COVID-19 BULLETIN FOR FRIDAY, MARCH 20, 2020
Dear clients and friends,
This is a stressful and confusing time for all of us, both personally and professionally. The official response to the COVID-19 pandemic is moving quickly at both the state and national level. We are closely monitoring all such developments that may affect our business clients and will be providing periodic updates in the form of Frequently Asked Questions, or FAQs, as we learn more and/or circumstances change. Please find our latest guidance below. As always, do not hesitate to reach out to us with your questions and concerns. Our remote contact information can be found at the bottom of this bulletin.
- I’ve heard about federally mandated sick pay and emergency medical leave. Does that apply to me and my business?
On Wednesday, President Trump signed the Families First Coronavirus Response Act. The act will go into effect on April 2, 2020 and will expire on December 31, 2020 unless it is reauthorized by Congress. There are two provisions employers need to know: an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law. These new provisions are radically different from existing law, and we are still evaluating the Act and what it will mean for employers. In addition, we are awaiting guidance from the Department of Labor on the new laws, which we expect sometime next week. We will reach out with strategic advice when we know more and are always happy to answer any immediate questions you may have.
- Can I take an employee’s temperature at work to determine whether they might be infected?
The ADA places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation
- Can I ask my employees if they have any kind of condition that would make it more likely they would contract the virus?
No. The Americans with Disabilities Act (ADA) forbids employers from asking questions that might disclose a disability.
- One of our employees has tested positive for the virus. What should we do?
Ask the employee who they have worked with in the past 14 days, including co-workers, vendors and clients. Send home all employees who have worked with the employee for at least 14 days, and if possible, notify others who met with the employee during that time period. Before those employees depart, ask them to identify all persons who worked in close proximity (within three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. Do not identify the infected worker to others, as doing so is a violation of confidentiality laws.
- If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC or health department?
There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC or your state and local health departments. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility.
- I’m keeping my business open, but I’m still concerned for the health and well-being of my team and my customers. Can I ask employees to stay home or leave work if they exhibit symptoms of the coronavirus?
Yes. You should encourage employees who are not feeling well to stay home and send employees exhibiting symptoms on the job home to ensure the health and safety of your workers and customers. You will not have to pay hourly employees for scheduled time not worked, but exempt salaried workers must still be paid for the full day if they leave work early.
- I may have to lay off some employees soon due to loss of business because of the pandemic. How do I decide who to lay off?
You have fairly broad discretion in making decisions regarding which employees to lay off, provided those decisions are made on the basis of business necessity, merit, or seniority. Make sure you are making these decisions on equitable grounds that would not open you to charges of discrimination. If you employ 100 or more employees, you may be subject to the advance notice requirements of the WARN Act. Employers of that size should consult an attorney before conducting layoffs.
- I’ve had to lay off all or part of my workforce due to the coronavirus, and I am reducing the hours of other employees. What are my legal responsibilities?
On March 17, Governor Northam announced that workers impacted by the virus and its economic effects will be eligible for unemployment benefits, and that employers who layoff or terminate employees will not be financially penalized for an increase in premiums due to the increase in your workers requesting benefits. Workers may be eligible if they are quarantined (including self-quarantined) or caring for a family member who is ill with the virus. In addition to allowing those workers impacted by the virus to collect unemployment, Governor Northam also suspended the one-week waiting period to apply for benefits, as well mandatory re-employment appointments and work search requirements.
- I lease my business space. Given the current situation, I may not make my rent. What should I do?
First, speak with your landlord. Let your landlord know your current issues surrounding accounts payable and that you are eager to comply with the terms of your lease, but this crisis has made it all but impossible. Communicating with your landlord will reinforce your relationship as allies in commerce, and it is likely that your landlord is feeling the crush of economic uncertainty, too. On March 18, 2020, the Virginia Office of the Attorney General, in concert with the Supreme Court of Virginia, announced that all non-essential, non-emergency court proceedings–including eviction actions—are suspended, and any filing deadline is tolled and extended for 21 days. This means that your landlord cannot act to remove your business from the rented premises for at least 21 days after he or she could move to evict under Virginia law. However, be aware that in Virginia commercial landlords do have the right to self-help and do not need to bring a court action to prevent you from entering the premises for failure to pay rent. Most landlords prefer that the courts handle it, but some at least change the locks. Again, if you find yourself unable to make payments pursuant to a commercial lease, speak with your landlord.
- What if I can’t pay my mortgage? Can the bank foreclose on my home?
The U.S. Department of Housing and Urban Development authorized the Federal Housing Administration to put an immediate moratorium on foreclosures and evictions for the next two months for single-family homeowners who are unable to pay their FHA-backed mortgages due the economic fallout of the coronavirus emergency. Note that this applies only to homeowners with loans backed by two government-controlled companies, Fannie Mae and Freddie Mac. If your mortgage is backed by a private lender, this moratorium does not apply. However, many mortgage and insurance companies have indicated a willingness to work with consumers who are struggling to make payment due the economic impacts of COVID-19. We recommend you let creditors know your circumstances and ask for payment assistance rather than simply missing a payment with no communication.
- What about utilities?
On Monday, March 16th, the State Corporation Commission forbid gas, electric, water, and sewer providers from disconnecting service to all residential and commercial customers due to non-payment. Keep in mind that internet and phone service are not included in the Commission’s order, and your service may be interrupted if you do not pay your bill.
- Should I close my business or direct my employees to work from home?
In deciding whether to close your business site or modify operations, we suggest you consider the guidelines provided by state and local governments. Current guidance from the Centers for Disease Control discourages gatherings of 50 or more people for at least 8 weeks. Earlier this week, the White House released more restrictive Coronavirus guidelines, urging people to avoid groups of more than 10. On March 17, Governor Northam ordered all bars, restaurants, gyms, and theatres to restrict service to no more than 10 patrons at a time, and any such facility that fails to follow the Governor’s directive faces administrative and legal penalties. Restaurants may still provide takeout and delivery services. Many businesses, particularly those in the retail and hospitality sectors, have been directed to limit hours, operations or in-person patron access, or are doing so proactively to follow social distancing recommendations.
This is a rapidly changing situation, and we are monitoring changes as they happen. We will continue to provide guidance based upon new legislation and executive orders. As always, please contact us for further guidance.
Very truly yours,
Ann K. Sullivan ([email protected])
Deborah Y. Collins ([email protected])
Sybil L. Spurgeon ([email protected])