Constantly Changing, All-Encompassing: How COVID-19 May Be Altering Aviation Companies and Departments

First and Foremost:  Keep Employees Safe 

Employment laws have not been put on hold during this crisis. OSHA requires employers to provide their employees and customers with a safe environment and COVID exposure creates a serious risk factor that must be taken into consideration. The Centers for Disease Control and Prevention (CDC) encourages employers to “actively encourage sick employees to stay home.” Encourage your employees to comply with CDC guidance:  https://www.cdc.gov/coronavirus/2019-nCoV/index.html.  

As an employer, ensure that your company is following all pertinent CDC, OSHA and EEOC guidance:

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

https://www.osha.gov/Publications/OSHA3990.pdf

https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitation_act_coronoavirus.cfm

What is your plan if someone in your company (or someone in their immediate family or household) tests positive? What is your plan if someone simply thinks that another employee at the company has contracted COVID and is afraid to come to work? How do you encourage or incentivize sick employees to stay home? How do you advise employees if a coworker has tested positive for COVID-19?

You have to identify possible work-related exposure and health risks, set up triggers and procedures for activating your response plan, identify essential business functions and roles that are required to maintain business operations and plan for interruptions. 

Remember, the pandemic does not allow employers to circumvent existing employment laws. Requiring employees to submit to COVID screening is no different than ordering employees to submit to medical exams. Even asking personal questions about an individual’s potential preexisting conditions that make him or her more susceptible could qualify as an exam.  

Make sure HR and Legal have talked about how to move forward with ADA, EEOC and OSHA compliance. The simplest rule is to ask only what you need to know, for example, “Have you tested positive for COVID-19?” and “Are you in a condition where you can safely return to work?”

Is part of your labor force represented by a collective bargaining unit? If so, get them involved as soon as possible so they can be part of the solution. 

 

Keep Employees Active 

If you are not in tech (and are able to keep your eyes off the news and stock market swings) then working from home, when possible, is a tough shift. You will need to establish flexible working arrangements to account for social distancing and coordinate with IT for employee support and maintain data security. 

If you cannot support a large scale remote work environment, can you stagger work schedules? Do you have additional offices where you can spread out the workforce? 

Do your employees have children? Are employees taking care of other family members? Do they have a support system in place? 

It may feel like it’s not appropriate for a business to look into people’s personal lives but it is your responsibility to ensure that your employees receive the support they need to deal with their own lives so that they can find the time, energy and focus to keep their minds on work. Don’t forget that many of your employees have taken on a second job providing childcare and education while continuing to, at least try, work full-time from home. 

Maybe offer to comp one take-out meal per family each week. Set up zoom.us meetings for teams to get together to discuss projects (and vent frustrations). At the very least, ask your employees how they are coping and you may find that there are simple ways to help them get back on track. 

Listen to Your Employee’s Concerns

Let’s face it, we’re more than concerned.  We’re all a little scared. Listen to your employees.  Keep in mind that you do not have a monopoly of all pertinent information, which seems to be changing hourly.  Do not retaliate against any employee raising a concern.

 

Families First Coronavirus Response Act:  Employer Paid Leave Requirements

The FFACR Act provides, among other things, that all covered employers must provide employees with to to 80 hours of paid sick leave because an employee is quarantined, up to 80 hours of paid sick leave at ⅔ of the employee’s regular rate because the employee is unable to work due to a bona fide need to care for an individual subject to quarantine, or care for a child whose school or child care provider is closed or unavailable and up to an additional 10 weeks of paid expanded family and medical leave at ⅔ of the employee’s regular rate for child care purposes.  There are limited exemptions for small business conceerns with fewer than 50 employees. There are also tax credits for employers for wages paid under FFCRA. 

Lastly, FFCRA authorizes the imposition of penalties upon employers who fail to comply (subject to the first 30 days after the Act takes effect, provided the employer has acted reasonably and in good faith.  See https://www.dol.gov/agencies/whd/pandemic/ffrca-employer-paid-leave.

Business travel 

Generally speaking, providing transportation is an essential service. But, are you flying Part 91, 121 or 135? 

If you’re not an operator in the business of providing air transportation, you’ll have to ask whether this trip is essential. Is the purpose of your travel (and the company you work for) considered essential? Could the face-to-face meeting be handled via video conference? Are there other ways to get the job done (i.e., the purpose of your travel) without traveling? Does a contemplated trip violate a state’s travel, shelter in place or quarantine restrictions? 

If you are a 135 operator, have you set up new cleaning procedures? Are you ready to utilize the relief provisions of the new Coronavirus Aid, Relief, and Economic Security Act (CARES Act) which gives relief from the 7.5% air transportation federal excise tax for general aviation commercial operations, including FAR Part 135 flights, and suspension of the commercial fuel tax until January 1, 2021?

Are you in cargo transportation and have questions about carrying dangerous goods like alcohol-based sanitizers? (See IATA guidance on Novel Coronavirus shipping Novel Coronavirus (Covid-19) Dangerous goods (including alcohol based sanitizers) guidance for Operators – 07 March 2020 )

If your business is engaged in air transportation, have you considered requesting Federal loans or grants to help with continued operations and employee guarantees? 

On March 12, 2020, DOT and FAA issued a Safety Alert for Operators (SAFO) titled COVID-19: Interim Health Guidance for Air Carriers and Crews which states “All U.S.-based air carrier and crewmembers and non-U.S.-based crewmembers on flights with a U.S. nexus should use the CDC and FAA health guidance regarding practices for limiting the spread of COVID-19”. SAFO available online here: SAFO 20003: COVID-19: Interim Health Guidance for Air Carriers and Crews 

At the end of this article is a non-exclusive list of additional available guidance for the aviation industry. 

Protecting your Business--We’re Here to Help

The Avialex Law Group, LLP is here to help offer guidance regarding the legal ramifications of COVID-19 and its impact on your business. Business continuity planning is important for identifying your critical workflows and predetermining ways to recover from disruptions. 

Please send an email to info@avialex.com to set up a consultation.

RESOURCES:

 Quarantine and Isolation: Coronavirus Disease Guidance from the CDC available here: Updated Interim Guidance for Airlines and Airline Crew: Coronavirus Disease 2019 (COVID-19) | CDC

Guidance for Cabin Crew available here: Preventing Spread of Disease on Commercial Aircraft: Guidance for Cabin Crew | Quarantine

ICAO Safety: Managing Communicable Disease in Aviation available here: Managing Communicable Disease in Aviation

IATA Health and Safety: Air Transport & COVID-19 Coronavirus available here: Air Transport & COVID-19 Coronavirus

WHO Operational considerations for managing COVID-19 cases or outbreak in aviation available here: Operational considerations for managing COVID-19 cases or outbreak in aviation

NBAA Aircraft Cleaning Procedures: NBAA Safety Resource: Aircraft Disinfection & Cleaning Procedures

[Last updated 3.26.20]