The World Health Organization declared the outbreak caused by the coronavirus, also called COVID-19, a global pandemic. This pandemic has created new and confusing issues for employers and employees alike. What happens if you cannot work because your child’s school is closed and you are unable to find childcare? Can your employer announce that all or some employees can no longer report to work? Employees should be aware of their legal rights in order to protect themselves and ensure a healthy workplace.
Most employees are employed “at-will.” This means that either the employee or the employer can end the employment relationship at their will, at any time, for any reason or no reason at all, unless the reason violates a specific law, such as anti-discrimination statutes. So, generally speaking, without an employment contract for a specified period of time or an employer’s policy or practice, if your employer tells you that you can no longer work, you have no entitlement to continue working or for severance or sick pay.
The Occupational Safety and Health Act (OSHA) requires an employer to provide each worker a place of employment that is free of hazards that are likely to cause serious physical harm or death. While no OSHA standard or regulation specifically addresses COVID-19, OSHA contains a “general duty” clause which requires employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm.
For example, the Center of Disease Control (CDC) recommends that employers routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. An employer should assess the workplace, determine the exposure risks, and implement infection prevention measures and controls, as appropriate in their workplace. The CDC recommends that employers provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use. OSHA also contains personal protective equipment (also called “PPE”) standards, which can include providing gloves, eye and face protection, and respiratory protection to protect employees from known hazards. During a pandemic, employers may require the use of PPE regardless of a finding of hazards.
An employer is permitted to ask an employee exhibiting COVID-19 symptoms to get tested. OSHA contains record-keeping requirements for work-related illnesses or injuries, and COVID-19 is a recordable illness if contracted on the job. Therefore, an employer will need to report the illness to remain complaint with the law. At the same time, employers are still required to keep its employees’ confidential medical information private under a variety of federal laws and regulations. The employer should follow CDC guidance to alert co-workers or customers of potential exposure. Employees are only entitled to refuse to come to work if they believe they are in “imminent danger” which means that death or serious harm will occur within a short time, which is a high burden to meet.
An employee can report safety concerns directly to the employer, or can report concerns directly to the Occupational Safety and Health Administration (also referred to as OSHA). OSHA prohibits employers from retaliating against employees who raise concerns regarding safety and health conditions in the workplace or engage in concerted activity for mutual aid and protection. An employer that takes an adverse employment action against an employee who voiced concerns regarding the safety and health of the workplace has violated the law. CAUTION – the employee must file a complaint of retaliation with OSHA within 30 days of the adverse action in order to preserve his or her claim.
OSHA has released guidance regarding the COVID-19 pandemic, available here: https://www.osha.gov/Publications/OSHA3990.pdf
For additional information, see also: https://www.osha.gov/SLTC/covid-19/
The Family and Medical Leave Act (FMLA) requires most employers with 50 or more employees to provide a covered employee who worked for at least 12 months with their employer up to 12 weeks of unpaid leave if needed for a qualifying medical condition or to care for a family member with a qualifying medical condition. COVID-19 is a qualifying health condition under the FMLA if complications create a serious health condition requiring more than three days of leave. While on leave, the employee is entitled to the continuation of group health insurance coverage and may not be terminated. The FMLA typically requires employees to provide employers with advanced 30-day notice of their plans to take leave when it is reasonable to do so.
An employee diagnosed with COVID-19 (or caring for a family member diagnosed with COVID-19) can qualify for FMLA leave, but leave cannot be taken just to avoid exposure to the virus. Additionally, leave to care for healthy children who are not in school or daycare due to closures is not covered under the FMLA.
Employees should also check out their employers’ own leave, sick time and/or PTO policies to determine if the employee can take leave if needed due to the outbreak, and whether or not the employee will receive pay for leave taken.
For additional information visit: https://www.dol.gov/agencies/whd/fmla/pandemic
The U.S. House of Representatives passed a bill that would expand the FMLA for coronavirus-related leave, and provide for paid sick time as well. The bill must be passed by the Senate and signed by the President before it is law.
Information regarding the proposed legislation can be found here.
The Americans with Disabilities Act (ADA) prohibits employers from excluding employees from the workplace unless the employee’s health condition renders him or her incapable of performing essential job duties with or without a reasonable accommodation, or the employee represents a direct threat to the workplace. The ADA may come into play if an employee has a disability that that puts him or her at high risk for complications of a pandemic influenza. In such a case, telework or staggered shifts may be a reasonable accommodation. Whether contracting COVID-19 itself rises to the level of a protected disability is a gray area, but a Florida court previously held that the H1N1 flu did not last long enough to substantially limit one or more major life activities, and therefore did not qualify as a disability. Also, the Equal Employment Opportunity Commission (EEOC) previously stated that inquiry into the symptoms of seasonal flu does not run afoul of the ADA.
Even if COVID-19 were to qualify as a disability, this does not mean that an infected employee has a right to remain at work. According to the EEOC, ADA rules do not interfere with or prevent employers from following CDC guidelines and recommendations about steps employers should take regarding the coronavirus. According to the CDC, employees who appear to have acute respiratory illness symptoms such as cough or shortness of breath should be separated from other employees and be sent home immediately.
In a pandemic, the ADA permits an employer to make health inquiries of all employees, including those who do not display COVID-19 symptoms, so long as the inquiry is justified by a reasonable belief based on objective evidence that the pandemic poses a direct threat. An employer should act consistent with the latest objective health assessments and directives continuously being released by the CDC or other federal, state, or local health authorities to determine if a particular employee poses a direct threat to the workplace.
The EEOC recently gave a new guidance related to pandemics and stated that COVID-19 meets the direct threat standard. https://www.eeoc.gov/facts/pandemic_flu.html
If an employee is diagnosed with COVID-19, the employer should inform co-workers of their possible exposure in the workplace but must maintain confidentiality as required by the ADA. For example, any medical record that results from a medical inquiry or examination is required to be kept separately from other employment documentation and must be maintained in a confidential manner.
Additional EEOC guidance regarding the coronavirus is available at: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
Employees should be aware that working remotely does not relieve the employer of its obligations under the Fair Labor Standards Act (FLSA) to pay non-salaried employees the minimum wage for all hours worked and time-and-a-half for each hour worked above 40 hours. Hourly employees should report all hours worked to their employers to ensure they are paid for all work time. Salaried employees are required to receive their full weekly salary for any week in which they perform any amount of work. If the costs of telework reduce a non-salaried employee’s pay to below the minimum wage, the employer must reimburse the employee for these costs. Such costs can include a computer, computer access, phoneline(s), and additional electricity.
Under the FLSA, the employer can require the employee to use paid leave, accrued leave, and vacation time during a pandemic. The FLSA also permits an employer to require employees over the age of 18 to work outside of their job description during a pandemic.
For additional information visit: https://www.dol.gov/agencies/whd/flsa/pandemic
Employers should only take action against employees based upon objective and reasonable information from reliable sources, and should not resort to targeting employees based upon classes or characteristics protected under federal, state or local anti-discrimination laws, such as national origin. For example, an employer who prohibits all employees of Chinese descent from reporting to work due to fear of the coronavirus has violated the law, whereas it may be permissible to instruct employees who have travelled to or from a particular country (or travelled generally) to work from home, in line with CDC, federal, state and/or local recommendations.
Florida workers who are totally or partially unemployed for a reason other than malicious misconduct typically can obtain unemployment assistance benefits from the Florida Department of Economic Opportunity (DEO) Reemployment Assistance Program. Individuals who are separated from their employment due to COVID-19 can apply for benefits in the same manner as those who lose their job for reasons other than this pandemic. An employee should apply for benefits within one week of being laid off, because benefits are only paid from the date the application is filed. In Florida, the first week off work is a “waiting week”, during which no benefits are paid. An applicant will want to make sure his or her application is filed before this period ends to ensure timely benefits. It typically takes three to four weeks to receive payments.
Federal employees who contract COVID-19 while in the performance of their job duties are covered under the Division of Federal Employees’ Compensation and will receive compensation for related health complications. However, federal employees must be actually diagnosed with COVID-19 to receive protection, and mere exposure to the virus is insufficient to receive workers’ compensation. Florida’s Division of Workers’ Compensation has not yet adopted an official policy on coverage for employees who contract COVID-19 in the course of employment, but if contracted through employment, an employee may be eligible for benefits.
For additional information visit: https://www.dol.gov/owcp/dfec/InfoFECACoverageCoronavirus.htm
Generally speaking, the Worker Adjustment and Retraining Notification (WARN) Act requires employers with 100 or more employees to provide 60 days advance written notice of the intention to lay off more than 50 employees during any 30-day period as part of a plant closing, or mass layoff not the result of a plant closing but that will result in an employment loss of 500 or more employees during any 30-day period. To be entitled to notice, the employee must have worked for the employer for more than six months in the prior 12-month period and work on average more than 20 hours in a week.
The WARN Act permits reduction of the notice period if the closing or layoff is caused by business circumstances that were not reasonably foreseeable at the time when notice would have been required. Federal regulations give examples of unforeseeable circumstances, such as a sudden, dramatic, and unexpected condition outside the employer’s control, a government ordered closing of the employment site or an unanticipated and dramatic major economic downturn. An employer must exercise commercially reasonable business judgment in predicting the demands of its particular market.
Right to Privacy
Several laws, including the ADA, FMLA, Genetic Information Nondiscrimination Act (GINA), Pregnancy Discrimination Act (PDA), as well as the Health Insurance Portability and Accountability Act (HIPAA) (in limited circumstances), require employers to keep certain medical information confidential. An employee may have a private right of action or may file a complaint with the appropriate federal agency if his or her medical information is improperly disclosed.
If an employee is confirmed to have COVID-19, the employer should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by law. Coworkers can be warned in a general manner, without specifically naming the infected employee, and employers should always act in accordance with the directives of the CDC during this pandemic.
Keep Yourself Informed
Federal, state and local agencies and authorities continue to update their websites and issue directives regarding COVID-19 as developments occur. Employees should keep up to date on all developments. Links to CDC guidance are listed below.