There seems to be no escape from the overload of information coming at us about the coronavirus (COVID-19). Walmart is running low on hand sanitizer, people make jokes about the chance to book cheap flight tickets, and employers are wracking their brains trying to figure out an approach to the coronavirus in the context of business operations and their workplace response.
The Centers for Disease Control and Prevention (CDC) is providing updates and useful tips (i.e. wash your hands) on the evolving situation. According to the CDC, as of today, there are more than 15 reported cases of COVID-19 in Virginia. Before that number grows along with checkout lines at grocery stores, here is advice on how to tackle the challenges of COVID-19 at your business.
The Law and COVID-19 (or any medical situation)
Just because everyone else is panicking and stocking up for an extended home-stay doesn’t mean all employment laws are suspended! Unlike the movies, we have rules in real life. Therefore, when employers are taking any action relating to COVID-19, they should be mindful of employment laws.
Here are some laws that can give rise to legal issues:
1. Title VII of the Civil Rights Act
Under Title VII, employers are not allowed to treat employees differently based on race or national origin, among other protected categories. As the CDC indicates, there is a stigma surrounding the COVID-19 and individuals of Asian descent. When adopting policies, employers should be careful not to include or enforce any policies that intentionally target or have a disparate impact on employees based on their race or national origin. Employers should also keep an eye out for any behaviors that indicate a “troubled” work environment.
2. Family and Medical Leave Act (FMLA)
Under the FMLA, an employee who has a serious health condition or who needs to care for a family member with a serious health condition may be entitled to FMLA leave. Given the current situation, it’s possible the coronavirus could qualify as a serious health condition entitling an employee to leave. However, employees are not entitled to take FMLA leave in order to avoid getting sick at work.
3. Americans with Disabilities Act (ADA)
Under the ADA, employers are generally prohibited from asking about the medical status of an employee or requiring medical examinations during employment. However, during a pandemic or national emergency, there is some information an employer can request from employees. It includes asking if they are experiencing any COVID-19-related symptoms. In addition, under the Equal Employment Opportunity Commission (EEOC) guidelines regarding pandemics, an employer may send home an employee who exhibits symptoms consistent with COVID-19.
Remember the ADA requires employers to keep all information about employee health confidential. Therefore, any warnings about possible exposure in the workplace should not include any names of employees or personally identifiable information.
4. Fair Labor Standard Act (FLSA)
Under the FLSA, in the event business operations have ceased or an employee is unable to work, a non-exempt employee is only entitled to receive wages for hours actually worked. However, exempt employees who are paid a salary may still be entitled to receive their salary if they performed some work during the week.
COVID-19 Workplace Response Planning
After considering the legal implications above, an employer should be armed with a response plan long before an employee becomes sick (with COVID-19 or other viral infections) at work. It’s important to create a plan that can go into action at a moment’s notice. Keep in mind everything we know today may change tomorrow so be fast and be flexible!
An employer’s response plan should include:
- Strategies to minimize the spread of the coronavirus or any other virus among employees
- Strategies to protect employees who are at a higher risk for contracting COVID-19
- Procedures that allow easy coordination with state and local health officials
- Plans for maintaining business operations in the event of an increased absences
- Temporary adjustments to paid leave policies
- Methods of communicating with employees about any updates or changes to business operations or possible exposures
Whatever happens over the next few weeks, the best practice is to stay calm and follow the facts. Encourage calm in your workplaces – but be prepared!
Finally, wash your hands and DON’T TOUCH YOUR FACE!
The Labor & Employment team at WR is here to help you review or create a COVID-19 response plan or to answer any questions you may have.
For more information about coronavirus and COVID-19, visit the CDC website.
Yeri Jimenez, Spring Associate