COVID-19 has dramatically impacted most businesses. Although veterinary practices have demonstrated great resilience in surviving the pandemic, the impacts are considerable. Processes have changed from the moment a patient enters the clinic until the patient is returned to its owner. Employment issues have arisen without precedent or guidance creating uncertainty for both employers and employees. Additionally, managing the physical and mental impacts of the virus itself are considerable. Given the far reaching general impacts of COVID on veterinary practice, it is a challenge to focus in on and address the range of COVID-related legal issues. The conundrum is that legal issues and guidance around COVID are changing as rapidly as the challenges the pandemic presents.
The Families First Coronavirus Relief Act (“FFCRA”) came into effect on April 1, 2020. Businesses scrambled to adopt the FFCRA without ever having received clear guidance. Once we developed an understanding on how to approach FFCRA leaves, the FFCRA was replaced in December 2020 by hastily enacted legislation. The new federal administration is contemplating additional changes that may be put into effect before any guidance is offered on the December 2020 legislation; and before this article is published. State laws will undoubtably follow and individual counties have not been bashful in issuing their own guidance or orders.
As lawyers, our goal is to provide clear guidance. Yet, what appears to be good advice one day may not be the best approach the next week. Things are changing that quickly. So where do we start?
The best approach is for the veterinary profession to (1) be nimble, (2) rely on available resources, and (3) take defensible positions.
Be Nimble in Identifying and Responding to COVID Impacts
The veterinary industry has adapted to COVID better than most. This is not happenstance. Credit must be given to CVMA’s leadership and the practices themselves in identifying the aspects of the practice impacted by COVID and initiating changes to address them. The simple change to curbside pick-ups afforded protection to owners and staff. Unfortunately, mandates for social distancing, and employee absences due to necessary quarantine or actual illness, have been problematic and, in some instances, have forced clinics to close. As the challenges posed by the pandemic continue to evolve and knowledge regarding COVID grows, the approach to responding to COVID-related impacts must also evolve. Veterinarians as individuals and as a profession must continue to identify changes and take action. It is the failure to evolve and adapt that can create legal issues and jeopardize safety.
COVID has simply turned some practices — particularly employment practices — upside down. The plurality and ever-changing nature of issues resembles “wac-a-mole” while the guidelines for addressing these issues are insufficient. Where do you turn to address issues in a legally cogent manner? The rights and obligations of employers and employees are unclear in these unchartered waters. Adding to the fervor are real health fears, political overlays and religious beliefs.
Whether you are an employer or an employee, you must be nimble. Anticipate that there will be changes and be flexible to adopt changes. The saying “we are all in this together” applies to the workplace.
Rely on Available Resources
Multiple governmental agencies have responded to the pandemic by enacting laws, regulations and guidance that in some instances not only overlap, but may be contradictory. Both the federal government and the state of California have enacted laws focused on COVID related issues generally and specifically addressing the workplace, such as the FFCRA. These laws are products of expedited legislative processes and were intended to address immediate issues, which, as we have learned, may quickly change. Further, California has quickly enacted state laws to augment federal laws.
To implement these laws, the federal and state administrative agencies, notably the federal Departments of Labor and CalOSHA have issued emergency regulations. As emergency regulations, they were not fully vetted through the normal administrative process. Generally, regulations are to be afforded the power of law, but are subject to challenge if they are inconsistent with the laws in place as originally intended.
Wading further into the mire, some governmental bodies have issued guidance, such as the Center for Disease Control’s (the “CDC”) guidance regarding the response to COVID exposure and illness in the workplace. There have also been a number of executive orders issued, notably by the California governor. In some cases, however, it is unclear whether these orders are enforceable, were intended to be enforced or were issued as mere guidance. Confused? There’s more! California counties have also been active in enacting their own ordinances, which may be enforced by those counties as well as orders and guidance, the enforceability of which are unclear.
When confronted with a COVID related issue, such as employees testing positive or being forced to quarantine, where do we turn for help? There is no clear path; and there may be no clear answer. There are some sources, however, to consider, including:
- CVMA’s Website (www.cvma.net) – CVMA has been proactive in posting and updating COVID related information for members on its website. This is information is often specific to the veterinary industry and is a good “first stop.”
- CDC Website (www.cdc.gov) – The Centers for Disease Control and Prevention’s website contains a great deal of information regarding the handling of COVID in the workplace, social distancing, quarantining, and responding to outbreaks. The CDC issues “guidance.” The guidance is not legally enforceable, but establishes standards and arguably, “best practices.”
- U.S. Department of Labor Website (www.dol.gov) – The U. S. Department of Labor issued emergency regulations regarding the FFCRA expanded sick leave and family leave. The regulations and several FAQs are populated on its website. Although the initial FFCRA sick leave and expanded family programs expired on December 31, 2020, an optional sick leave program continues through March 31, 2021. By the time this article is published, there may be new programs administered by the Department of Labor.
- California Department of Public Health (CDPH) (www.cdph.ca.gov) – The “COVID-19 Employer Playbook” was published on September 25, 2020 by the California Department of Public Health (CDPH). The Playbook was designed for businesses reopening after a shut down. It contains information that may be helpful to ongoing businesses as well. (https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf.)
- Department of Industrial Regulations (CalOSHA) (www.dir.ca.gov)– Emergency Regulations – CalOSHA’S primary focus is safety in the workplace. CalOSHA has expanded its role to include not only social distancing and similar COVID-related safety standards, but injuries in the workplace, which includes illness in the workplace. CalOSHA has adopted regulations to address reporting COVID, workplace responses to exposures, and closures. These “standards,” which are mandatory were adopted on December 1, 2020, and updated on January 26, 2021. There is criticism that these regulations may be more expansive than CalOSHA’s legal authority, but they are regulations (at least for now).
- California Coronavirus Website (www.covid19.ca.gov) – An ever-changing montage of information for employers and employees.
- California Educational Development Department (EDD) (www.edd.ca.gov) – Its website highlights unemployment benefits available to impacted employees.
- County Health Department – Most, if not all, counties have websites containing local ordinances and guidance ranging from rent protections to information regarding sick leave. Many county health departments provide telephonic guidance, particularly with regard to responses to health issues related to COVID. Surprisingly, you may be able to actually speak with someone if you reach out.
There is a plethora of information online containing analysis and guidance. Except for the CVMA website, however, the above sources are published by governmental entities and carry their respective authority.
Maintain a Defensible Position
Unfortunately, all too often, some of these sources of guidance are of little assistance. The issues are ever changing. The issue may be novel or the guidance contradictory. In these scenarios, the best approach is take a defensible position that supports safety. A defensible position is one that is based upon — even if it does not exactly follow — generally accepted guidelines, which specifically includes laws, regulations, ordinances, orders, guidance and other governmental resources. Depending on the situation a practice may be facing, there may be different options presented. At that point, reasonable judgment emphasizing safety should be followed. In the end, the rationale for actions should be documented along with copies or references to the resources supporting the decision.
The challenges of this pandemic are unprecedented and it should be anticipated that things will continue to evolve. The businesses that avoid legal issues, and the employees that avail themselves of the protections afforded to them, will be those that take affirmative steps in responding nimbly to those challenges, consider the resources available, and if a path is not clear, be flexible in taking a position that is defensible based upon relevant laws, regulations and guidance and an emphasis on public safety.