COVID-19 and the Workplace

By Eden Minucci

The impact of Covid-19 on the workplace, like its impact in other areas, is rapidly evolving with simultaneous developments on numerous fronts. State and local governments have passed declarations and ordinances to free up resources and encourage social distancing. On March 18 the first U.S. law directly responding to the Covid-19 pandemic, the Families First Coronavirus Response Act, was signed into law. It will go into effect on April 2, 2020 and expires December 31, 2020. 

Families First Coronavirus Response Act (FFCA)

• FFCA guarantees free Covid-19 testing, emergency paid leave, support for unemployment insurance, expanded food security measures, and an increase in Medicaid funds. It also provides $15 million in tax credits to businesses who must comply with the mandated emergency leave. 
• The FFCA applies to employers with fewer than 500 employees and government employers. Since the existing Family and Medical Leave Act (FMLA) does not apply to employers with fewer than 50 employees, smaller employers will have to implement programs from which they have previously been exempt and may be unfamiliar. Employers that employ health care providers or emergency responders may exclude those employees from the provisions of this law. The FFCA allows for the Secretary of Labor to issue regulations that exempt employers with fewer than 50 employees from the requirements that expand the FMLA provisions if it would jeopardize the viability of the business. However, at present, it is unknown when these regulations will be published. 
• There are three major sections to the FFCA:
• Emergency Family and Medical Leave Expansion Act
  • Applies to employers with fewer than 500 employees and expands eligibility to employees that have been employed for 30 calendar days. Previous eligibility was limited to employees who have been employed for 12 months and have worked for at least 1,250 hours during the previous 12 months of employment. 
  • Provides for 12 weeks of FMLA leave to care for an employee’s child under 18 years of age if the child’s school or childcare facility is closed due to coronavirus. Since many of the United State’s schools are closed or moving to online learning, this provision has broad impact. 
  • FMLA job restoration requirements which return the employee to the same or equivalent position does not apply to employers with fewer than 25 employees if certain conditions related to Covid-19 are met. 
  • Provides a tax credit to employers equal to 100% of the qualified family leave wages. 
• Emergency Paid Sick Leave Act
  • Applies to employers with fewer than 500 employees and government employers. 
  • Requires two weeks, 10 days, of paid sick leave for any employee who is unable to work or telework due to any of these broadly defined reasons:
    • Federal, state, or local order to quarantine or isolate
    • Advised by health care provider to self-quarantine
    • Has symptoms of Covid-19 and is seeking diagnosis
    • Is caring for an individual who qualifies under one of the first two reasons. Note: Care of an “individual” is an expansion of caring for a “family member” which has been the language used previously in similar statutes.
    • Is caring for a child whose school or childcare facility has closed as a result of Covid-19
    • The employee is experiencing other substantially similar conditions. 
  • Rates and caps
    • For the first three reasons above, sick leave is paid at the regular rate of pay and capped at $511 per day, $5,110 total
    • For the last three reasons, sick leave is paid at ⅔ of the employee’s regular rate of pay and capped at $200 per day, $2,000 total. 
• Emergency Unemployment Insurance Stabilization and Access Act of 2020
  • Provides $1 billion in emergency funding to states for unemployment insurance.  
  • Provides 100% federal funding of 26 weeks of extended benefits in  qualifying circumstances, after the original 26 weeks are exhausted.

Employer Response – Risks

• Workplace Risks

The designation of Covid-19 as a pandemic and the acknowledgement that it may provide a direct threat in the workplace provides employers with additional rights to combat this threat in the workplace, such as the taking of employees’ temperatures. But, with these expanded rights, there is increased responsibility to protect others in the workplace from this potential direct threat. Failing to take action in response to these new workplace hazards could result in claims against employers. 

• Reactionary Response Risks

The Family First Coronavirus Response Act (FFCA) increases the burden on employers to provide FMLA and emergency paid leave to employees. Small and struggling businesses may be considering responses that increase their exposure to claims by impacted employees. Potentially risky responses to mitigate the burden of the FFCA or offset financial pressure may include: terminating most employees and rehiring them as contractors, eliminating benefits without the requisite notifications, short term furloughs or reduction in hours to avoid the requirements of the WARN Act. 

Employment actions should only be taken after careful analysis of information and decisions should be thoroughly documented. This documentation can be used to defend actions against future claims should they arise. 

Remote Work – Risks/Management/Risk Management

• Risks: Traditionally, permitting non-exempt workers to work remotely has increased the risk of violating wage and hour provisions of the Fair Labor and Standards Act (FLSA). In response to Covid-19, remote work at all levels is encouraged to support continued economic activity. However, the risks associated with FLSA violations must be considered and mitigated when allowing non-exempt workers to work remotely. Policies should be reviewed or created to clearly define what constitutes hours worked, overtime expectations, recording all work (no off the clock work permitted), and underreporting or overreporting of hours. 
• Management: Demanding accurate reporting of time worked is critical for non-exempt workers working remotely. In addition, employers should audit time records and productivity measures regularly to ensure the accuracy of records. 
• Risk Management: Technology has significantly increased the opportunity for remote work, but with that opportunity comes increased avenues for data breaches and system access by bad actors. Dual factor authentication should be implemented in every appropriate scenario. Employers with cyber liability insurance policies should review their policies to determine if new remote work arrangements are in compliance with the policy. Employers without cyber liability insurance policies should consider them, as the changes that are made now are likely to remain, even after this challenging time has passed. 

Regulatory Guidance

• Equal Employment Opportunity Commission (EEOC)

The EEOC has provided updated guidance that employers can take the temperature of their employees. However, this is not a bright line symptom of Covid-19 and there are additional risks with instituting a temperature check in the workplace where it has not previously existed. In particular, it is critical to follow other existing employment laws when determining who will take the temperature of employees and how temperature will be measured to protect employees from risk, exposure and compliance with HIPAA and privacy concerns. The EEOC’s previous pandemic guidance continues to apply. It can be found at https://www.eeoc.gov/facts/pandemic_flu.html.

• Americans with Disabilities Act (ADA)

The ADA provides guidance related to medical inquiries and medical examinations. In relation to the ADA, the EEOC limits the inquiries related to an employee’s medical history with an exception when such information is related to a direct threat. Since COVID-19 has been designated a pandemic by the CDC, employers are likely to be able to use the direct threat exception. Additional guidance can be found at https://www1.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?rend

• Confidentiality 

Although increased inquiries into an employee’s health status may be permitted due to direct threats during a pandemic, the employer’s obligation to maintain confidentiality of that information does not change. In the case of suspected or confirmed exposure in the workplace, it is critical that an employer follow health department directions. 

• Centers for Disease Control and Prevention (CDC)

Employers should refer to the CDC and state and local health departments as their source for the evolving information and guidance for their Covid-19 response. Employment actions taken based on guidance from the CDC or local health departments should result in less risk to the employer if claims are made in the future. 

• National Labor Relations Act (NLRA)

The NLRA applies to all employers and provides employees with the right to engage in protected concerted activity. In relation to Covid-19, employees may raise concerns about unsafe or unhealthy work environments and some may refuse to come to work. Employers may be at risk if they take adverse action against those who refuse to come to work or organize a concerted effort to address issues with their employer. 

• Worker Adjustment and Retraining Notification Act (WARN)

WARN applies to employers with 100 or more employees and, among other requirements, requires a 60 day notice period for the closing of a business that results in the loss of 50 or more jobs or a layoff of 500 or more employees or 50-499 employees if that equals at least 33% of their workforce.

WARN provides for exceptions to the required 60 day notice period for natural disasters and unforeseeable business circumstances. The Covid-19 pandemic will likely be seen as meeting these conditions.