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OSHA will be increasing the number of its inspections. Inspections will vary by industry risk (from low to very high), the nature of a complaint(s), multiple complaints, or other reasons like a random inspection. Inspections are likely to be less frequent for low-risk industries where employees aren’t expected or aren’t at high risk of coming into contact with a confirmed COVID-19 case or frequent, close contact with the general public.

Employers must make a reasonable effort to determine if the COVID-19 case is work-related, using the evidence available to them, and record a COVID-19 case as a respiratory illness under OSHA Form 300 (injury or illness form).

The recording obligation occurs when one of these criteria is met:

1.         A case is “confirmed” within the meaning of the CDC definition, which is: an individual with at least one respiratory specimen that tested positive for SARS-CoV-2 (the virus that causes COVID-19).

2.         The employee was exposed to COVID in the workplace. OSHA defines the work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment.” The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work.” Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment.

3.         A work-related injury or illness must be recorded if it results in one or more of the following:

1904.7(b)(1)(i)

Death. See § 1904.7(b)(2).

1904.7(b)(1)(ii)

Days away from work. See § 1904.7(b)(3).

1904.7(b)(1)(iii)

Restricted work or transfer to another job. See § 1904.7(b)(4).

1904.7(b)(1)(iv)

Medical treatment beyond first aid. See § 1904.7(b)(5).

1904.7(b)(1)(v)

Loss of consciousness. See § 1904.7(b)(6).

1904.7(b)(1)(vi)

A significant injury or illness diagnosed by a physician or other licensed health care professional.

In the wake of the coronavirus pandemic, Congress enacted legislation to assist U.S. workers and to define an employer’s new obligations to those workers. Some important new laws include the Families First Coronavirus Response Act (“FFCRA”), the Emergency Family Medical Leave Act (“EFMLA’), and the Emergency Paid Sick Leave Act (“EPSLA’). These laws can be nuanced, fact specific, and at times confusing. Our law firm assists employers and employees in understanding their rights, and would be happy to answer your questions during these difficult and uncertain times.

FFCRA

            The FFCRA sets up a system whereby employees have, under certain circumstances, entitlement to paid leave by covered employers, as implemented through the EFMLA and the EPSLA. The Department of Labor has prepared a poster regarding employee rights, which employers should post in a conspicuous place: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf. 

            Generally, the Act provides that employees of covered employers are eligible for:

             Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

            Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and

            Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

EFMLA

            The EFMLA expands the Family Medical Leave Act (“FMLA”) to allow for paid leave, subject to various conditions, caps, and limitations. For the EFMLEA to apply, the issue is whether there is a qualifying reason, namely because of the need to take care of a son or daughter whose school or daycare is closing or unavailable because of the coronavirus.

EPSL

            The EPSL provisions of the FFCRA allow eligible full-time employees to take up to 80 hours of paid sick leave between April 1 and December 31, 2020, for one of the six enumerated reasons set forth in the Act, which are:

            i.          if the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

            ii.         if the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

            iii.        if the employee is experiencing the symptoms of coronavirus and seeking a medical diagnosis;

            iv.        if the employee is caring for “an individual” (need not be a family member) who is subject to an order described in (1) above or has been advised to self-quarantine, as described in (2) above;

            v.         if the employee is caring for a son or daughter under the age of 18 because such son or daughter’s school or place of care has been closed, or such son or daughter’s care provider is unavailable due to coronavirus; or

            vi.        if the employee is experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Unemployment

            Employees who have been laid off or furloughed may apply for unemployment.

1. Do not identify the infected person, but do advise employees of potential exposure

2. Have the infected person self-isolate and stay home for at least 2 weeks or until tested negative twice

3. Isolate, clean and disinfect the infected person’s work area

4. Set in place mandated work-from-home policies while employees quarantine

As an employer, you want to keep in mind that your employees value and respect the precautions being taken to protect them. You want to be sure to approach all conversations factually and not use terms like “I think” or “I feel”. Be sure your employees are aware that work is still a priority, but also take into consideration and prioritize their needs and their health. Be flexible with your employees and considerate if they fall ill or are overwhelmed by the circumstances.

We have all heard the expression “a deal’s a deal.” But sometimes a deal cannot be carried out due to forces outside of a party’s control. Florida law has long recognized potential defenses to the enforcement of a contract under those circumstances. One such defense is impossibility of performance, which is when uncontrollable circumstances make the contract impossible or impracticable to carry out.

Another defense is when an unpredictable “Act of God” such as a storm or an earthquake interferes with a party’s ability to perform.

A third defense is force majeure.  A force majeure clause in a contract excuses performance where performing would be illegal, impracticable, or impossible. Force majeure clauses in contracts can be broader than the scope of impossibility and still be enforceable under Florida law, including those allowing foreseeable, as well as unforeseeable, events to excuse timely performance.

Frustration of purpose is another contractual defense that occurs when some outside actor does something to prevent a party from performing. Arguably, a border closure would be an example.

The bottom line is that there are defenses to enforcement of a contract due to circumstances beyond a party’s control.  Certainly COVID-19 and the need for efforts to control it are well beyond anyone’s control.

Floridians are now faced with a maelstrom of events that potentially trigger the above defenses due to the coronavirus: such as sick workers, quarantined workers, interruptions to customers and supply chains, border closures, and government shut downs or lock downs.

We advise that you contact our attorneys for a review of your contracts, insurance policies, and business circumstances to evaluate whether you may have contract defenses attributable to the current pandemic. While we have not yet seen any published Florida cases directly applicable to COVID-19, it is expected there soon will be, and we can review those with you as well and discuss their application to your business.

1. Contingency planning
   • Coordinate an emergency plan with Human Resources, IT, Leadership and Counsel
   • Focus on services that are critical to the organization
   • Determine impact of high absenteeism and consider alternative work arrangements such as working from home/or in shifts, temporary workers, staffing agencies
   • Communicate with your vendors to assess how they are planning to address any challenges they may be facing as a result of an outbreak
   • Communicate with your vendors to assess how they are planning to address any challenges they may be facing as a result of an outbreak
   • Identify potential impact of multinational issues, including interruption in supply chain and manufacturing plants (some countries are better prepared than others to handle a Coronavirus outbreak)
   • Examine necessary or potentially needed contractual notices and disclosures
2. Review, modify and/or implement leave, travel, health and safety policies
3. Disinfect workplace, particularly common areas and personal workspaces
4. Incorporate hygienic and preventive measures such as periodically washing hands for a minimum of 20 seconds, hand sanitizing; covering mouth and nose when sneezing or coughing; avoid touching eyes, nose or mouth; staying home if sick.  Refer employees to CDC’s helpful handouts and posters: https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html   
5. Determine individuals that have a high risk of exposure and create a plan to prevent exposure to other employees, contractors and customers
6. Identify and monitor potential areas of harassment, discrimination and/or bullying due to Coronavirus effects
7. Analyze Insurance Policies (Business Interruption, Property Loss, etc.) – policy wording will determine applicability of coverage. Keeping track of all documentation and support for losses is critical for any future claims.
8. Disaster Assistance may be available from the U.S. Small Business Administration.  The following website keeps businesses updated on the latest information regarding Coronavirus assistance: https://www.sba.gov/page/guidance-businesses-employers-plan-respond-coronavirus-disease-2019-covid-19