Month: March 2020

COVID-19 has taken just about all of us by surprise. While individuals are now cancelling trips, looking for hand sanitizer and stocking up on toilet paper, businesses must also take steps to address COVID-19 in the workplace. At this time, all employers should be taking action to prevent the possible spread of COVID-19 and prepare for a possible outbreak.

The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to furnish every employee with a place of employment that is free from hazards which are likely to cause death or serious physical harm to their employees. Accordingly, employers are obligated to take reasonable steps to protect their employees from communicable diseases. These steps include taking action now to prevent the disease from spreading in the workforce and creating policies to protect your employees (and business) in the event COVID-19 becomes an epidemic in your area.

Working to Prevent the Spread of COVID-19
In order to properly respond to COVID-19, employers should keep current with the latest Centers for Disease Control (CDC) recommendations. To assist employers, the CDC published COVID-19 Interim Guidance for Businesses and Employers. Currently, the CDC is recommending that employers take a number of proactive steps to prevent the spread of the virus:

• Actively encourage sick employees to stay at home;
• Separate and send home any employee who appears to have a respiratory illness;
• Encourage proper hygiene for all employees (frequent and thorough handwashing, coughing and sneezing etiquette, avoid touching your face, etc.);
• Perform frequent environmental cleaning of the office/workplace; and
• Create a travel policy to protect employees from getting and spreading the disease.

Creating a Communicable/Infectious Disease Outbreak Policy and Response Plan
Additionally, the CDC recommends that all employers create a policy that will help protect employees from communicable disease, and a response plan that ensures that the business can still operate in the event that employees become ill. However, there is no “one size fits all” plan for employers. Each Communicable/Infectious Disease Outbreak Policy and Response Plan must be tailored to your workforce and business model.

The Response Plan
Recently, Microsoft, Twitter and Google told their employees to work from home. More and more employers are doing the same. However, not all businesses currently have the resources to provide remote working capabilities to employees. Other employers, such as retail stores, restaurants and other service industry jobs, require people to be physically present in the workplace. Therefore, a Response Plan must be tailored to your organization’s workforce. In addition to the preventative measures described above, there are several things to consider when creating a Response Plan:

• Evaluate your workplace and determine the health risks to employees. Do you have any large in-person meetings for employees? How often do employees engage with co-workers and the general public? Do employees frequently travel internationally? How else could your employees be exposed to COVID-19 during their day-to-day activities?
• Are your policies consistent with current public health recommendations?
• Assess what jobs can be done remotely and what jobs can partially be done out of the office. Talk to your IT provider to ensure you have the equipment and software you need to operate remotely.
• Can any of your policies be revised to minimize the risk of COVID-19? For instance, can your telecommuting policy be temporarily expanded so more employees can do their job remotely? Can work hours be changed so as to stagger times that employees are in the office? Can you increase the physical distance between employees?
• How will your business operate if part of your workforce cannot work? In the event there is overwhelming absenteeism, how will you keep your business running? What are the organization’s essential job functions? What happens if businesses you work with can no longer provide the services or goods you need? Essentially, what is your back-up plan?
• What leave policies do you have in place in the event that schools close, or an employee has a sick family member? While your organization may not be located in a state that has paid sick leave policies, you may want to consider having a flexible emergency paid leave policy. These policies give people the ability to take care of their family, while also reducing the risk a sick employee will continue to come into work because they need their next paycheck.

Once this evaluation has been completed, you can create a Response Plan that sets forth how the organization will operate during an infectious disease outbreak.

A Communicable Disease Policy
A Communicable Disease Policy should set forth what will happen in the event an employee is sick with a communicable disease. This policy should include information such as:

• When an employee must inform the organization that he/she is sick;
• When, and for how long, an employee should stay home;
• When a person should be quarantined;
• Whether or not sick leave and/or quarantine will be paid leave; and
• The benefits available to employees who have COVID-19.

Ultimately, your Communicable Disease Policy should be flexible. It is difficult to create a plan that fits every situation, so ensure that you have the ability to make changes to fit the needs of your employees and business. Each situation should be evaluated on a case-by-case basis.

All employees should be provided with a copy of the Response Plan and Communicable Disease Policy so they understand their responsibilities, as well as any leave and telecommuting options that may be available to them. Throughout this process, we recommend having open and frequent communication with your employees. Communicable diseases can cause anxiety and fear in the workplace. You can help alleviate those fears by providing employees with access to the latest information, and communicating the steps you are taking to keep the workplace safe.

When creating and enforcing policies, an employer may not take discriminatory action against employees. For instance, you cannot tell all employees of Chinese or Italian origin not to come into the office because they might have COVID-19. Instead, an employer should create policies that are based on neutral, un-biased facts, and that are supported by information provided by the CDC, the World Health Organization, and your local government.

Additionally, maintain the confidentiality of all employees who test positive for COVID-19 or have any other illness. A person’s health information is considered strictly confidential and should be only provided to third parties in limited circumstances.

In the past 10 weeks, COVID-19 has created a great deal of confusion and disruption in our day-to-day lives. The virus will be part of our personal and professional lives for the foreseeable future. It is time for businesses to focus on preparing themselves and their employees for a possible outbreak situation. By having a plan in place, you can reduce the impact COVID-19 has on your business, and your employees.

For more information, please contact GKG Principal Rich Bar (rbar@gkglaw.com; 202-342-6787) or GKG Principal Katie Meyer (kmeyer@gkglaw.com; 202-342-6775).

Associations and other non-profit entities plan their conventions and meetings many years in advance. Hotel and convention contracts often are signed with little insight about every possible impactful future event. Event planners and hotel sales representatives focus their attention on meeting dates, occupancy numbers, room rates, attrition and cancellation clauses, and other similar business and event operational matters. Little attention is paid to standard “boilerplate” terms because these clauses typically are viewed as inconsequential and unlikely to be invoked.
 
Enter the coronavirus. As we have seen over the past several weeks, fear of this virus has gripped the entire world. Numerous communities, towns, cities, and even entire countries have been adversely affected. Severe travel restrictions have been implemented, including mandatory quarantines for travelers entering the United States. Travel alerts are being issued on a daily basis. Businesses and economies are facing unprecedented losses. And, unfortunately, conditions will likely worsen before improving.
 
Obviously hotels and convention centers do not want to have conferences cancelled. Equally obvious, neither do associations and non-profit entities. Yet, the coronavirus is threatening that outcome on a widescale basis. What is the recourse? Does it matter whether conferences are held in the U.S. or abroad? The answers, like so often is the time, are “it depends.”
 
Let’s assume your organization is planning a conference for this summer. Everything is all set. Room rates, and attrition and cancellation clauses are good. Events are scheduled properly. Vendors are ready to go. The substance of the Agenda is first-rate. A great keynote speaker is on board. A large percentage of members are registered. Your Board has commended you. You are very proud of your efforts and you “know” this will be a triumph for your entire team.  
 
And then… disturbing news reports about the coronavirus emerge from all angles. Social media is flooded about health and safety threats. U.S. and foreign governmental officials are reacting to public health concerns. Travel restrictions and unknowns have created a frenzy. You hope this will pass so that all of your hard work can still pay off.
 
Inevitably, however, members start calling about cancelling attendance at the conference. Vendors are worried. Your keynote speaker does not want to get on a plane. Board members are worried about travelling as well, and also calling to ask about your plans. Everything is falling apart. This has gotten beyond your control. Your members and Board know that you are not to blame. How could you be? Yet, you know that everyone is looking to you for a solution because this situation could be detrimental to your organization’s bottom line. You think (you hope) the organization has insurance for this type of problem and you are fairly certain the organization won’t be penalized by the hotel and convention center. Doesn’t the contract afford you protection in this scenario? You recall a clause about something like this, but aren’t sure of all repercussions because you didn’t really negotiate that clause. What are you to do?
 
First, check to see if you have insurance coverage for business loss relating to cancellation of hotel and/or convention contracts due to health risks and communicable diseases. If you have questions about your coverage, ask your broker for clarity and confirmation. Make certain that you understand the insurance reporting requirements. Expect that relatively new policies will exclude the coronavirus.
 
Second, you should look at your hotel and convention center contracts, specifically at the “force majeure” and cancellation clauses. In Latin, “force majeure” means superior force. It is intended to describe an event that is “extraordinary” and beyond the control of the parties. Oftentimes, it is interpreted to mean “Acts of God,” but it is not limited to just Acts of God (such as hurricanes, earthquakes, floods, etc.). If invoked today, would the coronavirus constitute “force majeure”? It depends on the contract language. Does the contract include language about curtailment of transportation or health risks? Does it have broader language such as “other emergencies of a similar nature”? Does it offer specific instances that would be helpful? For example, if your conference attendees are largely government workers, then it is possible that the government negotiated a clause that permits the government to cancel its employees’ attendance without penalty. In that case, you should have a reciprocal right to terminate the hotel and convention contracts, and will likely be able to successfully use the “force majeure” clause as a basis for cancellation.
 
If your contract is limited to boilerplate “force majeure” language, such as “the parties may cancel this agreement in the event of ‘force majeure,’” you may be limited in your ability to cancel at this time. As a legal matter, it is possible but not guaranteed that you will be able to invoke the boilerplate “force majeure” clause due to a large number of attendees cancelling their plans to attend the conference. The primary question: is it an “extraordinary event beyond the control of the parties?” It seems somewhat intuitive that the coronavirus is extraordinary and, surely, beyond the parties’ control. But is it actually extraordinary? Over recent decades, the world has seen several high-profile epidemics and pandemics — think SARS, Ebola, etc. Does the fact that they appear to be happening with more frequency make them less extraordinary? Perhaps. Could you have anticipated these possibilities during your contract negotiations? Perhaps. Will foreign travel to and from the United States be treated differently than domestic travel in connection with citing “force majeure” as a basis for termination of contracts? Perhaps.
 
Right now, it is unclear how these disputes will turn out. Over time, if, as is anticipated, the coronavirus develops and spreads, the impact on business conferences will become more pronounced. If the future spread of the coronavirus makes it more difficult to hold the conference, it becomes more likely that you will be able to invoke the “force majeure” clause. Inevitably, there will be difficult negotiations and litigation involving these issues. Moreover, looking forward, you will need to ensure that these types of issues are negotiated heavily, with specific examples, in future contracts. Boilerplate clauses should no longer be glossed over.