at work, but where circumstances warrant, they may send home sick or symptomatic employees or prevent them from reporting to work. In accordance with the CDC guidelines described above, employers should assess an employee’s level of risk exposure in order to take appropriate action and determine whether an employee may be permitted to work onsite. If feasible, telecommuting or working remotely should be considered as a solution.

    An employer may require an employee to leave the workplace if, consistent with the ADA, the employer has a reasonable belief, based on objective evidence, that the employee’s ability to perform essential job functions will be impaired, or the employee will pose a direct threat to the health or safety of others in the workplace. The EEOC has also clarified that employers may require employees who become ill with symptoms of COVID-19 to leave the workplace. Employers should follow CDC and WHO guidelines in assessing whether an employee poses a direct threat or is showing symptoms of COVID-19.

    Non-exempt employees only must be paid for time spent working (and any pay required by state or local rule, such as reporting pay). However, covered employers under the FFCRA (i.e., private employers with fewer than 500 employees) must provide paid, job-protected leave to eligible employees who take sick leave or expanded family and medical leave under the FFCRA if the leave is taken for a qualifying reason. See our March 18, 2020 Client Alert for additional information relating to the FFCRA. Employees also may be eligible to use paid time off available to them under the employer’s policies (see FAQ No. 15 below). For exempt employees, employers should consult with legal counsel to ensure that they comply with the “salary basis” test, which may prohibit deductions from exempt employees’ salaries in some cases if the employees do not substitute paid time off.

    Employees also may be entitled to job protected leave for purposes of caring for their own illness, or the illness of a “family member,” as defined by applicable law, such as the Family Medical Leave Act (“FMLA”), the ADA, and federal, state, and local paid sick leave laws. State laws may vary with regard to whether employees can be compelled to use accrued vacation, paid time off, or paid sick leave under an employer’s policy if the absence is not designated as FMLA or equivalent leave. Employees also may be eligible for short-term disability benefits.

    Employers should consult with our employment counsel to ensure compliance with all applicable laws, and to ensure consistent application of employer policy.

  3. May an employee self-quarantine? If so, is that employee entitled to pay, job protection, and/or other leave/sick time benefits?

    If an employee is diagnosed with COVID-19, or is immunocompromised, and has medical documentation requiring him or her to be quarantined as a result of his or her illness, an employer should consider whether working from home, a leave, or some other form of reasonable accommodation is available. Covered employers under the FFCRA (or other state law such as New York’s new paid sick leave law passed in light of COVID-19) must provide paid leave to eligible employees who are in self-quarantine if the employee is subject to a Federal, State, or local quarantine or isolation order, or has been advised by a health care provider to self-quarantine. See our March 19, 2020 Client Alert for an overview of the New York legislation.

    If an employee does not have a medical reason for self-quarantining, but has a reasonable belief that reporting to work would pose an imminent and serious danger to his or her life or health, he or she cannot be retaliated against for voicing this concern. 29 C.F.R. § 1977.9(c) (good faith complaints to employer about occupational health and safety are protected activity under the OSH Act).

    See above regarding compensation and job protection during quarantine, and the availability of leave, vacation, paid time off, or sick leave.

  4. May an employee take time off of work to care for a family member with COVID-19?

    Under the FFCRA, covered employers must provide eligible employees with up to 80 hours of paid sick time to care for an individual with COVID-19.

    If an employer is not a covered employer under the FFCRA or an employee is not eligible for leave under the FFCRA, time off for an employee to care for a family member with COVID-19 should be treated like any other leave for caring for a family member under company policy, consistent with the FMLA and state counterparts, and sick leave laws.  Assuming the employee meets the FMLA threshold requirements for length of service and hours worked, the employee may take up to 12 weeks of protected leave to care for a spouse, child, or parent who has a “serious health condition,” defined as a condition requiring in-patient treatment or resulting in a period of incapacity of more than three consecutive days and continuing treatment from a healthcare provider. Employees not eligible for FMLA leave, or who have exhausted FMLA leave, may be eligible for time off under other applicable laws, including federal, state, and local paid sick leave laws.

  5. If an employee takes time off to care for a family member diagnosed with COVID-19, may the company require the employee to produce a “clean bill of health” before the employee returns to the workplace?

    Yes, under the DOL’s guidelines, if an employee takes paid sick leave under the FFCRA to care for a family member diagnosed with COVID-19, employers must require the employee to provide appropriate documentation supporting the reason for the leave, including: “the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested.”

    An employer may also require a “clean bill of health” if an employee takes caregiver leave under the FMLA, and the employer has a uniformly applied policy of requiring employees on caregiver FMLA leave to provide a fitness-for-duty certification upon return from leave. Otherwise, employers should not inquire about the employee’s own health status unless the employee poses a “direct threat to the health or safety of himself/herself or others.” Whether an employee poses a “direct threat” depends on: (i) the duration of the risk, (ii) the nature and severity of the potential harm, (iii) the likelihood that the potential harm will occur, and (iv) the imminence of the potential harm. Employers should consider the level of risk posed by an employee in light of the CDC’s risk factor levels discussed above.

  6. What job changes may I make if someone discloses that he or she has been diagnosed with COVID-19 and/or in contact with someone who has been diagnosed with COVID-19?

    Employers should follow the CDC guidelines for risk assessment, described above, and determine whether there are flexible or telecommuting work arrangements that can be made if an employee should not be working onsite. For example, the CDC guidelines provide that “[f]or employees who are able to telework, supervisors should encourage employees to telework instead of coming into the workplace until symptoms are completely resolved.” The guidelines further note employers should ensure they have the “information technology and infrastructure needed to support multiple employees who may be able to work from home.”

    Covered employers under the FFCRA should also determine whether the employee would be eligible for paid leave under the FFCRA.

    Specific Questions: General Company/Employee Issues

  7. What obligation do employers have to keep the workplace “safe” regarding COVID-19?

    While there is no specific standard under federal OSHA laws that addresses COVID-19, the OSHA General Duty Clause requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” OSHA has indicated that certain OSHA standards may apply to prevent occupational exposure to COVID-19. OSHA has also published interim guidance to help protect against worker exposure, available at https://www.osha.gov/SLTC/covid-19/controlprevention.html.

    States, too, may have acted to address COVID-19. For example, in California, the California Department of Occupational Safety and Health (“CalOSHA”) has issued guidance specifying that COVID-19 is subject to California’s Aerosol Transmissible Disease (“ATD”) standard (8 CCR § 5199), which applies to workers in certain settings, including healthcare and public health facilities and others in close contact with individuals affected by aerosol transmissible diseases. CalOSHA has also issued interim guidelines for general industry employers that are not covered by the ATD standard. The CalOSHA interim guidelines recommend that employers not subject to the ATD standard follow the recommendations set forth by the CDC. CalOSHA has also cautioned that certain general industry standards may also be implicated by COVID-19, including the requirement to evaluate hazards at the workplace as part of any Injury and Illness Prevention Plan (“IIPP”), provide washing facilities and personal protective equipment (“PPE”), and to control harmful exposures.

    Given these obligations, employers should consider what reasonable efforts should be taken to ensure a safe workplace, including, as applicable, reviewing their IIPP and written ATD exposure control plan and procedures, providing training, using feasible engineering, administrative and work practice controls (including consideration necessity of travel), providing and ensuring that employees use personal protective equipment where necessary, providing medical services, and meeting laboratory operation requirements. See https://www.dir.ca.gov/dosh/Coronavirus-info.htmlhttps://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html.

  8. Can I restrict an employee’s personal travel?

    Employers are generally prohibited from restraining employees’ lawful conduct outside of work. Accordingly, employers cannot prohibit personal travel or other contact with family members or friends who may be infected. However, employers may encourage employees not to travel if they are sick and to exercise certain precautions consistent with CDC and WHO guidance. Employers are also free to cancel or postpone company-directed travel to reduce risk of infection of employees.

  9. Can I require someone to travel?

    In general, employers should follow the travel guidance and recommendations issued by the CDC. To date, the CDC has issued a Level 3 health travel notice to all global destinations, recommending that people avoid all “nonessential” travel to global destinations. The CDC does not define this term, but as indicated above, OSHA requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” States, including Alaska, Florida, and Hawaii have also begun to place travel restrictions on domestic travelers, and some areas within the United States are experiencing community spread of COVID-19. Requiring employees to engage in non-essential business travel to affected areas could create OSHA risks. Therefore, employers should consider other available options (e.g., telecommuting) for employees, and comply with state and local orders requiring non-essential businesses to close and/or reducing the number of in-office personnel. If an employee refuses to travel, what steps, if any, might an employer take in response – depending on the factual circumstances – could result in claims of unlawful retaliation under certain statutes. Employers should consult with counsel on the proper response.

  10. Can I require an employee to be tested for COVID-19?

    Employers should not institute or require employees to undergo medical testing for COVID-19, unless directed by health authorities or necessary to avoid a direct threat to the health or safety of employees. The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. This usually requires the employer to have a reasonable belief, based on objective evidence, that the employee’s ability to perform essential job functions will be impaired or the employee will pose a direct threat to the health or safety of others in the workplace. The EEOC instructs employers to look to the CDC and other public health authorities in determining whether the virus poses a direct threat, as opposed to “subjective perceptions … [or] irrational fears.” The EEOC’s most recent guidance does not address COVID-19 testing, but states that during the current pandemic, “ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus.” Where such medical inquiries are appropriate, testing is likely appropriate as well. Similarly, the EEOC has indicated that during the COVID-19 pandemic, employers may take the body temperature of employees even though measuring an employee's body temperature is a medical examination. Employers nevertheless should be aware that not everyone with COVID-19 has a fever.

  11. Can I compel an employee to disclose a diagnosis, or that he or she has been in contact with someone who has been diagnosed with COVID-19?

    Only if the employee poses a direct threat to the health or safety of others. While the ADA generally prohibits disclosure of employee medical information, it allows an employer to require that an employee disclose health information where the employee poses a “direct threat to the health or safety of himself/herself or others.” Whether an employee poses a “direct threat” depends on: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm. Employers should consider the level of risk posed by an employee in light of the CDC’s risk factor levels discussed above. As stated in FAQ No.10, EEOC’s most recent guidance states that during the current pandemic, “ ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus.” Where such medical inquiries are appropriate, inquires about a COVID-19 diagnosis or exposure is likely appropriate as well.

  12. Can I establish a voluntary disclosure process, and how?

    Yes, the ADA allows for voluntary disclosure of an employee’s medical information. For example, an employer could circulate safety information and recommendations about COVID-19 and provide a confidential resource for employees to contact if they wish to disclose personal health information.

  13. Should I notify others in the workforce that a co-worker has been diagnosed with and/or exposed to COVID-19, and how? Do I need consent?

    The CDC guidelines provide that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace. However, employers must maintain confidentiality and not identify the affected employee, as the ADA and state medical privacy laws generally prohibit employers from disclosing employees’ confidential medical information to other employees (including managers), such as whether the individual has a communicable disease.

    Instead, employers can inform potentially affected employees that an unidentified employee with whom they have had recent contact has tested positive for COVID-19 and they should monitor themselves for the development of symptoms, including potentially seeking medical treatment. Alternatively, an employer may ask the affected employee whether it can share his or her name with other potentially impacted employees (and we recommend that consent be in writing). This request must be voluntary.

  14. If an employee notifies me that he or she has been diagnosed with COVID-19 and/or exposed to COVID-19, is the company required to directly report to a state agency (or direct the employee to do so)?

    The CDC “strongly encourages” coordination by employers with state and local health officials where the employer is aware of an affected employee so that timely and accurate information can guide appropriate local health responses. In some circumstances, depending on the job and local health department regulations, there may be mandatory reporting obligations. Employers should consult with the local health department to determine whether any of their employees fall within these categories. Where a local health department requires notification of any cases of COVID-19, employers do not need to maintain confidentiality of the employee’s identity to the agency. See 45 CFR § 164.512(b)(1)(i) (allowing covered entities under the HIPAA “to disclose protected health information, without authorization, to public health authorities who are legally authorized to receive such reports for the purpose of preventing or controlling disease, injury, or disability”; this “include[s] for example, the reporting of a disease or injury”).

    Additionally, OSHA has clarified that COVID-19 is a “recordable illness” for an establishment’s injury and illness recordkeeping requirements when it is a confirmed case, a worker is infected on the job, and it involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment beyond first-aid, days away from work).

  15. May employees use sick days, medical leave, or other paid time off for COVID‑19?

    Generally, yes. If an employer is covered under the FFCRA (i.e., has fewer than 500 employees), then eligible employees are entitled to take paid leave under the FFCRA.

    If an employer is not covered under the FFCRA, or an employee is not eligible for leave under the FFCRA, FMLA leave may be used to care for a spouse, child, or parent with a “serious health condition” or to take care of the employee’s own serious health condition, as certified by a healthcare provider, assuming the employee otherwise qualifies for the leave.

    Paid sick leave laws generally provide that an employee may take paid sick leave to care for such employee’s illness, injury, or health condition, or to care for a family member who needs care, treatment or medical diagnosis of an illness, injury, or health condition. See, e.g., California Labor Code § 246.5(a) (employees may take paid sick leave for the “diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member”); NYC Admin. Code § 20-911 (employees may use sick time due to “employee’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care,” “care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care,” or “closure of such employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency”). Whether an employee may apply other paid time off (such as vacation or other PTO) will depend on the employer’s policy and practice.

  16. What policies should I review that may touch on this issue?

Employers should review their applicable employment policies, including but not limited to, health and wellness, telecommuting, disability (interactive process, accommodation, and anti-retaliation), sick and family leave, PTO, OSHA, and emergency preparedness policies.

In addition, employers should consider a specific COVID-19 statement outlining how the employer intends to assess the risk and protect employees/the workplace, providing where and how an employee may confidentially self-report, and reaffirming healthy workplace habits (e.g., washing hands with soap and water; avoiding touching eyes, nose or mouth with unwashed hands; avoiding close contact with people who are sick; and staying away from work, school, or other people if an employee becomes sick with respiratory symptoms like fever and cough).

This is not an exhaustive list—these are just a few considerations for employers facing COVID-19. These decisions can be very fact-specific and may require the advice of counsel.

 

Click here to read more from our Coronavirus series.