We have been inundated with questions and concerns about the legal implications of Coronavirus Disease in an Arizona workplace. Because of that, we wanted to send out a quick update of things you should look out for during this unprecedented time.

What policies should I have in place to handle Coronavirus Disease?

It is important for employers to consider implementing two policies. The first is a policy relating to preventing the spread of the disease. The second policy involves proper reporting methods of infection or exposure. Upon request, we will provide you with these policies free of charge.

What laws should I be aware of in lieu of the Coronavirus Disease?

Arizona Paid Sick Leave Law – Arizona’s paid sick leave law requires that all employers provide the chance for employees to accrue and use up to at least 24 hours (employers with less than 15 employees) or 40 hours (employers with 15 or more employees) of paid sick leave. This law allows for employees to not only take paid sick leave for themselves but also to take it if one of the following is applicable:

1. An employee’s family member is ill.
2. There is a “public health emergency” affecting the employee or the health of the employee’s family.
3. There is closure of any business due to a public health emergency.
4. There is an employee who needs to care for a child whose school/place of care closed due to a public health emergency.
5. An employee must care for themselves or other family members because health authorities have determined that they may have exposure to a communicable disease but are not yet infected.

Americans With Disabilities Act – The ADA requires that employers with 15 or more employees provide reasonable accommodations to employees who have qualifying disabilities. The Coronavirus itself does not qualify as a disability as it is a transitory condition. However, if the employee has underlying health conditions that do qualify (i.e. diabetes) and then is infected with the Coronavirus Disease or has related symptoms, it could be a qualifying disability for which an employer must provide reasonable accommodation.

Family Medical Leave Act – The FMLA requires that employers with more than 50 employees within a 75 mile radius provide up to 12 weeks of unpaid leave to qualifying employees. Similar to the ADA, the Coronavirus is not a qualifying condition unless it causes a “serious health condition.” Most often, the Coronavirus does not cause a “serious health condition” that triggers the FMLA.  In some instances, it may.

Overtime Laws – The Fair Labor Standards Act requires that all employers pay employees for time that they are suffered or permitted to work and that employers pay overtime if an employee works more than 40 hours in a workweek (unless they are overtime-exempt). Because multiple employees will likely call in sick to work, many employers will rely on other employees to fill in for the missed hours. It is critical to track the time that these employees work to make sure you are properly paying overtime.

Minimum Wage Laws – Neither Arizona nor Federal law has any requirement that an employer pay an employee when the employer cancels a shift, asks them to stay home, or reduces an employee’s working hours unless the employee is salaried. The law only requires that employers pay employees for all the time that they worked (or showed up to work).

EEOC Law – As part of the EEO laws, an employer cannot discriminate against an individual based on age, disability, race or national origin. With that, employers cannot show prejudice towards employees who are from different countries or of different ages. This has been a concern in regard to companies treating people from Asian countries or older workers differently.

What are some of the new laws that may pass?

To be clear, no new laws have passed yet. The bill most likely to pass will enhance unemployment benefits and additional state Medicaid dollars. There has been discussion on implementing a permanent paid sick leave program on a federal level that has since been sidelined. There have also been talks about extending tax credits to small and midsize businesses to ease their burden for providing time off that has not gained traction.

What types of questions can I ask employees to make sure they don’t have Coronavirus Disease?

Employers cannot ask individuals about their underlying health conditions. However, employers can ask to have people report any signs or symptoms relating to Coronavirus. If an employee does not self-report and the employer notices signs or symptoms of the Coronavirus Disease, then the employer can send the individual home and ask that the employee advise them if they have been exposed to the disease.

Please remember that HIPAA laws apply to any health information provided to an employer by an employee. Because of that, it is critical not to expose the health information of any employee to others.

What if the Coronavirus Disease makes it impossible for me to fulfill a contract I have?

Many contracts have a provision that accounts for unforeseeable disasters. The contract term is called “Force Majeure.” Even without this clause, the defense of impossibility or impracticability may come into effect. When something as unforeseen as a pandemic like this takes place, it raises the possibility that if you are unable to fulfill a contract based upon this (and not something else), there may be a good faith defense to any breach of contract claim that could be asserted.

What are some other helpful resources?

• Arizona Governor – Declaration of Emergency on March 11, 2020 (link)
• Department of Labor Questionnaire on Public Health Emergencies (link)
• EEOC Pandemic Preparedness Questionnaire (link)
• CDC Coronavirus Disease Task Force (link)

Contact Counxel Legal Firm

Contact a member of Counxel Legal Firm at 480-536-6122 or at intake@wordpress-457010-3165254.cloudwaysapps.com to set up a time to meet to go over your legal questions.

This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact intake@wordpress-457010-3165254.cloudwaysapps.com or 480-536-6122 to request specific information for your situation.

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