The scale of COVID-19 and its impact in the United States is uncertain. Employers need to be proactive and prepared. What steps should employers take to minimize the legal risks and reduce the loss to business? Where should employers begin? At Arthur Chapman, our practice groups have teamed up to develop an action plan for clients to help protect their businesses on several fronts, from insurance coverage and employment issues, to workers’ compensation matters. Every business has unique needs and must have a tailored action plan in place. Businesses must continually monitor developments and update their action plans accordingly. Below are some general FAQs to offer employers a starting point.
Q. How should we handle employee absences due to symptoms from COVID-19?
A. Any absence due to the Coronavirus should be treated the same as any other employee illness. Employers should honor requests to work from home, allow use of PTO or sick time, and follow their leave policies as well as all local, state, and federal leave laws (FMLA, ADA, parenting leave, etc.)
Q. Should we request that employee’s voluntarily disclose if they have symptoms of COVID-19 so others are aware of the possibility of exposure?
A. Employers must ensure confidentiality and privacy of all employee medical information. If an employee or family member develops a fever/raised temperature, you should advise employees to seek appropriate medical advice and inform management of the need to take PTO or to work from home.
Q. Should our company place restrictions on employee business travel?
A. We recommend restricting employee travel to countries with heightened travel alerts. Currently, those countries include: China, Hong Kong, Iran, Italy, Japan, Singapore, South Korea. Travel guidelines and recommendations are likely to change, so we encourage you to check the CDC's website for updates.
Q. Should we place restrictions on employee travel for personal reasons?
A. Employers should put a policy in place requesting that employees contact their manager before returning to work after personal travel from a country with a heightened travel alert due to the Coronavirus, or advise management if a household member returned from a country with a heightened travel alert due to the Coronavirus. Management should work with the employee to determine an appropriate return to work approach and also consider a temporary work from home arrangement.
Q. How should we handle employee requests not to travel?
A. Employers should make any reasonable accommodations to travel schedules that will help employees feel safe and comfortable.
Q. Should we plan to shut down our business if a large outbreak occurs?
A. The current risk of a large outbreak is low. If this changes, we recommend that employers closely monitor the risk and follow the guidance of the Center for Disease Control on a local, state and national level. If an employee believes they need to take additional precautions due to a pre-existing condition, they should be directed to contact management or Human Resources to discuss an accommodation.
Q. Do my current insurance policies cover any business losses associated with the COVID-19 outbreak?
A. It depends on the type of policies and specific language of your policies. Most business insurance policies, including business interruption insurance policies, will not cover losses or damages resulting from a virus/disease/epidemic. Unlike a fire or hurricane (events that cause direct, physical damage), a quarantine, travel ban, or business shut down due to an outbreak is not the type of event that would trigger coverage for business losses or interruption. Most policies also exclude coverage for losses or damage resulting from a virus or disease/epidemic. However, some policies may have specific endorsements added that are designed to cover these losses. We recommend carefully reviewing the specific language of your policies to identify coverage exclusions and/or additional coverage needs for your business.
Q. Should I purchase business interruption insurance that covers losses or a shutdown associated with COVID-19?
A. It depends on the nature of your business and the extent of the anticipated losses due to an outbreak as a result of a travel ban, quarantine or shut down. We first recommend reviewing your current policies to determine whether any coverage exists for business interruption losses related to a virus or disease/epidemic. If not, insurers are already responding to the Coronavirus and are offering endorsements that can be added to your policy to cover certain costs that businesses may face as a result of the Coronavirus. Businesses will have to weigh the benefit of purchasing this coverage at an additional cost against simply absorbing the business loss.
Ultimately, be prepared. Understand the extent of your insurance coverage in advance of any loss. Have a plan in place for any losses your business must absorb directly.
Q. How should Minnesota employers and insurers handle a traveling employee who may have been exposed to COVID-19?
A. Employment that requires travel can create unique and complex situations. While some conditions and injuries are compensable, others are not. Typically, “ordinary diseases of life” are not compensable unless the employment exposes the employee to an increased risk of developing the disease. It is important to investigate the facts and circumstances of each case. Was the employee in the course of a business trip at the time? What was the employee doing throughout the duration of the trip? Was the employee required to be traveling as part of his or her duties? Did the trip include both business and pleasure? One case of particular interest, Olson v. Executive Travel MSP, 437 N.W. 2nd 645 (Minn. 1989), involved an employee who contracted Type B influenza while traveling in Asia for her employer. When the employee became infected, the virus had not yet reached the United States. The Minnesota Supreme Court concluded that the condition arose out of and in the course of employment and affirmed an award of workers’ compensation benefits. However, the Court noted there was a “very minimal” causal connection between the employee’s illness and her employment.
Arthur Chapman’s Workers’ Compensation, Employment and Insurance Coverage practice groups are on top of this fluid and evolving situation. Please call us with any questions relating to your specific business needs.