Susan Kline is a partner with Faegre Drinker, a law firm with offices across the U.S. as well as in London and in China. Kline has been with the firm since 2002 in the labor and employment group. Prior to becoming a lawyer, Kline was the leader of human resources for a trade association.
CEDIA spoke to Kline on a recent podcast, and a portion of that conversation is extrapolated here. A note: Since Kline does not have an attorney/client relationship with readers whose firm Faegre Drinker does not represent, this isn’t necessarily advice on individual situations, but should be viewed as a general guide to what’s going on in the employment law environment right now.
Employers and Employees
CEDIA: Do you have any guidelines for sending folks home or sending techs into the field?
Susan Kline: Yes, it’s important to first be very aware and watchful of what your current restrictions are, which can be at a national level; it can be state, county, local, depending on where you are globally. Governments at all levels are issuing guidance and restrictions and those tend to address what are essential functions, what are essential personnel. (Note the essential personnel guidance provided by the U.S. government. These guidelines aren’t a mandate to state and local jurisdictions.)
But the folks who are putting out those regulations are doing it on the fly. They’re doing their best, they’re comparing to what their peers are doing, but they’re not providing clear and comprehensive guidance in a lot of circumstances because that’s just not something they can take time to be completely thoughtful about [right now] as much as I’m sure they would like to be. So, we’re telling people to err on the side of caution as you read those regulations. When you’re looking at saying “I want to send someone out to do some kind of work assignment,” will you be able to justify it if someone intervenes and asks, “Are you sure this is essential?”
CEDIA: What can you ask an employee about their health? Can you take their temperature? Can you ask them if they’ve been tested, et cetera?
Susan Kline: Yes. You can, but I should qualify. You asking someone about their health generally…it’s perfectly fine to say, “Hey, are you okay? Are you feeling good?” You can certainly inquire, “Are you experiencing any flu-like symptoms? Have you had fever, coughing, shortness of breath?” The things that are specific to COVID-19. However, things have not changed to the extent that you can ask probing inquiries about people’s overall health status.
CEDIA: Suppose your toughest tech comes to work and you know he’s feeling really bad but he’s determined to power through it – but you know he’s really sick. Can you just send him home?
Susan Kline: You can absolutely send that person home in this environment.
CEDIA: Are employers required to provide any compensation for sick workers right now? Extra leave, emergency funding, anything like that?
Susan Kline: They generally are not required under federal law to provide paid sick leave, but there’s an exception during this crisis: the Families First Coronavirus Response Act, which contains paid sick leave provisions, will become effective April 1, 2020. This act is applicable in the U.S. to employers with fewer than 500 employees and it does provide a two-week paid sick leave benefit with the employer getting effectively reimbursed through a payroll tax credit. [After that] it provides two-thirds pay with certain limits for up to 10 additional weeks if that employee has to stay home and can’t work because of the need to care for children whose school or daycare is not available. There are also some state and local paid leave laws that are important to take into account. For example, if you’re in New Jersey, if you’re in California, those are jurisdictions that do have some state-mandated paid sick leave benefits.
CEDIA: Suppose you’ve got employees or an employee who’s over 60 or who might have some underlying health issues that have been identified as contributing factors to a greater impact from the virus and they come to you and they say, “Look, HR, I’m really nervous about coming to work. There’s a lot of younger folks here that might not be presenting and I’m really worried about this.” Do you have any legal rights responsibilities to take their concerns into account?
Susan Kline: You have some responsibility if they actually have a medical condition that makes their exposure so great that they should not be at work and employers can voluntarily say, “If you are in a high risk category based on criteria set by, for example, the CDC, we will allow you to work remotely or take time off.” If you are not in a position to provide that level of support, you should still, if someone comes forward and says that they have a compromised immune system due either to age or medical condition. You can respond, “If we have something from your healthcare provider saying that medically you are restricted from coming to work, we will honor that.”
CEDIA: Can you insist on somebody attending work even if they’re ill or even if they’re frightened?
Susan Kline: If someone says that they just don’t want to work because this situation is causing them too much anxiety, you don’t have to say, “Okay, stay home.” But I would explore with them: Why are you concerned? Do you have an immune system situation that we need to take into account? I’d also communicate to them the measures that you’re taking to try to prevent exposure. Maybe you can allay their fears by just talking about your measures on hygiene, sanitation and social distancing.
The Client Relationship
CEDIA: Let’s talk about the client relationship now. Do you recommend sending an email with guidelines about how your technicians might enter someone’s home? What kind of information or questions should that communique include?
Susan Kline: I think it would be a good idea to do outreach to the customer in advance of the service call to say, “We need to know if there are exposure risks in your home with whoever will be there. We want to take care of our technicians. And we want to assure you we will make sure we don’t send in a technician who is symptomatic, has been tested positive.” And then I would give the technician something that provides guidance, both to the technician and that the technician can hand the customer, detailing here’s what [precautions are being taken].
CEDIA: Are you under any kind of specific liability risk if you have an employee or a client in a higher risk demo and you discover one or the other was contagious?
Susan Kline: We think this would follow a negligence standard. So, you know you should take reasonable efforts to see if there is any particular risk. Make the call, find out if somebody there has been diagnosed and then if there is a known risk, address that appropriately. And if you do that and you don’t knowingly send someone into a high risk situation after you’ve made appropriate inquiries and done what you can to prevent that, I think it would be very defensible in any claim of liability.
On Remote Work
CEDIA: Are there any more risks with your employees working remotely on their networks, not on company network — on their personal machines?
Susan Kline: Yes, it’s very important the IT department folks are front and center in this because network security and data privacy is absolutely critical, certainly in the U.S. with even higher standards globally in some jurisdictions. So, make sure employees understand your expectations with regard to using their electronic equipment in the home, what they should print out, making sure the area they work in is secure and confidential if they have confidential information. All of that is extremely important. And we’re hearing, unfortunately, of people who aren’t so nice trying to take advantage of this situation and sending [phishing] emails, urgent from a “leader of your organization” needing help now. And people want to help. They’re very quick to click through without realizing that that email address is not what you would see from your own company. So be super, super mindful of some of the tricks that these folks use to try to infiltrate your system because unfortunately it’s on the rise.
CEDIA: How are laws and policies varying from location to location? I think I know the answer to this and it’s probably at this point, wildly. And do you expect to see any clarity in this regard in the future?
Susan Kline: The answer is yes, wildly. We’re seeing patterns because jurisdictions are borrowing from each other, but we’re seeing in even some of the lower risk areas, people working on being proactive and putting pretty extreme, stay-at-home measures in place so that this never becomes a potential hotspot.
I think one thing that’s important on the human side is that we all have many more people working remotely than we’re used to. Some of us have policies in place so we were very well prepared for this, some less so. So be mindful, intentional about communicating expectations and empathy and support. People are so anxious, they’re feeling isolated. This is a shock. I think we’re going to have people needing mental health support. So be kind, be communicative, be empathetic. People will remember that for a long time after this whole thing is over and you will earn tremendous loyalty from them.