This week businesses have be inundated with information regarding their operations and the effects of the COVID-19.
Barley Snyder, with offices throughout the state, including York, Harrisburg, Lancaster and Reading, has put together a COVID-19 Response Service Team, which the company said will help guide businesses during this uncertain time. Nearly 20 attorneys, led by Martin R. Siegel, are part of the team and specialize in areas that include insurance, cyber security, risk management and employment.
The following team members: Siegel, Don Geiter, chair, cybersecurity service team; Jill Sebest Welch, chair, employment practice group; Jennifer Craighead Carey, partner and immediate past chair of employment practice group and Lindsey Cook, litigation practice group member answered the following questions posed by the Central Penn Business Journal.
CPBJ: Right now many nonessential businesses, as labeled by Gov. Wolf earlier this week, are being asked to close, some of which are being ordered. What are some of the consequences that a business can face should they decide to stay open?
Siegel: The governor has clearly indicated that he wants non-essential businesses to close. At this point, he does not intend to use state resources – such as the state police and National Guard – to enforce the closures. Clearly, this situation is fluid and policies and directives are likely to evolve. Facilities that remain open do so at their own risk, and can face a number of significant consequences. Of most consequence, they risk further accelerating the spread of the coronavirus. Under state law, state and local governments have the authority to enforce ordered closures. Businesses that remain open in the face of the governor’s directives, especially restaurants and bars, face potential actions by state and/or local government forcing closure and imposing fines. Businesses that remain open also could face potential future actions by customers who might allege they were exposed to the coronavirus at their facility after a closure order.
CPBJ: Working remotely can carry some risks with cyber security. What are some top areas that companies need to be aware of?
Geiter: There are three major, immediate things employers need to be ready for:
Fraudsters are targeting remote employees. Last week we saw indications that Johns Hopkins University’s own interactive COVID-19 tracking map had been impersonated by fraudsters using the spoofed sites to infect users’ computers with malware. This week we are seeing more of this, and also seeing fraudsters recruiting unsuspecting “money mules” into online money laundering schemes – fraudsters are setting up these schemes to look like legitimate online businesses who are recruiting new employees. Some of these appear to be impersonating major nonprofits. The hook for remote employees is that these schemes appear to provide the employee an opportunity to earn extra money while working from home – meanwhile, the fraudster is using the employees’ own bank accounts to commit other online fraud.
Use of personal devices. Many employers have no choice but to allow their employees to use personal devices. Many of these devices lack the software and other tools that our business networks have, including robust firewalls and strong antivirus software. This leads to an increase in risk of malware finding its way onto devices, which can lead to work-related information being leaked and/or login credentials being compromised.
Unsecured WiFi networks. While we hope that most employees will be working off of their secured home WiFi, we expect that some employees may use unsecured public WiFi networks. We know by now that public WiFi networks can be a hotbed for fraudsters to eavesdrop on an employee’s internet traffic and collect confidential information.
CPBJ: An employee tells their supervisor they have been infected with the coronavirus. What are you obligated to do as an employer?
Sebest Welch: An employer has an obligation under OSHA’s general duty clause to maintain a safe workplace. The employee should be sent home, instructed to seek medical attention, and to self-quarantine for the 14-day incubation period or until the employee’s doctor releases the employee to return to work. Ask the employee to provide an update as to his/her medical condition and a medical clearance to return to work. In the meantime, thoroughly clean and disinfect the employee’s work station and common areas. According to guidance from the Centers for Disease Control and Prevention, if an employee is confirmed to have COVID-19, inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA. Do not identify or explain to other employees the reason an employee is not at work.
CPBJ: Working remotely can carry some risks. What kind of guidance do you give to employers who have asked employees to work remotely?
Craighead Carey: Employers need to ensure that employees are properly equipped to work remotely and also address issues regarding information security. You will need to assess technology capabilities and make sure that there is appropriate IT support available to employees. It is critical that nonexempt employees properly track their time and capture all hours worked. Employers should also communicate their expectations about responsiveness and availability of employees during work hours. It may also be a good time to develop and circulate a telecommute policy.
CPBJ: How can an employer know if their insurance covers anything associated with an infectious disease?
Cook: Businesses should look under the “covered perils” or “covered cause of loss” portions of their policies for this information. Unfortunately, most insurance policies are somewhat vague on coverage for infectious diseases. Business interruption losses are some of the most frequent concerns for Pennsylvania businesses. Typically, policies only allow for business interruption coverage where there is “physical damage” to the property. Going forward, courts will need to grapple with whether a potential contagion or infectious disease can constitute “physical damage,” though it is clear that many businesses are in fact suffering a loss of use of their physical property. Some policies may also include coverage for business interruption caused by a closure order from a civil authority, though these provisions also typically restrict coverage to cases where there is physical damage to property. In light of these ambiguities, businesses may have to pursue litigation to obtain a determination on whether there is coverage for their losses.
CPBJ: What are the current laws governing Family Medical Leave Act? Does the current coronavirus pandemic change anything that employers need to know about?
Craighead Carey: Currently, employees may be eligible for leave under the Family and Medical Leave Act (FMLA) if their symptoms rise to a serious health condition that makes them unable to work. For example, when complications develop that require an overnight stay in the hospital or when an employee can’t work for more than three consecutive days and that absence is coupled with treatment from a health care provider twice in 30 days.
Also, under the FMLA, an employee who is taking care of a qualifying family member with COVID-19 who meets the criteria for someone with a serious medical condition may be permitted to take protected FMLA leave. However, employees who refuse to come to work solely out of fear of contracting COVID-19 likely would not qualify for FMLA. It is critical to note that the U.S. House of Representatives passed the Families First Coronavirus Response Act on Saturday.
That act is currently pending a vote in the Senate. Under the bill, FMLA leave would be expanded to any employee who has been employed for at least 30 calendar days and would apply to any employer with fewer than 500 employees. The 50-employee threshold would be eliminated. The bill would provide leave in situations where an employee is exposed to the virus or has symptoms of the virus or is needed to care for a family member in the same circumstance. It would also apply if the employee is needed to care for a minor child whose school or daycare is closed. After the first 14 days of leave the employer would be required to provide paid FMLA leave at two-thirds the employee’s regular rate of pay. The bill is currently hung up in the Senate over the issue of extending paid leave under the FMLA, among other concerns.