For the last three or so months, our China lawyers have been confronted with a host of legal issues related to the coronavirus. This should not be surprising because China was the seminal coronavirus epicenter. For the past two months or so, our Seattle lawyers have been working on a host of legal issues related to the coronavirus. This too should not be surprising because Seattle is the United States’ coronavirus epicenter. For the past month or so, all this has become true for our Spain lawyers as well, as Spain too became an epicenter and last week went into a full lockdown. Our California and Oregon lawyers have also in the past few months been hit with a slew of coronavirus related legal matters.
The coronavirus does not discriminate, though sadly, people do. See Do Not Blame Chinese People for the Coronavirus. No Exceptions. The coronavirus has and will continue to impacts all societies and economies and this has meant our law firm has been seeing and dealing with the same sort of legal issues in all the countries in which we work. This sameness of legal issues around the world has led us to create a cross-border legal team out of the United States, China and Spain to assist companies with their legal issues arising from or related to the coronavirus. This multi-disciplinary and multi-jurisdictional team is using the knowledge and experience our lawyers have gained in one jurisdiction to determine best practices in the other jurisdictions.
In this series of posts, we will be discussing the legal issues our lawyers in China, the United States, and Spain have been confronting, with the goal of making this blog a repository of information on coronavirus law and especially on how to handle legal matters that have arisen due to the coronavirus.
In this part 1, we will focus on employment law issues because those were the first issues we saw and those are the issues that continue to arise with the most frequency. In subsequent posts, we will look at the following legal issues, with a focus on what our lawyers are seeing and the the impact the coronavirus is having:
- Contract law issues, especially those involving force majeure. See this Economist article, this Financial Times article, and this Corporate Counsel article in which our lawyers were interviewed in English regarding force majeure and this EuropaPress article and this Cinco Días article, where we discuss force majeure in Spanish.
- Trade and customs law issues.
- Insurance coverage issues, including business interuption insurance issues.
- Real estate issues, including leases and construction contracts.
- Intellectual property issues, including trademarks, copyrights, patents, trade secrets, and non-competes.
- Dispute resolution issues, including litigation, arbitration, and mediation.
- Data protection and data privacy issues.
- Fraud issues, as those are very much on the increase.
EMPLOYMENT LAW ISSUES
Our employment lawyers have been working nearly non-stop on employment matters arising from the coronavirus and its concomitant economic downturn. The below are the sorts of issues we have been getting and/or anticipate getting, in China, the United States and in Spain.
In all places, clients want to know whether they can lay off one or many of their employees. Our analysis is usually the same no mater the jurisdiction but our conclusions are very much dependent on the state or the country. In all places, we review the employment contract (if any), the employer manual (if any), and the national and local laws, along with any new laws enacted to deal especially with the coronavirus. In the United States (with the exception of California), employee terminations tend to be somewhat less risky than employee terminations in China and in Spain.
Work hours and wages.
In all places, clients also want to know whether they can reduce the work hours or the wages for some or all of their employees in an effort to better reflect the business realities they are confronting. As is true for employee terminations, the answers to time and wage reduction questions usually requires our lawyers review the employment contract, the employer manual, and the national and local laws, along with any new laws enacted to deal specifically with the coronavirus.
In all places, clients have many questions regarding workplace safety. As you would expect, our answers for China and the United States and Spain vary tremendously but for many of the below, many of the answers within China and the United States and Spain also vary tremendously based on the state/province and even the particular city. The below are the sort of questions we have been getting and that we anticipate getting relating to workplace safety.
- What should we be doing as an employer to reduce the spread of COVID-19 ? What are we required to do as an employer to reduce the spread of COVID-19?
- Can we make our employees wear face masks? Can we make our employees not wear face masks?
- What should I do about an employee who appears sick but keeps coming to work?
- Can we take our employees’ temperature? Can we take the temperature of employees who appear sick? Can we take the temperature of an employee whose significant other works in a retirement home or a hospital, just because of this?
- What should I do with an employee who had COVID-19 but has recovered? What do we do with an employee who has tested positive for COVID-19 yet shows no symptoms? What should we do with an employee who has tested positive for COVID-19 and who we have sent home? What should we do if one of our employees is suspected of having COVID-19 but has not yet been tested?
- What should we do if we believe one of our employees has COVID-19 in terms of alerting our customers? Are we required to inform any government agencies that one of our employees has COVID-19?
What, if anything, should we require of our employees in dealing with our customers that we know have COVID-19? What if anything can or should we do with an employee who refuses to meet with customers for fear of getting infected?
We also are seeing the issues set forth below, mostly involving questions centered around “What does the law require we do about X? or “What should we do about X”:
- Remote work policies
- Remote employee productivity
- Remote employee morale
- Employee live meetings
- Employees who insist on working from home out of fear of getting infected
- Treatment of a 22 year old employee in great health versus a 64 year old employee with a long history of heart and lung problems
- Requiring remote employees to work from their home only
- Prohibiting remote employees from traveling
- What new records necessary
- What constitues employee travel
- What to do for an employee stuck somewhere on vaction or business
- Prohibiting employee from leaving town on vacation
- What to do with an employee who just returned from a high risk area
- What to do with an employee who refuses to travel for fear of getting infected
- What to do with employees in overseas office
- What to do with employees overseas on a short term basis
- What to do with employees under quarantine locally or overseas
- What to do with an employee who violates a quarantine
- COVID-19 impact on foreign employees versus local employees
- COVID-19 impact on employee immigration status or ability to remain in country
- Liability for employee getting the coronavirus at work
- Liability for an employee getting covonavirus at work who could have worked from home but employer did not allow that versus an employee who could not reasonably have worked from home
- Liability for an employees getting the coronavirus at work and then infecting his or her significant other who dies from it
- Timing on changing health insurance plan
- New health insurance requirements
- New sick leave requirements
- New laws that impact employee benefits
For most of the above, our advice varies depending on the situation and/or goals of the employer and its employee(s) and on the employer and employee’s country and location within the country. But our methodology and analysis are usually the same. What must the employer or employee do pursuant to the relevant contracts and the applicable laws? Or, what should the employer or employee do?
What are you seeing out there?