UPDATED: Addressing COVID-19: Employment Law Update and General Guidance for Employers

This post has been updated as of March 19 with the latest information available. Updates are noted in bold red text throughout. 

Given the ongoing concerns about the COVID-19 coronavirus (“COVID-19”) epidemic, employers in all fields want some practical guidance on how to address this situation. Regardless of field, employers should understand that there is a patchwork of intersecting laws that impact decisions they are and will be making as matters develop, touching on disease prevention safety steps, workplace attendance, wage and hour issues, leave rights and obligations, healthcare privacy, discrimination, harassment, and potential short-term layoffs.

We offer this general FAQ for the time being, which is based on the best information available as of today, March 19, 2020. It applies only to U.S. employers, primarily in Florida. Each situation will be fact-specific. As such, this FAQ may not fully address all questions an employer may have. For particular questions, we are happy to assist employers as they navigate through these turbulent times.

VALUABLE WEBSITES FOR EMPLOYERS TO MONITOR

The information we provide in this FAQ is as up-to-date as can be when it is posted and we will continue to provide updates as new information becomes available. The answers provided below represent a general overview; and moreover, the understanding of the risks COVID-19 present individuals and businesses is being updated constantly. Below are links to various websites that we understand present the most up-to-date information along with additional details on more specific situations. Employers should consider monitoring these websites as appropriate for their situation.

  1. CDC COVID-19 Website
  2. CDC’s Most Recent Guidelines for 15 Days to Slow the Spread (Issued March 16, 2020)
  3. CDC’s Frequently Asked Questions
  4. CDC’s Interim Guidance for Businesses and Employers
  5. CDC’s Environmental Cleaning and Disinfection Recommendations
  6. CDC’s Travel and Country Risk Assessments
  7. CDC’s Information for Healthcare Professionals
  8. CDC’s Information for Healthcare Facilities (including Long-Term Care Facilities)
  9. Occupational Safety and Health Administration Website on COVID-19
  10. OSHA’s Guidance on Preparing Workplaces for COVID-19
  11. Equal Employment Opportunity Commission Website on COVID-19 [Website updated with new information on December 16, 2020.]
  12. EEOC’s Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act
  13. Department of Labor Website on COVID-19
  14. DOL’s Guidance on COVID-19 and the Fair Labor Standards Act
  15. DOL’s Guidance on COVID-19 and the Family and Medical Leave Act
  16. DOL’s Fact Sheet #17G: Salary Basis Requirement and Part 541 Exemptions Under the FLSA (Addressing circumstances in which an employer may make deductions from pay)
  17. Florida Department of Health General Website on COVID-19
  18. Florida Department of Health’s Interactive Website on COVID-19 Data and Surveillance
  19. Florida Department of Health’s Collection of Executive Orders addressing COVID-19
  20. Florida Department of Economic Opportunity Press Release on Emergency Bridge Loan Program for Small Businesses Impacted by COVID-19
  21. State of Florida Business Damage Assessment Website
  22. State of Florida Emergency Bridge Loan Program Website

Additionally, employers should carefully pay attention to any new legislation enacted by the federal, state, or local governments, which may affect employee’s rights in the face of COVID-19.

IMPORTANT LEGISLATION [NEW SECTION ON MARCH 19, 2020]
On March 18, 2020, Congress passed the President signed the Families First Coronavirus Response Act, or H.R. 6201. Our team is actively reviewing this new law and will offer guidance in a separate post.

CURRENTLY KNOWN INFORMATION ABOUT COVID-19

What symptoms does an individual with the COVID-19 coronavirus exhibit?

Generally, according to the Centers for Disease Control and Prevention, individuals with COVID-19 manifest symptoms as a mild to severe respiratory illness with fever, cough, and difficulty breathing, and these symptoms may appear in as few as two days or as long as 14 days after initial exposure.

SAFETY STEPS FOR EMPLOYERS

What’s the main workplace safety guidance employers should be following?

As noted above, OSHA recently published Guidance on Preparing Workplaces for COVID-19, which identifies various steps employers can take to help protect their workforce. OSHA divides workplaces and operations into four risk zones that determine the best work practices and precautions an employer should take:

  1. Very High Exposure Risk:
  • Healthcare employees performing aerosol-generating procedures on known or suspected pandemic patients
  • Healthcare or laboratory personnel collecting or handling specimens from known or suspected pandemic patients
  1. High Exposure Risk:
  • Medical transport of known or suspected pandemic patients in enclosed vehicles
  • Healthcare delivery and support staff exposed to known or suspected pandemic patients
  • Performing autopsies on known or suspected pandemic patients
  1. Medium Exposure Risk:
  • Employees with high-frequency contact with the general population (such as schools, high population density work environments, and some high-volume retail)
  1. Lower Exposure Risk (Caution):
  • Employees who have minimal occupational contact with the general public and other coworkers (such as office employees)

What steps can an employer take now to minimize risk of transmission?

Encourage employees to take the same steps they would be taking to avoid the common cold or seasonal flu: Avoid exposure. According to federal guidance, employers should tell employees:

  • Wash hands often with soap and water for at least 20 seconds, and if not available, use an alcohol-based hand sanitizer;
  • Avoid touching eyes, nose, and mouth with unwashed hands;
  • Avoid close contact with others, especially sick individuals;
  • Refrain from shaking hands;
  • Cover one’s mouth when coughing, preferably with one’s elbow;
  • Sneeze with a tissue, then throw the tissue in the trash;
  • Clean and disinfect frequently touched objects and surfaces—although it’s worth noting that some disinfectant wipes require that the wiped surfaces air dry before they are effectively disinfected; and,
  • Most importantly, stay home when sick.

Additionally, an employer should likely do the following:

  • Monitor local information about COVID-19 in the community;
  • Know the signs and symptoms of COVID-19 and what to do if staff become symptomatic at the worksite;
  • Review, update, or develop workplace plans to include liberal leave and telework policies;
  • Consider 7-day leave policies for people with COVID-19 symptoms;
  • Consider alternate team approaches for work schedules;
  • Encourage staff to telework (when feasible), particularly individuals at increased risk of severe disease;
  • Work with all local employers to ensure all workers have the financial support to stay home with any respiratory symptoms;
  • Encourage personal protective measures among staff (e.g., stay home when sick, handwashing, and respiratory etiquette as noted above);
  • Clean and disinfect frequently touched surfaces daily;
  • Ensure hand hygiene supplies are readily available in building, preferably at entrances to the workplace and work areas;
  • Limit large work-related gatherings (e.g., staff meetings, after-work functions);
  • Cancel non-essential work travel; and,
  • Cancel work-sponsored conferences, tradeshows, etc.

Please note that there is specific advice for healthcare settings and other groups. Such employers should review CDC guidance along with state and local public health officials’ guidance.

May an employer ask an employee to stay home or leave work if they exhibit COVID-19 symptoms? [Answer Updated on March 19, 2020]

Yes, according to the EEOC, employers are permitted to ask an employee to seek medical attention and get tested for COVID-19. Likewise, the EEOC confirms, based on the CDC and state and local public authorities’ declaration states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.

Still, it pays to avoid panic, and supervisors should understand that they should not overreact when an employee appears for work with potential COVID-19 symptoms—they are simply enacting safety precautions.

More specifically, an employer should focus on the following symptoms:

  • Fever;
  • Chills;
  • Cough (especially a dry cough);
  • Shortness of breath; and/or
  • Sore throat.

Based on the available guidance, the most common COVID-19 symptoms are fever and a dry cough—albeit not all individual’s experiences with COVID-19 are uniform.

Beyond the symptoms, employers should also consider certain risk factors that the CDC has identified based on travel or contact with an individual suffering from COVID-19. The risk assessment is available at this link.

What should we do if an employee tests positive for COVID-19?

CDC guidance suggests that employees should send home all employees who worked closely with that employee for fourteen days to limit the spread of infection. Before the employee departs, ask them to identify all individuals who worked in close proximity (about six feet) with them in the previous two weeks to get a full list of those who likely should be sent home. When sending the employees home, an employer should not identify the infected employee. Identifying the employee potentially violates privacy and confidentiality laws.

Next, the employer also should inform their building management so they can take whatever precautions they deem necessary. The employer should ask their cleaning staff to provide a deep cleaning of the affected work areas.

Do employers have to document any confirmed COVID-19 cases?

According to recent OSHA guidance, a covered employer should record any COVID-19 related illness in its OSHA 300 log if the following criteria are met:

  • An employee has a confirmed case of COVID-19;
  • The employee’s confirmed case of COVID-19 is considered work-related per 29 CFR 1904.5 (i.e. if, outside certain exceptions, an exposure in the work environment caused or contributed to the resulting illness or aggravated a pre-existing injury or illness); and,
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (such as death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness).

Should an employer take an employee’s temperature at work to determine whether he or she might be infected? [ANSWER UPDATED ON MARCH 19, 2020]

Yes, according to the EEOC, an employer may take an employee’s body temperature. The Americans with Disabilities Act restricts medical examinations that an employer can make. The EEOC considers taking an employee’s temperature to be a “medical examination.” But, according to new EEOC guidance, “because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.”

Please note that there remains separate guidance issued by the CDC for healthcare providers, healthcare facilities, and long-term care facilities, which can be found here and here, on how to handle body temperature checks.

Finally, it remains the case that an infected individual may not necessarily exhibit a fever. That may ultimately make temperature checks ineffective.

Can an employer force an employee to come to work even if they fear catching COVID-19?

Employees are only entitled to refuse to work if they believe they are in imminent danger, which means “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [law.]”

Importantly, the threat must be immediate or imminent. An employee must believe that death or serious physical harm could occur within a short time. With COVID-19, requiring travel to China or Italy or to work with patients in a medical setting without personal protective equipment may meet this definition. Otherwise, most work conditions likely would not meet the elements required for an employee to refuse to work.

Still, this guidance is general. Employers must determine whether the circumstances have shifted such that a workplace places employees in imminent danger before determining whether they may lawfully require employees to come to work. It may still be best to allow flexibility to maintain employee morale. An employer may consider allowing employees to use any available leave or allow remote work. Further still, employers may wish to allow employees to go into the negative in their sick leave bank as a special allowance to address this situation. Of course, not all employers can make special allowances due to their financial condition, and they should handle it as best as they are able.

May an employer require medical certification before an employee returns to work? [ANSWER UPDATED ON MARCH 19, 2020]
According to the EEOC, employers may ask for a doctor’s note certifying an employee’s fitness for duty when an employee returns to work related to COVID-19. But, the EEOC notes that healthcare professionals will likely be overwhelmed, which will significantly delay such a discharge. The CDC has encouraged employers not to require “a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work.” Instead of a certification, the EEOC suggests that “new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”

If an employer is hiring, may it screen applicants for symptoms of COVID-19? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to the EEOC, yes, an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer—as long as it does so for all entering employees in the same type of job.

May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to the EEOC, yes, any medical exams are permitted after an employer has made a conditional offer of employment. But, again, it is worth noting that there is some indication that not all infected individuals exhibit a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to current CDC and EEOC guidance, yes, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
Noting current CDC guidance, the EEOC advises employers that this individual cannot safely enter the workplace. And as such, an employer may withdraw a job offer from such an individual.

Can an employer force an employee to cease discussing whether the worksite is unsafe because of potential COVID-19 exposure?

Likely no. The National Labor Relations Act protects non-supervisory employees—union and non-union alike—to engage in “protected concerted activity for mutual aid or protection.” Such activities include circumstances in which two or more employees act together about working conditions, participating together to refuse to work in unsafe conditions, and/or joining with co-workers to talk to the media about problems in the workplace. Employees are generally protected against discipline or discharge for engaging in protected activities.

EMPLOYEE TRAVEL

May an employer impose consequences, including unpaid leave, for an employee who engages in activities contrary to CDC recommendations such as going on a cruise or traveling outside of the US?

It depends. Employers in the healthcare or long-term care industries should consult the requirements specific to their industries.

All other employers may take action to protect their workplaces and customers from employees who engage in conduct that is determined to increase the risk of spreading COVID-19, and particularly if the conduct is contrary to CDC recommendations. If an employee has traveled to a Level 3 country, the employee can be required to remain at home. However, this is a fact-specific and quickly changing area. If the conduct does not involve a clear CDC recommendation, and the employer intends to prohibit the travel or suspend the employee without pay, the employer should consult counsel as to the specifics. The reasonableness of the employee’s activities and the employer’s response will depend on the level of risk or recommendation by the CDC at the time of travel and desired return to work and the nature of the work. Regardless, the employer should take caution to not regard such an employee as having a disability or illness because of the conduct, should protect the employee’s confidentiality of health information, and should ensure that the employer’s reaction is not and does not appear to be related to an employee’s protected characteristics, such as national origin, age, or pregnancy.

WAGE AND HOUR ISSUES

Are employers required to pay employees who are not working?

The Fair Labor Standards Act (FLSA) address minimum-wage and overtime. Generally, the FLSA does not require an employer pay employees who are not working. But, an employer may have a legal obligation to keep paying employees because of an employment agreement, a collective bargaining agreement, or some other state law.

Employers should consider salary issues with exempt employees. If an exempt employee performs at least some work during the workweek, the FLSA regulations will require that the employer pay the employee his or her entire salary for that workweek. There can be exceptions—for instance, according to DOL guidance, an employer does not have to pay an exempt employee who decides to stay home and performs no work even when the office is open.

Of course, employers may wish to consider the public relations aspect of not paying employees in this situation. Given adverse media related to COVID-19, an employer’s reputation could be damaged.

May an employer apply vacation or PTO leave to COVID-19-related absences?

Presuming no agreement or state law prevents it (which Florida law does not), yes, an employer may allow an employee to apply leave for COVID-19 related absences. Note, however, that the salary requirements for exempt employees may affect the use of leave under various circumstances.

When allowing remote work, what guidance should employers provide non-exempt employees?

In situations where remote work becomes required, employers should make sure they remind non-exempt employees about the following key points:

  • The non-exempt employee’s time records should accurately reflect all time actually worked.
  • Overtime is prohibited unless the employee’s supervisor approved the overtime beforehand.
  • Working unauthorized overtime constitutes misconduct and subjects the employee to discipline.
  • The option for remote work is temporary under the circumstances; the employer may end any remote work situation at any time and for any reason.

EMPLOYEE LEAVE AND ADA ISSUES

Does the Family and Medical Leave Act apply to COVID-19?

The FMLA may protect employees requesting leave if they are eligible. No law, however, prevents an employer from voluntarily extending an employee’s leave without any legal obligation to do so.

Still, employees are not entitled to FMLA leave to stay home to avoid catching COVID-19. We suggest that an employer may wish to consider leave requests depending on these circumstances. If there are questions, speak with legal counsel to try to avoid potential litigation.

Are there any ADA-compliant questions employers can ask their employees to determine their respective ability to work during a pandemic?

Yes, according to the EEOC, an employer can ask that employees complete the following survey to determine potential non-medical reasons for absences during a pandemic (e.g. curtailed public transportation or school or childcare closures):

EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

  • If schools or day-care centers were closed, you would need to care for a child;
  • If other services were unavailable, you would need to care for other dependents;
  • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
  • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

There may, depending upon an employer’s situation, be additional ADA-compliant questions. Any other questions should be reviewed with counsel.

During a pandemic, may an ADA-covered employer ask employees who do not have symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications?

Generally, no. However, if the pandemic becomes severe or serious according to local, state, or federal health officials, ADA-covered employers may have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19. Only then may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to determine which employees are at a higher risk of complications.

HIPAA ISSUES

How does COVID-19 affect HIPAA privacy rules?

They are not affected. HIPAA rules remain in effect even with a pandemic.

How should employers treat medical information?

Generally, employers should treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with their group health plan.

Yet, an employer may share the protected information with providers or government officials as necessary to locate, identify, or notify family members, guardians, or anyone else responsible for an individual’s care, of the individual’s location, general condition, or death. Before doing so, attempt to get the individual’s written or verbal permission to disclose this information. When unable to do so, the protected information can be shared if doing so would be in the individual’s best interests. In addition, an employer can disclose this protected information to authorized personnel without permission if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.

What obligations do employers have under the HIPAA privacy rules if contacted by health officials about one of our employees?

An employer should only disclose information to authorized personnel, and only after they have properly been identified.

WORKERS’ COMPENSATION ISSUES

If an employee contracts COVID-19 at the workplace, does the employee have a workers’ compensation claim?

It depends. When the employee is a healthcare worker or a first responder, then an employee who contracts COVID-19 likely has a workers’ compensation claim—albeit subject to specific state law on the subject.

For other types of employees, the answer is not clear-cut and depends on the situation. Generally, an employee must show they suffered a work-related injury or “occupational disease,” and that the injury or disease was proximately caused by their employment to establish a workers’ compensation claim.

In this instance (again subject to state law), COVID-19 likely will not be considered an injury. Rather, it likely will be analyzed under the “occupational disease” framework. Under that framework, an employee usually has to show that (1) the disease arose out of and was in the course of employment; and (2) the disease arose out of or was caused by conditions peculiar to the work, creating a greater degree of risk for contracting the disease compared to the general public. This determination will likely be made on a case-by-case basis, and it is difficult to tell in advance whether non-healthcare workers or first responder employees will be able to establish such an “occupational disease.”

DISCRIMINATION OR HARASSMENT ISSUES

Does an employer have any discrimination or harassment issues related to COVID-19?

As in any other situation, an employer cannot apply disparate treatment to employees based on their nation of origin. Employers should watch to make sure no employees are being subjected to disparate treatment or harassed in the workplace because of their national origin. However, note that if an employee, regardless of their race or national origin, was recently in China, Iran, or Italy and shows COVID-19 symptoms, employers may have a legitimate reason to bar that employee from the workplace.

SUSPENSION OF OPERATIONS AND LAYOFF ISSUES

If an employer is forced to suspend operations because of COVID-19 and the aftermath, does the employer have any legal obligations due to the suspension?

Potentially, yes. If an employer is covered by the Worker Adjustment and Retraining Notification (WARN) Act, which applies to employers with 100 or more full-time employees, they may have to provide certain notices to affect employees if there has been a “plant closing” or “mass layoff,” regardless of reason. Please note that these quoted terms are special, nuanced words with specific meanings defined by federal regulations. They do not cover every single layoff or plant closure.

What are a “plant closing” and a “mass layoff”?

A “plant closing” is defined as the permanent or temporary shutdown of a site that results in an employment loss for 50 or more employees during any 30-day period. A site can include one or more facilities or operating units at single location. On the other hand, a “mass layoff” is a reduction-in-force other than a plant closing that results in an employment loss at a single site for 500 or more employees, or at least 50 or more employees and at least 33% of the employer’s active workforce.

Also, for purposes of WARN, a layoff must last at least six months. Of course, in situations like this, it is hard to know how long a layoff may occur.

What type of notice must employers provide under WARN?

Under WARN, employers must provide at least 60 calendar days of notice before a covered plant closure or mass layoff. Also, under WARN, employers must provide notice to unions and certain local government entities along with certain specified information.

Still, WARN has a specific exception when layoffs occur due to unforeseeable business circumstances. It is possible this provision could apply to COVID-19—albeit there is no certainty and this exception is repeatedly litigated.

Even then, an employer still must provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” Stated differently, after an employer evaluates the immediate impact of COVID-19 upon its business and workforce, it likely must then provide specific notice to affected employees. The notice must explain why the employer could not provide notice for the statutorily-required period. In this instance, the explanation would be because of how COVID-19 was not foreseeable.

Keep in mind that some states have “mini-WARN” laws that may apply, but Florida is not one of them.

Will the DOL enforce WARN given the seemingly-unprecedented outbreak?

Unknown at this time. But employees and lawyers representing them may still bring a suit even if the DOL does not.

Consequently, it is recommended that employers carefully evaluate their current situations to determine if there has been or will be a triggering event under WARN. If so, employers should consider providing as much notice to affected employees as possible given the circumstances.

We will continue to provide additional updates as new information becomes available.

John C. Getty
jgetty@williamsparker.com
(941) 329-6622