Labor and Employment Issues and the Coronavirus (COVID-19)

Categories : Coronavirus

Types : Alerts

The number of COVID-19 cases continues to rapidly increase and the situation is quickly evolving, disrupting business and raising an array of issues for employers. Recognizing this, the Centers for Disease Control and Prevention (“CDC”) recently issued “Interim Guidance for Businesses and Employers” in planning, preparing, and responding to COVID-19, and the U.S. Department of Labor (“DOL”) also offered direction through issuing OSHA recommendations, “Guidance on Preparing Workplaces for COVID-19.”

The spread of COVID-19 has created a range of problems for employers, from upkeep of office hygiene to addressing employee absenteeism to questions concerning office shutdowns or mandatory quarantines of employees. Moreover, if an employee is diagnosed with COVID-19 or is subject to quarantine, employers may face legal questions under a variety of laws, such as the Family and Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), the Fair Labor Standards Act (“FLSA”), the National Labor Relations Act (“NLRA”), and similar state and local laws.

We recommend that employers proactively take steps to develop a plan to handle any such issues as adeptly as possible. Employers should consider a variety of factors, including: (1) the nature of the company’s business and whether employees’ duties could be performed remotely; (2) what equipment employees would need to perform their jobs remotely, such as computers, printers, scanners, and phones.; (3) whether employees will have access to the company’s IT system during any period of quarantine or office closure; (4) whether the company’s IT system is equipped to handle a majority of employees working remotely; (5) cyber security risks faced if employees access company data through unsecured wireless networks; (6) which employees, if any, would be required to report to the office to maintain the company’s business; (7) whether employers can stagger shifts to decrease the risks of exposure to the entire office; (8) whether to restrict employees’ personal or business travel; and (9) whether employers may need to furlough or layoff workers because of office closures or a drop in business. Furthermore, employers may want to consider experimenting with remote work by allowing certain teams to work remotely on set dates in order to resolve any issues before an employee is diagnosed or exposed to COVID-19 and a shutdown is mandatory.

This week, several state and local governments, including Pennsylvania and New Jersey, implemented more stringent recommendations and guidelines affecting “nonessential” businesses’ ability to remain open. While not yet an order, Governor Wolf’s administration “strongly urged nonessential businesses across [Pennsylvania] to close” for at least 14 days beginning on Tuesday, March 17^th to help protect the health of employees, customers, and the public. According to the recommendation, nonessential businesses include entertainment, hospitality, and recreation facilities; community and recreation centers; gyms; hair salons and barber shops; nail salons and spas; casinos; concert venues; theaters; sporting event venues and golf courses; and retail facilities. Governor Wolf further ordered that all restaurants and bars cannot allow any dine-in service and may only offer carry-out, delivery and drive-through services. The Administration urged that all “essential services and sectors” employ social distancing practices while remaining open. Other businesses, such as legal and other professional services, are encouraged to have employees work remotely or telecommute.

In Philadelphia, city officials separately announced that only “essential commercial establishments should remain open” and that nonessential government operations would be halted, effective through at least March 27^th. The City explicitly designated supermarkets and grocery stores, big box stores, pharmacies, daycare centers, hardware stores, gas stations, banks, post offices, laundromats and dry cleaners, and veterinary clinics as “essential.” To alleviate the inevitable hardship this will have on Philadelphia businesses, the City also stated that it will launch a program to support local businesses, help maintain payroll obligations and preserve jobs through a mix of new grants and zero-interest loans for certain businesses, in addition to other potential relief measures.

Similarly, in New Jersey, Governor Phil Murphy “strongly suggested” stopping any nonessential travel between 8 p.m. and 5 a.m. each day, and ordered all nonessential retail, casinos, gyms, theaters and others to close “until further notice.” Governor Murphy also banned all public gatherings of over 50 people.

Below are some common questions and pointers for employers to consider during the COVID-19 outbreak:

1. What if employees do not have any available paid leave?

• Employers should encourage any employee with a confirmed case of COVID-19 to inquire further about short-term disability leave, long-term disability, family medical leave, and other discretionary leave. Additionally, employers should be mindful that an employee who is caring for a family member with COVID-19 may also qualify for FMLA leave and should be advised accordingly.
• If an employee is not sick but is subject to quarantine or the workplace is closed, consider whether each employee’s work can be performed remotely;
• If an employee will not be working, consider whether any employment policies or collective bargaining agreement would require that an employee be paid;
• Determine whether employees who are unable to work remotely will be eligible for unemployment compensation for time not worked. Some states, like Pennsylvania and New Jersey, require a one-week waiting period without compensation before employees can begin receiving unemployment benefits after applying.
• Weigh the cost and benefits of continuing to pay employees who are quarantined or sick, regardless of whether the employees are able to remotely work;
• Consider developing a policy for donating or sharing paid time off, including vacation and sick days, by employees for use by other employees who are subject to quarantine or are sick; and
• Consider establishing a communicable illness policy and response plan that covers the COVID-19 virus and handles disclosure to the employer, when it is permissible for an employee to remain home, and standards for quarantine, among other issues.

2. If my employee’s child’s school is closed due to COVID-19, what are my obligations as an employer?

• Many schools are beginning to close in response to the outbreak, some for extended or indefinite periods of time.
• For employers, this raises questions as to whether employees are entitled to leave when their children’s schools close, but the employees’ children are not sick. Some state laws may require that an employee be granted leave. For example, the New Jersey Paid Sick Leave Law requires employers to permit employees to use their earned sick leave to cover time during which the employee’s child’s school is closed due to an epidemic or other public health emergency. This provision also applies when a public health authority determines the employee or a family member requiring the employee’s care “would jeopardize the health of others,” which is certainly a possible scenario during the COVID-19 outbreak. (34:11D-3(4)).
• Determine whether the employee has any available paid leave;
• Consider whether the employee’s work can be performed from home and whether the employee will be able to work during the school closure.

3. If an employee’s family member has been diagnosed with COVID-19, is he/she entitled to leave?

• A positive COVID-19 diagnosis may qualify as a serious health condition for purposes of federal FMLA leave, depending on the circumstances and severity of symptoms.
• In addition, some state laws may require the employee be granted leave. The New Jersey Family Leave Act also entitles certain employees to take up to 12 weeks of family leave to care for a family member with a serious health condition.
• Philadelphia’s Promoting Healthy Families and Workplaces Ordinance allows employees to use sick leave when the employee’s child is sick, and New Jersey’s Paid Sick Leave Law also permits employees to use sick leave for time needed for the employee to aid or care for a family member that is ill or recovering.
• While not necessarily mandatory, it may be advisable to allow employees some amount of leave to stay home to care for sick family members or if the employee may have been exposed to COVID-19.

4. My workforce is unionized. Can I make change employees schedules or require them to take time off?

• Due to the COVID-19 outbreak, employers may consider altering employees’ schedules, placing employees on leave, and requiring potentially exposed workers to be quarantined. In order to make such changes, however, bargaining may be required. Employers should carefully review collective bargaining agreements before making any changes that impact employees’ rights under the agreements.
• In addition, even if an agreement permits an employer to take action without bargaining, there may still be a requirement in the agreement to pay employees during absences.
• Many collective bargaining agreements require employees to submit doctor’s notes clearing them to return to work following an illness. The CDC and OSHA, however, have recommended against requiring doctors’ notes for employees who are sick with acute respiratory illness because of the burden currently placed on the nation’s health care system. Any such action should only be taken with the union’s agreement, setting forth the specific, limited circumstances or period during which the rule will not apply.

5. What can I ask an employee who has been coughing/sneezing and appears sick?

• Employers should remain cautious without becoming overzealous regarding inquiries about an employee’s potential illness to avoid issues with ADA compliance.
• Although it is not entirely clear whether the COVID-19 infection qualifies as an ADA-qualifying disability, employers still may not make disability related inquiries or require medical examinations, unless job-related and consistent with business necessity, or if the employer reasonably believes the employee poses a direct threat to the health or safety of others.
• Whether an outbreak like COVID-19 rises to the level of a direct threat depends on the severity of the illness, which may also vary based on the circumstances and type of business, according to the Equal Employment Opportunity Commission (“EEOC”).
• Sending an employee home who displays symptoms of COVID-19 or another contagious illness would not violate the ADA, but employers should be careful not to identify employees who have confided in the employer that they have symptoms, that they have come into contact with someone who has been diagnosed, or that they have been diagnosed.
• Along the same lines, employers who do have employees reporting to work should remind employees to wash their hands regularly, disinfect workspaces, and stay home if they are sick or believe they may be getting sick.
• The EEOC has stated that employees with disabilities that are at higher risk for pandemic related complications may request remote work as a reasonable accommodation.

If you have any questions or concerns about COVID-19 and its implications for your business and employees, Montgomery McCracken’s Labor and Employment attorneys are available to assist. Montgomery McCracken’s COVID-19 Resource Center is available here.