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Posts Tagged ‘CDC’

COVID-19 in Jails: A Case Study

Posted on: May 22nd, 2020

By: Wes Jackson

By now we are all familiar with the CDC’s recommendations for limiting the spread of COVID-19: “social distancing,” maintaining a distance of six feet from others as much as possible, avoiding large gatherings, and self-isolation if you exhibit symptoms of the disease or test positive, among others. As challenging as these practices can be for the general public, they pose a unique challenge to jail administrators who are now tasked with limiting the spread of COVID-19 amongst inmates tightly packed into closed places. All the while, jail officials must also maintain order and security in the jail while respecting the constitutional rights of inmates.

How should jails balance these competing interests and, perhaps more importantly, who gets to decide? There are no clear answers to those questions. Interestingly, though, the Eleventh Circuit Court of Appeals recently issued an opinion in Swain v. Junior that provides a helpful analysis.

In Swain, inmates at Miami’s Metro West Detention Center filed for a preliminary injunction and habeas relief against the jail administrator, arguing that the jail was not doing enough to stop the spread of COVID-19 between inmates. While it was uncontested that the jail had already undertaken many measures recommended by the CDC  to address COVID-19 in jail settings (you can read that guidance here), the inmates nevertheless asked the federal district court to issue an injunction requiring the jail to take various precautions. The district court agreed and ordered the jail to implement several specific practices to stop the spread of COVID-19 in the jail, including maintenance of six feet social distancing “to the maximum extent possible;” strict testing and PPE requirements, and new procedures for the provision of medical care, among others.

The jail then went to the Eleventh Circuit Court of Appeals to ask for a stay of the injunction. The Eleventh Circuit, applying the “deliberate indifference to a risk of serious harm” standard, found that the measures the jail had taken were constitutionally adequate and did not require an immediate injunction. Specifically, the Court of Appeals found that “the evidence supports that the defendants are taking the risk of COVID-19 seriously.” The Court also noted that local governments are in the best position to allocate resources in high-demand needed to prevent, test for, and treat COVID-19 amongst various local facilities, and the district court could not assume the role of “super warden” in ordering a particular allocation of those limited resources.

In short, the COVID-19 pandemic poses a novel challenge to jail administrators. At least for now, the Eleventh Circuit has granted one jail some latitude in how it addresses that challenge. The Eleventh Circuit’s decision is consistent with federal courts’ reluctance to micromanage correctional facilities in the absence of widespread constitutional violations.   

If you have any questions about local governments’ response to COVID-19, please contact Wes Jackson at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis.  Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

When Business Operations Resume, Employers Will Encounter A New “Normal” In The Workplace

Posted on: April 15th, 2020

By: Justin Boron

After about a month into business shutdowns across the country, employers and employees alike are hoping that a return to the workplace is not too far off into the future.  In anticipation for that moment, employers should start planning for a workplace that will be much different than the one that employees left when the shutdown orders were issued.   

When restaurants, retail stores, and offices eventually re-open, the COVID-19 pandemic will likely still be a threat, and the shutdowns themselves will likely have had an impact on the makeup of the workforce and the nature of the employment relationship.  So there will be an array of health and safety issues—in addition to legal issues—that need to be addressed.  To that end, we collected guidance from various sources in the key areas that an employer will likely confront when businesses re-open:

Health and Safety

A good starting point for health and safety is the CDC’s recent guidelines for businesses with critical infrastructure workers who—exempt from shutdown orders—have continued to operations during the COVID-19 pandemic.[1]

To the extent a worker has been in household contact or close contact within six feet of an individual suspected of having COVID-19, the CDC guidance would allow the employee to continue to work assuming the employer takes the following precautions:

  • Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean workspaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

Health experts are also encouraging employers to begin assembling the infrastructure necessary for rapid on-site testing in the workplace.  Although this measure might seem strange in the workplace, it isn’t without precedent.  Employers commonly provide access to flu vaccines in the workplace.  In an article in the Wall Street Journal, Scott Gottlieb—a former FDA commissioner—and Lauren Silvis—a former deputy director of the FDA’s medical device center—advised employers to treat COVID-19 like the flu in the workplace:

Portable and relatively inexpensive testing platforms can be brought to businesses in mobile vans or deployed on-site and administered by professionals.  Testing companies are ramping up supply, and businesses can start placing orders now.

Restoring Employment Effectively

Many employers might have had to lay off or furlough all or parts of their workforces.  To the extent employers can recall some of these workers when their operations resume, there are potential pitfalls to consider in re-assimilating workers to on-site operations.

  • In the event of a reduced workforce, employers will likely need to re-assign responsibilities and job duties.  Employers should consider whether the change in duties would result in a need to change an employee’s classification under wage and hour laws from exempt to non-exempt and should review the new duties with the employee.
  • If the employer alters an employee’s pay structure, such as by adding incentive bonuses, the employer should consider whether the new pay structure alters the calculation of an employees’ regular rate of pay used to determine overtime amounts.
  • An employee who was let go without pay or benefits might need to be formally re-hired—requiring an employer to repeat its hiring procedures, including a meeting applicable I-9 requirements.

Protecting Against Discrimination

The EEOC and state discrimination agencies have keyed in on the potential for disability and national-origin discrimination arising from the COVID-19 crisis, so employers should be aware of the potential for claims.  State agencies have offered varied guidance with some—like the New Jersey Division on Civil Rights—taking fairly aggressive positions on workplace discussion about the origin of the virus and phrases like “Chinese virus” in the workplace.

To mitigate the risk of these kinds of discrimination, employers should review their handbook policies against discrimination with employees and include COVID-19 issues in any annual training that the employer conducts.  The EEOC also has issued special guidance for handling employee complaints about COVID-19 related harassment here.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. On Wednesday, April 22nd, Freeman Mathis & Gary will be hosting a webinar on this topic. Register here.

Other topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**


[1] The CDC is regularly updating its guidance, so employers should periodically check.

FAQ’s (and Answers) For Employers Dealing With The Coronavirus (Updated March 11, 2020)

Posted on: March 11th, 2020

By: Brad Adler

As I’m sure many of you have heard or read, a new virus (COVID-19 aka “Coronavirus”) first found in Wuhan, China in late 2019 has been spreading across the world and is now emerging in the United States on an increasing scale.  As employment issues surrounding the Coronavirus continue to arise, below are some answers to commonly-asked questions that employers may be asking in addressing Coronavirus-related issues.

In addition, employers should read and be familiar with the Guidance the CDC issued for employers in handling Coronavirus-related issues.  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

What Is It?

Based on what health officials know right now, the Coronavirus is not a flu, but a pneumonia-like infection.  The virus symptoms manifest as a mild to severe respiratory illness with fever, cough, and difficulty breathing. The Centers for Disease Control (CDC) believes at this time that symptoms may appear in as few as two days or as long as 14 days after exposure.

How Does It Spread? 

The disease can spread from person to person through small droplets from the nose or mouth, which are spread when a person with the Coronavirus coughs or exhales. These droplets also then land on surfaces around the person and others can catch the Coronavirus when they touch these same surfaces, particularly if they then touch their mouth, nose or eyes.

What If An Employee Tests Positive For The Coronavirus?

Ask the employee to stay out of work until 14 days after the employee was diagnosed with the Coronavirus, unless a doctor certifies that it is safe for the employee to return to work earlier.  Further, you should promptly notify colleagues who work with that employee that they may have been exposed to a person with the Coronavirus and request that they visit their doctor to confirm that they did not contract the virus.  In the absence of a confirmed diagnosis of an employee, we suggest that you do not issue a blanket instruction that all employees have to get tested as such a directive could run afoul of the Americans with Disabilities Act’s general prohibition against medical examinations for employees unless “job-related and consistent with business necessity.”

Further, employers should ensure the confidentiality of all employees’ medical information to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is necessary for the safety of other employees to identify a confirmed Coronavirus victim to others in the workplace so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee’s Household Member Tests Positive For The Coronavirus Symptoms?

We believe it is appropriate to ask employees to notify your designated Coronavirus-response person (typically someone in Human Resources) if a member of an employee’s household is diagnosed with Coronavirus.  Once notified, the employer should request the employee stay out of work until the employee visits his/her doctor to confirm that the employee did not contract the virus or they also can self-quarantine themselves for 14 days.

What Should An Employer Do If An Employee Presents Coronavirus Symptoms, But Is Not Confirmed With The Coronavirus?

If you have an employee who presents Coronavirus symptoms at work (but not yet diagnosed with the Coronavirus), we suggest that you send the employee home and request that they get tested and cleared from having the Coronavirus before returning to work or they also can self-quarantine themselves for 14 days.  If the employee exhibits the symptoms at home, ask them to stay out of work until they get tested and cleared from having the Coronavirus or they also can self-quarantine themselves for 14 days.  It is important that your Human Resources representative is involved in these situations so you can navigate any unique issues.

Further, you should try and determine who the employee interacted in close proximity with at work (typically six feet or less) in the previous 14 days, including by asking the employee for help in identifying those individuals.   After those individuals are identified, you should notify them of their potential exposure to an individual with the Coronavirus.

Employers, however, should avoid identifying the infected employee to other employees (or customers or vendors) to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is absolutely necessary for the safety of other employees (or customers or vendors) to identify a confirmed Coronavirus victim to others in the workplace (or customers or vendors) so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee Reports That He/She Interacted With Somebody Who Has Been Diagnosed With The Coronavirus?

Once notified, the employer should request the employee stay out of work until the employee visits his/her doctor to confirm that the employee did not contract the virus or they also can self-quarantine themselves for 14 days.  Further, you should try and determine who the employee interacted in close proximity with at work (typically six feet or less) in the previous 14 days, including by asking the employee for help in identifying those individuals.   After those individuals are identified, you should notify them of their potential exposure to an individual with the Coronavirus.

Employers, however, should avoid identifying the infected employee to other employees (or customers or vendors) to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is absolutely necessary for the safety of other employees (or customers or vendors) to identify a confirmed Coronavirus victim to others in the workplace (or customers or vendors) so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee (Or An Employee’s Household Member) Returns From An International Trip, But Has Not Exhibited Any Coronavirus Symptoms

This is tricky so you have to make sure you are watchful in dealing with this type of situation.  As of March 3, 2020, the State Department has advised travelers to avoid all non-essential travel to China, Italy, South Korea, Azerbaijan, Mongolia, Turkmenistan and Iran https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/.  The CDC also has advised identified Japan (Level 2) and Hong Kong (Level 1) as areas of heightened risk for the coronavirus.  https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html.

As a result, if an employee does travel internationally to China, Italy, South Korea, Azerbaijan, Mongolia, Turkmenistan and Iran, even if they present no symptoms, it is advisable to require that employee to either wait 14 days or visit their doctor to confirm that they did not contract the virus before returning to the workplace.  If an employee travels to Japan or Hong Kong, but exhibits no symptoms, you can require the employee to wait 14 days before returning to the workplace, but you should typically avoid requiring an employee to present any type of clearance from a doctor.  If an employee travels internationally to a location that is not on the CDC or the State Department’s coronavirus travel advisory list and exhibits no symptoms, then we do not advise imposing any type of return to work condition.

Do I Have To Pay The Employee While Out Of Work?

Under the Fair Labor Standards Act (federal wage/hour law), you do not have to pay non-exempt hourly employees while they are out sick.  If, however, they perform work while at home, you must pay them for those hours (so it is critical that the employees keep a record of their hours worked).  If a non-exempt hourly employee wants to use PTO while the employee is out sick and not being paid, that is permissible.  For exempt employees, unless they are out for an entire workweek, you should pay them their normal salary for the workweek in which they miss time because of your “stay out of work” instruction.  Of course, many states and some cities and counties have their own wage and hour, leave and paid time off laws that you will need to consider when assessing how you handle Coronavirus-related absences.

Can I Restrict Employees From Traveling Internationally?

If the travel is work-related, then an employer can ban an employee from traveling internationally.  If the travel is not work-related, then you typically will be permitted to restrict travel to international destinations, but it is prudent to limit the travel to areas designated as at least a heightened-risk of coronavirus by the White House, CDC or the World Health Organization as several states have laws that prohibit an employer from taking action against an employee for “lawful off-duty” activities.  These types of restrictions could prove important both to protect employees from exposure to the Coronavirus and to limit the risk of travelers becoming stranded by travel limitations or quarantines overseas.

How Do I Avoid National Origin Discrimination?

This one is pretty simple.  Don’t make judgments on how to treat an employee based upon the national origin (or race) of the employee.  Rather, your decisions should be based upon reasonably objective information that you have received from both the employee and the U.S. Government (or World Health Organization) on where the employee is going and whether he has interacted with an individual diagnosed with the virus.  Remember that an employer may deny time off for an employee’s personal travel, but it should be based on the employee’s travel destination, the business cost of any potential resulting quarantine, or other legitimate business-driven interest.

What If An Employee Wants To Wear A Respirator Or Mask At Work Or Requests Not To Come To Work?

At this time, there is no general requirement for non-healthcare employees to wear respirators or other types of personal protective equipment and the CDC is not recommending use of facemasks or any other protective equipment by the general public.  As a result, employers have a wide amount of discretion to determine whether to allow the use of a respirator or a facemask.  For any employee who requests to not come to work out of fear of being around others and contracting the virus, unless that employee has a reasonable objective belief that someone at the workplace has the virus, you can deny the request.  If an employee still refuses to come in, you are permitted to discipline the employee.  If the employee is exempt, you also likely can choose not to pay them for the all-day absence.  Of course, if the employee is non-exempt, you don’t need to pay the employee for any hours unless the employee is working.

What Can We Do To Help Reduce Potential Exposure To The Coronavirus?

Providing employees with a written reminder about effective steps for reducing the risk of exposure to Coronavirus is a great way to let employees know you are paying attention to the issue and looking out for their safety.  A few things to include:

  • Remind employees to cover their mouths and noses when they cough or sneeze, and to immediately throw used tissues in the garbage.
  • Remind employees of the importance of regularly washing their hands (for at least 20 seconds with soap and water) and/or using an alcohol-based hand sanitizer containing at least 60 percent alcohol.
  • Avoiding touching your eyes, nose, and mouth with unwashed hands.
  • Avoiding close contact with people who are sick.
  • Ensure you have enough relevant supplies, including soap, hand sanitizer, tissues, paper towels, disinfectant, and trash receptacles.
  • Encourage the regular cleaning of frequently-touched surfaces in the workplace, such as workstations, countertops, and doorknobs.
  • Practice social distancing
  • Consider the use of tele-conferencing options instead of in-person meetings
  • Consider the feasibility of implementing a remote work policy

We know this is a new area for many employers so, if you have questions or need a sample “notice” to employees or a remote work policy, please do not hesitate to contact Brad Adler ([email protected]) or 770.818.1413.