COVID-19: employment law updates

March 26, 2020

A recent webinar for veterinary practice owners and managers shed some light on how to reduce workplace exposure to the novel coronavirus, and the legal rights and responsibilities when it comes to employees and their business.

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News and regulations related to COVID-19 are changing on a daily, if not hourly, basis. To date, veterinary practices have been labeled as essential businesses by states that have mandated stay-at-home orders and/or the closure of non-essential businesses. Even with the ability to operate, it is hardly business as usual for veterinary hospitals. In the midst of taking measures to safeguard themselves and their families, veterinary hospital owners and managers are tasked with protecting staff, clients, patients and the overall business during these uncertain times.

“Once we get through this initial crisis period of flattening the curve that we’re trying to do, we are still going to be at a level of some sort of crisis for the next 12 months or so,” said Timothy Davis, a partner at national workplace law firm Constangy, Brooks, Smith & Prophete. He and his colleague, William Principe, led a COVID-19–focused employee law webinar hosted by the Veterinary Hospital Managers Association on March 24.

“You can, and probably should, expect some level of impact of spiking up and down [of cases] over the next 12 months,” he said. “And how that impacts your business will be something that you are going to have to monitor as it goes along.”

Adapting your practice

At this stage, veterinary practices must enact new means of conducting business, particularly if the hospital resides in a state with indefinite shelter-in-place orders. To continue providing exceptional patient care while protecting staff, Davis outlined some of the measures hospitals have instituted in recent weeks:

  • Restrict business to urgent or emergency cases only.
  • Limit the number of staff in the practice at one time.
  • Reduce practice hours.
  • Ask clients to drop off pets for examination rather than entering the facility.
  • Create special times, and perhaps even entry points, for high-risk clients.
  • Enhance cleaning and sterilization protocols.
  • Offer telemedicine appointments.
  • When possible, instruct staff to work from home.
  • Provide letters for staff confirming they work for an essential business in case they are stopped en route to the hospital.

Even with all of the recommended precautions in place, practices should plan for when an employee becomes infected or comes into contact with someone infected with COVID-19. “Someday you are going to get the call,” Davis warned.

In addition to new laws specific to COVID-19, practice owners should be familiar with and adhere to all existing federal and state employment laws. This includes the Family Medical Leave Act (FMLA), Americans With Disabilities Act (ADA) and Fair Labor Standards Act.

Families First Coronavirus Response Act

On March 18, the Families First Coronavirus Response Act was signed into law and will become effective April 2. All businesses with fewer than 500 employees are covered and must comply with its mandates. Businesses will be 100% reimbursed by the federal government for all accrued costs via not paying payroll taxes. “If the amount you pay exceeds that, you will receive a direct check from the government,” Davis explained. There are two elements to the law that have slightly different requirements:

  • Paid FMLA leave: Provides 12 weeks of job-protected leave for employees who have been on payroll for at least 30 days. There is a 10-day unpaid waiting period followed by 10 weeks paid. The pay rate during this leave is no less than two-thirds of the usual pay for normally scheduled hours. This applies to both full- and part-time employees with a per-employee cap of $200 per day and $10,000 total. The only qualifying event for this type of leave is for an employee to be unable to work or telework because they must care for a child under age 18 if the child’s school or place of care is closed.
  • Emergency paid sick leave: All employees on payroll are eligible for this leave and there is no 30-day employment requirement. Under this law, employees receive 80 hours of paid sick time at their regular rate of pay if they need time off for their own illness. If they need to care for others, they will receive two-thirds of their regular pay rate. The pay cap for this aspect of the law is $511 per day for personal illness, up to $5110 in total, and $200 per day up to $2000 total to care for others. The law sunsets at the end of 2020 and cannot be carried over into the following year.

The qualifying events for emergency paid sick leave are much broader. Employees can file for this leave if they are:

  • subject to a federal, state or local quarantine order related to COVID-19
  • advised by a healthcare provider to self-quarantine due to COVID-19
  • experiencing COVID-19 symptoms and seek a medical diagnosis
  • caring for an individual who is subject to quarantine or has been advised by a health care provider to self-quarantine due to COVD-19 concerns
  • caring for their child whose school or place of care is closed

CARES ACT

At the time of the webinar, the Coronavirus Aid, Relief, and Economic Security (CARES) ACT had not been passed by Congress. However, Davis urged attendees to monitor the progress of the bill closely. “If it is passed, there is a substantial likelihood that you will have a significant portion of your payroll covered by the federal government during these times.”

The proposed law would provide employers with a cash stimulus and prevent layoffs. “They are doing this through the Small Business Administration process where if you keep employees on board there is a mathematical formula you would calculate based on your costs,” Davis said. “That formula would take into account your payroll costs, health insurance costs and your mortgage or rent costs.”

Businesses can apply for loans of up to $10 million to cover costs during this crisis. That loan would be 100% forgivable. “It would essentially be a direct grant of money from the federal government to you,” he said.

The law is being designed with the understanding that all businesses, albeit some more than others, are going to experience financial hardships as a result of the pandemic. Davis encouraged attendees to watch for legislative approval and to contact their business accountants and lawyers for guidance on how to best take advantage of the law once it is enacted.

OSHA Guidelines

As cases of COVID-19 became widespread, many employers turned to the Occupational Safety and Health Administration (OSHA) for guidance on how to proceed. “The reality is, this remains primarily a public health concern and OSHA does not have the internal expertise to play a very significant role,” explained Principe.

No current OSHA standard addresses airborne diseases and viruses. However, on March 9 the agency issued a guide for preparing workplaces for COVID-19. The document does not create any new legal obligations but instead provides employers with an understanding of their business’s perceived risk level and steps for determining appropriate control measures.

According to Principe, veterinary hospitals would fall into the category of being medium to low risk in terms of coming into direct contact with people who may be infected. As such, practices should follow guidelines that advise sick employees to stay home, provide resources for proper hygiene (tissues, hand soap, disinfectant wipes, etc.) and use appropriate personal protective equipment to prevent exposure.