key: cord-0072011-lrskk24t
authors: Marty Martin, William; Lopez, Yvette; Flannery, Thomas P.; Dixon, Bill
title: Infectious Disease: Protecting Workers and Organizations-The Role of Compensation & Benefits
date: 2020-08-25
journal: Compens Benefits Rev
DOI: 10.1177/0886368720947332
sha: 0519257e25e781501ca64accddc20f0dc43b1506
doc_id: 72011
cord_uid: lrskk24t

Infectious diseases at work can be endemic such as seasonal influenza and emerging such as the novel coronavirus 2019. Infectious diseases have an impact on employees and other types of workers. Compensation and benefits professionals are often at the forefront of preventing workplace infections, addressing workplace infections, and ensuring the continuity of talent when workplace outbreaks and business shutdowns occur. This article provides an overview of pertinent laws, key compensation decisions, and ways to refocus existing benefit programs to meet the challenge of not only just safety, health, and wellness but also infection prevention and control.

The economic costs of infectious illness are significant at many levels from societal to the individual. The World Bank estimated that losses totaled at least $80 billion U.S. dollars due to six major outbreaks of highly fatal zoonoses between 1997 and 2009. 1 The impact on costs and productivity in organizations in which workers have infectious disease (ID) is substantial. 2 This could be exacerbated when agents of organizations do not understand or are "not aware of current evidence regarding workplace infection prevention and control". 2(p.12) It further underlines the importance of identifying and employing effective strategies.

Once an outbreak, epidemic or pandemic, has been announced, quarantine is one of the more effective approaches. 3 Gupta and colleagues concluded after studying the economic impact of severe acute respiratory syndrome (SARS), that "despite somewhat daunting initial costs, quarantine saves both lives and money" (p.393). Holm 4 further portrays the relationship between deploying public health interventions targeting workers of all types, including the self-employed. According to Holm's, 4 "isolation, quarantine, and voluntary social distancing may all cause a loss of earnings for individuals if employers are not willing to continue paying wages for the period when the person is not able to work because of public health interventions" (p. 3) . Beyond compensation, the employment status of these individuals is also at risk due to the absence of the employee from work. 4 During the SARS outbreak, it was estimated that approximately 3 million individuals in the tourism industry lost their jobs. 5 Even when an ID such as SARS or the current COVID-19, which is novel and has recently been declared a pandemic by the World Health Organization (WHO) 6 is not present, there exist other IDs which are more common such as influenza. Influenza is a viral infection and typically occurs between late fall to early spring. 7 In one study, it was estimated based upon the 2015 influenza that the average total economic burden was $11.2 billion. 8 This economic burden also accounted for lost income due to influenza-related mortality. 8 Of note to employers, the greatest costs were attributed to working-age adults from 18 to 64. 8 On March 6, 2020, the Governor of the State of Washington (Jay, 9 the state with the highest number of deaths attributed to COVID-19 at the time) issued a news release capturing the economic impact of COVID-19 as shown below:

"COVID-19 has multiple economic impacts including workers having to stay home, interruptions to supply chains, disruptions to small businesses and hourly workers, and exportdependent businesses struggle to deliver products to key international markets" (p.1). This is one illustration of how the economic impact of IDs trickles down from a national to a state level, then a country level, then a city level, then an organizational level, and then finally, a family and individual level. In the same news release, Governor Jay Inslee addressed the ethics of the situation and called for the engagement of the private sector as shown below:

"In addition, the business and labor communities have an important leadership role to play, and I have been encouraged by the response to my call to action. I am hearing many stories of employers doing the right thing and helping to keep wages intact for workers who are working from home or cannot work due to COVID-19" (p.1). Some companies are "doing the right thing" such as Microsoft who will pay hourly employees their regular wages even if their hours are reduced. 10 It is not only the role of human resources management (HRM)/compensation and benefits professionals but also the role of nongovernmental organizations such as the WHO and the International Labor Organization and governments across the globe.

In the United States, President Trump signed into law, the Coronavirus Aid, Relief, and Economic Security Act (CARES), which is the single largest emergency spending bill in US history, amounting to $2 trillion into law on March 27, 2020. 11 Some argue that the legislative intent of this law is "to bolster the safety net." 12 This safety net focuses upon continued employment and enhancing unemployment benefits by increasing the length of unemployment 13 weeks beyond state coverage and adding $600 per week in unemployment compensation. 13 The new law as it relates to unemployment insurance (UI) eligibility not only covers employees but also gig workers such as Uber drivers and independent contractors. 14 Prior to the passage of CARES, the Families First Coronavirus Response Act (FFRA) was signed into law on March 18, 2020, and took effect on April 1, 2020, and is scheduled to expire on December 31, 2020. This law covers all private employers with less than 500 employees. This law provides eligible employees a maximum of 10 days of paid sick leave (PSL) with some stipulations. Furthermore, this law provides eligible employees up to an additional 10 weeks of partially paid family and medical leave with some stipulations. It is essential for compensation & benefits professionals to stay abreast of the changing laws and related technical guidelines and procedures at both the federal and state levels as well as county/parish and municipal levels.

Reflecting upon the financial crisis of 2008/2009, Kemper and Martin (2010) write, "The recent global financial and economic crises are rewriting the relationships between business and society" (p.229). It is asserted here that there is still a role for the organization who engages in financial transactions with workers to achieve organizational goals. Our focus here is the role of HRM/compensation and benefits professionals as it relates to responding to crises catalyzed by emerging IDs.

Call to Action: Role of HRM/ Compensation and Benefits Professionals HRM/compensation and benefits professionals have a unique role to play in contributing to the prevention of IDs. Perrings, Levin, and Daszak 15 discuss the importance of decision-making, "For both emergence and spread, risk is a product of decisions made by people, and hence conditions that lie behind those decisions" (p.242).

Beyond "flattening the curve" to mitigate the spread of COVID-19, HRM/compensation and benefits professionals also have a unique role to play regarding the all-time historic rise in unemployment claims since the pandemic. The Bureau of Labor Statistics 16 in its March 26, 2020, news release announced an increase of 3,001,000 initial unemployment weekly insurance claims from the prior week totaling 3,283,000. The previous record for the largest number of claims was in 1982 at 695,000. 16 The news release states, "...the increase in initial claims are due to the impacts of the COVID-19 virus" (p.1).

For those compensation and benefit professionals who work in organizations with workers on the front line such as grocery store clerks, truck drivers, warehouse workers, fire/ police workers, and healthcare workers, there is a unique consideration best highlighted by this question -Do you want frontline workers worrying about their income and benefits while caring for you and your family and others? In one study exploring the psychological impact of frontline health workers in Human, China battling COVID-19, 17 nurses than doctors reported greater concern about compensation both during and after the outbreak.

There are two basic types of disease: noncommunicable disease (NCD) such as hepatitis C and communicable ID such as influenza and more recently COVID-19. The focus here is on communicable ID transmitted from person to person. There are costs associated with both types of disease in the workplace. As an illustration, in a large-scale study consisting of 339,456 subjects, those employees diagnosed with hepatitis C virus (HCV) were found to take more sick leaves, more shortterm disability, and long-term disability than employees not diagnosed. 18 Those employees with HCV also had 4.15 more days of absence. Finally, it was determined that those employees with HCV were more costly amounting to $8352 per year. 18 Vulnerable populations are at risk of both NCD and ID. 19 As it relates to COVID-19, preliminary evidence suggests those with comorbidities such as diabetes or other chronic conditions are more vulnerable than the rest of the population. 20 Again, the emphasis here is on communicable ID overall with a focus on COVID-19.

There are many federal statutes governing compensation and benefits. The more common laws include the following: the American with Disabilities Act (ADA), the Family Medical and Leave Act (FMLA), and the Health Insurance Portability and Accountability Act (HIPAA). At the state level, there are worker's compensation and UI laws. There are also other legal considerations which come into play when an employee is suspected of having a communicable ID or is confirmed to have such a disease such as the General Duty Clause of the Occupational Safety and Health Act (OSHA). Each one of these laws will be discussed below from the perspective of informing compensation and benefits professionals about specific legal duties recognizing that space does not permit an exhaustive analysis of each law.

Age Discrimination in Employment Act. Pundits and commentators have raised the issue of whether some nations have been slow to respond to COVID-19 due to age discrimination, given the fact that the individuals over the age of 60 years experience far greater health consequences. 21 Caution must be taken not to single out employees based upon age alone such as requiring that employees over a certain age be isolated from other employees.

ADA. The U.S. Equal Employment Opportunity Commission (EEOC) offers guidance on pandemic preparedness in the workplace regarding the ADA. The ADA is applicable during a pandemic for three reasons: (1) the ADA covers all disability-related inquiries and medical examinations for all employees not just those with disabilities, (2) the ADA prohibits covered employees from being denied access to the company unless they pose a "direct threat" due to a medical condition, and (3) the ADA requires reasonable accommodations for individuals with disabilities during a pandemic. 22 This EEOC guidance divides employer practices into three phases: before a pandemic, during a pandemic, and after a pandemic. 22 In the case of COVID-19, a test for COVID-19 would more than likely be deemed as a medical examination. All medical information must be treated as confidential as stipulated by the ADA. 22 Interestingly, telework is regarded as both an infection control strategy and a reasonable accommodation. 22 Fair Labor Standards Act. Under the Fair Labor Standards Act (FLSA), nonexempt employees are to be paid for hours actually worked not hours they would have worked if the organization has closed or hours have been curtailed. 23 For those employees who telecommute, the minimum wage rule and overtime rule still apply. 23 For exempt employees, payment is tied to work. 23 Hence, it is important that employers maintain documented records of telecommuting.

There may also be the cases where some workers are absent from work due to COVID-19, thereby requiring other workers to work overtime and even carry out duties beyond the scope of their job. As such, overtime may apply. 23 It is beyond the space limitation here to fully address all of the FLSA scenarios.

FMLA. One of the requirements to be eligible for the FMLA beyond the 1250-hour requirement in one year is to have a qualifying medical condition. The exact language from the statute is a "serious health condition." IDs including communicable diseases such as the cold and flu are generally regarded as not covered by the FMLA. 24 A related issue revolving around the FMLA is workers who assert that they are experiencing stress resulting from coronavirus. It is not settled as to whether stress is regarded as a "serious health condition" by courts. 25 In a recent study of COVID-19, more than half (53.8%) of study participants reported the psychological impact to be moderate or severe with nearly one in three (28.8%) reporting moderate to severe symptoms of depression and nearly one in three (28.8%) also reporting moderate to severe symptoms of anxiety. 26 Additionally, three out of four (75.1%) reported worrying about a family member contracting COVID-19. 26 The authors of this study concluded, "Our findings can be used to formulate psychological interventions to improve mental health and psychological resilience during the COVID-19 epidemic". 26(p.23) A focus on worksite wellness and employee assistance programs (EAPs) will be discussed below.

General Duty Clause of OSHA. The Occupational Safety and Health Act covers most private sector employers in addition to some public sector employers. There is no specific OSHA standard covering COVID-19. Hence, the OSHA will rely upon OSHA's General Duty Clause. The General Duty Clause requires employers to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 27 Given the statements from public health authorities, COVID-19 now likely qualifies as a "recognized hazard."

Twenty-eight states have their own OSHAapproved plans to operate occupational safety and health programs. Each of these plans has standards and enforcement programs that are at least as stringent as OSHA's, but some may have different or more stringent requirements. Employers should determine if there are any unique requirements in states in which they operate.

HIPAA. The HIPAA privacy rule is applicable to covered entities. The Office for Civil Rights of the U.S. Department of Health and Human Services issued a bulletin on HIPAA privacy and novel coronavirus. Individual authorization of otherwise protected health information is not required for specific disclosures such as to a public health authority at the federal, state, or local health department. 28 The other aspect of the HIPAA regarding worksite wellness programs is to be sure that any financial incentives or disincentives for participation comply with the HIPAA. For instance, be careful about financially incentivizing workers to participate in any worksite wellness program from screening to intervening.

Workers' Compensation. Workers' compensation laws are a patchwork of varying state laws. 29 This lack of uniformity across the country has advantages and disadvantages. From the point of view of communicable ID, geographic boundaries statutorily defined are meaningless. Furthermore, many organizations operate across state lines with workers based in different states, thereby creating an administrative and perceptions of fairness question by workers working in different states but for the same organization. Another disadvantage of this patchwork of workers' compensation statutes and state-based agencies is the "lack of comprehensive occupational exposure databases for research and surveillance activities." 30 Workers' compensation claims data have the potential to be used for occupational exposure monitoring as well as to inform and target workplace prevention efforts. 31 Different workers' compensation carriers will have varying policies for deciding upon whether an ID claim will be covered. For example, 32 in their FAQ responds to this question-If COVID-19 becomes a pandemic and an employee claims that he or she contracted it at work, how will those claims be handled? The response is shown below: "As explained above, we will evaluate each COVID-19 claim on a case-by-case basis and consider all factors to determine whether the exposure occurred in the course and scope of employment. However, the more widespread COVID-19 becomes, the more difficult it may be for the employee to show that it is work related rather than an ordinary disease of life to which the general public is exposed" (p.1).

This response demonstrates how in this one example that these claims will be individually underwritten, and that the determination decision will change based upon the incidence (new case) and prevalence (all existing cases) of the ID.

If workers' compensation is granted, then in most cases, workers' compensation will cover medical expenses, perhaps some wages and generally no compensation for pain and suffering. 29 If a worker is determined not to be eligible for workers' compensation, the worker may file for disability benefits.

UI. Like workers' compensation, UI is a patchwork of state laws. Eligibility typically includes that the individual filing for UI must demonstrate that they lost work, they are not sick, they are able to work, and they are available for work. 33 Based upon past disasters, some states have decided not to adjust "experience rating" up for those organizations that laid off employees. 33 Organizations have an alternative to lay off such as work-sharing. 33 The U.S. Department of Labor announced new guidance on UI due to the COVID-19 outbreak. This guidance stipulates the following: "...federal law allows states to pay benefits where: (1) An employer temporarily ceases operations due to COVID-19, preventing employees from coming to work; (2) An individual is quarantined with the expectation of returning to work after the quarantine is over; and (3) An individual leaves employment due to a risk of exposure or infection to care for a family member. In addition, the federal law does not require an employee to quit in order to receive benefits due to the impact of COVID-19". 34(p.1) This guidance also distinguishes those instances where an employee is receiving PSL or paid family leave (PFL) because this typically makes them not eligible to receive UI since they are still employed. On March 27, 2020, the estimated $2 trillion CARES bill was signed into law by President Trump. This bill expands UI from 3 to 4 months and provides temporary unemployment compensation of $600 per week on top of existing federal and state UI benefits. 35 

There exist numerous compensation challenges when organizational decision makers are confronted with responding to IDs. Prior to formulating an organizational response, it is wise to determine what type of worker arrangements exist within your organization. There is no agreed-upon taxonomy of worker types (Tran & Sokas, 2017). Table 1 lists some of the more common worker arrangements.

The Bureau of Labor Statistics (2018) classifies workers into types under the category of alternative work arrangements: independent contractors, on-call workers, temporary help agency workers, and workers provided by contract firms. It is estimated that alternative work arrangement workers represent 10.1% of the total U.S. workforce in May of 2017. The Bureau (2018) also has a category of contingent workers defined as "...those who do not have an implicit or explicit contract for ongoing employment" (p.2). It is estimated that contingent workers represent 1.3 to 3.8% of the total U.S. workforce in May of 2017 (BLS, 2018).

Another type of work is the gig worker or freelancer. It is estimated that 57 million individuals in the United States freelance (Freelancers Union, 2017). This represents 36% of the U.S. workforce. These workers engage in this type of work on a full-or parttime basis and to supplement wages from other jobs (Freelancers Union, 2017). Gig workers unlike traditional workers are not covered by employment laws protecting wages, health, and sick leave. 36 The work performed by gig workers may be performed online such as Upwork or offline such as Uber. The intriguing aspect of gig workers is that neither the platform organization nor the client regards these workers as employees. 36 Prior research demonstrates that contingent workers as compared to those with a more standard working arrangement earn less, receive fewer benefits, and are more likely to be Latinx and younger. 37, 38 Organizational Responsibility Continuum

The challenge for HRM leaders and compensation and benefits professionals is to determine to whom a responsibility or duty is owed with regard to not only employee relations but also in this case compensation and benefits overall. Particularly during times in which all workers in an organization and external stakeholders are entrusting organizational decision makers to protect all of us from the transmission and spread of communicable ID, while at the same time offering all workers the benefits to recover from these diseases if they require medical attention, hospital care, and even intensive care. Figure 1 shows a continuum of closed to open worker relationships. This continuum may serve as a decision-making tool for HRM leaders and compensation and benefits professionals to respond to the challenge of doing that which is best for the organization and society recognizing that the two are not mutually exclusive.

A beginning point is to formulate, update, or revise the compensation philosophy. The compensation philosophy is typically based upon organizational strategy, the lifecycle of the organization, relevant laws and regulations, the industry, the composition/ demographics of the workforce, and macroeconomic forces. Specifically, the compensation philosophy ideally targets total compensation for each worker segment. A common way to formulate, update, or revise a compensation philosophy is to ground the process around three tenets: attract, retain, and motivate or ARM. 39 During times of ID, natural disasters, and human disasters, another tenet should be added-"P" for protection.

PSL. PSL is used by workers "...to care for their own health needs or the health needs of family members". 40(p.520) At the federal level, there is no legal requirement to offer PSL, although FFRA expands PSL on a temporary basis for eligible employers. However, some states and municipalities do require PSL. PSL has increased from 67% in 2010 to 76% in 2019 41 for workers. This amounts to about 33.6 million workers or 24% of the U.S. workforce who work without PSL. 41 PSL varies by occupation, employer size, and geography. 41 Of note is the fact that less than half (43%) of part-time workers enjoy PSL. 41 Workers represented by a union (91%) are more likely to have PSL than those not represented by a union (73%). 41 PSL plans also vary with respect to the number of sick days covered ranging from no limits on how many sick days taken (3% workers covered) to a fixed number of days (68% of workers covered). 41 There are also varying carry-over provisions. 41 The effectiveness of quarantine is partially dependent upon whether PSL is available. In one study, households with PSL were more likely to have all household members fully comply with the quarantine guidelines than those households without PSL. 42 The authors of this study concluded that employers ought to provide flexible working arrangements. 42 Furthermore, Kavanagh et al. 42 pinpoint the inextricably intertwined relationship between the private and public sector:

"In households where parents are forced to take leave from work due to public health emergencies, foregoing wages is a very high price to pay for honouring a public duty" (p.7).

It has been empirically demonstrated that working adults with PSL are more likely to utilize preventive care including influenza vaccinations. 40 They are also more likely to stay home while sick. 43 Both behaviors are protective not only just for the individual employee but also for those who encounter them which may include their family, their friends, their neighbors, their fellow commuters, their co-workers, and their customers/ clients.

Beyond sick leave, some organizations also offer PFL which is a discretionary benefit in most jurisdictions.

PFL. According to the Congressional Research Service, 44 there is no federal law requiring that employers offer PFL. The FMLA requires leave but the leave is not paid. However, there are states which do require PFL such as Rhode Island. Less than one in five (16%) organizations offer PFL. 44 For those organizations which offer PFL, the discretionary benefit varies by occupation, employment status, industry, number of employees, and compensation. 44 For instance, nearly one in three (28%) of management/professional occupations enjoy PFL and larger employers are more likely to offer PFL. 44 At the federal level, FFRA requires partially PFL under certain conditions among eligible employers on a temporary basis.

Disability Benefits. It is beyond the scope here to provide an exhaustive review of disability. In brief, workers may file for short-term disability, long-term disability, and even some disability rider benefits such as Short-Term Disability (STD) Quarantine Benefit Rider. As an example, 45 describes this benefit below: "Employees quarantined due to the Coronavirus may be eligible for benefits under Guardian's Short-Term Disability (STD) Quarantine Benefit Rider. After the quarantine period, if the employee is determined to be disabled due to the Coronavirus, benefits could be paid for the disability until the maximum period under the plan (excluding any weeks paid for the quarantine period)."

As is typically the case, eligibility is based upon a medical examination.

Expanding EAPs: A Focus on ID As previously mentioned, there is an association between COVID-19 and mental health challenges. Xiang et al. 46 portray the mental health consequences associated with COVID-19.

"Patients with confirmed or suspected 2019-nCoV may experience fear of consequences of infection with a potentially fatal new virus, and those in quarantine might experience boredom, loneliness, and anger. Furthermore, symptoms of the infection, such as fever, hypoxia, and cough, as well as adverse effects of treatment such as insomnia caused by corticosteroids could lead to worsening anxiety and mental distress" (p.228).

It is essential that your EAP provide specialized services not only just for those workers who are confirmed or suspected of COVID-19 but also for those who are selfquarantined and perhaps ordered by a public health authority to quarantine and isolate. It is well established that social distancing and quarantine result in stress and even anxiety and panic among some. 47, 48 Even before COVID-19, Gallup 49 recommended that employers communicate with their EAP providers to ensure that they are addressing mental health issues revolving around loneliness. This is now more necessary than ever with remote work as the norm. Even before COVID-19, EAPs were debating the relative strengths and weakness of providing eCounseling, given increasingly mobile workforces, remote workers, and lack of access to qualified EAP providers in rural communities. 50

Many workplace wellness programs focus on noncommunicable and chronic diseases such as cardiovascular disease and cancer by focusing on health risk behaviors ranging from smoking cessation to physical activity. There is an epidemiological need to also focus on IDs particularly communicable ID to protect workers, customers, and other stakeholders.

The evidence is clear based upon a systematic review that hand hygiene training decreases the incidence of IDs at work while at the same time increases employee morale and workplace attitudes. 51 Vaccines are proven to be effective in preventing the acquisition and transmission of both noncommunicable and communicable ID. Influenza vaccination is the single most effective strategy to prevent influenza. 52 During 2010-2011, nearly one in five (17%) adults were vaccinated at the workplace. 53 In one study, it was found that higher income was associated with a greater likelihood of getting an influenza vaccine along with two other predictors: perceived susceptibility and perceived benefits. 54 The economic consequences of funding vaccination programs pays off with serologic attack rates greater than 20% in a pandemic scenario. 54 Yet, the authors opine, "Employers may be loath to fund a vaccination program without understanding the economic consequences" (p.5592). Another consideration is whether it is safe to offer onsite vaccinations during an outbreak since social distancing is a public health strategy to decrease new cases for IDs transmitted from person to person.

According to the Guide to Community Preventive Services, 55 onsite workplace influenza vaccination is recommended at a reduced cost along with active promotion alone or in combination with other strategies such as hand hygiene education. Beyond workplace vaccination programs and hand hygiene education, employers ought to educate the workforce about ID (Zurich, 2007) and how to keep themselves, their co-workers, their customers, their families, and their communities safe.

HRM leaders and compensation and benefits practitioners represent a resilient profession. They have had to deal with significant challenges in the past ranging from retooling the workforce during World War II to weathering the economic storms caused by the 2008/2009 financial crisis. At a more local level, compensation and benefits practitioners have continued serving their workforce knowing that any disruption in services upon which workers depend for their health, well-being, and economic survival, can be detrimental such as during Hurricanes Katrina and Sandy. The challenges they face at times are substantial, and the current global pandemic caused by COVID-19 will be no exception. This current global pandemic will present old and new demands and conundrums in which compensation and benefits professionals must meet not just within their organization but

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The authors declared no potential conflicts of interest with respect to the research, authorship, and/ or publication of this article.

The authors received no financial support for the research, authorship, and/or publication of this article.