Q. Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?
A. Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.
During the H1N1 pandemic, the Equal Employment Opportunity Commission (EEOC) stated that advising workers to go home is not disability-related if the symptoms present are akin to the seasonal influenza or the H1N1 virus. Therefore, an employer may require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the flu.
Q. Can I take an employee’s temperature at work to determine whether they might be infected?
A. The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
Taking an employee’s temperature may be unlawful if is not job-related and consistent with business necessity. The inquiry and evaluation into whether taking a temperature is job-related and consistent with business necessity is fact-specific and will vary among employers and situations. The EEOC’s position during a pandemic is that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” The assessment by the CDC as to the severity of COVID-19 will provide the objective evidence needed for a medical examination. If COVID-19 coronavirus becomes widespread in the community, as determined by state or local health authorities or the CDC, then employers may take an employee’s temperature at work.
However, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.
Q. One of our employees has been exposed to the virus but only found out after they had interacted with clients and customers. What should we do?
A. You should treat the situation as if the exposed employee has a confirmed case of COVID-19 and send home potentially infected employees that they came into contact with. As for third parties, you should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.
Q. If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC?
A. There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility.
Q. Can we require an employee to notify the company if they have been exposed, have symptoms, and/or have tested positive for the COVID-19 coronavirus?
A. Yes, you should require any employee who becomes ill at work with COVID-19 coronavirus symptoms to notify their supervisor. Employees who are suffering from symptoms should be directed to remain at home until they are symptom-free for at least 48 hours (but see Discontinuation of Home Isolation section below for more specifics). If an employee begins experiencing symptoms, has been exposed to someone that is exhibiting symptoms, or has tested positive, the employee should contact your company by telephone or email and should not report to work.
Q. What can employers disclose about an employee’s health condition?
A. When an employer receives medical information about an employee, that information must be kept confidential. An employer may acquire confidential medical information about an employee (1) in response to the employer’s disability-related questions or directed medical examination based on the reasonable belief that the employee poses a direct threat, (2) during the course of the interactive process accommodation, (3) when an employee has exercised his/her rights under the FMLA or (4) when an employee voluntarily discloses such information.
The ADA permits an employer to disclose confidential medical information about an employee only to supervisors and managers if it relates to (1) necessary restrictions on the work or duties of the employee and necessary accommodations, (2) first aid and safety personnel if an employee’s disability might require emergency treatment and (3) government officials investigating compliance with the ADA, if requested.
The EEOC has instructed in its Pandemic Preparedness technical assistance that the general personnel files of employees should not contain any “medical-related material.” The EEOC differentiates between notice that an employee has taken sick leave or had a doctor’s appointment, which is not considered to be covered medical information, and information regarding an employee’s diagnosis or symptoms, which is considered covered medical information. The EEOC’s Technical Assistance Manual on the Employment Provisions of the ADA provides that an employer “should take steps to guarantee the security of [an employee’s] medical information,” including keeping the information “in a medical file in a separate, locked cabinet, apart from the location of the personnel files” and access should be restricted to specific persons.
An employer’s obligations to maintain an employee’s medical information do not end when an individual is no longer an employee. The regulations interpreting the FMLA also require that records and documents relating to medical certifications of employees or their family members for purposes of the FMLA shall be maintained as confidential medical records kept separate from personnel files.
Considering the above, if an employer learns that an employee has tested positive for the coronavirus, it should immediately advise its workforce and any impacted customers/ patients without disclosing any identifying information about the employee. In addition, in the event the coronavirus impacts an employer’s workforce, the company should immediately contact its local public health agency to determine the appropriate course of action, including quarantines, a facility shut-down and appropriate remediation measures (e.g., cleaning of contaminated spaces).
Q. May an employer ask an employee if the employee is experiencing symptoms of the coronavirus or require an employee to get tested for the coronavirus?
A. The ADA prohibits employers from making disability-related inquiries or requiring medical examinations of current employees unless they are job-related or consistent with business necessity.
A disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when (1) an employee’s ability to perform essential job functions will be impaired by a medical condition or (2) an employer has a reasonable belief based on objective evidence that an employee poses a direct threat to the employer or others.
Generally, questions about where an employee has traveled and whether an employee potentially has been exposed to the coronavirus are generally not disability-related inquiries. However, an employer should ensure that questions regarding employees’ travel plans and exposure are asked consistently and without discrimination. For example, an employer should not direct questions about travel plans only to Chinese employees based on information that the coronavirus started in China.
If an employee reports that he/she is going to be absent from work, the EEOC’s Pandemic Preparedness, provides that an employer is permitted to ask the reason for the absence, including if the employee is experiencing certain symptoms (e.g., cough, fever). According to the EEOC, during a pandemic such inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the pandemic poses a direct threat. During a pandemic that is widespread in a community as determined by the CDC or local health authorities, an employer may be justified measuring employees’ body temperatures.
Where an employer believes that an employee poses a direct threat because of his/her medical condition, the employer may require that the employee be examined by a qualified health care professional of the employer’s choice and at the employer’s expense.
Unless an employer determines that an employee is a direct threat or will be absent for FMLA-qualifying reasons, the employer should not press further for details if an employee’s absence is for medical reasons.
Q. What steps can we take now to minimize risk of transmission?
A. The messages you should be giving to your employees are:
• 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 others, especially those who are sick;
• Refrain from shaking hands with others for the time being;
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash; and
• Clean and disinfect frequently touched objects and surfaces.
Perhaps the most important message you can give to employees: stay home when you are sick.
As an employer, you should be doing the following:
• Evaluate your remote work capacities and policies (see later section on Remote Work for more information). Teleconference or use other remote work tools in lieu of meeting in person if available;
• Consider staggering employee starting and departing times, along with lunch and break periods, to minimize overcrowding in common areas such as elevators and break rooms; and
• Have a single point of contact for employees for all concerns that arise relating to health and safety.
Q. Can an employee refuse to come to work because of fear of infection?
A. Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to Italy or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. However, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.
Q. What actions can we take if an employee is exhibiting flu-like symptoms but refuses to leave the workplace?
A. If an employee refuses to leave the workplace, you can consider (a) explaining that the employee is now trespassing on private property and if they do not leave you will be forced to call local law enforcement to escort them off the premises; or (b) terminating the employee for insubordination. Termination of the employee, however, should be considered a last resort.
Q. When may an employee discontinue home isolation?
A. Per the CDC, there are three options for determining when a person may end home isolation, using either (1) a time-since-illness-onset option, (2) a time-since-recovery option, or (3) a test-based option.
Time-since-illness-onset and time-since-recovery strategy (non-test-based strategy): Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue home isolation under the following conditions: At least 72 hours have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and at least seven days have passed since symptoms first appeared.
Test-based strategy: Persons who have COVID-19 who have symptoms and were directed to care for themselves at home may discontinue home isolation under the following conditions:
Resolution of fever without the use of fever-reducing medications; Improvement in respiratory symptoms (e.g., cough, shortness of breath); and Negative results of an FDA Emergency Use Authorized molecular assay for COVID-19 from at least two consecutive nasopharyngeal swab specimens collected ≥24 hours apart (total of two negative specimens).
Individuals with laboratory-confirmed COVID-19 who have not had any symptoms may discontinue home isolation when at least seven days have passed since the date of their first positive COVID-19 diagnostic test and have had no subsequent illness.
Q. Can employers refuse an employee’s request to wear a medical mask or respirator?
A. Yes, under most circumstances – but you may want to consider allowing your workers to wear them if it makes them feel safe. Under the OSHA respiratory protection standard, which covers the use of most safety masks in the workplace, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Likewise, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard.” In almost all work situations, however, there is no currently recognized health or safety hazard – even when employees work near other people and thus there is no need for a mask or respirator.
The WHO has stated that people only need to wear face masks if they are treating someone who is infected with the COVID-19 coronavirus, and that wearing masks may create a false sense of security among the general public. Doctors agree that the best defense against the COVID-19 coronavirus and influenza is simply washing your hands. Thus, the consensus is that there are more appropriate measures of defense than wearing a surgical mask or respirator. However, given the high degree of concern in the general public at the current time, you may consider permitting those workers who want to wear a mask to do so without necessarily encouraging them if it makes them feel safer.
Q. Can we open childcare centers at our workplace for employees’ children who are not allowed to go to school?
A. No. Though while well-intentioned, childcare centers and daycares require proper licensing from the state. Unless you already have or can obtain the proper licensure, you should refrain from doing so.
Q. Can we instead offer informal “entertainment areas” or “kid zones” for employees’ children who are not allowed to go to school?
A. You should probably refrain from offering informal “entertainment areas” or “kid zones” because state regulating agencies may consider them unlicensed daycares. Additionally, the reason that schools have been closed in Oregon is to encourage social distancing in an effort to stop the spread of the COVID-19 coronavirus. Allowing children to gather in “kid zones” would place children in close quarters and would risk spreading the virus among the children and the workforce. You may instead consider clearly communicating with those on your staff who are able to work remotely that you will be flexible to allow them to parent their children during this time, which may include adjusting schedules, holding phone calls or video meetings during off-hours, and other alterations. Even a quick message letting your employees know that managers will not mind if children are sitting on laps or making noise in the background during phone calls and video conferences could go a long way toward making your employees feel comfortable.
Q. Is COVID-19 a recordable illness for purposes of OSHA Logs?
A. OSHA recently published guidance on this issue. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log. You must record instances of workers contracting COVID-19 if the worker contracts the virus while on the job. The illness is not recordable if worker was exposed to the virus while off the clock. You are responsible for recording cases of COVID-19 if: The case is a confirmed case of COVID-19; the case is work-related, as defined by 29 CFR 1904.5; and the case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).
Q. Are employers required to develop a written infectious disease preparedness and response plan?
A. While you are not required to do so, it is a prudent course of action and highly recommended by OSHA.
Q. What steps should we take if we use chemicals to combat the COVID-19 coronavirus?
A. Be mindful of the specific requirements of OSHA’s Hazard Communication standard if new chemicals, or temporary employees, are introduced into work areas to combat the COVID-19 coronavirus. You are required to provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new chemical hazard the employees have not previously been trained about is introduced into their work area. A comprehensive hazard communication program should include contain labeling and other forms of warning, safety data sheets, and employee training. Now is also a good time to retrain employees under OSHA’s bloodborne pathogens standard, including revisiting and communicating the elements of your exposure control plan.
Q. Can we prohibit an employee from traveling to a non-restricted area on their personal time?
A. You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee.
Q. Should we institute a temporary remote work policy in light of the COVID-19 coronavirus outbreak?
A. Whether your company implements a remote work policy is entirely dependent on your organization’s circumstances and the area of the country where your workers reside. You may not want to introduce a new system in place if you have had not yet had time to test and develop your remote work capabilities. On the other hand, if you have established protocols in place, this could be a good opportunity to leverage them. Furthermore, under Oregon’s anti-discrimination laws relating to age (the elderly) and disabilities (individuals with chronic health conditions), permitting home work as a reasonable accommodation, where possible and not an undue hardship on the business, may be legally required.
Employers considering any work at home arrangements should strive to set concrete expectations for what is required, including work hours, availability, and productivity. Non-exempt workers must have clearly established systems for tracking hours and required breaks. Other considerations include personal workspace safety, ergonomics, confidentiality of information, and communication expectations.
Q. What infrastructure should we have in place for a remote work plan?
A. You will want to identify the roles that are critical to your business operations and determine whether those individuals can carry out their jobs while working remotely. If you can proceed, the next critical component is assessing your technological capabilities. Do you have the support in place to assist with the inevitable questions and IT problems that will arise? Do you have sufficient security and privacy protocols in place? Considering these questions will help you determine whether you can move forward with a remote work plan.
Q. What should we keep in mind to ensure our remote work time is productive and successful?
A. There are a number of steps you can take to ensure that the temporary remote work time goes well for your workers and for your organization.
From a functionality standpoint, you may want to agree on a single communications platform that all workers will be required to participate in. It could be email, instant messaging, Slack, Skype, Zoom Conferencing, or some other designated tool. Take an honest approach with yourself about whether any concerns you have regarding reduced productivity among your workers while they are working at home are realistic or overblown. Recognize that you aren’t babysitting your employees while they are performing work at the office, so you shouldn’t begin to micromanage them while they are at home. Keep an eye on the bigger picture and track overall productivity, not moment-by-moment activities. In fact, experts say that overwork is more likely for remote workers than a lack of productivity, especially in the first week of a remote work assignment. Keep an eye out for employee burnout and overstressed workers and address your concerns as appropriate.
Another concern for workers not used to working remotely is that they may feel untethered and disconnected from the organization during this time period. Some tactics to prevent and overcome this problem include: Developing and distributing an agenda for all team get-togethers and meetings, as well as meeting minutes and task lists after they are completed, so that those unable to attend can feel part of the action; Schedule virtual team lunches and digital social time where workers can interact on a social level; Connect workers new to remote work with your experienced remote workers to serve as informal mentors, available to answer questions or give advice about best ways to cope with the change and handle work; and Consider other ways to ensure your workers feel connected with each other and with the organization, whether that includes daily meetings, frequent phone calls or texts, or other actions that can go a long way towards ensuring their peace of mind.
Answers To Employers’ Frequently Asked Questions Re COVID-19
Q. What are an employer’s options if remote-working is not feasible and the employer is shut down?
A. Furlough/Layoff Considerations: A furlough keeps employees technically on an employer’s “books” during a work stoppage. A layoff, on the other hand, is generally more permanent, with an uncertain return to work at best. Furloughing employees during a temporary crisis is usually more favorable than a layoff unless the employer does not believe the work will return. Employers should be cautious about the wage implications of reduced work arrangements. For example, exempt employees (salaried management, professionals, and executives) are entitled to the same pay for working a partial week as they would be for working a full week. Exempt employees that do not perform any work in a week are not required to be paid for that week. So, for exempt employees facing reduced hours, employers may choose to schedule them “one week on, one week off,” as opposed to partial weeks. An employer is not required to pay a non-exempt employee who is furloughed.
Unemployment Benefits: Oregon employees laid off or furloughed will likely be entitled to unemployment benefits. Employees working significantly reduced work schedules will also likely be entitled to benefits, which are calculated based on formulas with the applicable state agency. On March 18, the Oregon Employment Department adopted new temporary rules to gain greater flexibility in providing benefits to workers affected by the COVID-19 response. The OED issued a statement regarding the temporary rules:
“Unemployment Insurance benefits are available during temporary layoffs related to COVID-19 situations. These benefits occur for employees whose employer stops operation for a short period of time, such as cleaning following a coronavirus exposure, or by government requirement. Workers can get unemployment benefits, and do not need to seek work with other employers if their place of employment will resume operations.”
In order to receive benefits, affected workers must still be able to work, stay in contact with their employer, and be available to work when called back.
Q. If our employees are no longer working, are they still entitled to group health plan coverage?
A. Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.
In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, on March 12, the Oregon Health Authority issued a statement encouraging employers to maintain group policy health coverage for all employees during the COVID-19 outbreak if possible.
Q. Must we keep paying employees who are not working?
A. Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working are typically not entitled to the wages the FLSA requires. Oregon, however, has a mandatory paid time off requirement that will ensure a minimum of six (6) days of paid leave.
The recently passed Family First Act now requires most employers to allow up to 80 hours of paid sick leave, which can be used in the following circumstances:
• The employee has been exposed to the coronavirus or exhibit symptoms of it.
• The employee is recommended to quarantine by a healthcare provider and cannot work from home.
• The employee needs to care for a family member who has been exposed to or exhibits symptoms of the coronavirus.
• The employee needs to care for a child younger than 18 years old because their school or day care is closed, or their childcare provider is unavailable.
Exempt employees (salaried) must be paid on a salary basis to maintain exempt status. Generally speaking, if such an employee performs at least some work in the employee’s designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. There can be exceptions, such as might be the case when the employer is open for business but the employee decides to stay home for the day and performs no work.
Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract under Oregon law.
Q. Can we charge time missed to vacation and other leave balances?
A. Generally, yes, unless the leave qualifies as sick leave and the employee has a balance in their sick leave bank. Neither Oregon state law nor the FLSA regulate the accumulation and use of vacation and other types of leave. The salary requirements for exempt employees can implicate time-off allotments under various circumstances. Again, however, what an employer may, must, or cannot do where paid leave – other than mandatory minimum sick leave – is concerned might be affected by an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract under Oregon law.
Q. Does family and medical leave apply to this situation?
A. Employees requesting leave could conceivably be protected by the Family and Medical Leave Act (FMLA) to the extent they otherwise meet FMLA-eligibility requirements. Even in the absence of state or federal protection, an employer’s internal policies may extend protection to such individuals. Of course, there is nothing to prevent you from voluntarily extending an employee’s leave, even in the absence of any legal obligation. Generally, employees are not entitled to take FMLA to stay at home to avoid getting sick. As with many employment laws, the worst thing an employer (or as is often the case, an untrained supervisor) can do at times like this is to reject immediately an unorthodox leave request before the facts are in. When in doubt, the wisest approach is to work with counsel to ensure legal compliance, thereby minimizing exposure to costly litigation.
Q. Does contraction of COVID-19 coronavirus implicate the ADA?
A. Generally, no, because in most cases the COVID-19 coronavirus is a transitory condition. However, some plaintiffs could make an argument that the ADA is implicated if the virus substantially limited a major life activity, such as breathing. Moreover, if an employer “regards” an employee with COVID-19 as being disabled, that could trigger ADA coverage.
Q. Can I send employees home who exhibit potential symptoms of contagious illnesses at work?
A. Yes, sending an employee home who displays symptoms of contagious illnesses would not violate the ADA’s restrictions on disability-related actions.
Q. I have a “force majeure” clause in my contract. Does it cover an outbreak such as the COVID-19 coronavirus?
A. Possibly. A “force majeure” clause is a contract provision that relieves the parties from performing their contractual obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible. Whether an outbreak like the COVID-19 coronavirus triggers the force majeure clause in a contract, and the effect of that clause on the provisions of the contract, will vary significantly with each employer. You should invoke the clause if you feel it is necessary and appropriate under the terms of the policy. Even if the insurer denies the claim, your action now will protect your right to challenge that decision at a later date.
Q. There is no “force majeure” clause in my collective bargaining agreement with the union. Does that mean I still have to abide by all of the CBA provisions during the outbreak?
A. The general duty to bargain over changes in contractual terms may be suspended where compelling economic exigencies compel prompt action. The law views “compelling economic exigencies” as extraordinary, unforeseen events having a major economic effect that requires the employer to take immediate action and make a unilateral change.
Although an outbreak like the COVID-19 coronavirus would seem to fit the description of a “compelling economic exigency,” realize that its effect will be different for every employer. That is, while it may suspend the duty to bargain for one employer whose only facility was infected, it will likely not suspend the duty for an employer that has lost significant accounts or contracts as a result of the outbreak. In practice, the safest course of action (and the one most likely to avoid future litigation) is to notify the union in all cases, even if you believe that your particular situation fits into the “compelling economic exigency” category.
Q. How much notice do I have to give the union before I make a change to my contract?
A. The law requires employers to give the union “adequate” notice of a proposed change to the collective bargaining agreement, so as to engage in meaningful bargaining over that change on request. There is no hard and fast rule as to how much notice is adequate. But where an employer can show a need for a prompt change and time is of the essence, a notice period as short as a couple of days might be considered adequate under the circumstances.
Q. Wouldn’t our no-strike clause prohibit bargaining unit members from refusing to work?
A. That would likely depend on a host of factors ranging from the articulated rationale for withholding services to specific language within the no-strike clause itself. Most such provisions effectively preclude covered employees from striking or otherwise refusing to perform work as scheduled. By the same token, long-standing labor relations doctrine generally requires bargaining unit members to, “work now, and grieve later.”
That being said, such provisions do not necessarily trump those aspects within Section 13(a) of the OSH Act entitling all employees to refuse to work if they reasonably believe they are in imminent danger, and compelling employees (particularly in high risk industries) to report for work under such circumstances may also present adverse public relations implications. Consequently, circumstances like these are best examined on a case-by-case basis under advice of counsel and – in some circumstances, following dialogue with the authorized bargaining representative.
Q. Do we have an obligation to provide notice under the federal WARN Act if we are forced to suspend operations on account of the coronavirus and its aftermath?
A. Yes, if your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act. The federal WARN Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined under WARN’s regulations, and that they are not intended to cover every single layoff or plant closing.
Generally speaking, employers must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff — which can be triggered with a layoff include as few as 50 employees under federal law (potentially less under applicable state laws). Note, however, that if employees are laid off for less than six months, then they do not suffer an employment loss and, depending on the particular circumstances, notice may not be required. Unfortunately, in situations like this, it is hard to know how long the layoff will occur and notice cannot be provided retroactively, so providing notice is usually the best practice.
In cases where its notice requirements would otherwise apply, the WARN Act provides a specific exception when layoffs occur due to unforeseeable business circumstances, or are the result of a natural disaster. These provisions may apply to the COVID-19 coronavirus. But due to the fact-specific analysis required, these exceptions are often litigated.
Moreover, these exceptions are limited, in that an employer relying upon it must still provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” In other words, once you are in a position to evaluate the immediate impact of the outbreak upon your workforce, you must then provide specific notice to “affected employees” (as well as unions and government entities, as discussed below) as soon as practicable. You must also provide a statement explaining the failure to provide more extensive notice, which in this case would obviously be tied to the unforeseeable nature of the outbreak and its aftermath.
The WARN Act has specific provisions requiring notice to employees, unions and certain government entities. The Act further specifies the specific information that must be contained in each notice. Even a seemingly minor deviation from these requirements can trigger a violation. Also keep in mind that some states have “mini-WARN” laws that may apply. Please work with your employment counsel to ensure compliant notices are provided.
Q. Will this law really be enforced in light of the outbreak?
A. In the aftermath of an outbreak, the extent to which the USDOL will focus upon enforcement of the WARN Act remains to be seen. Nonetheless, the law provides stiff penalties for non-compliance, including up to 60 days of back pay and benefits, along with a civil penalty of up to $500 per day. More importantly, it provides for a private cause of action in federal court, suggesting that employers may soon be responding to lawsuits arising under the WARN Act regardless of the enforcing agency’s official position.
Consequently, we advise that you evaluate your current situations to ascertain whether the most recent outbreak has triggered a WARN Act qualifying event in your organization. If so, provide as much notice to affected employees as is practicable under the circumstances. When in doubt, the best approach is to work through counsel to arrive at a safe but practical solution to a potentially thorny situation for many employers that are impacted by the outbreak, either directly or indirectly.
Q. My employee alleges that they contracted the coronavirus while at work. Will this result in a compensable workers’ compensation claim?
A. It depends. If the employee is a health care worker or first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact-specific.
It is important to note that the workers’ compensation system is a no-fault system, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work and was proximately caused by their employment. Additionally, the virus is not an “injury” but is instead analyzed under Oregon state law to determine if it is an “occupational disease.” To be an occupational disease, an employee must generally show two things: the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally. The general test in determining whether an injury “arises out of and in the course of employment” is whether the employee was involved in some activity where they were benefitting the employer and was exposed to the virus. Importantly, special consideration will be given to health care workers and first responders, as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. This would also include plant nurses and physicians who are exposed to the virus while at the worksite.
As for other categories of employees, compensability for a workers’ compensation claim will be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to their employment. Even if the employer takes all of the right steps to protect the employees from exposure, a compensable claim may be determined where the employee can show that they contracted the virus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.
Q. What are the likely benefits an employee will be eligible to receive if their coronavirus infection is found to be a compensable workers’ compensation claim?
A. The good news is that, except in rare situations, an employee diagnosed with the virus will have no significant long-term health care problems. Therefore, medical costs associated with the claim are likely to be limited to visits to the family physician and anti-viral medications. More significant cases may involve hospital stays of two to three weeks.
The compensation costs should also be limited to the lost time associated to any recovery time. They may also be associated with lost time due to quarantine as required by the employer or local, state, or federal government agencies.
There could be more significant costs in extreme and rare situations involving complications from the virus. However, these cases would usually be limited to claimants who are older or suffer from immune deficiencies.
Q. Can an employer require an employee to submit a doctor’s note upon the employee’s return to work after exhibiting symptoms of the coronavirus?
A. In its Pandemic Preparedness, the EEOC states that an employer may require employees who were absent from work during a pandemic to provide a doctor’s note certifying their fitness to return to work. The EEOC explains such inquiries are permitted by the ADA either because they are not disability-related or if the pandemic was truly severe, they would be justified under the ADA. The EEOC recognizes, however, that because doctors and other health care professionals may be too busy during a pandemic to provide documentation, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an email.
Q. Is an employer required to pay wages to an employee who has not been diagnosed with the coronavirus and who is not coming to work (e.g., pending test results, during a quarantine) and who cannot perform all or most of his/her job duties remotely because of the nature of the work?
A. Under the federal Fair Labor Standards Act (FLSA), employers are required to pay employees who are not exempt from overtime (e.g., employees paid hourly or otherwise entitled to overtime pay) only for hours they actually work.
For employees exempt from the FLSA’s minimum wage or overtime pay requirements, an employer jeopardizes its ability to treat employees as exempt if it does not pay employees for a reason not otherwise permitted by the Department of Labor.
As related to the current pandemic, there are three permissible deductions an employer may take from an exempt employee’s wages without jeopardizing the employee’s exempt status: (1) if the employee is absent from work for one or more full days for personal reasons other than sickness or disability, (2) for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice or providing compensation for salary lost due to illness, and (3) if the employee is absent for a full workweek. Therefore, if an employer sends employees home early or decides to close for an entire day, the employer is obligated to pay exempt employees for the full day in order to maintain the employees’ exempt status.
The only additional situations where an employer does not jeopardize losing an employee’s exempt status by not paying the exempt employee his/her full salary is if the employer shuts down operations and the employee does not perform any work for at least one week, or the employee chooses to take a day or more off from work for personal reasons other than sickness or disability.
Legal requirements aside, paying an employee his/her regular wages (at least until and unless the employee tests positive for the coronavirus or during a quarantine) or foregoing disciplinary action based on absenteeism caused by the coronavirus may incentivize employees who have been exposed or are symptomatic to stay home, thereby reducing the risk that the virus will spread in the workplace, which may improve morale and public relations.
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If you have questions or need assistance, please do not hesitate to contact an employment lawyer in our firm at 541-686-9160, or http://eugenelaw.com/employment-law.