Coronavirus and Employment Law: How Texas Employers Should Respond to COVID-19

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Transcript

State Bar of Texas Podcast

Coronavirus and Employment Law: How Texas Employers Should Respond to COVID-19

03/27/2020

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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice, with your host Rocky Dhir.

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Rocky Dhir: Hi and welcome to the State Bar of Texas Podcast. We are recording today’s episode on March 25, 2020 and I tell you that because this is a time when it is being said that America is on the front lines of what many might consider to be World War 3. This is not a war between nations, the combatants are not military soldiers, this is a war with an enemy that is invisible to the naked eye and it is attacking people all over the globe from all walks of life.

This enemy is an affliction called COVID-19, known more colloquially as the Coronavirus. Based on what we know so far this virus travels through the air and is spread between individuals, it can even remain on certain surfaces for days at a time. Those who have the virus may not display symptoms for up to 14 days, during which time they are unwittingly spreading the virus to others.

Initially thought to particularly affect the elderly and those with compromised immune systems, stories are emerging of otherwise healthy, younger people falling critically ill sometimes fatally.

So, in response to COVID-19 many counties in Texas are under shelter-in-place orders, almost all Texans are trying to avoid contact with other people and maintain “social distance”.

When such contact must occur courthouses throughout the country are either shut, addressing only a restricted set of matters or postponing deadlines in all matters as the nation grapples with this new adversary.

For us lawyers, dealing with COVID-19 presents from what I can tell, at least two categories of challenges; one for ourselves and the other for our clients.

First we must figure out how to eke out a living when courthouses are closed and clients are finding their own businesses slowing down. Second, our clients look to us to determine their legal rights and obligations when business is left to decide whether and when to downside or furlough employees.

Then there’s a challenge of keeping workplaces safe and helping employees who must care for themselves or loved ones who have contracted COVID-19, one bright spot and otherwise fear inspiring landscape is a depth and talent in our State Bar.

Texas is home to a wide swath of lawyers who can almost always come through with advice and counsel at times of unprecedented challenge, like the one we face now.

Teresa Valderrama is one of the Texas lawyers who has built a career that prepares her and us for that matter for this moment.

Teresa is a Board-certified Labor and Employment Lawyer in the Houston Office of Fisher Phillips. She brings more than 30 years of experience representing and advising employers in all areas of labor and employment.

Teresa is the immediate past Chair of the State Bar’s Labor & Employment Law Section and she has been tasked by her firm to head its own Coronavirus response efforts.

She’ll be sharing her knowledge in written form in the April 2020 edition of ‘The Texas Bar Journal’ where she has penned an article titled “Preparing for the coronavirus: How Texas employers can plan for COVID-19”.

We are fortunate to have her with us now to delve a bit deeper into this topic. So, Teresa, welcome to the podcast. Thanks for being here.

Teresa Valderrama: Thank you, Rocky. It’s my pleasure.

Rocky Dhir: All right. So sounds like you’ve been kind of busy. We appear to be in uncharted waters, if I’m reading this all correctly, is there even a precedent for something like this in Texas Law and specifically Texas Employment Law?

Teresa Valderrama: Well, you’re right we are in uncharted waters and the lack of charted waters really comes from the chaos that flows with the quick changes that we’re having to face because of the Coronavirus itself, and what we’re looking at now are really two different elements of what employers have to deal with.

The first is dealing with the existing laws that weren’t necessarily built around the circumstances that we’re looking at right now, and the second piece of it is the emergency actions that are being taken by government, and appropriately so, I don’t want to diminish or downplay the importance of safety and recognizing some of the things that we’re dealing with right now, but employers are having to themselves deal with these changes that are being put in fact by our governments in an effort to keep us safe, to diminish the impact of the Coronavirus, but that in the long haul, may in some ways foretell a business future that looks a little bit bleak, because of the actions that are being taken.

Rocky Dhir: Well, now let’s say get started with the law that’s already out there. What are some of the duties and responsibilities that employers might owe to employees, especially those who need to take time off to care for themselves or loved ones or let’s say you’ve got a downturn in business, what do we know based on what we have? And then we can talk about maybe some of the new things Congress has been doing recently.

(00:04:59)

Teresa Valderrama: Sure. The laws that are most important that are already existing, I think are anchored first in the OSHA Act (the Occupational Safety and Health Act), which are laws that are intended to keep people safe at work, and so of course, you have this virus and you have individuals who may show up at work with symptoms and so the OSHA Act puts certain duties on employers to maintain a safe workplace, it’s called a General Duty Clause in the event that the employer determines that the workplace is unsafe. Now, of course, there are no regulations or there are very few regulations that deal with the Coronavirus because it didn’t exist. So that’s one area where existing laws put responsibilities on employers.

Rocky Dhir: So can I ask you something about that, because that’s interesting?

Teresa Valderrama: Sure.

Rocky Dhir: You actually talked about this or at least you alluded to it in the Bar journal article where you talked about employers needing to create a safe workplace or at least maybe maximize workplace safety.

Now, here we’re dealing with the pandemic, does OSHA actually address something like a pandemic or some kind of mass sickness or is OSHA really more geared towards things like making sure ladders are in the right places and making sure that surfaces are clean and so on and so forth, I mean, does OSHA really cover something like this?

Teresa Valderrama: Well, the answer to that is yes and no.

Rocky Dhir: Okay.

Teresa Valderrama: OSHA is in the same situation that employers are in, in that OSHA as I said puts in place this general duty requirement that every employer has to follow, which means that, if for example, let’s say you saw a raging elephant running across your workplace. Well, that’s not anywhere in OSHA, but you as the employer see that raging elephant running across your workplace. You know, you have to do something to take care of that. You can’t put your employees in a position where a raging elephant is going to run into them.

Rocky Dhir: I’d be posting that on Instagram first though. I got to say, I’d be videoing that right-away, like, check out the elephant in the room, literally.

Teresa Valderrama: Exactly. So yeah, that’s a good point. So that’s the general duty piece of it.

The OSHA Administration has also issued some guidelines very quickly to tell employers what to do and they have a link, you can go on the government website, but their oversight is less specific to some of the issues that come up with respect to the Coronavirus, than for example, the CDC.

And so what we ask employers to do and we’re giving them guidance is to look to the most specific guidance that you can find for dealing with workplace safety and then try and implement those kinds of activities that will build a corral around your raging elephant after of course you’ve had a chance to take a picture with it.

Rocky Dhir: Well, but then what happens? Yeah, yeah, there’s a selfie with the elephant, I think we need to make sure. And when we say “elephant” we are not making a political statement.

Teresa Valderrama: That’s true.

Rocky Dhir: But let’s talk for a second about — so you see this pandemic taking place and you try to go to the CDC website, maybe you go even to some State medical websites to try to figure out what your response ought to be and somewhere along the way you run across articles.

Now, if I read the news, some of them will tell me not to panic, others tell me that the world is ending. So, as an employer how do you figure out what is and is not good advice or good guidance for purposes of creating a workplace safety protocol?

Teresa Valderrama: And that’s a very good question and it actually touches a great deal on what employer human relations responsibilities are.

One of the things that as a lawyer we try to do with the employers to whom we provide guidance is to get them to slow down and breathe, because the workplace is not the place where you want to have rumors run rampant or driving the way that your business operates, because rumors are inevitably not accurate, and not every rumor can be evaluated on Snopes. You don’t want to have your employees all in a tizzy about the issues that are going on, but you do want to be appropriately careful to give good guidance.

So what some of our employers do, what we’ve been advising them to do is to actually sort through the information that’s out there and to provide employees with feedback regarding what to look for. For example, you have the common cold, you have the flu and you have the Coronavirus, and people — you come across someone and they sneeze, and of course, because there’s so much information out there that it can insert a panic into the workplace, and what we know about the Coronavirus for example, is that sneezing is not one of the symptoms that is described as being a Coronavirus type of symptom.

(00:09:58)

So it’s helpful for employers to be able to list those particular symptoms to pay attention to and then to have a plan to deal with it. I think people work best under systems that are systematic and that they perceive as safe or thoughtful, and so the employer’s responsibility or one of the responsibilities that we work with our employers on is providing guidance to employees about what to look for. So that’s step one. This is assuming you have an essential business that’s actually still open right now.

Rocky Dhir: Oh sure, sure.

Teresa Valderrama: So, the step one is to say what to look for and to keep people from becoming unduly distraught over items that might not actually be symptomatic.

The second thing is, if someone does test positive for Coronavirus and that does happen because some individuals are carriers and they don’t have some of the symptoms and if you learn that someone has tested positive for the Coronavirus you have to understand that it really does 80% of the population is not affected really seriously by the disease.

The importance though is to try and prevent that individual from being a bridge to the next individual and causing that exponential increase. So it’s important to have in place a communication system and a policy or practice of knowing what you’re going to do if you get a report back that an employee has tested positive for Coronavirus, and there are some laws that affect what you can do, what you can ask and what you can say with respect to that individual.

But the overall objective is to keep the workplace from becoming chaotic while trying to keep it safe and while serving the public need of trying to keep this virus in check to the best extent that we can while we’re continuing to operate essential infrastructure, because people have to eat, they have to comply with laws, they have to do all the things that we have to do to keep our world just basically working.

Rocky Dhir: Now, you talked earlier about OSHA and then we started kind of delving more into that, because honestly that sounded like a fascinating topic in terms of what employers and lawyers must understand about OSHA and its implications for this pandemic. I honestly had not thought of that angle. So that was interesting to me, but you were going to talk about some other statutes as well.

Teresa Valderrama: Sure.

Rocky Dhir: So you are talking about OSHA and then it looks like there were some other elements and I don’t want to forget those and not cover those. So what else is there aside from OSHA or maybe in addition to OSHA?

Teresa Valderrama: Sure. You remember, we were talking about the fact that there can be rumors that run around the workforce as to what the source is of the virus?

Rocky Dhir: Sure, right.

Teresa Valderrama: And one of the initial issues that employers had to deal with, and that they may still have to deal with is, and I think you’ve heard some of our government entities describe this as the Chinese virus. Well, it’s really not the Chinese virus. There are a lot of people who have a Chinese background who will never come any closer to the virus than anyone else who is not in one of the areas of risk.

And so, that’s one of those rumors that we have to work to diminish and to prevent individuals within the workplace from being discriminated over, and therefore for example, if an employee says, well, I don’t want to sit next to that person because they have family in China or they are from Chinese descent or they are Iranian or —

Rocky Dhir: Or Italian for that matter.

Teresa Valderrama: Italian, yeah. We were running into the European group. It’s important that the employer take a look at the issue, recognize that the person has a personal concern, they may themselves have some kind of a sensitivity which makes them hypersensitive, but then also be able to introduce into the workplace the fact that we’re not going to take action based on perceptions that cannot be supported by fact. We’re not going to put our employees in a position where they’re going to be discriminated against. We’re also going to communicate the true need for observation of symptoms versus otherwise.

The other thing, for example, is we’ve had reports, circumstances, where employees who have sat next to somebody who just happens to have a cough that they may have had for years and years and years and suddenly their colleagues don’t want to work with them in the same space, and that of course, again, when you’re sitting next to somebody even though they’ve had a cough for a long time, you’re unsure whether at this moment in time, whether it’s putting you at risk or not.

Rocky Dhir: Sure.

Teresa Valderrama: And so that’s where an employer has to be aware of what an employer can or can’t do or ask an individual about their personal or private health care in order to try and implement their workplace safety to keep the workplace a safe place for people to work.

(00:15:00)

And there are a lot of different restrictions on those types of questions. The US has an Americans with Disabilities Act and all of this, Texas in particular, also has a what we call a mini ADA Act, and that law puts very severe limitations on both the inquiries about a person’s health, the status of their health and inquiries about their past health history and about the communication of somebody else’s health to others in the workplace.

So there are confidentiality and legal barriers to the employer telling employee A, that they don’t need to worry about what employee B has because employee B has some other disease that is not the Coronavirus.

The employer A shouldn’t know and secondly shouldn’t be able to communicate that. However, you’re left with the problem of an employee who sits next to somebody, who from all appearances looks like they might be a danger in the workplace. And so that’s where the employer has to wind its way through some fairly difficult souls to work within the law and to determine whether that’s a safe situation.

Rocky Dhir: So, let’s take that, that example you just gave. So, if I’m employee B and I’m sitting next to employee A; employee A as you said been coughing for as long as they’ve been employed there. They’ve had this recurring kind of chronic coughed that just never went away.

Now, Coronavirus is out and this person is coughing and I’m concerned that they may have their pre-existing cough, but now their cough may be mixed in with COVID-19.

Teresa Valderrama: Correct.

Rocky Dhir: And I might be catching COVID-19 because this person is disregarding the symptomatic warnings of COVID-19 because they’re assuming it’s just part of their normal cough. And as I say this I feel a cough coming on just because we keep saying “cough”.

But, let’s talk for a second about what happens if I, employee B, now come down with Coronavirus?

Teresa Valderrama: Well, let’s address that first issue first, which is, what can you do as an employer, because we really don’t know if the employee who’s had a chronic cough does or does not have Coronavirus. The fact that you’ve had a chronic cough doesn’t immunize you from being a carrier of the Coronavirus.

Rocky Dhir: Sure. Absolutely!

Teresa Valderrama: So when I say employee A wants to know, that’s not a wrongheaded question, and what we know from the law is that the Equal Employment Opportunity Commission which provides guidance on how you respond to these things has issued guidance over the last three or four weeks, because again, remember the situation is moving at rocket speed, and that guidance, because of the pandemic declaration as to this virus, that guidance now allows employers to take steps that ordinarily an employer could not require.

For example A, taking someone’s temperature at the doors of a building or before they come to work, that’s considered a medical examination, because it gives back specific medical information.

Rocky Dhir: Sure.

Teresa Valderrama: And ordinarily an employer would not be allowed to do that sort of thing. An employer also would not be allowed to ask an employee, hey, how do you feel, do you have a fever, and that kind of stuff?

Rocky Dhir: Sure.

Teresa Valderrama: Currently, the prohibitions on those specific questions that are focused on the Coronavirus, they are being minimized or there’s been a recognition that in this circumstance when you ask those questions, you’re not asking about a disability that would be a violation of the law, but you’re asking about a very real potential medical circumstance.

So with those being relaxed employers now if they do it appropriately are able to require that temperatures be taken before a person enters a facility as long as the records are maintained confidentially and the temperature taking occurs in a circumstance that is private so that you maintain the privacy of the outcome of the medical examination. You can do those kinds of things.

So, in the case where you as employee B are worried out employee A, it would not be inappropriate, in that case for the employer to go to the employee and say, do you have an explanation for your cough? If you don’t have an explanation for your cough and even if you do have an explanation for your cough, because you have that cough we’re going to ask that you — it is a symptom that is affiliated with Coronavirus we’re going to ask that you see a doctor and determine from a doctor whether you need to get tested.

(00:19:55)

So, it’s not impossible under those circumstances where there is a true example of a symptom being demonstrated that the employer can ask the employee to demonstrate that they in fact currently have a clean bill of health despite their symptoms.

Rocky Dhir: Okay. So that may be a way for the employer then to kind of cover their bases so they don’t get sued for possibly exacerbating the pandemic, right?

Teresa Valderrama: Well, yes, the big issue is exacerbating the pandemic. First of all, you don’t want all your employees to get sick.

Rocky Dhir: Sure, sure of course.

Teresa Valderrama: And secondly, you don’t have any credibility with your employees if you’re not able to assure them that you do have a safe workplace. And so in dealing with these rumors you have to show that you have realistic fact-driven lines that will help you.

In reality, employers are not really susceptible to being sued for employees getting sick on the job because workers’ compensation is an exclusive remedy for getting sick on the job. So, frankly, that is one of the issues that is not really present for Texas employers.

Rocky Dhir: Okay, so we’re covered there. Now, let’s say — now again, I’m not going to get into the science behind it and I’m not going to try to comment on whether it’s a good move or a bad move, but there has been talk from President Trump that we want to open the economy back up, I think he said by Easter, and there are some in the scientific community who say, that’s not going to be enough time to contain the Coronavirus, it can still spread after that.

So, now, let’s say that we opened the economy back up by Easter, the emergency is lifted, we determine that at least as far as the government is concerned there’s no pandemic now, and we all go back to work as normal. Do the same rules still apply or does it change now that there’s still the possibility of a pandemic even though we’re not in emergency situations anymore?

Teresa Valderrama: Well, you raised two different issues there. One is, what is the impact of a government closure order on the authority of an employer to take certain actions? And certainly, it’s true that if the Federal Government were to — well, the Federal Government has not actually issued any orders that require a stay-in-place type of situation. The orders for the Federal Government mostly have been with interstate and international commerce, and some other; they’re doing a lot in terms of business recovery, but it doesn’t really have to do with individual workplaces.

Rocky Dhir: Right, okay.

Teresa Valderrama: So, the real issue is and the persons that actually wield the power are the state and county governments, and in Texas for example, our governor has concluded that the time is not yet ripe to issue a stay-in-place statewide order, but there are I believe at least 15 or 16 counties and every county that has a major municipality in it has issued a stay-in-place type of order, that does the same thing that one would expect at a statewide level.

So, in response to those orders with people staying at home and with people being restricted from actually using services that are deemed non-essential, employers would have to follow those orders regardless of what the Federal Government decided to do. But, let’s say that magically all of the states and counties and municipalities and the Federal Government found a point in time that they agreed as early as Easter was a time when these orders could be raised, it would not change the assessment of how an employer would need to operate in the workplace as long as there is some understanding that the Coronavirus is still active.

I would hope that the orders wouldn’t be diminished until the need was gone, but an employer would still have to respond appropriately for the fact that the Coronavirus is this easily shared disease and would have to react under the different rules consistent with that.

The employer might not be able to continue to require that temperatures be taken or that, those kinds of things, but otherwise I think until this disease disappears you’re going to see a lot of social distancing in terms of how far apart people stand, whether they shake hands and those kinds of things.

And there’s a law that was just recently passed called the Families First Coronavirus Response Act and that act has implemented certain leave responsibilities and sick leave that will stay in place through the end of December of 2020.

Rocky Dhir: That was actually my next — I was going to ask you to talk about that. I think it might be called the ‘Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020’. It’s a long name but is that the one you’re referring to or is there a different one?

(00:25:02)

Teresa Valderrama: Is that the one that just passed or is this?

Rocky Dhir: Yes, well — it’s not the stimulus package. This is the one that was passed maybe a week ago.

Teresa Valderrama: Okay, the short name for that one is what we call the FFCRA, or the Families First Coronavirus Response Act.

Rocky Dhir: Okay.

Teresa Valderrama: And it has lots of different elements to it. The one that is particularly pertinent to employers is that it contains a provision that provides for mandatory sick pay of up to 80 hours for full-time employees if certain conditions are met that are connected to the Coronavirus.

For example, say, I’m an employer and I don’t have sick leave for my employees or let’s say I have an employee that used all their sick leave, okay? On April 1 if I have an employee working for me and I have 499 employees or fewer, okay, if one of my employees becomes sick or they demonstrate that they believe that they have symptoms of the Coronavirus and they’re going to a doctor to find out if they have those symptoms or they are ordered to stay at home because under one of these governmental orders they are — they fit the definition of someone who has to self-isolate or self-quarantine, then they are going to be entitled to — if they are full-time, 80 hours of paid leave, which if you put the weekend in there, that’s about 14 days of being off of work where they will be paid.

And if you’re part time, there’s also a 10-day pay leave requirement, but you’re paid at the rate that’s the average rate that you receive per week on your part-time schedule, and there are caps on this.

Rocky Dhir: So this is really — it sounds like an extension of maybe the FMLA (the Family Medical Leave Act), right, is that —

Teresa Valderrama: Well, there actually is an extension of the Family Medical Leave Act, it’s called the Emergency Family Medical Leave Act.

Rocky Dhir: Okay.

Teresa Valderrama: This law is associated with a Family Medical Leave but it’s not really an extension of it. There are two pieces to it. One is the emergency paid leave, it’s the Paid Sick Leave Act and that’s — it really affects — if you’re going to look at it, give yourself like a column of ten days, the Paid Sick Leave Act is a 10-day period, where if certain things happen employers that previously might not have had to pay sick leave are required to pay sick leave.

Then there’s a separate piece of the law that extends for 12 weeks, and if it applies to only one of the different reasons why you might get this emergency paid sick leave because of the Coronavirus. And that one item is if you are unable to work because your children up to the age of 18 are unable to be at school or their caretaker, their paid caretaker can’t take care of them and therefore you have to take care of them, you are entitled for that 12-week period of Family Medical Leave or Emergency Family Medical Leave. You’re entitled to be off work and importantly for the first time that leave is paid and it’s paid at two-thirds of your normal rate.

Rocky Dhir: I see. Now — so it sounds like for smaller businesses and say even smaller law firms, say they have ten employees or maybe one lawyer and maybe two support staff, this is something that might be new for them because this applies to smaller businesses specifically based on what you described?

Teresa Valderrama: It is going to be very new for them and as with most laws this law itself is complex, 499 employees or lower really does focus on employers who very often may not have had to provide paid leave and it does reach out to and touch employers of say 25 or less.

There is a provision in the law that says that if I don’t think I can operate because I have to pay this or provide this leave, I’m just too small, I am entitled to ask for a waiver, but there’s no guidance whatsoever as to how that waiver should happen, who it should be given to, et cetera.

And so, in some ways for a very small employer who has an employee that might be entitled to this 12 weeks of childcare leave, it may put that employer into a financial circumstance where the employer may be unable to operate.

(00:29:58)

Rocky Dhir: Now, is there anything in any of the new legislation that’s been passed that addresses say there are some what I’ll call vulnerable employees, those who might be paid hourly, they live paycheck to paycheck and then suddenly they get furloughed or they get laid off because of this situation. Their employer just can’t keep up with the bills at this point. Are there any protections in place for those workers or are they kind of left out?

Teresa Valderrama: There are unemployment compensation benefits. If you are laid off you’re entitled to seek unemployment compensation, because of that also if you’re furloughed Texas is one of those states where if your amount of work that you’re given by your employer decreases in a way that diminishes how much you work in a material way, you are allowed to apply for the difference in unemployment compensation.

So unemployment compensation is kind of a safety net that has been around forever. The Federal bill issued some funding and some guidelines for expanding the funding of unemployment compensation, but the states really control whether a person does or does not get unemployment compensation. In these circumstances an individual would be entitled to it.

Additionally, there is some incentive for employers not to do layoffs. For example, in the instance that we talked about with the person who’s getting the two-thirds pay, because for the 12 weeks — actually it’s ten weeks, the first two weeks are unpaid, but they have a 12-week guaranteed leave.

Rocky Dhir: Right.

Teresa Valderrama: That individual, the amount that the employer pays for that individual, the employer can take an immediate tax credit the next quarter for what they paid; and so, in some ways the way the law has been set up, if the employer can survive about three months, they can survive a quarter, they can put that money back in their pocket up to the cap.

Rocky Dhir: Okay.

Teresa Valderrama: And then that’s just the hope that an employer only has one or two employees, small employer or employees that are affected this way.

Rocky Dhir: Wow. Obviously there’s not only a big issue but it’s an ever-evolving one, but unfortunately that is all the time we have for this episode.

But, I want to thank my guest, Teresa Valderrama, for joining us. Thank you, Teresa.

Teresa Valderrama: You bet, it’s been my pleasure and all I want to say to everyone out there is to stay safe and don’t get run over by an elephant.

Rocky Dhir: And/or if you’re about to at least take a picture and Instagram it, because at least and we can all enjoy it with you.

So, again, thank you Teresa and thank you for tuning in and before we sign off, I want to repeat what Teresa said, please stay safe, and make sure to follow all applicable orders for dealing with COVID-19. Please advise your clients and loved ones to do the same. This situation is changing fluidly and quickly, so please seek out legal counsel if you have a question. What you heard today may or may not reflect current law by the time you listen to this. So please be vigilant.

If you like what you heard today, please rate and review us in Apple Podcasts, Google Podcasts or your favorite podcast app. Until next time, remember, life is a journey, folks. I am Rocky Dhir, signing off for now.

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