By Vin Gurrieri

Law360 (April 27, 2020, 9:34 PM EDT) -- Although employers in the early days of the coronavirus pandemic were concerned most about privacy issues, inquiries to lawyers regarding workers' leave and layoffs are increasingly keeping them up at night, according to data compiled by Littler Mendelson PC.

The management-side firm's data, which it provided to Law360, covers March 10 through April 20 and tracks the volume of questions the firm has received from businesses each day across a variety of categories. The results offer a snapshot of which topics have been top of mind for employers navigating the health and economic problems caused by the COVID-19 pandemic and how those concerns have morphed over the past few weeks.

From March 10 through March 14 — the first week Littler started tracking COVID-19 inquiries from clients — the firm primarily fielded questions involving privacy. But as the weeks went on, with COVID-19 infections steadily growing and more states and municipalities imposing varying orders requiring that citizens remain at home — employers minds shifted to issues about leave and layoffs.

"As the issues have progressed, a lot of [inquiries] have been dictated by the local orders and complying with those orders," said Melissa Peters, a special counsel at Littler. "That's been a lot of what's been pushing the issues and the questions we've been getting from clients."

Privacy Concerns out of the Gate

In early March, as the COVID-19 crisis was just beginning to alter the lives of Americans and change the way businesses operate, privacy worries dominated employers' minds.

Peters, whose practice focuses on workplace safety and health issues, said those initial inquiries involved practical topics, like whether businesses could take workers' temperature, that straddled the line between safety and privacy rights.

"We found ourselves in the [workplace] safety and health group found ourselves working very closely with the privacy group because a lot of the current issues regarding temperature screening and testing have a high volume of crossover between privacy issues and safety issues," Peters said.

Leave Questions Emerge

But starting March 15, privacy questions started taking a back seat to inquiries about leave, which has remained a consistent source of employer concern ever since, along with a smattering of inquiries about workers' pay and benefits, according to Littler's data.

That timing roughly coincides with the enactment in mid-March of the Families First Coronavirus Response Act. The law, which took effect on April 1 and applies to businesses with 500 or fewer employees, includes two central leave components: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

The U.S. Department of Labor then issued several rounds of guidance pertaining to the new law and fleshed it out with a temporary regulation.

Alka Ramchandani-Raj, of counsel at Littler who along with Peters were among the first lawyers at the firm tasked with responding to employers' coronavirus concerns, told Law360 that leave is itself a broad category and the actual questions posed by businesses to the firm spanned various subcategories.

For example, she noted leave questions at the outset of the public health crisis revolved around the 14-day incubation period in which people had to take leave to isolate themselves after traveling to places that were COVID-19 hot spots.

"Over time, it changed. We started getting people that actually were getting the virus and [employers] needed to put those people out on leave, and what was the right type of leave," Ramchandani-Raj said. "A lot of these types of questions were coming up because employers needed to figure out where this was going to fit in their normal scheme of leave law."

With the passage of the FFCRA and the new paid and unpaid leave elements it offers, that set off another wave of leave-related inquiries in which lawyers had to advise about specific leaves available under the new statute, according to Ramchandani-Raj.

"Most of the [leave] questions right now that we're getting are a little bit different than the questions we were initially getting," Ramchandani-Raj said. "We're getting questions regarding templates and documents that are needed, and protocols that [employers] need to follow with the expansion of FMLA."

Layoffs Also Getting Attention

While the volume of questions regarding leave remained consistent from mid-March on, questions about layoffs have been prone to sudden spikes.

After employers' inquiries about layoffs started trickling in in late March, the firm saw two sharp increases in those questions, once around April 5 and again around April 18.

Peters attributes those sudden surges to the array of emergency orders that were being issued by state and local officials.

"Certainly when we had the wave of executive orders saying [that] only critical infrastructure workers can continue to work, that left a lot of these Main Street-type businesses with no choice but to lay employees off because they didn't know how long this was going to go," Peters said, while noting that many clients expressed concern about whether they could afford to keep employees on payroll beyond the month or so that they budgeted for.

Ramchandani-Raj also said the FFCRA and the subsequent coronavirus relief bill led employers to reevaluate whether it was more beneficial for particular employees to be furloughed instead of kept on the payroll.

The relief bill included a large expansion of unemployment benefits for millions of newly displaced workers and provided businesses with a deep well of loans.

"Because when they're not furloughed ... they may not be profiting as much as they would be if they were able to collect unemployment," Ramchandani-Raj said. "Once these new [laws] came out, employers needed to quickly evaluate and make a determination if there [was] something more favorable for employees."

Testing Next on Horizon

Ramchandani-Raj and Peters said the next major issue bubbling to the surface for employers, particularly as workers start coming back to physical work sites, is virus testing.

A big reason is that U.S. Equal Employment Opportunity Commission issued guidance last week that said employers will be allowed to test employees for COVID-19 before they enter a work site without running afoul of the Americans with Disabilities Act.

As a result, Ramchandani-Raj and Peters told Law360 that the firm is expecting to get a lot of inquiries soon about testing, just as legal questions about temperature screening came about a month ago.

"We anticipated that this testing issue was going to come up, but it wasn't until the EEOC pulled the trigger last week where it sort of made it real," Peters said. "A lot of this stuff is just something you never really thought you would see become legal, even if only temporarily."

Ramchandani-Raj added that the testing issue is "very novel" for employers, which will make it the subject of inquiry in the weeks ahead.

"In the United States, we've never really seen a time where it's necessary to conduct medical examinations like temperature checks or testing in the workplace," she said. "This is a very unique and unusual circumstance with COVID-19 that we're seeing."

--Editing by Brian Baresch.

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