For many companies, the coronavirus pandemic hasn’t only impacted how and where work is being done, it has also put into focus what a company can demand of its employees and what its rights and responsibilities are when it comes to safeguarding employees.
The legal questions during the coronavirus pandemic (and beyond) are many, and the answers are far from uniform. For multi-national, multi-jurisdictional companies, cultural norms and the laws of individual countries may differ greatly and even be completely at odds. In the US, the laws and pandemic responses that companies are required to abide by may vary from state to state. Simply put — there is no universal Covid-response guidebook to follow.
These factors combined with the rapidly-changing conditions and information regarding Covid response have meant that companies have been challenged to address employee health and safety, maintain their businesses, and comply with legal requirements.
Privacy Rights vs. Collective Health and Safety
One of the overarching legal issues relates to the pinch point of an individual’s privacy rights vs the collective health and safety of employees. Companies are balancing protecting the rights of individuals who don’t want to share their information with the fact that having more personal health information is key to fighting the spread of coronavirus. Understanding privacy law questions and implementing appropriate Covid responses have become imperative in protecting the health and safety of a company’s employees.
Monica Winghart is a lawyer who has worked on these issues for the better part of the pandemic as a member of a Covid-response team for a multinational company based in the US, with a large number of employees in Europe and Asia.
As a multinational company, one of the biggest challenges has been designing and implementing Covid responses that adapt to individual countries’ cultural norms, comply with privacy and labor laws, and respond to regulatory agency requirements specific to the pandemic. The strategies used to protect employee health and safety have varied from region to region and have spanned everything from paper questionnaires to mobile phone applications, temperature scanners and sanitization stations, to interfaces with governmental agencies, and employee self-reporting.
The differences in regulations and response have meant that in some regions, companies have been required to share their employee information with various governmental agencies, while elsewhere, the simple act of taking someone’s temperature using a handheld scanner is seen as too intrusive.
In Europe, for example, where privacy and labor laws are strong and where individuals tend to not voluntarily share their personal information, Monica says her company struggled with how to keep their employees safe while operating within the legal frameworks and the cultural norms that guide them. Ultimately, the company decided to close many of its operations and implement remote work situations wherever possible. This tactic was not necessarily ideal from a business standpoint as an “essential” services company, but with conflicting laws and regulatory instructions, as well as a lack of real-time health information on its workforce, the company opted to put the health and safety of its employees first.
In Asia, laws and cultural norms have had a different impact than in Europe and elsewhere. The actions from federal governments instructing individuals and companies to share personal information have generally been stronger. Because people are culturally more predisposed to listen to and trust authorities, the response has been one of compliance. In addition, the culture surrounding sharing personal data is more open, which has made tracking and mitigating outbreaks easier. As an example, Monica points out that in Asia the company saw around a 96% adoption rate of governmental health sharing apps by its employees, whereas in Europe the same rate was less than 30%.
The Practical Effects of Differing Cultures and Laws are Stark
The practical effects of how the differences in culture and legal frameworks have played out are stark. In Asia, Monica’s company is required not only to have employees report their temperature on a daily basis, but they may also ask questions such as where the employee has been, who they have seen, if they have been potentially exposed, and if they have been feeling sick or have a temperature.
In much of Europe, the company has not been allowed to ask these types of questions as that would constitute a violation of privacy and other laws. However, as death rates spiked, the policy shifted a bit and a few countries made exceptions to loosen their laws and regulations.
For example, in some European countries, the company can now ask workers to voluntarily answer questions about health status, do thermal scans, and implement other measures to promote social distancing. Still, they struggle with many European labor laws as they are not designed to accommodate “work from home” or “stay home when sick or exposed” policies. Likewise, the laws also largely prevent the company from taking other actions against non-participatory or non-compliant employees.
In the US, Covid responses and what companies can or must do differ widely from state to state. For example, some states have required masks, supported sharing test and vaccination results, and aggressively closed workplaces, while others haven’t. But, says Monica, “because there aren’t as many cohesive privacy laws in place in the US, and the labor laws are generally not as restrictive as those in Europe, we have had greater freedom in how we protect our workforce.” She continues: “We can require our employees to wear masks, socially distance, work from home, and take their temperature, for example. For those employees who do not wish to comply and where no work accommodations can be made, such as work from home, suspension or termination of employment may ultimately be an option. This sort of latitude could not happen in many of the European countries, or others, in which we operate.”
The Next Stage of Covid Response
At this point in time, with a greater understanding of how to minimize the spread of Covid-19, and vaccines becoming available, the next stage of the response is looming. It is clear that there are still legal, cultural, and ethical considerations in determining how to move forward. One of the biggest questions concerns vaccination policies. Another impactful issue for companies with a global footprint is how duty of care packages will be shaped by the pandemic.
When it comes to requiring vaccinations, Monica believes there is legal ground for doing so but points out that there are details to work out in how to implement such a policy and that will need to occur on a jurisdiction-by-jurisdiction basis. Not everyone can safely take a vaccine, for example — companies will have to resolve what exceptions are acceptable, and what actions they can take within a given country’s legal framework for those who do not wish to comply for other reasons than those deemed legitimate.
The question of how duty of care will change is not as clear yet. Monica says: “It’s a topic that is discussed frequently, but it’s probably prudent to take intermediary measures for now and wait to put anything firm in place as there are still many moving parts.”
Looking back, it’s easy to see that the pandemic caught most companies off guard — few, if any, had the preparedness to respond to an aggressive and fast-spreading virus like the coronavirus. Monica says: “There was little in place in terms of plans, infrastructure, or procedures to quickly mobilize a team and make decisions anchored in any kind of base knowledge. However, we have worked hard and now have a solid pandemic response plan for quicker action and decision-making.”
Some of the mitigation strategies implemented by the company Monica works for include a symptom checker app, offering Covid-19 tests on-site, PPE at the entrance of all buildings, as well as informational mailers. At the beginning of the pandemic, there was a total travel ban but, as Monica points out, “that is not feasible in the long term for a company with a global footprint”. Instead, they have worked deliberately to minimize travel and utilize video and virtual channels as much as possible to avoid all but the most essential trips.
The coronavirus pandemic is perhaps still producing more questions than answers, and trying to forge a clear path forward is not easy at this point in time. Monica’s reflection on what this year has been like working on a Covid-response team takes root in the knowledge that people’s lives are at stake: “This has been a very humanizing experience because, across the globe, the question ultimately has boiled down to how our decisions impact the health, safety, and lives of the people we work with every day.”
By: Felicia Shermis