Coronavirus Legal Issues Around the World, Part 1: Employment Law Issues

For the last three months or so, 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 mont or so, all this has become true for our Spain lawyers as well, as Spain too become 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 also does not discriminate in the impacts it has on people, societies and economies and this has meant that 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 cross-border legal teams out of the United States, China and Spain to assist companies around the world with their legal issues arising from or related to the coronavirus. These multi-disciplinary and multi-jurisdictional team are using the knowledge and experience gained 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 seeing/working on, 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 regarding force majeure.
• 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.

Terminations.

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.

Workplace safety.

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?

Working Remotely.

• What should we be doing to prepare to work remotely?
• Are we required to have a remote work policy? Should we have a remote work policy? What should be in a good remote work policy?
• What can we do to ensure the productivity of our remote workers? What should we be doing to maintain employee morale while working remotely? Can I meet in person every once in a while with our employees who are working remotely? Should I meet in person every once in a while with our employees who are working remotely?
• What can we do about an employee who insists on working from home due to a fear of getting infected when that employee needs to be in our facility to be at all productive for us? What if that employee is 22 years old and in great health? What if that employee is 64-years old with a long history of heart and lung problems?
• Can we require our remote employees to work from their home and nowhere else? Can we prohibit our remote employees from traveling?

Record Keeping.

• What sort of records should we be keeping relating to the coronavirus?
• What sort of records are we required to  be keeping relating to the coronavirus?

Employee Travel.

• What should we do about employee travel? What are we required to do about employee travel? What constitues employee travel anyway? Does asking an employee to drive 30 miles constitute employee travel?
• What should we do for our employee who is stuck in _______ after having gone there for vacation? What are we required to do for our employee who is stuck in _________ after having gone there for vacation? What should we do for our employee who is stuck in _______ after having gone there for work? What are we required to do for our employee who is stuck in _________ after having gone there for work?
• Can we prohibit our employees from leaving town on their vacation? What can we do with an employee who just returned from a high risk area?  What if anything can or should we do with an employee who refuses to travel for fear of getting infected?
• What should we do about our employees in our overseas offices? What should we do about our employees who are overseas right now but no a short term basis? What should we do about an employee who is under quarantine overseas?
• Will COVID-19 impact our foreign employees any differently than our local employees? Will COVID-19 impact the immigration status of our foreign employees or their ability to remain in this country?

Liability.

• Can we be held liable if one of our employees gets the coronavirus at work? Are we more likely to be held liable if the employee reasonably could have worked from home but we did not allow this? Are we less likely to be held liable if there was no reasonable way the employee could have worked from home?
• Might we be liable if one of our employees gets the coronavirus at work and then infects his or her significant other who dies from it?

Employee Benefits.

• Can we change our health insurance plan right now? Should we? Are we required to provide health insurance to all of our employees? Should we be providing health insurance to all of our employees?
• Can we change any of our benefits right now? Should we?
• What laws have come down in the last month or so that might impact us on employee benefits?

For nearly all of the questions above, our answers vary tremendously depending on the country and the location within the country. But our analysis is usually the same. What must our client do pursuant to contract and what must our client do pursuant to the applicable laws.

Immigration Issues.

We are seeing/dealing with the following coronavirus-related immigration issues in the United States:

• Increased scrutiny and denials of entry into the U.S. at ports of entry.
• Delays in the adjudication of petitions and applications by the Department of Homeland Security.
• Logistical obstacles for employers to file H-1B cap petitions within the cap window.
• Postponement of immigration benefit interviews.
• Impact of economic downturn for immigrant investors and visa-dependent employees.
• Difficulties for temporary visitors to depart the U.S. before their status expires.
• Country of origin travel bans.

What are you seeing out there?

We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.