The progression of the coronavirus (COVID-19) now threatens to disrupt work environments in the United States. Employers should take immediate steps to begin assessing their risks and implementing new processes to mitigate coronavirus-related issues.
The continuing spread of novel coronavirus (COVID-19) has begun impacting the U.S. workplace. As clusters develop around the country and employees return from abroad, employers are beginning to confront complicated issues of workplace exposure and other legal risks. Given these developments, employers should take action now to be ready to address these issues as they continue to develop.
Employer response planning for COVID-19 will require a careful balancing of competing interests. Employers have differing and potentially competing obligations to potentially infected employees and the remainder of their workforces. At the same time, employers are striving to maintain business operations and avoid any unnecessary interruption.
Before turning to the legal landscape confronting employers, it is important to note that the guiding principles behind all employer responses in this area should be: (1) understanding; and (2) flexibility. While state and federal laws provide many minimum standards, 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.
In preparing to address COVID-19 in the workplace, employers should begin considering several “top-line” obligations and exposures.
1. OSHA Obligations
Employers have a continuing obligation under the Occupational Health and Safety Act (OSHA) to provide a workplace “free from recognized hazards that are causing or likely cause the death or serious physical harm to...employees.” As a result, employers should begin planning for, among other things, addressing the following potential OSHA issues:
Exclusion of potentially or actually infected employees or contractors Notification of other employees or contractors who have had contact with potentially or actually infected individuals Required adjustments to personal protective equipment (PPE) policies reflective of changes in risk level for certain workplaces Increased cleaning and sanitization of the workplace and remediation of exposed work environments Recording and reporting of work-related contraction of COVID-19 as an OSHA-recordable illness
The best approaches on each of the items above likely will vary substantially by industry due to the need to individually assess workplace risk factors.
2. ADA and Confidentiality Concerns
Employers may need to reconcile any OSHA obligations with potentially conflicting obligations under the Americans with Disabilities Act (ADA), although an uncomplicated COVID-19 diagnosis may not constitute a disability under the ADA. Employers should be mindful of the following when so doing:
Employers should limit inquiries regarding the specifics of any illness to the greatest extent possible. An employer typically will be adequately equipped to make workplace protection decisions by learning of an employee’s symptoms that are consistent with COVID-19. Employers do not need to wait for a positive diagnosis. If an employee exhibits symptoms consistent with COVID-19 (shortness of breath, fever, or cough), an employer generally can take appropriate action to remove the employee from the workplace. Employers should generally limit attempts to take medical monitoring into their own hands. Even requiring temperature checks may constitute an unlawful medical examination under the ADA. Employers should seek legal guidance before implementing any type of medical examination in response to COVID-19. Employers should exercise great care in advising other employees that they may have been exposed to an affected person. While employers should notify potentially impacted employees, information about the affected person should be kept confidential and they should not be named.
Put simply, employers can best avoid ADA concerns by erring on the side of excluding individuals who present with any COVID-19 symptoms or who may have been exposed to an affected person. Such an approach does create marginal “perceived disability” exposure, so employers should remain cautious and thoughtful in all messaging. To make such an approach effective and successful, employers should also carefully examine ways that they can ease any resulting financial or professional burdens on excluded employees.
3. FLSA Concerns
Fair Labor Standards Act (FLSA) compliance issues also present risks to employers as the coronavirus situation unfolds. The FLSA does not contain any exception or defense that will exempt an employer’s failure to completely and correctly pay employees, regardless of the challenges an employer faces in confronting COVID-19. As employers begin developing their coronavirus response programs, they should remain mindful of the following key risks:
Non-exempt employees who do not work are not generally entitled to pay. However, excluding non-exempt employees without making financial accommodations, while generally lawful, may encourage sick employees to attempt to work. This could result in greater harm to employers, their employees, and their businesses. Non-exempt employees must be paid for all time worked. If non-exempt employees are permitted to work remotely (particularly if they have not previously done so), employers should provide clear written guidance regarding what qualifies as work, how to record time worked offsite, and the necessity of reporting all time worked. Deductions from exempt employee pay due to absences or quarantine should be carefully evaluated to make sure they will not invalidate an employee’s exemption. Exempt employees should only be assigned to handle non-exempt work for absent or furloughed non-exempt employees on a limited basis. Excessive, long-term reassignment of non-exempt work may jeopardize exempt status.
By considering the steps above, employers will not only mitigate their FLSA risks, they will also help ensure employee compliance with workplace requirements and restrictions.
The issues above reflect just the first wave and, in many respects, some of the most pressing issues for employers confronting COVID-19 within the United States. Employers likely will encounter a myriad of other issues, including state and local law compliance, protected leave under the Family Medical and Leave Act (FMLA), workers’ compensation questions, collective bargaining impacts, and Uniformed Services Employment and Reemployment Rights Act (USERRA)-compliant reintegration of service members who may be called to assist in the COVID-19 response.