COVID Continues to Infect Business

Practical and regulatory impacts on business operations

by Susan Trujillo and Eric Johnson

Exigencies of workplace and workforce needs and relationships persist even as restrictions ease from the height of the pandemic. Susan Trujillo speaks to healthcare and COVID safety, with guidance for employers and regulatory response, and Eric Johnson discusses legal ramifications of and regulatory considerations on remote and hybrid work — including Arizona-specific insights. 

Workplace Healthcare and COVID Safety

by Susan Trujillo

Though many felt or hoped that COVID-19 was in the rear-view mirror, the incredibly infectious nature of the BA.5 variant has reminded us all that it is still with us. The Arizona Department of Health Services’ positivity rate in Maricopa bottomed out this year at around 3% in March and early April and was at 32% at the end of July. When broken down by age groups, the highest positivity rate over the last six months was 37% in the 20- to 44-year-old bracket — the bracket that comprises a significant portion for our workforce. This data does not reflect at-home tests with positive results, so based on the available testing data and estimates based on at-home testing, BA.5 is still transmitting and not showing signs of slowing down. COVID-19 is still very much with us, though luckily this current variant does not seem to result in the serious illnesses caused by prior variants.

Considering the infectious nature of the current variants and the speed at which the virus is evolving to evade vaccines and natural immunity from prior infections, businesses should not let their guard down in terms of COVID preparedness. Businesses should have adaptable plans ready for resurgences that incorporate rapid operational changes that may be needed to protect employees and customers. Healthcare providers should also be cognizant of risks to their licensure or accreditation, as closures may expose regulated clients to complaints from state and federal regulatory agencies and accrediting bodies. 

Many healthcare clients had to shut down their facilities because their entire staff was infected or exposed to a colleague or patient who later tested positive. We are aware of at least one state that recently initiated regulatory action against the healthcare provider who experienced such closures, claiming it put patients at risk by limiting their access to prescriptions. 

There is no substitute for thoughtful preparation. Businesses should continue to evaluate how they responded to COVID-19, the lessons they’ve learned over the past few years, and what they would want to do in the event of a resurgence or future similar

Susan Brichler Trujillo is a partner at Quarles & Brady and chair of the Phoenix Health & Life Sciences Practice Group.

The Remote or Hybrid Workforce 

by Eric Johnson

By choice or necessity, businesses are now confronted with the decision on whether and/or how to adopt a remote or hybrid workforce. The answer will vary based upon the nature of the employer’s business, workforce and other unique circumstances. Potential benefits of a remote or hybrid workforce may include increased productivity, cost savings (for both employer and employee), more manageable work/life balance for employees, a wider (and deeper) talent pool, and greater employee contentment and engagement. Drawbacks may include difficulty in retaining a highly mobile workforce, diminished employee supervision, mentorship or loyalty, decreased collaboration and team building, and scheduling or logistical difficulties. 

Another area that cannot be overlooked involves the potential legal ramifications of a remote or hybrid workforce. For instance, a remote workforce may expose an employer to greater risk of cyber threats and impose difficulties in protecting sensitive company data. Another concern involves workers’ compensation claims. Just because employees are working from home does not mean those employees do not have valid workers’ compensation claims for injuries suffered at home while working. Employers would be wise to develop policies and guidelines dictating the conditions and work environment that must be present for a home office. Wage and hour concerns may also be amplified for a remote workforce and measures should be implemented to accurately track time spent working by non-exempt employees at home. 

Employers who choose to hire employees in multiple states must take into account not only state-specific wage and hour laws but also potentially unique laws related to things such as hiring and termination, discrimination, employee training, drug and alcohol testing, background checks, and unemployment compensation. Certain states, such as Arizona, prevent employers from exacting any type of fee or gratuity from an employee as a condition of employment. As such, employees may be entitled to reimbursement for certain expenses related to employees working from home. 

If an employer chooses to maintain a remote or hybrid workforce, at a minimum the employer should create or modify various policies, practices, employee handbooks and/or employment agreements to address the aforementioned concerns that arise out of whatever employment configuration an employer chooses to adopt.  

Eric Johnson is a partner at Quarles & Brady and chair of the Phoenix Labor & Employment Practice Group.

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