Current Recommendations to Accounting Firms During the Evolving COVID-19 Pandemic

The situation concerning COVID-19 continues to evolve as healthcare experts attempt to learn more about the nature of the disease, local governments establish measures to keep their cities and towns safe and state officials urge social distancing. While some establishments, such as schools and restaurants, have been given clear guidance on how to operate during this time, it is up to most employers to implement their own policies for maintaining a safe and productive workplace for employees and clients while not running afoul of numerous laws and regulations, including the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), OSHA regulations and state leave laws. Below are current recommendations for employers during this rapidly evolving situation. Although these recommendations provide some assistance in managing your business through this pandemic, it is best that you frequently consult with your attorney to discuss appropriate steps on a case-by-case basis, as many situations will be unique to your business as circumstances change.

Staying Open for Business 

One key consideration for employers at this stage is determining the best way to stay open for business while keeping employees and clients safe. Accounting firms have the advantage of being able to continue to operate with little face-to-face contact with clients, if necessary, by utilizing technology and working remotely. While there may be some need to have access to physical documents and records – particularly that shoebox of client receipts needed to complete a tax return – many documents are now stored digitally and scheduled in-person meetings can be done via conference call. The CDC published an, “Interim Guidance for Businesses and Employers” which encourages employers to share the following recommendations with employees:

• Actively encourage sick employees to stay home;
• Ensure employees are aware of your sick leave policies and make sure those policies are flexible and consistent with public health guidance;
• Do not require a healthcare provider’s note to validate illness or ability to return to work, so as to not further overload healthcare providers;
• Be cognizant of your obligations under the ADA, FMLA and state sick leave laws;
• Separate sick employees with symptoms of acute respiratory illness and send them home immediately;
• Emphasize cough and sneeze etiquette as well as hand hygiene, and provide tissues and alcohol-based hand sanitizer; and
• Perform routine environmental cleaning.

OSHA Requirements

Employers should review OSHA’s, “Guidance on Preparing Workplaces for COVID-19,” and discuss with counsel the requirements for compliance with OSHA’s General Duty Clause, which requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm, and any prevention and control measures that may potentially trigger certain employer obligations under applicable OSHA standards to prevent occupational exposure to COVID-19. Be aware that under OSHA regulations, employees can refuse to work if they believe they are in “imminent danger” and there is a threat of death or serious physical harm that could occur within a short time or before OSHA is able to investigate the problem. At this time, OSHA lists the risk of infection with COVID-19 as “low.” Accordingly, it is likely that most workplaces and work conditions currently do not meet the elements required for an employee to refuse to work under OSHA regulations. Employers with 10 or more employees should also be aware that OSHA has deemed COVID-19 as a recordable illness when an employee is infected on the job and it must be reported on their OSHA Form 300 log.

Employee Travel

The CDC reports that sustained community spread of a respiratory illness caused by COVID-19 has been reported globally, including within the United States. President Trump recently implemented restrictions regarding travel from Europe. Accordingly, employers should consider canceling or at least delaying all business travel for the time being. Employers cannot force employees to cancel their personal travel but may require employees to work from home for what is currently believed to be the 14-day incubation period if the employer has a reasonable objective belief (not based on unfounded fears/suspicion) that an employee may have been exposed to COVID-19 and is a danger to the workplace. Employers may inquire whether an employee has recently traveled to an affected area without implicating the ADA. This, of course, will require consideration of several factors, including the duration of the trip and cities or areas visited. 

Employers must be careful to apply this policy fairly and equally so as to not violate the Civil Rights Act or ADA. Employees must be paid for all hours they are working from home. Non-exempt employees whose position does not allow them to work from home do not need to be paid while they remain home during the incubation period. However, exempt employees who are able to perform some parts of their job for all or part of the workweek at home must be paid for the entire workweek.

Health or Illness Inquiries

Generally, employers are prohibited from making disability-related inquiries under the ADA unless an employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. The ADA defines “direct threat” as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Because COVID-19 likely presents a “direct threat” to the workplace, employers may ask employees about Coronavirus-like symptoms, such as fever, cough and shortness of breath. The CDC advised that employees showing symptoms of COVID-19 should be sent home immediately, so employers may do so without fear of such action violating the ADA. However, employers may not ask employees without symptoms of COVID-19 whether they have any conditions that may render them more susceptible to the virus or related complications. Requesting medical examinations are subject to the same ADA restrictions as disability-related inquiries. Such requests may be permissible under the “direct threat” analysis but employers should proceed cautiously as the CDC has not authorized medical examination requests. The CDC has advised against employers requiring “fitness for duty” certificates due to concerns about limited healthcare system resources. Employers can and should advise employees not to return to work until they are symptom and fever free for at least 24 hours without the use of symptom-relieving or fever-reducing medicine.

Employee Leave

Employers will need to assess applicable leave laws and policies and how they will be applied to quarantined employees, employees suffering from COVID-19 or employees placed on leave due to office closings or required government shutdowns. Applicable laws include the ADA, FMLA and state family and medical leave and sick leave laws. For example, in Massachusetts, earned sick leave may be used (1) to care for the employee’s ill child, spouse, parent or parent of a spouse; (2) to care for their own illness; (3) to attend routine medical appointments; or (4) to address the effects of domestic violence.

Ongoing Workplace Measures

Employers should review the CDC’s, “Interim Guidance for Businesses and Employers," and keep apprised of updates and assessments from the World Health Organization and state and local public health officials. The CDC’s assessments and recommendations may directly impact what employers may do and remain in compliance with the ADA, FMLA and state leave laws. 

Employers should:

• Require employees to adopt infection-control practices (hand washing, coughing and sneezing etiquette and proper tissue usage and disposal);
• Limit visitors to the workplace;
• Encourage or arrange for employees to telecommute where possible;
• Require employees who still receive paper checks to switch to direct deposit to ensure wage payments are timely received, if postal systems or banks have to adjust their operations;
• Be sure procedures are in place for all non-exempt workers to track and submit their time while working from home; and
• Allow employees to use their earned sick time for quarantine.

Last but foremost, keep your employees informed through regular communications.

About the author
Lawrence J. Casey is a shareholder at Boston-based law firm, Davis Malm. He has over 30 years of experience successfully advising employers, representing employees, and litigating employment-related matters on behalf of executives, professionals and employers in state and federal courts, arbitrations and agency hearings. Larry can be contacted via email at lcasey@davismalm.com.