As a partner in the workplace law firm Constangy, Brooks, Smith & Prophete, David P. Steffen has represented workplace clients in both state and federal courts, and has advised them on ways to manage their workers’ compensation claims and how to properly enforce employment policies. He recently spoke to LODGING about how to deal with employment dilemmas facing hoteliers, many of whom—in the midst of the nationwide shutdown of business as usual—feel they have no choice but to lay off employees due to drastically reduced occupancy. However, given the plethora of new regulations and the government stimulus package intended to avoid this and other dire economic consequences of the COVID-19 pandemic, many want to know how to proceed now.
How should employers impacted by COVID-19 and the ever-changing new local, state, and national regulations approach employment issues now?
The best answer is to approach this situation with care. While there’s no question that changes will need to be made to the workforce—for example, reducing nonessential employee hours or laying them off entirely—we should be making sure we’re exploring all of our options. Although paid leave may not be an option for employees of suddenly struggling hotels, many states provide unemployment compensation benefits or limited compensation benefits due to reduced hours and thus lower earnings. Use your common sense when you’re making changes to your workforce, and if you have any questions or concerns, a basic recommendation would be to try to speak to somebody who can provide you some direction.
Do employers have the right to ask their employees to take on different duties and roles as an alternative to layoffs during this crisis?
What we’re seeing with our employers is that they have some leeway in that they can still expect their employees to come to work and perform different duties there. Examples of employees whose duties have changed can be seen in other industries, especially those associated with the food chain, such as when people who normally set up displays in grocery stores need to stock shelves because that’s what’s needed now.
How about if a hotel with low occupancy is repurposed, e.g., to handle hospital, prison, or homeless shelter overflow?
In a situation like that, where employees may be concerned about their health and safety, these modified duties would need to meet the OSHA general duty standard, which requires employers to furnish each employee a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to the individual.
How can hoteliers be sure they are following the law, including compliance with state and local government-ordered business shutdowns?
In terms of whether employees can report to work at all, there are really no black and white answers because things are so fluid now with the CDC recommendations and state and local government orders; much depends on whether a business is considered essential or nonessential, with the latter being the ones subject to temporary shutdown in some states and municipalities. Unless temporarily converted to fulfill an essential need, hotels likely fall in the middle ground between essential and nonessential businesses, so owners may have the option of determining whether it is feasible to remain open. (Note: “hotels and other places of accommodation” are listed among the Department of Homeland Security’s Critical Infrastructure Sectors.)
How should employers handle employees who may be infected with COVID-19?
Equal Employment Opportunity Commission (EEOC) standards created in 2009 to handle threats of contagion in the workplace due to swine flu have been updated for the pandemic at hand now. Employers now have the right to take employees’ temperature, something considered to be a medical exam that was previously prohibited by the Americans with Disabilities Act (ADA), which allowed medical examinations only if job-related and consistent with business necessity.
Employers also now have more leeway with regards to asking employees questions about their health if they may have been exposed to the coronavirus. One of the interesting things is if you have an employee displaying symptoms of the virus or who has been exposed to someone known to be infected, you can do all of the following: send them home; notify the rest of employees that somebody’s been exposed; and ask about who they interacted with and what parts of the facility they were in. What you can’t do is identify that individual by name when notifying employees that somebody’s been exposed to the virus.
What other types of COVID-19-related challenges are employers facing?
Many employees are concerned about whether it’s safe for them, their families, and others with whom they have close contact to continue working while the threat of infection exists. If that employee is an essential worker, you, as an employer need them to come to work and have a right to compel them to do so based on OSHA’s “no imminent danger” clause. I recommend that employers make a point of outlining the steps they’ve taken to provide a safe working environment—including those taken to sanitize the facility.
Although the Americans with Disabilities Act does not pertain to the coronavirus because it is not a permanent condition, for those with compromised immune systems or other vulnerabilities, employers can consider offering a reasonable accommodation—such as allowing them to work remotely or during hours that would enable limited interaction—if feasible. Others steps might be offering paid or unpaid time off or using family leave, if entitled. There may also be relief for them in paid leave laws now being proposed in Congress.
Where can hoteliers go for the information they need to keep abreast of what’s happening now?
I would look to major websites, including CDC, for information on the pandemic in progress, and the government agencies mentioned—OSHA and EEOC—for guidance on dealing with employment issues related to it. Law firms that specialize in employment law and issues usually have up-to-date resource pages available for their clients and the general public, as ours does.