As discussed in our client alert addressing the growing COVID-19 crisis, U.S. employers face a number of complicated legal issues as they prepare for the possibility that their workforces will be impacted by the current emergency. In support of that effort, employers should begin preparing to address the following issues.
Before turning to those issues, as mentioned in our previous client alert, employers should strive to make the guiding principles behind all employer responses in this area a combination of compassion for employee impacts and reasonable flexibility. State and federal laws provide many minimum standards, but the best thing an employer can do in the midst of this growing epidemic is to take care of its people. Doing so is not just the right thing to do, but it also encourages employees to be reasonable in return and it mitigates the risk of future conflict with employees or legal exposure.
Each industry, jurisdiction, and even, in some circumstances, workplace will face different challenges addressing the COVID-19 epidemic. Nonetheless, the following major areas should be addressed in all employer response planning:
- Occupational Health and Safety Act (OSHA) obligations: Employers have a continuing obligation under OSHA to provide a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm to . . . employees.” OSHA issues will be highly workplace specific and ensuring compliance will require regular adjustments to COVID-19 action plans to address changes in medical COVID-19 guidance.
- Family and Medical Leave Act (FMLA) obligations: Employees presenting with COVID-19 symptoms may or may not qualify for Family Medical Leave Act leave. However, the urgency of the situation will make adhering to normal FMLA processes difficult if not impossible. Employers should be prepared to implement temporary FMLA processes that address the specific concerns created by both the possible increased need for FMLA during the outbreak and the challenges associated with getting medical certifications.
Further, employers should remember that FMLA does not just cover sick employees – it also covers care for sick family members. Employers should incorporate this aspect of FMLA into the development of their response plans, including as it relates to requests that asymptomatic employees self-quarantine due to familial exposure.
- Fair Labor Standards Act (FLSA) obligations: Employers are increasingly seeking to balance their workplace safety obligations with keeping their operations going by encouraging work from home and other adjustments to the way in which employees work. As they do so, they should be mindful of their continuing obligation to accurately track time for non-exempt employees as well as the various issues that jeopardize exemption qualification for salaried employees.
- Americans with Disabilities Act (ADA) and confidentiality obligations: Employer obligations to provide a safe workplace do not abrogate employee disability and privacy protections. Employers must take steps in their planning to avoid major ADA concerns, such as impermissible disability-related inquiries and improper medical examination demands, while also taking steps to properly handle the increased volume of medical information they may begin to receive – by request or gratuitously – from employees. When determining whether and how to require employees to report an infection diagnosis or illness, employers can look to the EEOC’s guidance on “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” initially issued in 2009, regarding the H1N1 influenza. Among other guidance, the EEOC reminds employers that the ADA prohibits an employer from making a disability-related inquiry or requiring medical examinations except under limited circumstances such as that of a “direct threat” to employee health and safety, and advises employers to follow CDC guidelines and recommendations as to whether the disease has risen to the level of a “direct threat.” Employers may require employees to report any diagnosis of a contagious disease without requiring the employee to specifically identify the contagious disease, send employees home if they display COVID-19-like symptoms, and implement policies such as telecommuting arrangements or paid leaves of absence during the 14-day incubation period to determine whether an employee is infected.
- Other non-discrimination obligations: In addition to non-discrimination obligations under the ADA, employers should be mindful of their overarching non-discrimination obligations under other federal and state laws. For example, employer response plans and practices should focus on all employees, regardless of national origin, race, or other protected classifications, and should take action to prevent and respond to any harassment or discrimination among the workforce that may arise out of the COVID-19 situation.
- Labor obligations: Likewise, employer responses to COVID-19 are not exempt from the strictures of existing collective bargaining agreements or the overarching imperatives of the National Labor Relations Act and the Railway Labor Act. Employers with unionized workforces should ensure their response plans comport with existing collective bargaining agreements and, in most circumstances, attempt to work with union leadership in implementing response plans.
- Uniformed Services Employment and Reemployment Rights Act (USERRA) obligations: Employers should also prepare for employee absences occasioned by military service, including National Guard duties, should the situation worsen. USERRA-protected activity may present a particularly challenging problem for employers as service member-employees attempt to return to the workplace from COVID-19-related duties.
- State and local law: Employers will also have to tailor their response plans to reflect the requirements of more localized legal obligations. From paid leave laws to medical privacy laws, many jurisdictions impose requirements well in excess of the requirements of federal law. Employers may need to develop jurisdiction-specific responses to ensure both technical and substantive local compliance.
In the coming days, we will be publishing additional guidance on each of the issues above as well as taskforce planning guidance. Nonetheless, these issues present complex, challenging problems. The solutions likely will need to be carefully developed to address each employer’s specific workplace.