March 17, 2020

Employer Obligations Arising from COVID-19 (Part 2)

Many employers are now faced with tough decisions regarding business continuity and proper response methods. When making these difficult determinations, employers should be aware of the affirmative legal obligations imposed on them in the face of COVID-19.

Legal Obligations
  • Occupational Safety and Health Act
    OSHA recommends employers to follow CDC guidance in taking cautionary measures at the workplace. OSHA has also compiled guidance for workplaces preparing for COVID-19. Employers should review both CDC and OSHA-specific guidance to ensure that the proper precautionary measures are being instituted in their workplaces.

In addition to this guidance, OSHA contains a General Duty Clause which requires employers to furnish to each worker a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm. This imposes a duty upon employers to protect their employees from exposure to COVID19 in the workplace.

The General Duty Clause will come into play when employees have tested positive for COVID-19, have suspected but unconfirmed cases, or have come into contact with others who have tested positive, and come into the workplace and interacted with other employees.

In these situations, employers are encouraged to take the following precautions:

    1. Ask the affected employee to leave work and encourage them to seek medical attention or to self-quarantine;
    2. Obtain a list of all employees who the affected employee interacted with in the preceding fourteen days and encourage those employees to self-quarantine for a period of fourteen-days;
    3. Employers may inform employees of the affected employee’s status (and are likely required to if the affected employee has a confirmed case of COVID-19), but should not identify the affected employee by name.

OSHA also imposes recordkeeping requirements upon employers, primarily if an injury or illness results in more than one day away from work or medical treatment beyond first aid. OSHA clarified that cases of COVID-19 must be recorded pursuant to these requirements, even though the common cold and the flu are exempt. Accordingly, employers should ensure they have the proper recording protocols in place to monitor all employees who miss work due to COVID-19 exposure.

Anti-Discrimination Laws

The Americans with Disabilities Act prohibits employers from making disability-related inquiries unless such inquiry is job-related and consistent with business necessity or the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of himself or others which cannot be eliminated or reduced by a reasonable accommodation. The EEOC has issued guidance which addresses that the determination of a direct threat depends on the severity of the illness.

To date, the WHO has declared the outbreak a global pandemic and the President Trump has declared a national emergency. Accordingly, it is likely that the direct threat element would be satisfied with respect to employees exhibiting symptoms of COVID-19 at work. As a result, employers may be entitled to take employee’s temperatures at work. However, not all affected individuals present with a fever, so this measure may not be effective and could result in increased panic and fear among employees.

Additionally, keep in mind that all medical information learned about an employee must be kept confidential by the employer. This includes information relating to an employee’s reasonable accommodation request for COVID-9 treatment.

If the employer chooses to implement any COVID-19-related precautions, they should ensure that they are implementing them in a non-discriminatory manner. For example, employers cannot implement measures which specifically apply to all pregnant employees or all employees over a certain age. Failure conduct a corporation’s COVID-19 response in a non-discriminatory manner could result in a violation of several anti-discrimination laws, including Title VII of the Civil Rights Act.

Wage and Hour Laws

Over the next few weeks, concerns are likely to arise with respect to payment of wages as a result of self-quarantines and mandated work from home policies. The US Department of Labor has released helpful guidance relating to COVID-19 and the interaction with the Fair Labor Standards Act.

Generally, employers should keep the following in mind:

  • Employers can (and are currently encouraged to) require employees to work from home.
  • Employers (for the most part) do not have to pay employees who cannot work from home and who are not working during this time.
  • The FLSA requires employers to pay hourly, non-exempt employees only for the hours actually worked in a given week.
  • The FLSA generally requires employers to pay salaried, exempt employees the full salary in any week they perform any work (certain limited exceptions apply, in particular employers who maintain a paid sick leave policy).
  • Employers may require employees to use their accrued vacation time, sick time, or paid time off so long as the employer’s existing policies provide for such action. Where a policy does not expressly authorize an employer to require employees to utilize paid PTO, vacation or sick leave, forced use of such benefits may result in employer liability.
Unemployment Insurance Benefits

On March 16, 2020 Governor Whitmer issued an Executive Order amending the Michigan Employment Security Act and providing the State’s first tangible benefit issued to employees in Michigan. This Executive Order expands entitlement to unemployment benefits until April 14, 2020 for certain Michigan employees impacted by COVID-19. More information about this, can be found HERE.

We understand that employers will likely have many individualized questions arising from COVID-19’s impact on their workplaces. When such an inquiry arises, we encourage employers to reach out to a Kerr Russell employment attorney for a prompt response and advise on the best route to proceed.

Mark C. KnothImage of Mark C. Knoth, Employment and Labor attorney of Kerr Russell chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.

Liam K. HealyLiam K. Healy of Kerr Russell practice clients maintain compliance with state and federal tax laws that govern individuals and businesses focuses his practice on helping clients maintain compliance with the myriad of state and federal tax laws and regulations that govern individuals and businesses. A particular focus of Liam’s practice is in the area of employee benefits and ERISA. Liam specializes in designing pension and executive compensation plans to benefit business owners and executives. His practice includes drafting and reviewing deferred compensation agreements, severance agreements and non-compete agreements, representing employers in multi-employer plan collection and withdrawal liability matters.

 

Olivia HankinsonOlivia V. Hankinson counsels and advises business owners, managers and human resources professionals on various labor and employment related issues. These often involve concerns which may implicate employment laws including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Michigan Persons with Disabilities Civil Rights Act, the Family and Medical Leave Act, the National Labor Relations Act, and the Michigan Occupational Safety and Health Act. Olivia represents employers with respect to unemployment insurance hearings, MIOSHA violation allegations, EEOC investigations, and other employment law matters. She also drafts employee handbooks, employment agreements, restrictive covenants, and various other employment policies.

Brandi Dobbs Brandi M. Dobbs is an associate at Kerr Russell who supports the business and litigation needs of clients. She focuses on bankruptcy and restructuring. Brandi has successfully guided consumer debtors through Chapter 7 and assisted business debtors through the Chapter 11 process.

 

 

 

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