Michael Gore served as a featured speaker at a recent Palm Beach Chamber of Commerce webinar on the topic of legal considerations for employers tasked with reopening their businesses and implementing procedures to protect employees in the months following the COVID-19 outbreak.
We have outlined the following key considerations and resources for businesses and employers.
Employers should be mindful of and comply with applicable federal, state, and local orders and guidelines regarding employee safety in the workplace. Although not firm regulations, the guidance provided by OSHA should be considered “recommendations.”
Employers are reminded of OSHA’s General Duty Clause:
The OSHA Guidance is comprised of two sections:
Basic Step #1: Develop a Preparedness and Response Plan
Basic Step #2: Infection Prevention Measures
Basic Step #3: Develop Policies and Procedures for Prompt Identification and Isolation of Sick Employees
Employers should communicate procedures clearly but allow for flexibility in normal policies:
Basic Step #4: Implement Workplace Controls
Families First Coronavirus Response Act (FFCRA)
The FFCRA also requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Be mindful of federal mandated leave requirements:
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:
What does unable to work or telework mean?
You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework…. If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
What if an employee has multiple reasons to take leave for the year?
An employee may take leave for more than one reason, but the overall caps apply. So, if an employee takes 48 hours under the Emergency Paid Sick Leave Act because his doctor advised him to self-quarantine, he will have 32 hours remaining. As a result, if he subsequently needs additional leave because his childcare provider closes due to COVID-19, he will be capped at 32 hours. However, under this circumstance (in need of childcare) the employee may be entitled to 10 weeks of partially paid leave under the Expanded Family Medical Leave after exhausting Emergency Paid Sick Leave Act leave.
Finally, the ADA requires certain employers to provide reasonable accommodations to employees with disabilities. The U.S. Equal Employment Opportunity Commission (EEOC) published guidance on ADA issues in light of COVID-19, which can be found here.
Be mindful of ADA obligations for employers with 15 or more employees:
• Interactive Process & Reasonable accommodations*;
• No discrimination or retaliation;
• Note the interplay between OSHA's requirements to protect employees and ADA confidentiality obligations; and
• EEOC relaxed guidelines in light of COVID-19.
*Generally, employers have an affirmative obligation under the ADA to engage in the “interactive process” to determine if a reasonable accommodation must be provided to the employee.
How much information can you request from employees?
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus.
Can employers take temperatures?
Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature.
Can employers compel employees to stay at home?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
Pre-testing before entering workplace?
Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
What happens when an employee requests a return to work?
A request for a doctor's note is permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.
What about confidentiality?
Employee health information must always be kept confidential. This includes testing results including temperature testing at work.
What about reasonable accommodations?
Employees with known disabilities should be provided reasonable accommodations including the opportunity to telework. For those who cannot telework, changes to the environment may be necessary, i.e. sneeze guards.
What type of "undue hardships" justify not providing accommodations?
Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer's overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But, the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration. Note, however, this reason may be less compelling in light of PPP loans.
Fair Labor Standards Act (FLSA)| Overtime & Wage Claims
With many employees continuing to work remotely, employers should remain mindful of their obligations under FLSA, including keeping accurate time and pay records. Some previously exempt employees may have lost their exempt status if they are no longer paid a “salary” or start performing more non-exempt duties than before, which would make them entitled to overtime. Additionally, reducing the salary of a “highly compensated” employee may also cause an exemption to be lost.
• Exempt employees typically are those who (1) are paid a salary and (2) perform exempt duties. Exempt employees receiving a salary who have been furloughed or demoted may fall out of an exemption; meaning, overtime and minimum wage requirements apply!
• FLSA timekeeping requirements
Undocumented time may still be compensable time.
• Teleworking of non-exempt employees
Employees who telework from home may have undocumented, yet compensable time.
• Employees at the premises who are practicing social distance
Many employees fearful of interacting with co-workers will opt to take breaks at the desk including lunch breaks; Answering e-mails, phone calls, etc. during "break time" is compensable time and should be documented.
Solutions? Drafting and enforcing time-keeping policies.
• Many health or medical conditions meet the definition of a “disability” under the ADA.
• Employees fearful of returning to work may ask for “accommodations” in many forms including teleworking.
• Employees who cannot telework may ask for PPE or other protective controls.
An employee who objects to an employer violating a law, rule, or regulation, and who suffers an adverse employment action as a result, may bring a claim for unlawful retaliation. The law, rule, or regulation could include quarantine orders related to the pandemic. Employees may also have retaliation claims for (i) overtime, (ii) workers compensation relief for an injury on the job, which may include a claim due to contracting COVID-19, (iii) unsafe workplace conditions in violation of OSHA standards and guidelines, (iv) discrimination, harassment, or hostile work environment, (v) leave under the FMLA or FFCRA.
Failure to Hire Claims
An employer may receive a claim for not bringing back an employee from a furlough, layoff, or reduction of pay if that employee had previously engaged in whistleblowing, would have been entitled to leave under federal law, or if there is some disproportionate treatment based on a protected status such as race, religion, sex, etc.
Employment claims are fact-specific and handled on a case-by-case basis. The potential exposure to claims by employees is vast and the scope of these claims continues to develop. As we enter this next phase of reopening the economy, employers who are mindful of the above and discuss evolving issues with an employment attorney will be ahead of the curve and in a better position to protect their business.
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Jones Foster is a commercial and private client law firm headquartered in West Palm Beach, Florida. Established in 1924, the Firm has served as an integral part of South Florida’s growth and prosperity for nearly a century. Through a relentless pursuit of excellence, Jones Foster delivers original legal solutions that help clients, colleagues, and the community to move forward. The Firm’s attorneys focus their practice in Real Estate, Litigation & Dispute Resolution, Private Wealth, Trusts & Estates, Corporate & Tax, and Land Use & Governmental. For more information, please visit www.jonesfoster.com.