Employer Rights and Coronavirus
September 23, 2020 Update: (additional or changed text highlighted in red): New Q and A under FAQ "What are an employer’s obligations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) with regard to COVID-19?" regarding an employer's ability to ask an employee about family members with COVID-19. On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced revisions to regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). Those revisions are explained under FAQ "What are an employer’s responsibilities regarding family and medical leave in light of the recently passed Families First Coronavirus Recovery Act (FFCRA) addressing COVID-19?"
Due to the COVID-19 pandemic, employers across Brevard County and in Melbourne, Florida are facing unfamiliar issues in the workplace and have many questions about how to deal with situations involving their employees. While there are many good informational resources available online, it can be overwhelming trying to process all of the information and apply it to a particular question or issue an employer has. This is especially true when new laws are being drafted and passed at lightning speed.
The purpose of the Florida Employer FAQs Regarding COVID-19 (FAQs) is to present common questions Employers have, and give a succinct answer based on present information. It is not intended to provide, nor could any document provide, coverage of every employment law issue that an employer could face in the current environment. This FAQs will be periodically reviewed and edited to address additional “hot button” issues as they emerge. Because our firm is located in Brevard County, Florida, our lawyers are especially familiar with the types of businesses that are here and the particular issues that face them. These FAQs include questions we have received from local Brevard County businesses regarding how they should respond to COVID-19 issues.
An important caveat: these FAQs are based on currently available information and guidance from governmental authorities which is changing daily, if not hourly. See the Disclaimer at the end to understand we are trying to help people understand issues without creating a belief that we are giving you legal advice. What is here is designed to get you thinking about the legal landscape instead of treating it as legal advice. Volk Law is a readily available resource for Florida Employers during these challenging times. To consult with Volk Law Attorney Barry K. Baker regarding your particular employment law issue, call (321) 726-8338. Volk Law is your local Brevard County and Melbourne, Florida law firm for employers.
FREQUENTLY ASKED QUESTIONS
- What actions should an employer take, and not take, in light of COVID-19 to help protect the employer from workers’ compensation, negligence, and discrimination claims?
- What should an employer consider before laying off, furloughing, or terminating the employment of an employee?
- What are an employer’s responsibilities regarding family and medical leave in light of the recently passed Families First Coronavirus Recovery Act (FFCRA) addressing COVID-19?
- What documentation is an employee required to provide to prove their entitlement to FFCRA leave, and what documentation is an employer required to keep?
- How can an Employer afford the cost of the paid leave under the FFCRA and other business interruption financial losses?
- What are the potential risks and issues facing an Employer under the Fair Labor Standards Act?
- What are an employer’s obligations under the Occupational Safety and Health Act (OSHA) in light of COVID-19?
- What are an employer’s obligations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) with regard to COVID-19?
- What if an employee refuses to come into work as a result of COVID-19 concerns?
- How can the unemployment compensation program help?
What actions should an employer take, and not take, in light of COVID-19 to help protect the employer from workers’ compensation, negligence, and discrimination claims?
Many Brevard County employers have liability concerns with regard to their employees (with regard to workers’ compensation claims and discrimination claims), and customers, vendors, and suppliers on their business premises (with regard to traditional negligence claims). In order to mitigate their exposure to workers' compensation and negligence claims, an employer should comply with the “standard of care.” That is, what procedures would a reasonable employer follow under similar circumstances? This is a unique situation not faced by any employer in over 100 years. Here are some general guidelines as set forth by the CDC:
(1). Start with recognizing the symptoms of COVID-19.
(2). Understand what basic precautions should be taken to prevent the spread of COVID-19.
(3). Follow the Interim Guidance for Businesses and Employers established by the CDC. The CDC guidelines cover the encouragement of sick employees to stay home; separation of sick employees; respiratory etiquette and hand hygiene; environmental cleaning; and travel considerations. Also included are links on how to how to conduct a risk assessment. The CDC has also established a Business Pandemic Influenza Planning Checklist.
With regard to negligence claims, a judge, jury or arbitrator would expect that an employer followed the above guidelines when deciding whether an employer acted reasonably under the circumstances. Additionally, an employer should have documented procedures in place which are available for reference and document their compliance with the procedures.
With regard to potential discrimination claims, an employer should keep the following in mind before taking any employment action that negatively affects an employee:
- If an employer is laying off or furloughing an employee due to the drastic economic downturn caused by the COVID-19 pandemic, it should document the specific economic reasons it is doing so, including, but not limited to: the percentage decrease in revenue; the inability to maintain payroll and other overhead expenses at current levels due to the decrease in revenue; and a citation to the governmental action that is the primary contributor to the business decline. Most recently, and for any employer business deemed “non-essential,” that would be Governor Desantis’ Executive “safer at home” Order issued on April 1, 2020.
- An employer should be open and communicate these economic concerns to all affected employees.
- If an employer is terminating the employment of an employee due to performance issues or a violation of workplace conduct policies, it should document the specific reasons for the termination. An employer should not however, seek to create a false “paper trail” with pre-dated entries in an effort to justify the termination. At this point, an employer is confined by the existing paper trail and the documented reasons for termination.
- Before laying off, furloughing, or terminating the employment of an employee or, especially with a group of employees, the employer should conduct a general discrimination analysis. That is, before taking the action, ensure that you are not only taking the action for a legitimate business reason, but examine whether your selection process disproportionately affects members of a protected class under state or federal law. These protected classed include race, color, national origin, religion, sex, age, disability, or marital status. Ensure you are treating all employees similarly, applying a fair and consistent analysis independent of any bias or stereotyping. An employer should be especially careful on this last point when it comes to its Asian employees.
To consult with Volk Law Attorney Barry K. Baker regarding your particular employment law issue, call (321) 726-8338. Volk Law is your local Brevard County and Melbourne, Florida law firm for employers.
It is also important to note that a layoff and termination qualify an employee for full unemployment compensation benefits unless the termination is for gross misconduct – a very high bar. A furlough will entitle the employee to full unemployment compensation benefits for weeks they do not work at all. For weeks they work, but at a reduced schedule, they may qualify for short time compensation benefits through the Florida Department of Economic Opportunity.
While many employers are concerned about their payment obligations under the recently enacted Families First Coronavirus Response Act (FFCRA) (described in the next FAQ below) it's important to also understand what the FFCRA does not require when it comes to laying off, furloughing, or terminating the employment of an employee.
- If an employer closes after the FFCRA’s effective date of April 1, 2020 (even if the employee requested leave prior to the closure), the employee is not entitled to paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits. This is true whether the employer closes its worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.
- If an employer closes while any employee is on paid sick leave or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave the employee used before the employer closed. As of the date the employer closes its worksite, the employee is no longer entitled to paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits. This is true whether the employer closes its worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.
- The U.S. Department of Labor has also specifically stated in its guidance that an employee is not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether they took leave under the FFCRA. This means an employer can layoff, furlough, or terminate the employment of an employee for legitimate business reasons, such as the closure of an employer’s worksite. However, the employer must be able to demonstrate that the employee would have been laid off even if the employee had not taken leave.
An Employer May Not Lay off, Furlough or Terminate the Employment of an Employee because (this list not exhaustive, but focused on COVID-19 pandemic):
- The employee takes paid sick leave or family leave under the FFCRA.
- The employee files a complaint or institutes a proceeding under or related to retaliation for, or interference with, taking paid sick or family leave under the FFCRA.
- The employee has expressed concerns or complaints over workplace safety.
- Based on stereotypes or bias based on race, color, national origin, religion, sex, age, disability, or marital status.
- An employee has filed a claim for workers’ compensation benefits or because they are currently receiving workers’ compensation benefits. It is important to note however, that an employer may still be able to layoff, furlough, or terminate the employment of an employee that makes a workers’ compensation claim or is receiving benefits as long as it is able to demonstrate that it would have taken the same action regardless of the claim or receipt of benefits.
To consult with Volk Law Attorney Barry K. Baker regarding your particular employment law issue, call (321) 726-8338. Volk Law is your local Brevard County and Melbourne, Florida law firm for employers.
What are an employer’s responsibilities regarding family and medical leave in light of recently passed federal law addressing COVID-19?
This is a complicated and rapidly evolving area due to the fact that employers of all sizes across Brevard County and in Melbourne, Florida are having to deal with employees having issues with COVID-19, be it the employee’s own health, the health of a family member, or having to care for children that are now at home due to school closings and the unavailability of child care.
Also of concern to employers is whether the leave is required to be paid, who pays it, and the use of other paid leave such as vacation, PTO, and sick leave during the employee’s absence. Formerly, only employers with 50 or more employees were covered under the Family Medical Leave Act (FMLA) (Florida does not yet have a state law governing the same subject). Generally, the FMLA requires a covered employer to provide up to 12 weeks of unpaid leave for the serious health condition (a diagnosis of COVID-19 or exhibiting symptoms of the virus satisfy this requirement) of the employee or the serious health condition of that employee’s qualifying family member. The legal landscape has changed dramatically as a result of a new law signed by the President on March 18, 2020. Here’s an explanation of that new law and its impact on employers, including employers formally not covered under the FMLA:
(1). The ”Families First Coronavirus Response Act" (FFCRA) was signed into law on March 18, 2020, has an effective date of April 1, 2020, and will expire December 31, 2020.
(2). The FFCRA includes special provisions with respect to employees who are employed by healthcare providers and emergency responders (which are beyond the scope of these FAQs; if you have a specific question regarding these areas, or any other area not covered by these FAQs, please contact our office).
(3). The U.S. Department of Labor, charged with enforcing the provisions of the FFCRA, has just issued a new poster that is required to be posted in a conspicuous place in all covered employers’ workplaces. That poster can be found on the US DOL’s Wage and Hour Division website as well as a FAQs section on the new poster.
(4). The new law is broken down into two main parts directly affecting employers:
I. Emergency Family and Medical Leave Expansion Act (EFMLEA)
(a). Generally. This provision of the FFCRA allows an employee, who is unable to work or telework (see FLSA FAQ below for further guidance), to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.
(b). Employers and Employees covered. All employers with fewer than 500 employees are covered (vs. the FMLA’s normal requirement of 50 or more within a 75 mile radius of the employee's worksite). All employees who have worked for the employer for at least 30 days prior to the designated leave may be eligible to receive paid family and medical leave (vs. the FMLA’s normal requirement that the employee work at least 1250 hours in the 12 months preceding the leave).
(c). The Leave Rights an Employee has. A covered employee working for a covered employer may take up to 12 weeks of job-protected leave.
(d). Pay Required While on Leave. The first 10 days of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. This pay entitlement is capped at $200 per day and $10,000 in the aggregate per employee.
(e). Job Restoration Rights. Employers with 25 or more employees will have the same obligation as under the previous FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon their return to work. Employers with fewer than 25 employees are excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downturn or other circumstances caused by a public health emergency during the period of Emergency FMLA. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.
II. Emergency Paid Sick Leave Act
(a). This provision of the FFCRA allows an eligible employee to take paid sick leave because the employee is:
(1). subject to a federal, state or local quarantine or isolation order related to COVID-19;
(2). advised by a health care provider to self-quarantine due to COVID-19 concerns;
(3). experiencing COVID-19 symptoms and seeking medical diagnosis;
(4). caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
(5). caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; and
(6). experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
It is important to note that caring for another who is subject to an isolation order or advised to self-quarantine as described above is not limited to just family members.
(b). Employers and Employees covered: Employers with fewer than 500 employees and full-time employees, regardless of the employee’s duration of employment prior to leave are covered under this provision.
(c). Leave Time and Pay Required:
(1). The employer must provide 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above). Note that an employee may take only 80 hours of aggregate leave under the Emergency Paid Sick Leave Act, regardless if they qualify under more than one of the reasons to take leave. They cannot take 80 hours under one qualifying reason, and then take more time for another qualifying reason.
(2). Paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.
(3). Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave.
(4). Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period.
(5). A business employing fewer than 500 employees is required, at the request of the employee, to pay a full-time employee for 80 hours of mandated emergency paid sick leave instead of the initial 10 days of unpaid leave permitted by the Emergency Family and Medical Leave Expansion Act (summarized above). This paid sick leave will not carry over to the following year and may be in addition to any paid sick leave currently provided by employers.
Effective September 16, 2020, the US DOL implemented revisions to the FFCRA regulations. The revisions clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, in light of the U.S. District Court for the Southern District of New York in an Aug. 3, 2020, decision that found portions of the regulations invalid.
The revisions do the following:
- Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
- Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
To consult with Volk Law Attorney Barry K. Baker regarding your particular employment law issue, call (321) 726-8338. Volk Law is your local Brevard County and Melbourne, Florida law firm for employers.
(a) An employee is required to provide the employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA or Expanded Family and Medical Leave under the EFMLEA:
(1) Employee's name;
(2) Date(s) for which leave is requested;
(3) Qualifying reason for the leave; and
(4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.
(b) To take Paid Sick Leave for a qualifying COVID-19 related reason under s. 826.20(a)(1)(i) [the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19], an employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order.
(c) To take Paid Sick Leave for a qualifying COVID-19 related reason under s. 826.20(a)(1)(ii) [the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19], an employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.
(d) To take Paid Sick Leave for a qualifying COVID-19 related reason under s. 826.20(a)(1)(iii) [the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider] an employee must additionally provide the employer with either:
(1) The name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or
(2) The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.
(e) To take Paid Sick Leave for a qualifying COVID-19 related reason under s. 826.20(a)(1)(v) [the employee is caring for his or her Son or Daughter whose school or Place of Care has been closed for a period of time] or Expanded Family and Medical Leave [same reason – caring for minor child], an Employee must additionally provide:
(1) The name of the Son or Daughter being cared for;
(2) The name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and
(3) A representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.
(f) The employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information, please consult the IRS FAQs available online regarding COVID-19 related tax credits, and your tax professional.
How can an Employer afford the cost of the paid leave under the FFCRA and other business interruption financial losses?
Employers across Brevard County and in Melbourne, Florida - especially small businesses operating on thin margins - are justifiably concerned about the frightening combination of operating on a limited basis and having to make required payments to employees under the FFCRA. One of the most asked about provisions of the FFCRA is an exemption for those businesses with less than 50 employees. The U.S. Department of Labor issued implementing FFCRA regulations on April 1, 2020. The regulation regarding the exemption follows:
Exemption from requirement to provide leave under the EPSLA Section 5102(a)(5) and the EFMLEA for Employers with fewer than 50 Employees.
(1) An Employer, including a religious or nonprofit organization, with fewer than 50 Employees (small business) is exempt from providing Paid Sick Leave under the EPSLA and Expanded Family and Medical Leave under the EFMLEA when the imposition of such requirements would jeopardize the viability of the business as a going concern. A small business under this section is entitled to this exemption if an authorized officer of the business has determined that:
(i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would result in the small business's expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
(ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
(iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.
(2) To elect this small business exemption, the Employer must document that a determination has been made pursuant to the criteria set forth by the Department in § 826.40(b)(1). The Employer should not send such documentation to the Department, but rather retain the records in its files.
The “Coronavirus Aid, Relief, and Economic Security Act" (CARES Act) was signed into law on March 27,2020. Of most interest to small businesses are the following key sections allocated to federally-guaranteed loans to small businesses (less than 500 employees) to cope with the COVID-19 economic crises, and the section funding increased unemployment compensation benefits:
Title 1 of the CARES Act - "Keeping American Workers Paid and Employed Act" outlines the paycheck protection program.
(1). For Paycheck Protection Program (PPP) loan eligibility purposes, requires lenders to, instead of determining repayment ability, which is not possible during this crisis, to determine whether a business was operational on February 15, 2020, and had employees for whom it paid salaries and payroll taxes, or a paid independent contractor.
(2). Requires eligible borrowers to make a good faith certification that the loan is necessary due to the uncertainty of current economic conditions caused by COVID-19; they will use the funds to retain workers and maintain payroll, lease, and utility payments; and are not receiving duplicative funds for the same uses from another SBA program.
(3). Waives both borrower and lender fees for participation in the Paycheck Protection Program.
(4). Waives the credit elsewhere test for funds provided under this program.
(5). Waives collateral and personal guarantee requirements under this program.
(6). Increases the maximum loan for an SBA Express loan from $350,000 to $1 million through December 31, 2020, after which point the Express loan will have a maximum of $350,000.
(7). Sets a maximum interest rate of four percent. Allows complete deferment of PPP loan payments for at least six months and not more than a year and requires the SBA to disseminate guidance to lenders on this deferment process within 30 days.
(8). Establishes that the borrower shall be eligible for loan forgiveness equal to the amount spent by the borrower during an 8-week period after the origination date of the loan on payroll costs, interest payment on any mortgage incurred prior to February 15, 2020, payment of rent on any lease in force prior to February 15, 2020, and payment on any utility for which service began.
(9). Eligible payroll costs do not include compensation above $100,000 in wages. Forgiveness on a covered loan is equal to the sum of the following: (1) payroll costs incurred during the covered 8-week period compared to the previous year or time period, proportionate to maintaining employees and wages; (2) payment of interest on any covered mortgage obligation (which shall not include any prepayment of or payment of principal on a covered mortgage obligation); (3) Payment on any covered rent obligation; and (4) any covered utility payment.
(10). Canceled indebtedness resulting from this section will not be included in the borrower’s taxable income.
(11). Any loan amounts not forgiven at the end of one year is carried forward as an ongoing loan with terms of a max of 10 years, at max 4% interest. The 100% loan guarantee remains intact.
Additionally, the Small Business Administration Economic Injury Disaster Loan Program can be accessed through the SBA's website, and Florida employers can apply for a $50,000 interest free loan to bridge the economic downturn through floridadisasterloan.org.
The first funding of this program included $359 billion, which was depleted in a matter of weeks. The second funding will also be depleted quickly. Therefore, if you do not already have your application complete, contact your lender immediately to complete the application.
What are the potential risks and issues facing an Employer under the Fair Labor Standards Act?
(1) First and foremost, a Brevard County employer’s obligations to pay at least minimum wage as well as overtime under the FLSA have not changed. Bear in mind that Florida private-sector employers must pay the higher state required minimum wage.
(2). Remember that employers generally must pay employees their same hourly rate or salary if they work at home. Generally, an employer must pay employees only for the hours they actually work, whether at home or at the employer’s office.
(3). While the FLSA requires an employer to pay for hours worked by a non-exempt employee, it does not require that an employer provide a minimum number of hours during these times of economic downturn.
(4). An employer should also bear in mind that with regard to their exempt, salaried employees, the FLSA requires that they receive their full salary in any week in which they perform any work (with very limited exceptions). However, exempt salaried employees are not required to be paid their salary in weeks in which they perform no work.
(5). With regard to the “unable to work or telework” language of the FFCRA, the U.S. Department of Labor is shortly going to issue regulations further defining the standards. However, they have already issued guidance with regard to payment obligations under the FLSA which are instructive as to an employer’s telework obligations:
(a). An employer may encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions.
(b). When not all employees can work from home, it is encouraged that an employer consider additional options to promote social distancing, such as staggered work shifts.
(c). Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses of the employer associated with telework if doing so reduces the employee's earnings below the required minimum wage or overtime compensation.
(d). Employers may not require employees to pay or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act. (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)
(6). Many small businesses under financial stress may be tempted to use funds earmarked for meeting payroll obligations as a resource for personal or other business financial needs. Do not do this. As a reminder, there is individual liability under the FLSA for business owners and other decision makers when it comes to how much, and whether, an employee is paid.
The Wage and Hour Division of the United States Department of Labor has issued interim guidance on the FLSA available on its website.
To consult with Volk Law Attorney Barry K. Baker regarding your particular employment law issue, call (321) 726-8338. Volk Law is your local Brevard County and Melbourne, Florida law firm.
What are an employer’s obligations under the Occupational Safety and Health Act (OSHA) in light of COVID-19?
OSHA does not prescribe, yet, any particular standards to protect employees from COVID-19, but advises in its latest guidance that two general requirements are most relevant: the use of Personal Protective Equipment (PPE) and the “General Duty Clause” which requires the employer to provide a safe workplace free of known hazards. From a liability standpoint, all Brevard County employers should avoid retaliating in anyway against an employee raising concerns about workplace safety, including COVID-19 issues. Such retaliation is prohibited under OSHA. Therefore, while there is increased anxiety and emotional tension caused by COVID-19, owners, supervisors and managers should keep a level head. In the past weeks, OSHA has stepped up their enforcement actions regarding employees being retaliated against regarding their concerns about workplace safety due to COVID-19 exposure. OSHA gives several instructive examples of what it considers to be retaliation:
- Firing or laying off
- Denying overtime or promotion
- Denying benefits
- Failing to hire or rehire
- Intimidation or harassment
- Making threats
- Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
- Reducing pay or hours
- More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance
- Blacklisting (intentionally interfering with an employee’s ability to obtain future employment)
- Constructive discharge (quitting when an employer makes working conditions intolerable due to the employee's protected activity)
However, it's also important to point out that an employee's workplace safety concern must be reasonable. For example, if you are following CDC guidelines for workplace safety referenced in FAQ "What actions should an employer take, and not take, in light of COVID-19 to help protect the employer from workers’ compensation, negligence, and discrimination claims?" and there is no evidence that anyone at the workplace has been diagnosed with COVID-19 or exposed to a known COVID-19 victim, an employee can't just refuse to work due to a generalized anxiety about the virus. For example, on its website, OSHA advises employees they can refuse to come in to work under the following conditions:
"If you believe working conditions are unsafe or unhealthful, you may file a complaint with OSHA concerning a hazardous working condition at any time. If possible, bring the conditions to your employer's attention. If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, a worker has brought the condition to the attention of the employer, the worker may have a legal right to refuse to work in a situation in which he or she would be exposed to the hazard. If you have questions about what to do, contact your local OSHA office. We will keep your information confidential. We are here to help you."
That standard requires much more than just a generalized feeling of "I may get the virus if I come to work." If you have an employee that is refusing to come into work or has raised workplace safety concerns and you want advice on your legal rights and obligations, contact Volk Law.
Effective May 26, 2020, the Occupational Safety and Health Administration (OSHA) implemented new guidance requiring employers to record cases of COVID-19 contracted by an employee in the workplace. Previous guidance requiring reporting and investigations of work-relatedness of COVID-19 cases only applied to employers in the health care industry, emergency response organizations, and correctional institutions. Per the new guidance, any employer with 10 or more employees and not subject to an exemption for a low hazard industry, must report a case of COVID-19 if:
1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (a confirmed case of COVID-19 means an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19); and
2. The case is work-related as defined by 29 CFR § 1904.5 (under this regulation, an employer must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness; work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless a specific regulatory exception applies); and
3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (under this regulation, an employer must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness).
The question arises therefore, how is an employer to determine if a case of COVID-19 is work-related? Here is the guidance OSHA is providing its Compliance Safety and Health Officers (CSHOs) when determining whether an employer has complied with its obligation to make a work-related determination:
- The reasonableness of the employer's investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee's COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
- The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee's COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
- The evidence that a COVID-19 illness was contracted at work. CSHOs should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee's COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee's COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee's COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee's COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
- CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.
If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness. In all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.
It is important to note that OSHA makes repeated references in this new guidance that determining work-relatedness is difficult and that OSHA will exercise discretion in its enforcement actions. Employers should exercise common sense. Whenever an employer has an employee test positive for COVID-19, it should not assume that the employee contracted the virus in a non-work setting; instead, it should comply with this latest OSHA guidance.
What are an employer’s obligations under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) with regard to COVID-19?
Brevard County and Melbourne, Florida employers with 15 or more employees are covered under the ADA, GINA, and the Florida Civil Rights Act (FCRA) which prohibit disability discrimination. Here is the EEOC's latest guidance regarding what a covered employer can and cannot do under the ADA (the Florida Commission on Human Relations, which enforces the FCRA, will use the same analysis):
Q. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
A. During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Q. When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
A. 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. However, employers should be aware that some people with COVID-19 do not have a fever.
Q. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
A. 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.
Q. When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty?
A. Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
Q. If an employer is hiring, may it screen applicants for symptoms of COVID-19?
A. Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
Q. May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?
A. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
Q. May an employer delay the start date of an applicant who has COVID-19?
A. Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
Q. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
A. Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
Q. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?
A. No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.
What if an employee refuses to come into work as a result of COVID-19 concerns?
Employers across Brevard County and in Melbourne, Florida should be extremely careful when faced with an employee who refuses to come into work as a result of concerns over exposure to COVID-19, not only out of concern for themselves, but concern for vulnerable family members they may be in close contact with. Here are some considerations in dealing with this issue:
(1). The employer should first ensure that it is complying with the standard of care guidelines outlined in the FAQ above titled “What actions should an employer take in light of COVID-19 to help protect the employer from workers’ compensation claims and negligence claims?”
(2). The employer should be cautious of discharging an employee as a result of their concerns over a dangerous workplace. This can create potential liability under the OSHA anti-retaliation provisions which prohibit employers from retaliating against workers for raising concerns about safety and health conditions.
(3). Additionally, under the National Labor Relations Act (NLRA), nonsupervisory employees in unionized and non-unionized settings have the right to refuse to work in conditions they believe to be unsafe. However, in order to refuse to work, employees must have a “reasonable, good-faith belief” that working under certain conditions would not be safe. Notably, the NLRA protects employees if they are “honestly mistaken.” Specific provisions apply to unionized employees only which are beyond the scope of this FAQ.
From a practical standpoint, an employer should be sensitive to the employee’s concerns, and inform them, as appropriate under the circumstances, that all reasonable precautions have been taken and that the employee will immediately be informed if circumstances indicate a heightened risk. If telework is a reasonable possibility for the concerned employee, that option should also be fully explored.
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