Covid-19: Employment Law FAQs and Guidance

By Amy L. DeLuca, Esq. and Matthew N. Danese, Esq.

Employers, as well as their employees, are closely monitoring the COVID-19 situation.  With schools closing and officials urging social distancing, several questions arise relating to working arrangements, paid time off and other employment considerations.  Based on guidance from the United States Centers for Disease Control and Prevention (“CDC”) and the Department of Labor (“DOL”), the discussions below provide an overview of several of these concerns. Employers should also refer to the CDC guidelines for additional information.

General Considerations/Action Steps

There are some general steps/recommendations employers should take/implement to protect their employees and hopefully lessen the spread of COVID-19.  Below are a few such suggestions:

• Review cleaning procedures and implement additional cleaning efforts as needed.
• Avoid handshaking.
• Wash hands with soap and water for at least 20 seconds or clean hands with alcohol-based hand sanitizer containing 60% alcohol.
• Cough or sneeze into a flexed elbow or cover coughs and sneezes with a tissue and immediately dispose of the tissue after such use.
• To the extent meetings can be held by phone or videoconferencing, do so.
• Consider allowing employees to work from home if that is an option.

May an employer require that an employee stay home?

Yes, employers are permitted to tell employees who are sick to stay home.  If an employee has recently traveled to a high risk area, has been exposed to an individual diagnosed or suspected of having COVID-19 or has symptoms associated with COVID-19 (fever, cough, difficulty breathing), the employer may inform the employee that he/she must remain out of the workplace for the CDC recommended 14-day self-quarantine period.  If an employee does not believe they have COVID-19 and can provide a doctor’s note confirming this, the employer may allow the employee to return to work.  While the employee is home, he/she may be able to work remotely.

What should an employer do if an employee comes to work sick?

If an employee arrives to work symptom-free, but develops symptoms after arriving, the employee should immediately go home and inform a member of the management team.  If an employee feels too ill to drive, he/she should go to an open conference room/office/closed location, close the door, and call a member of the management team for assistance.  In such cases, it would be best to call local emergency medical personnel to transport the employee to the hospital for care.

What are employers’ pay obligations if employees are not working because of quarantine and/or the company directs them to stay home?  What are pay obligations if an employee works from home?

Employees are permitted to use any paid time off they may have pursuant to company policies for absences related to COVID-19.

Under the Fair Labor Standards Act (“FLSA”), employers are required to pay non-exempt employees (typically hourly employees) for all hours actually worked.  Therefore, if a non-exempt employee performs work from home, he/she should accurately document the time worked and must be paid for those hours.  Subject to specific exemptions, exempt employees (typically salary employees) must be paid their full salary in any week in which they perform any work.  Again, while there are some exceptions to this general rule, unless one applies, an exempt employee must be paid his/her full salary for any week in which any work is performed.

There is presently legislation before Congress aimed at addressing paid time off for employees impacted by COVID-19 and social distancing actions such as school closings.  We will continue to monitor the legislation and provide an update as action is taken.

Other considerations Occupational Safety and Health Administration

COVID-19 also implicates the Occupational Safety and Health Administration (“OSHA”) and OSH Act.  OSHA has yet to promulgate any specific standards related to prevention of COVID-19 as a hazard; however, it issued a notice as well as a Guideline for Preparing Workplaces.  As part of its correspondence, OSHA is reminding employers of existing standards which may potentially be invoked through an employee contracting COVID-19.  Specifically, OSHA focuses on the following areas:

• General Duty Clause, Section 5(a)(1): The OSHA General Duty Clause requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to . . . employees.”  Although OSHA has no directives as to what actions or omissions may invoke the General Duty Clause, the guideline does mention easily addressable issues such as promoting frequent and thorough hand washing, including by providing workers, customers, and worksite visitors with a place to wash their hands, as well as encouraging employees who are sick to stay home.
• Form 300 Log Recordkeeping and Reporting Requirements, 29 CFR Part 1904:  OSHA requires that certain employers (generally those with 10 or more employees) keep a record of certain work-related illnesses and injuries (often referred to as an OSHA Form 300 log).  Although OSHA has exempted general illnesses which commonly arise such as the cold or flu, OSHA has specifically earmarked COVID-19 as a recordable illness if and when a worker is infected on the job.  Reporting requirements may also be implicated based upon the hospitalization of any worker infected on the job.
• Personal Protective Equipment: PPE may also be appropriate to prevent certain exposures.  Generally, OSHA requires that protective equipment, clothing, and barriers be provided whenever it is necessary to prevent employees from being exposed to environmental hazards.  Examples of PPE which may be required for your workplace may include: gloves, face shields, respiratory protection, face masks, and goggles.  Employers should conduct a workplace hazard assessment to determine the appropriate use of PPE.

Other measures OSHA recommends include, but are not limited to, developing an Infectious Disease Preparedness and Response Plan, developing Policies and Procedures for Prompt Identification and Isolation of Sick People, and ensuring these plans, policies, and procedures are effectively communicated to your workers.   It is important to note that although the Guideline issued by OSHA is “advisory in nature and informational in content” and as such employers cannot be cited for failure to follow the Guideline, the Guideline does infer from standards and/or regulations already existing which may create legal obligations for employers to appropriately respond to the threat of COVID-19.

Family and Medical Leave Act

Employees who contract COVID-19 and/or who have family members who contract COVID-19 may be eligible for job protected leave under the Family and Medical Leave Act (“FMLA”).  The general eligibility requirements under the FMLA are the employee must have been employed with the company for 12 months. The employee must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave and the employer is one who employs 50 or more employees within a 75-mile radius of the worksite.  In addition to these general eligibility thresholds, as it relates to COVID-19, the medical issue involved must also be a serious health condition.  It is strongly suggested that employers subject to the FMLA refresh their recollections of eligibility requirements and the necessary documents associated with leave under the FMLA.  Information and forms may be found on the Department of Labor website.

Americans with Disabilities Act

Directly asking employees whether they have been infected with COVID-19 presents issues under the Americans with Disabilities Act (“ADA”). The ADA generally prohibits employers from asking employees about their personal health and medical conditions. However, the U.S. Equal Employment Opportunity Commission (“EEOC”) has advised that during a pandemic, exceptions to the ADA's restrictions on employer health inquiries allow employers to inquire about an employee's potential infection with the disease and related travel.  In essence, the EEOC states if the individual does not have the disease, the employer will not be asking about a current medical condition and the ADA will not be implicated.  If the employee is infected, the ADA's “direct threat” rule allows inquiries because an employee will pose a direct threat to co-workers and others in the workplace.  Additionally, the ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless: (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.  Concerned employers should follow the above guidelines if an employee is suspected to be infected, and follow all guidance from the CDC and DOL.

This article provides an overview and summary of the matters described therein.  It is not intended to be and should not be construed as legal advice on the particular subject.