Employer Rights and COVID-19

December 8, 2021 update: (additional or changed text highlighted in red): new and updated information provided under FAQ "What are the potential impacts of the COVID-19 vaccines on an employer and what factors should be considerd when implementing a mandatory vs. voluntary program?" based on recently passed legislation in Florida and the federal courts' temporary blocking of certain federal mandates.

Due to the ongoing 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 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?

• What are the potential impacts of the COVID-19 vaccines on an employer and what factors should be considered when implementing a mandatory vs. voluntary program in light of recent Florida law and the federal courts temporarily halting federal vaccine mandates?

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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.  

• 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.  

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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.  

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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  
• Demoting   
• Denying overtime or promotion  
• Disciplining  
• 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.

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 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.

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. 

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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. 

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.  

When a mandatory program is legally-permitted and implemented, there are going to be three major objections that could be raised by some employees, and these types of objections are protected under state and federal law.  

Employees may be protected under state and federal law for objections based on disability.  First, the Americans with Disabilities Act, and the Florida Civil Rights Act which is patterned on the ADA, applies to employers with 15 or more employees.  The Rehabilitation Act of 1973, which uses the same standards as the ADA and is enforced by the Department of Labor, applies to federal prime and subcontracts contracts in excess of $10,000 regardless of the size of the employer.  These objections could be based on mental or physiological conditions.  The ensuing analysis involves whether the failure to be vaccinated needs to be accomodated by the employer, whether it presents a "direct threat" to the safety of the employee or coworkers, and whether an accomodation imposes an "undue hardship" on the employer. Further, a pregnant employee may object to being vaccinated due to the fact that there is very little data as to the potential effects of the vaccine on an unborn child. While pregnancy is generally not a disability under the ADA, this objection could implicate the Pregnancy Discrimination Act. Dealing with these objections can be a very complicated process and should not be attempted without consulting experienced employment law counsel. 

State and federal law also prohibit discrimination on the basis of an employee's religion.  The adminstration of the vaccine may violate an employee's "sincerely held religious belief."  EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.  Again, whether or not to accomodate an employee's religious belief, and whether to request additional information to test the sincerity of the belief, should not be attempted without consulting an experience employment law attorney.  

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. 

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