COVID-19 and the Workplace: How We Can Help

COVID-19 and the Workplace: How We Can Help

The COVID-19 global pandemic has placed a significant strain on employers and employees.
Fortunately, we at GSRNH are able to assist you in navigating legal waters. Various
government agencies have issued laws, orders, publications, and other communications
affecting employers and employees alike in various areas of employment and labor law
when dealing with the present outbreak. Below are some of the major topics and issues:

Families First Coronavirus Response Act (FFCRA)

The FFCRA was signed into law on March 18, 2020. Certain provisions will have an
immediate impact on medical leave for employers with fewer than 500 employees. The two
types of leave—emergency paid sick leave and emergency family leave—will take effect no
later than 15 days after the FFCRA’s enactment (April 2, 2020) and expire on December 31,
2020.

The FFCRA creates emergency paid sick leave for employees who cannot work or telework
for certain reasons related to COVID-19, such as illnesses to the employee, family members
or child care because of COVID-19-caused school closings. Full-time employees are entitled
to 80 hours of sick leave and part-time employees are entitled to 40 hours of sick leave. The
paid leave is also subject to certain caps based on the reason for the leave. Employers
cannot require workers to use any other type of leave prior to using emergency leave time.
It is also unlawful to discharge or discriminate against a worker for requesting emergency
leave time.

The FFCRA also amends the Family and Medical Leave Act by creating emergency family
leave providing 12 weeks of FMLA leave for eligible employees (employed with the employer
for 30 calendar days) who are unable to work or telework because they have to care for a
minor child if the school has been closed or if child care is unavailable as the result of a
public health emergency, namely, COVID-19.

The first 10 days of the leave can be unpaid (as the employee can use any existing leave time
provided by the employer). After that, the employee will receive two-thirds of their existing
pay rate capped at $200 per day and $10,000 total. Employers also have differing
obligations on restoring the employee to the same or substantially same position after
returning from leave: employers with 25 or more employees must do so; and employers with
less than 25 employees are not required to unless certain statutory conditions are satisfied.
It will also be unlawful to terminate or discriminate against an employee for taking this
leave.

The FFCRA addresses some other issues, such tax credits, increased funding to States for
unemployment insurance, and free COVID-19 testing under group health plans.

United States Department of Health and Human Services (HHS)

The Office of Civil Rights for the HHS has published a bulletin explaining when HIPAA
covered entities and their business associates may share protected health care information
under the HIPAA Privacy Rules during an outbreak of infectious disease. This bulletin can
be found at https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novelcoronavirus.pdf.

Occupational Safety and Health Administration (OSHA)

OSHA has published “Guidance of Preparing Workplace for COVID-19” (OSHA 3990-03
2020) that outlines how employers should plan, prepare, and implement workplace controls
and measures to help alleviate the risk of spreading an infectious disease in the workplace.
This is a good starting point for all types of businesses since the General Duties Clause of the
Occupational Safety and Health Act requires employers a workplace free of hazards or likely
to cause death or serious harm. The Guidance can be found at
https://www.osha.gov/Publications/OSHA3990.pdf.

United States Department of Labor (DOL)

The DOL is responsible for overseeing the Fair Labor Standards Act of 1938 (FLSA)
which regulates the payment of minimum wages and overtime compensation. Whether
an employee is entitled to overtime compensation depends of whether the employee
performs otherwise exempt executive, administrative, or professional duties. The DOL
also oversees the Family and Medical Leave Act (FMLA). The DOL has published
“COVID-19 or Other Public Heath Emergencies and the Fair Labor Standards Act
Questions and Answers” which can be found at
https://www.dol.gov/agencies/whd/flsa/pandemic. This Guidance addresses questions
about FLMA leave in the context of exposure to COVID-19 and caring for family
members under the same situation.
Employers should also be mindful that COVID-19 may be a disabling condition that
qualifies for protection under the Americans with Disabilities Act (ADA). For instance,
teleworking may be a reasonable accommodation for an infected employee based on the
facts and circumstances of the employee’s duties and the nature of the employer’s
business.

Equal Employment Opportunity Commission (EEOC)

The EECO has a Guidance entitled “Pandemic Preparedness in the Workplace and the
Americans with Disabilities Act” which can be found at
https://www.eeoc.gov/facts/pandemic_flu.html. The Guidance provides a general
overview of the ADA, especially medical inquiries of employers, whether an employee
poses a direct threat to the workforce because of an infectious disease, and also provides
some questions and answers to common questions that may arise in the case of a
pandemic.

On March 18, 2020, the EEOC also issued a statement entitled “What You Should Know
About the ADA, the Rehabilitation Act, and COVID-19”
https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronaviru
s.cfm. The EEOC statement addressed the following common questions that may arise:

• How much information may an employer request from an
  employee who calls in sick, in order to protect the rest of its
  workforce during the COVID-19 pandemic?
  During a pandemic, ADA-covered employers may ask such
  employees if they are experiencing symptoms of the pandemic virus.
  For COVID-19, these include symptoms such as fever, chills, cough,
  shortness of breath, or sore throat. Employers must maintain all
  information about employee illness as a confidential medical record
  in compliance with the ADA.
  
  
• When may an ADA-covered employer take the body temperature of
  employees during the COVID-19 pandemic?
  Generally, measuring an employee's body temperature is a medical
  examination. 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. However, employers should be aware that some people
  with COVID-19 do not have a fever.
  
  
• Does the ADA allow employers to require employees to stay home if
  they have symptoms of the COVID-19?
  Yes. The CDC states that employees who become ill with symptoms
  of COVID-19 should leave the workplace. The ADA does not interfere
  with employers following this advice.
  
  
• When employees return to work, does the ADA allow employers to
  require doctors' notes certifying their fitness for duty?
  Yes. Such inquiries are permitted under the ADA either because they
  would not be disability-related or, if the pandemic influenza were
  truly severe, they would be justified under the ADA standards for
  disability-related inquiries of employees. As a practical matter,
  however, doctors and other health care professionals may be too
  busy during and immediately after a pandemic outbreak to provide
  fitness-for-duty documentation. Therefore, 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.

Internal Revenue Service (IRS)

The IRS has established a special section on its webpage
(https://www.irs.gov/coronavirus) to help taxpayers, businesses, and others affected by
COVID-19. The April 15, 2020 tax return filing date has been extended to July 15, 2020.

Working Remotely

Below are some general tips to help employers with employees that may be working
remotely:

• Begin by working with your IT department to strategize a way employees can
  safely work from home, while keeping data secure;
• Offer multiple technology outlets to lessen the learning curve;
• Implement a work from home procedural outline – times and obligations of
  check ins; videoconferencing; emphasize one-on-one check ins; encourage one
  another to check in with teammates, even with non-work related discussions;
• Hold learning sessions and work with employees on how they can implement this
  at home;
• Work with employees to maintain regular hours/flexibility;
• Encourage breaks and lunches;
• Tell your team how and when they can reach out in an emergency; and
• Host a weekly meeting to check-in on one another as a team or send daily/weekly
  updates.

Based on the foregoing, employers should:

1. Ensure that their workplace is safe and determine if any policies and procedures
need to be implemented as recommended by OSHA. Employers should ask employees
about working conditions which concern them and obtain their input on making the
workplace safer;

2. Establish procedures for situations where an employee has returned from
travelling through a high-risk area. The CDC has recommendations
(https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html) on what steps
should be taken by the employee to self-monitor their health after returning from any
domestic or international trips.

3. Review existing leave and pay policies to ensure that they comply with the FLSA,
FLMA, and existing state laws. For exempt employees, this means determining if
working from home is feasible. For non-exempt employees, employers should
determine if working remotely is also feasible, while taking into consideration
compliance with wage and hour record-keeping procedures, break times, and requiring
check-ins with the employer so as to avoid unauthorized overtime hours;

4. Consider whether for sick employees, employers want to offer these employees
more sick time or paid time off if the employees do not have sufficient leave time to use;

5. Evaluate whether working from home may be suitable for employees who are
suffering from disabling conditions. Afflicted employees may pose a direct threat to
other employees if the afflicted employee comes to work.

6. Evaluate their existing IT security policies and procedures in cases where
employees are working remotely or using their personal electronic devices to further the
employer’s business. Employers need to ensure that company data is sufficiently
protected. New policies may need to be implemented to cover personal, at-home
electronic device usage.

7. Be mindful that inquiring about an employee’s medical condition may violate the
ADA unless the employer has evidence that the employee poses a direct threat due to the
employee’s medical condition.

If you need legal assistance on a specific matter or would like a review of your forms,
policies, or company practices concerning any of the new laws or requirements, please
contact Donald S. Rothschild or Brian M. Dougherty.