By Joseph S. Brown, Esq.
With hundreds of cases of novel coronavirus (COVID-19) currently being reported throughout New York State and the United States, employers should be prepared to take preventative actions to protect against a potential outbreak in the workplace. In recent weeks, various government agencies have provided guidance to employers on how to respond to the coronavirus.
An employer’s response to COVID-19 will vary by industry, location, and the extent to which employees are involved in business travel. The following is a summary of some of the best practices for non-health care employers as well as a brief discussion of employment laws implicated in responding to the latest coronavirus developments.
Educate your employees about COVID-19, its symptoms, and the potential health concerns associated with any business and personal travel at this time, including:
- Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
- Avoid touching your eyes, nose, and mouth with unwashed hands.
- Avoid close contact with people who are sick.
- Stay home when you are sick.
- Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
- Clean and disinfect frequently touched objects and surfaces.
- Ensure that employees have ample facilities to wash their hands, including tepid water and soap, and that third-party cleaning/custodial schedules are accelerated.
- Employers may wish to consider restricting or suspending business travel to infected or high-risk areas.
- Emphasize leaves of absence and remote work options when sick as allowed per company policy.
- Teleconference in lieu of meeting in person if available.
- Have a single point of contact for employees for all concerns that arise relating to health and safety.
Employers should re-review their illness, absence, and remote-working policies as well as labor agreements to ensure legal compliance. It is also a good time to review business continuity plans and vendor contracts that may be impacted.
Employment Law Issues
An employer’s response to the COVID-19 outbreak will undoubtedly implicate a variety of employment laws including the Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), Fair Labor Standards Act (FLSA), and all applicable local, state, and federal laws:
ADA: Employers should remember that the ADA places certain restrictions on the kinds of inquiries that can be made into an employee’s medical status. Employers may ask employees about the countries they have recently traveled to and if they may have had any exposure to COVID-19. Employers can also ask if employees have had close contact with others who have traveled to at-risk countries and/or otherwise have been exposed to the virus. But employers may only administer medical tests for employees where there is an established job-related necessity, as such tests otherwise may violate the ADA and rights to privacy. The U.S. Equal Employment Opportunity Commission has previously issued guidance in 2009, entitled “PANDEMIC PREPAREDNESS IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT” available at https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm, which addresses a number of frequently asked questions about compliance with the ADA in the face of a pandemic.
FMLA and Paid Leave Laws: Employees requesting leave could conceivably be protected by the FMLA to the extent they otherwise meet FMLA-eligibility requirements. On March 9, 2020, the U.S. Department of Labor (DOL), Wage & Hour Division issued guidance — in the form of questions and answers — on common issues that employers may face under FMLA in connection with responding to coronavirus and other public health emergencies https://www.dol.gov/agencies/whd/fmla/pandemic
Generally, employees are not entitled to take FMLA to stay at home to avoid getting sick. Employees in certain jurisdictions may be entitled to paid sick leave if needed to care for themselves or a sick family member in the event of an illness, or if their workplace or a child’s school or day care is closed due to a public health emergency.
Employers should determine whether any additional obligations are imposed under state or local laws, as the DOLR guidance only addresses federal requirements. It is anticipated that legislative amendments to New York State’s paid leave law will address public concerns about the coronavirus. On March 3, 2020, New York Governor Andrew Cuomo announced he will seek to amend the paid sick leave bill to allow those with the virus who are quarantined to be paid by their employers.When in doubt, the smartest approach is to contact legal counsel to ensure legal compliance, thereby minimizing exposure to costly litigation.
Wage & Hour Laws: With the expected spike of absenteeism, wage and hour problems can arise during a pandemic. Employers should be mindful of federal and state wage and hour laws concerning compensation for employees who miss work due to illness or business disruption. This past week, the DOL issued guidance on common issues that employers may face under the FLSA in responding to the coronavirus available at https://www.dol.gov/agencies/whd/flsa/pandemic
For example, salaried exempt staff generally must be compensated at their full salary in any workweek in which they perform work.If a salaried exempt employee is working from home, an employer should clearly communicate what expectations apply to work from home, and procedures should be put in place to monitor productivity.In contrast, employers are not generally required to compensate non-exempt employees absent from work. But when non-exempt employees can or are required to work from home while the office is shutdown, they must be paid for the hours worked.A re-review of any policy on working remotely is therefore critical.
In addition to any legal obligations, an employer should also consider the public relations and workplace morale aspects of not paying employees who may not be working if they have contracted or are avoiding the COVID-19 coronavirus. Given the widespread media coverage of the coronavirus, an employer should always keep the “big picture” in mind to protect the company’s reputation.
Discrimination and Harassment Laws: Title VII and New York State Law prohibit discrimination based on race, color, national origin, and other protected classifications. The Centers for Disease Control (CDC) issued this warning: “To prevent stigma and discrimination in the workplace, use only the guidance described below [provided by the CDC] to determine risk of COVID-19. Do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed COVID-19.” Furthermore, any employment policy should be enforced in a uniform and consistent method to avoid having a disparate impact on a specific group.
Do Not Panic and Stay Informed
As the impact of the coronavirus continues to evolve, employers should regularly check the latest updates from federal, state and local authorities:
The CDC has issued Interim Guidance for Businesses and Employers available at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. Health care professionals should view the CDC’s guidance available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/index.html
The U.S. Occupational Safety and Health Administration has a website that provides guidance to employers available at https://www.osha.gov/SLTC/covid-19/.
New York State’s website has information available at https://www.health.ny.gov/diseases/communicable/coronavirus/
Erie County has information available at http://www2.erie.gov/health/coronavirus
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Employment Practices team for guidance on this evolving issue at 716-849-8900 or visit our website at www.hurwitzfine.com
Joseph S. Brown – [email protected]
Ann E. Evanko – [email protected]
Katherine L. Wood – [email protected]