Several federal agencies that regulate the employer-employee relationship have issued guidance employers can rely upon when addressing issues associated with the latest pandemic – COVID-19. What follows is a summary of these guidelines.
Equal Employment Opportunity Commission (“EEOC”)
The EEOC enforces various workplace discrimination laws, including the Americans with Disabilities Act (“ADA”). On March 4, 2020, the EEOC issued an alert reminding employers of a technical assistance document it issued in 2009 concerning pandemic planning in the workplace. See, https://www.eeoc.gov/facts/pandemic_flu.html Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, October 9, 2009. The EEOC issued the 2009 document in response to the H1N1 virus and the resulting declaration of a pandemic at that time. On March 18, 2020, the EEOC updated its guidance concerning operating during a pandemic, but stated the 2009 guidance was still relevant and should be reviewed by employers.
The March 18 update contains a number of questions and answers for employers to consider. Of particular note:
- If an employee becomes sick at work or calls in sick, the EEOC permits an employer to ask the employee if they are experiencing symptoms associated with COVID-19, such as fever, chills, cough, shortness of breath, or sore throat. Recall that any information obtained from the employee must be kept confidential.
- Employers are permitted to take an employee’s body temperature throughout the duration of the pandemic, although the absence of a fever does not necessarily mean an employee is not infected.
- Employers may require employees exhibiting symptoms associated with COVID-19 to stay home or leave work if already present.
- Before returning to work, an employee can be required to obtain and present a doctor’s note certifying his/her fitness for duty. The EEOC notes that because an employee’s doctor or health care professional may be excessively busy during the pandemic, alternatives should be considered, such as local medical clinics. The Centers for Disease Control (“CDC”) is not recommending that employers require a fitness for duty certification. Thus, employers can require such a certification, but permit employees to call if they are asymptomatic for 48 hours but unable to obtain a certification, allowing for a discussion between the parties on a case by case basis.
- Job applicants can be screened for symptoms of COVID-19 after a conditional offer of employment has been made. It is important that all new employees in the same type of job be screened, not just those deemed most at risk to suffer severely from the virus.
- A job offer can be withdrawn if the employer’s need for the employee’s service is immediate but the employee cannot begin working right away due to having the virus or symptoms associated with the virus.
A common question raised is whether an employer can ask an employee who is not displaying any symptoms if he/she has an underlying medical condition that the CDC has indicated could make them vulnerable to COVID-19 complications. The 2009 EEOC Guidance, together with the March 18 update, indicate the EEOC would permit such an inquiry, but only because a pandemic has been declared and it has become more severe or serious according to the assessment of local, state and federal public health officials. The EEOC concludes that such a declaration would support the employer’s position that other employees would face a direct threat if they contract the virus, and thus medical inquiries into any underlying medical conditions would be permissible in this limited situation. We recommend contacting employment counsel prior to making such inquiries, however, as the risks under the ADA warrant treading cautiously.
Department of Labor (“DOL”)
The DOL, which enforces the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and other employment-related laws, has issued guidance for employers who are dealing with COVID-19 issues. Although the recent passage of the Families First Coronavirus Response Act (“FFCRA”) affects portions of the DOL’s guidance, important points remain relevant. With respect to the FLSA:
- To the extent some employers may be considering the use of volunteers to perform actual work during the pandemic, the DOL reminds companies that the FLSA has strict requirements that must be met in order for individuals to be considered true volunteers and not employees. An agreement between the parties that an individual will be treated as a volunteer will not be deemed sufficient; rather, actual work performed for a private, for-profit company most likely will be compensable. If, however, an individual volunteers his/her services to a private, for-profit company in an emergency relief capacity for civic, religious or humanitarian objectives, with no contemplation or receipt of compensation, such time most likely will not be deemed compensable.
- Generally, employers are required to pay non-exempt workers only for those hours actually worked. As for salaried, exempt employees, they typically must be paid their full weekly salary so long as they perform some work within that week. To prevent the loss of an employee’s exempt status, an employer may direct such employee to take vacation or PTO in the event of an office closure during the course of a week, thereby ensuring the employee receives compensation in an amount equal to their guaranteed salary. With the implementation of the FFCRA, eligible workers may be entitled to compensation under certain circumstances for a period of time, such as office closure, which would have an effect on these general rules. See, March 19, 2020 article discussing FFCRA. Once the period of time allowed in the FFCRA runs out, the general rules regarding payment to exempt and non-exempt employees will once again become applicable.
- In its guidance, the DOL “encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines,” such as by offering/requiring teleworking and/or additional paid time off. The benefits offered in the FFCRA are intended to help offset the financial impact of such alternative arrangements.
- For employees working from home, the DOL reminds employers that non-exempt employees must receive at least minimum wage for time worked; accordingly, employers cannot require employees to pay or reimburse the employer for business expenses necessary to work at home if doing so would result in the employee’s wage falling below minimum wage.
With respect to the FMLA, readers are encouraged to refer to our article discussing changes to the FMLA pursuant to the FFCRA for leave necessary to care for a child whose school or childcare has been closed due to the pandemic. See, March 19, 2020 article discussing FFCRA. As for other types of leave under the FMLA, the DOL makes special note of the following:
- Employees experiencing symptoms associated with a serious health condition are entitled to continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave.
- The DOL notes that employees who elect to stay home to avoid contracting a virus would not be protected under the FMLA.
- Employers are reminded that if they will require a certification from the employee’s health care provider that the employee is able to resume work, then such a requirement must be imposed on all similarly-situated employees and employees must be notified in advance of the requirement, typically in your FMLA policy and when notifying the employee that their request for leave has been approved.
Occupational Safety and Health Administration (“OSHA”)
OSHA has issued its Guidance on Preparing Workplaces for COVID-19, available at www.osha.gov. We encourage you to review the Guidance in its entirety to ensure your workplace is taking all measures necessary to limit the possible spread of the virus among your employees. Among the recommendations encouraged by OSHA in the Guidance include:
- Developing an infectious disease preparedness and response plan. Such a plan should assess potential exposure risks to the virus, monitor federal, state and local recommendations, and prepare for business interruptions, employee absenteeism, and remote work operations.
- Implementing basic infection prevention measures, including frequent hand washing, working from home, covering coughs and sneezes, and encouraging distancing from others when possible.
- Developing procedures for prompt identification and isolation of individuals exhibiting virus symptoms.
- Implementing effective communication channels with employees and customers addressing the employer’s policies and response to the virus.
- Adhering to existing OSHA safety standards and monitoring updates and/or changes to such standards in light of the pandemic.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these and other issues. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.