With the inherent dangers of coronavirus and how readily this virus has spread, employers must take special care to ensure the safety and health of their employees.
Margaret O'Brien, Esq., chair of Devine Millimet’s Labor & Employment practice group provides answers, guidance, and resources for the top 10 employment law questions and concerns employers are asking today in light of the COVID-19 health threat regarding Safety, Leaves of Absence and Wages.
1. What is the main workplace safety guidance for employers?
The Occupational Safety and Health Administration (OSHA) recently published Guidance on Preparing Workplaces for COVID-19, identifying steps employers can take to help protect their workforce. OSHA’s General Duty Clause requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious harm. This means that employers should take affirmative action pursuant to this General Duty clause to prevent the spread of the disease in the employer’s workplace.
One employee (or a team of employees) should be designated to review OSHA’s Guidance and ensure the Company is actively reviewing and implementing the recommended preventative measures, including identification of workplace areas where employees may be exposed to the virus, implementation of infection control measures, and early detection of employees who are ill and/or exposed to COVID-19. Your employees should be informed as to how, and to whom, to report any potential exposure to COVID-19.
In addition to guidance from OSHA, the Center for Disease Control (CDC) has also published Guidance for businesses and employers.
In light of the ongoing updates, a designated employee should also check OSHA’s website, and the CDC’s website, every day for any changes in guidance issued from either agency. By complying with any such official guidance, employers will demonstrate their commitment to protecting employees in the workplace.
2. What if an employee tests positive for COVID-19?
Any employee who tests positive should be instructed to remain at home, seek medical treatment consistent with the CDC Guidance, and not appear for work. Employers should then identify any employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread (defined by OSHA as an area up to 6’). CDC has suggested that this time period is how long the virus may have been incubating prior to any symptoms. Employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA) and any other applicable privacy law. All employees exposed to the virus should be asked to quarantine at home for a 14 day time period and should be instructed to stay away from the workplace.
Employers should next undertake steps to disinfect any affected workspaces in light of the potential presence of the virus in the workplace.
3. What if an employee exhibits COVID-19 symptoms?
Employers can request employees who are exhibiting COVID-19 symptoms to seek medical attention and leave the workplace. Employers should proactively instruct employees to stay home, and not appear for work, if they are exhibiting any symptoms. The CDC currently recommends that employees with symptoms of acute respiratory illness stay home and not come to work until they are free of fever or other symptoms for at least 24 hours without the use of symptom-altering medicines. Employers can rely on the CDC’s Guidance and instruct employees to comply with it.
4. What if an employee has a suspected, but unconfirmed case, of COVID-19?
Employers should treat the situation as if the employee had received a positive test result. The goal is to contain the spread of the virus, which means erring on the side of caution.
5. What if an employee is merely exposed to another individual with a positive test for COVID-19?
Employers should treat the situation as if the exposed employee had received a positive test result. The goal is to contain the spread of the virus, which means erring on the side of caution; however, with all of these decisions, confirm with the CDC’s Guidance for up-to-date recommendations for your particular state and risk level.
6. What other recommended safety steps should employers take to minimize the spread?
The OSHA guidance highlights the following steps for employers to implement immediately:
Handwashing: Promote frequent and thorough hand washing, including by providing workers, customers, and worksite visitors with a place to wash their hands.
Sanitizer: If soap and running water are not immediately available, provide alcohol-based hand rubs containing at least 60% alcohol at various spots around the workplace, and in high traffic areas in particular.
If Sick, Stay Home: Encourage workers to self-report and stay home if they are sick! Remember to be cognizant of employee confidentiality concerns.
Etiquette: Encourage respiratory etiquette, including covering coughs and sneezes. Have Kleenex available for employees.
Explore Remote-based Work Options: With the OSHA and CDC Guidances in mind, consider allowing employees to work from home, or altering work hours to increase the physical distance among employees and others.
Restrict Employee Travel for Work: Eliminate non-essential business travel consistent with recommendations from OSHA and the CDC, and in particular, travel to those places identified as “Alert - Level 2” in the CDC Guidance.
Conferences/Meetings: Consider canceling any in-person conferences or meetings, or alternatively, rescheduling the conference to a video or phone format.
Hygiene Housekeeping: Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment and other elements of the work environment.
Develop a Policy to Address Employee Travel for Personal Reasons: Employers should develop a policy in anticipation that employees may travel for personal reasons to high-risk areas. Employers can ask that employees exercise caution in their personal travel decisions and require employees to notify their employer if they travel to an area that is CDC Level 2 or 3 as identified in the Guidance. Employers can also warn employees that if they do choose to engage in such personal travel, they may be asked, prior to returning to the workplace, to work from home upon their return from vacation for fourteen days or placed on unpaid leave until they are able to demonstrate they are symptom-free. Employers may also extend employees an option to use accrued but unused paid time off to extend their leave for a period of quarantine. If an employer chooses to adopt such a policy, it should notify employees in writing.
LEAVES OF ABSENCE
7. What leaves of absence may apply to this situation?
All of the usual leaves of absence that you consider for any medical situation should be considered here.
Family and Medical Leave Act (FMLA): Employees requesting leave could conceivably be protected by the FMLA to the extent they otherwise meet FMLA-eligibility requirements. The US Department of Labor has issued guidance on the application of FMLA to this pandemic.
Americans with Disabilities Act: Typically, the ADA is not implicated for a seasonal or transitory condition. However, the application of the ADA always turns on fact-specific scenarios, and an employee may have an underlying medical condition that is triggered by COVID-19 and covered, by the ADA, requiring an employer to provide a reasonable accommodation such as a leave of absence or telework. See the EEOC Guidance on Pandemics and the ADA.
Applicable State Leave Laws: Consider your obligations under any applicable leave laws, such as Massachusetts Earned Sick Leave law.
Existing Company Policies: Your internal policies may extend protection for employees to take leave, such as sick leave or paid time off policy. In addition, there is nothing preventing an employer from adopting a special right for an employee to take leave in the face of this pandemic. However, employers should document any modifications to leave policies in writing, and have employees acknowledge receipt of same.
We are currently monitoring state and federal legislative proposals and will update you upon the passage of any laws that impact these current laws or employee leave rights.
8. Can an employee refuse to come to work in light of this virus?
This answer depends on the specific facts and circumstances. If the employee is sick, then the employer and employee will agree that the employee should remain at home, and the employer will assess applicable leave status. If the employee is afraid to appear at work, then OSHA provides protection for the employee if they believe they are in imminent danger (an example might be a request to travel to a high-risk area for work); however, in general, an employee may not unilaterally decide to remain at home absent approval from the employer. If the employee has a disability, then the ADA may provide protections requiring a right to leave or telework. Again, this is an area where a calm and consistent approach is essential for employers and supervisors to discuss these issues with employees and develop a safe and legally compliant plan.
WAGE AND HOUR ISSUES
9. Must an employer pay employees who are not working due to COVID-19?
That depends, although, most likely the answer is “no.” Non-exempt hourly employees are generally only entitled to pay for the actual hours worked in a workweek. Salaried employees, on the other hand (exempt or nonexempt), are generally entitled to be paid for the entire pay period they perform work, with limited exceptions. The US Department of Labor has issued guidance reminding employers, among other things, that all of the Fair Labor Standards Act requirements apply during a pandemic.
Most likely, employers will have a sick leave or paid time off policy that will be available for employees to draw down to provide income protection during a period of absence due to COVID-19.
For a workplace shutdown, unemployment benefits may be available. Additional options for unemployment benefits may also become available. See here for the US Department of Labor Press Release dated March 12, regarding Unemployment Insurance Flexibilities during COVID-19 Outbreak.
Employers may also have a legal obligation to pay employees during a leave of absence pursuant to, for instance, an employment contract, a collective bargaining agreement, or some existing company policy or practice.
10. May an employer voluntarily elect to provide income protection for employees not working due to COVID-19?
Yes. Many employers are currently adopting a variety of paid leave protective measures. According to the New York Times, Walmart just announced that in addition to its existing paid sick leave policy, it would provide up to two weeks of paid leave for employees who fall ill or are quarantined because of a confirmed exposure to the coronavirus. For a variety of reasons, a voluntary plan may be a long-term benefit for your workplace relationships and culture. As with all things pay-related, always keep in mind ongoing obligations pursuant to applicable state law and the FLSA, with regard to such issues as written notification of fringe benefits to employees, overtime calculations and time-keeping obligations for remote-workers.
Without a doubt, this is a difficult time for many businesses, especially start-ups, smaller enterprises, and nonprofits. Please keep an eye open for additional legal concerns that may be triggered by this outbreak to ensure the smoothest path out of this COVID-19 pandemic for your business, such as, third-party contractual obligations and debt-restructuring.
Margaret O'Brien is a shareholder and serves as chair of Devine Millimet’s Labor & Employment practice group. A past chair of the New Hampshire Bar Association Labor and Employment Section, she frequently presents at seminars on employment law issues and enjoys speaking with different HR and trade groups.