Employer’s Guide to Navigating COVID-19
March 19, 2020
As an increasing number of businesses must make tough decisions regarding if and how their employees should work, we seek to be a helpful resource for employers. We’ve compiled information from a legal perspective concerning how to move forward in the coming days.
Requirements for Employers:
Companies must provide a safe workplace in accordance with OSHA requirements.
- Are you curious about protecting workers who are at risk of exposure, how a COVID-19 outbreak could affect workplaces, or the steps all employers can take to reduce workers’ risk of exposure? OSHA has provided a thorough set of guidelines that answer the preceding questions and more.
- Additional Coronavirus Resources are immediately available from the US Department of Labor.
Employers must comply with the ADA and the NC Persons with Disability Protection Act:
- Do not engage in employment-based discrimination. You may not use an uninformed perception of a “disability” to discriminate against employees.
- Employers may not ask employees about health conditions in order to determine likely office absences, as this is prohibited under the ADA. However, during a pandemic, the EEOC has determined that Employer may ask about influenza symptoms. (See also: “Monitoring Employee Health” below, under Recommendations for Employers.)
Employers must also comply with Fair Labor Standards Act (FLSA) and the NC Wage and Hour Act:
- Generally, employees who are exempt from FLSA’s overtime requirements are often paid on a “salary” basis and that (with some exceptions) exempt employees must receive his/her full salary for any week in which the employee works, regardless of the number of hours worked.
- Exempt employees, however, do not need to be paid for any workweek in which NO work is performed.
If your company employs up to 500 employees as of April 2, 2020, you may also need to comply with the Emergency Family and Medical Leave Act (FMLA).
- The “Families First Coronavirus Response Act” was enacted on March 18, 2020.
- Find out what you need to know about the tax credits included in the FFCRA here.
Items for Employers to Consider
Does your company have a paid vacation / PTO policy currently in place?
- Check policy requirements; consider waiving certain prerequisites for eligibility.
- If yes, you can require your employees to take accrued vacation time for specific day(s). FLSA does not prohibit this.
- A private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary.
- In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt.
If employees will be laid off or have hours reduced, there may be help available. Employees experiencing this situation may apply for unemployment benefits from the State of North Carolina. NC Governor Roy Cooper issued an Executive Order on March 17, 2020
- It removes the one-week waiting period to apply for unemployment payment for those workers who lose their jobs;
- It removes the requirement that a person must be actively looking for another job during this time when many potential employers are closed and social distancing guidelines are in effect.
- It allows employees who lose their jobs or, in certain cases, have their hours reduced due to COVID-19 to apply for unemployment benefits.
- It directs that employers will not be held responsible for benefits paid as a direct result of these COVID-19 claims.
- It waives the requirement that people must apply for benefits in person; workers can apply for benefits online or by phone.
Some employers may want to receive help from “volunteers” while their businesses have a shortage of workers. The FLSA has stringent requirements about the use of volunteers. In general, covered, nonexempt workers who are working for private-sector, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services. True volunteers (providing services in an emergency relief capacity for private not-for-profit organizations for civic, religious, or humanitarian objectives, without contemplation or receipt of compensation) are not considered employees and are not due any compensation under the FLSA. Actual employees of the organization may not volunteer to perform the same services which they are employed to perform on an uncompensated basis.
Recommendations for Employers
Listen carefully to employee concerns.
- Employees are protected from retaliation from an employer if they refuse to take on what they consider an unsafe work assignment. You should not discipline an employee for complaining about safety.
- Consult your attorney. This can depend on whether a “reasonable” employee would otherwise deem the assignment as safe. For example, if a janitor has received necessary training on how to protect against COVID-19 (along with proper gloves, cleaning supplies, and equipment), it may not be considered reasonable to refuse to clean an office building.
Encourage Healthy Behaviors and Practices.
- Social Distancing, best practices for hand-washing and disease-prevention (coughing into one’s elbow, avoiding touching one’s face, etc.)
- Review what to expect in working conditions.
Monitor Employee Health.
- You may ask an employee if he/she has a fever, chills, cough, or sore throat (symptoms of COVID-19). Be mindful, as these are also symptoms of seasonal flu and sometimes the common cold. Whether you or your employee think the symptoms are a common cold or something more serious, the employee may be sent home and instructed to stay home until they are well. This request is not a violation of the Americans with Disabilities Act (ADA) because these symptoms are not usually symptoms of a disability, and the EEOC has specifically addressed this in earlier guidance about pandemic preparedness.
If an employee admits to or displays any such symptoms, he or she may be sent home and told to stay home until they are well. There is no right to work when sick. The CDC recommends that employees who have symptoms of a respiratory illness stay home and not come to work until they are free of fever (below 100.4 degrees F using an oral thermometer), and free some signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines, such as cough suppressants.
- Employers may not disclose any information about a specific employee’s health to anyone else in the workplace. The ADA governs confidential health information of an employee.
- So long as an employer does not disclose who is sick, it may inform co-workers that they have been exposed to a suspected or confirmed case of COVID-19 and refer them to health care providers for follow-up. In cases of close contact between an infected employee and co-workers – that is, the infected employee and a co-worker have been within six feet of each other for ten minutes or more – the employer may require co-workers to work from home for the next two weeks as a protective measure.
Encourage or require employees to telework as an infection-control or prevention strategy; telework may also be a reasonable accommodation.
- Again, be mindful not to discriminate among the workforce. For example:
- It’s not acceptable to ask workers over the age of 70 to work from home, because age is a protected class under federal law.
- It is acceptable to ask workers who have recently traveled to China, Italy, or another country especially hard hit by the outbreak to work from home for a given period.
- Working from home may be a reasonable accommodation for employees under the ADA.
Consider reviewing and/or revising your existing policies regarding vacation time, PTO and sick leave.
New Emergency Family Medical Leave Act Explained
If you have specific questions, we’re happy to assist you (while also taking the appropriate precautionary measures). Contact us today!