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Coronavirus - Employment law update - US

  • USA
  • Coronavirus - Workforce issues

08-04-2020

Overview

Our previous briefing on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the CoVID-19 outbreak. In this briefing we address some of the more common questions raised by US employers.

In a situation of great uncertainty, employers need to focus on maintaining their employees’ trust and confidence by showing leadership; following government guidance; and by acting fairly, reasonably and consistently.

Employer's response to coronavirus in the US: general principles

US employers should:

  • monitor and follow advice and guidance from relevant authorities such as the World Health Organization (“WHO”) and the Centers for Disease Control and Prevention (“CDC”)
  • assess the risks faced by their employees and visitors and implement measures to mitigate those risks. While employers should pay particular attention to vulnerable staff (such as those who are pregnant) they should be mindful of their duty to protect all employees from a condition known to cause harm. While pregnant staff and visitors may be more susceptible to risk, employers should implement measures uniformly, so as to not trigger discrimination claims
  • inform their employees and, where relevant, recognized unions about their proposed measures
  • review their need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
  • review policies governing business travel, vacation, sickness, caring for dependents and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
  • review relevant insurance policies and guidance issued by their insurers
  • update contact details for staff and management
  • devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19 or who report symptoms and may have CoVID-19
  • ensure that appropriate security measures and policies are in place in the event of remote working
  • assess compliance with the Fair Labor Standards Act and overtime requirements at all times, including during furloughs, pay reductions, and remote work arrangements
  • grant paid sick leave as mandated by state and local laws, and the Families First Coronavirus Response Act
  • ensure that mandatory notices, such as the Families First Coronavirus Response Act notice, are posted

 

1. Employer’s duty of care – what does the law in the United States say?

Employers in the US have a the general duty to furnish to each of their employees a workplace that is free from recognized hazards that are causing or are likely to cause death or serious physical harm. Therefore, when assessing risks to employee health and safety, employers should consider the vulnerabilities of individuals as well.

Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, the CDC, or the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

Several US businesses may have started to provide personal protection equipment to their staff, such as alcohol wipes and hand sanitizers. Employers do not have to provide employees with a face mask. While the CDC does not currently recommend that healthy individuals use face masks, employees may wear face masks as long as the masks do not create a hazard themselves.

Employees may be allowed to voluntarily use respiratory protection, even when not required. However, per the Occupational Safety and Health Administration (“OSHA”) Respiratory Protection Standard, if employers allow voluntary use of respirators, such use will have to be pursuant to an implemented written respiratory protection plan. Employers will also have to verify that respirators do not create a hazard, provide employees with a copy of the Mandatory Information for Employees Using Respirators When Not Required Under the Standard, and verify that the voluntary use of the respirator complies with the employer’s written respiratory program. Employers must ensure that any employee using a respirator is medically able to do so and that the respirator is cleaned, stored, and maintained so that its use does not pose a health hazard to the user.

Employers should inform employees about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing etc.).

Employers may also consider implementing measures to screen visitors to their premises, for example requiring them to certify that they have not recently visited countries that the CDC has recognized as High Risk Countries. The countries that are currently identified as High Risk Countries by the CDC are: China, Iran, Italy, and South Korea.

To the extent that employers believe there has been suspected exposure to the virus in the workplace, they should consider remote working to the extent feasible.

Employers should consider implementing protocols to deal with employees under mandatory quarantine; who have self-quarantined; who have travelled to High Risk Countries; who propose going on vacation to such destinations; or who appear to be at risk or are ill, potentially with CoVID-19.

Employers may wish to assemble a project team with members specializing in employee relations; insurance; travel and events; communications and occupational health to work together on developing appropriate protocols. Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of claims.

In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees; and explain the steps they are taking to monitor the situation.

2. Business travel – should travel be restricted?

Employers may also consider implementing policies to minimize the risk of employees catching CoVID-19 in the workplace, for example health screening questionnaires for staff members returning from abroad, enabling remote working, and delaying or cancelling non-essential business travel and meetings.

While the CDC currently advises against travel to High Risk Countries, it has not emitted any advice against all international travel.

As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business.

These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate.

In considering whether staff should still travel, employers should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.

Employers should be mindful of the way in which they implement travel policies. All policies should be administered as to not trigger possible grounds for discrimination. For example, if employers implement a travel opt-out policy, they cannot require pregnant staff or staff with a recognized disability to opt out of travel, while requiring other employees to continue traveling.

3. Flexible working - can an employer require staff to work flexibly?

Several states have issued stay-at-home and shelter-in-place orders, and asked non-essential businesses to shut down. Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties. Staff contracts may entitle the employer to require staff to work flexibly. If so, employers should normally consult with staff before exercising their rights to require flexible working and should to listen sympathetically if staff have personal reasons why they cannot work flexibly. Additionally, to the extent that staff are required to work remotely, employers should be ready to offer any accommodation (whether disability or religious) that they may otherwise be receiving at the workplace.

If the employer needs employees to work outside the terms of their existing contracts then it will have to agree the flexible arrangements with the individual employee, or with a recognized union if collective bargaining is in place. Ideally, any agreement to perform different tasks than those delineated in existing contracts should be confirmed in writing.

If the employee refuses to accept the alternative duties, they can be required to do so where the employee does not work under a collective bargaining agreement and the alternative duties are similar to their own role, within their abilities, and do not impact detrimentally on the employee’s conditions of employment. If the employee refuses to perform alternative duties after being required to do so, disciplinary action could be considered. However, it is important to respond in a proportionate, reasonable, and consistent manner.

In any event, it is important that the employer can justify the need for flexible working and that it behaved reasonably and proportionately when implementing different working arrangements.

Alternatively, if the reason for flexibility is personal to the employee, in that the employee is at risk of having been infected, then the employer would have good grounds for requiring the employee to work from home, provided their enforced removal from the workplace lasts no longer than is necessary and they are provided with support. However, if the employee exhibits symptoms of the CoVID-19 virus, employers may ask the individual to seek medical attention and get tested for CoVID-19.

4. Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19.

Under OSHA, employees may refuse to attend work if they have a reasonable fear that there is risk of imminent death or serious injury in their workplace. Employees must be able to show five elements in support of their refusal to attend work: (1) reasonable fear of death or serious injury; (2) refusal must be done in good faith; (3) no reasonable alternative; (4) had insufficient time to eliminate the condition through regular statutory enforcement channels, like contacting OSHA; and (5) sought from the employer and was unable to obtain a correction of the dangerous condition. OSHA prohibits retaliation against an employee who refuses to work because of a reasonable fear of death or injury.

Additionally, the National Labor Relations Act (NLRA) ensures that employees may engage in concerted activity and refuse to work based on concerns about safety and health. “Concerted activity” exists whe two or more employees act together or when individual action is undertaken on behalf of co-workers. While it is not required that employees have a “reasonable belief” that a situation is unsafe, it is required that employees have a good faith belief supported by ascertainable and objective evidence that the working conditions are abnormally dangerous.

If the employee does not have genuine reasons so as to not attend work, employers should try to persuade the employee to attend work and discuss any additional precautions that could be put in place. If the employee still refuses, employers should consider whether it would be appropriate to take disciplinary action.

In other cases, such as site-based work or where staff are unable to work due to caring for dependents, it may be possible to agree that time away is taken as vacation or unpaid leave. The employer may be able to provide support and advice via an existing Employee Assistance Program. However, if no such program exists and an agreed resolution cannot be found and an employee refuses to attend work without good cause, disciplinary action could be considered.

Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks, which might cause employees concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable, and consistent manner.

Other employees may be willing but unable to work because they are caring for immediate family members. Under the Family and Medical Leave Act (“FMLA”) eligible employees must be provided up to 12 weeks of unpaid leave each year for four specific reasons, one of them being to care for an immediate family member with a serious health conditions. Eligible employees are those who have worked for their employer for at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

Effective April 2, 2020, in accordance with Expanded FMLA provision (“EFMLA”) of the Families First Coronavirus Response Act (“FFCRA”), employees of employers with fewer than 500 employees and who have worked for at least 30 days may be eligible to avail of the FMLA leave to care for the employee’s child (under 18) if the child’s school or place of care is closed, or the childcare provider is unavailable due to a public health emergency. Note however that the Department of Labor (“DOL”) can exempt certain health care providers and emergency responders from coverage and can provide an exemption for businesses with fewer than 50 employees if compliance with the leave requirements would jeopardize the employer’s business as a going concern. In addition, even without DOL exemptions, employers may exclude health care providers and emergency responders from eligibility under these expanded FMLA rules.

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19 will normally be entitled to sick pay in the usual way.

Employers do not need to pay non-exempt employees who miss work. Employers may also send non-exempt employees home due to sickness and treat their time off as unpaid.

Exempt employees receive their full salary for any week in which they work, regardless of the number of days or hours worked (there are exceptions discussed below). Employers do not have to pay an exempt employee for any workweek in which no work is performed. However, employers should be mindful that improper deductions to an exempt employee’s salary could affect the employee’s exempt status under the Fair Labor Standards Act (FLSA).

There are three exceptions to the requirement of paying exempt employees their full salary for any week in which they work:

  • if an exempt employee misses work because of illness or disability and the absence is pursuant to employer’s sick leave policy, employers may deduct an exempt employee's salary, but only in full-day increments
  • if an exempt employee misses work due to personal reasons, other than sickness or disability, employers may deduct in full-day increments
  • employers may make deductions from the salary of an exempt employee taking unpaid FMLA leave

If the employer initiated the employee’s absence, they may not deduct from an employee’s salary.

Also, employers may require that employees use accrued sick time or PTO when employees are unable to attend work due to sickness.

If feasible, employers should explore if telecommuting is viable for employees who cannot attend work, so as to avoid further loss in working time.

Additional Pay the Families First Coronavirus Response Act entitles Employees To

After the first 10 days of leave that an employee takes pursuant to the E-FMLA, the employer must also pay the employee at a rate that is not less than two-thirds of the employee’s regular rate of pay, up to $200 per day per employee (subject to a per employee maximum of $10,000). Employees are generally entitled to reinstatement following any leave, with certain exceptions for employers with fewer than 25 employees. Employees may use accrued paid leave time during the initial 10-day period.

Further, effective April 2, 2020, and for the duration of 2020, employers with fewer than 500 employees will be required to provide employees with paid sick leave consistent with the following rules:

  1. the amount of paid sick leave is essentially capped at two weeks (80 hours for full-time employees and based on average hours in a work week for part-time employees)
  2. leave may be taken for the following reasons:
  • the employee is subject to quarantine or isolation
  • the employee has been advised to self-quarantine
  • the employee is experiencing symptoms of CoVID-19 and seeking treatment
  • the employee is caring for an individual subject to quarantine or isolation or who has been recommended to self-quarantine
  • the employee is caring for a son or daughter subject to a school closure or absence of care as a result of CoVID-19 precautions
  • other similar situations approved by the Department of Health and Human Services

The amount the employer must pay for the sick leave is capped at $511 per day per employee (up to a maximum of $5,110) in the case of the first three categories and $200 per day per employee (up to a maximum of $2,000) in the case of the remaining categories. Of course, the employer may be more generous.

There is no minimum service requirement, and employers may not require employees to use other accrued paid leave time before using this sick leave. This sick leave is to be used before the employee uses any other leave time, and availability will cease beginning with the employee’s next scheduled shift following the need for the sick leave.

Employers may also not require employees to search for, or find, a replacement during the time the employee is using the paid sick leave.

As in the case of the E-FMLA, DOL can exempt certain health care providers and emergency responders from coverage. DOL can also provide an exemption for businesses with fewer than 50 employees if compliance with the leave requirements would jeopardize the employer’s business as a going concern.

Several states have also added their own paid leave policies in light of COVID-19, and employers should consult state and local requirements prior to administering any leave requests.

6. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work from High Risk Countries and training managers to spot symptoms of CoVID-19.

Employers may ask employees about CoVID-19 symptoms, as under the current circumstances these inquiries are not disability-related. Moreover, even if they were considered disability-related, these inquiries are justified by a reasonable belief based on objective evidence that the CoVID-19 poses a direct threat.

Employers must be careful to avoid unlawful discrimination, which might arise if, for example, employees with a particular nationality or ethnicity are singled out for checks.

Employers can request staff to report if they are infected, have been exposed to infection, or have travelled to High Risk Countries. However, employers must be mindful that pursuant to the Americans with Disabilities Act (“ADA”), they have a duty to keep medical information about an employee confidential. Nevertheless, if an employee is confirmed to have CoVID-19, employers should inform fellow employees of their possible exposure to CoVID-19 in the workplace but maintain confidentiality of sick individual(s).

7. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shutdown period?

Employers may require employees to use their paid time off benefits, as long as they do so consistently and without engaging in unlawful discrimination.

8. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

  • create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
  • devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details
  • ask employees to report if they are ill or at particular risk of infection and ask that they seek medical attention
  • train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
  • consider alternatives to travel such as using videoconferencing or webinars
  • identify and track employees who are abroad and consider appropriate measures to support them
  • identify key roles in their business that are essential for business continuity and the measures necessary to ensure their resilience (for example working from home)
  • consider any measures necessary to sustain widespread home working
  • review relevant policies (for example home working, sickness, emergency leave) and whenever possible, agree changes to staff contracts to deliver flexibility
  • consider how temporary shutdowns of premises might be managed
  • review their insurance coverage
  • consider their stance on requests to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently
  • consider any financial assistance that the employer may be entitled to under the Coronavirus Aid, Relief, and Economic Security Act of 2020 (the CARES Act) and other assistance initiatives

For small business i.e., generally employers with less than 500 employees, economic assistance is available under the following conditions:

  • the loan has to be used for business purposes, including payroll costs and benefits; and
  • funds will be used to substantially maintain its workforce at full compensation and benefits.
  • Loan Forgiveness: As an incentive to bring employees back, companies may be eligible for a loan forgiveness equal to the amount they spend over the 8-week period following the loan origination date. The amounts cover expenses incurred in connection with payroll costs (up to $100,000 in pro-rated wages for the covered period), utility costs, and rent and mortgage interest payments. Companies will be required to provide documentation to qualify, and they must maintain existing employment and compensation levels. In the event of a reduction in force (relative to the previous year), or reduction in salary or wages by more than 25%, the loan forgiveness amount will be reduced accordingly.

For mid-sized U.S. employers (those with 500 to 10,000 employees), economic assistance is available under the following conditions:

  • majority of the employees are based in the U.S.
  • must demonstrate that alternative financing is not reasonably available
  • 2% cap on interest rate; six-month deferral on principal and interest payments available
  • funds will be used to support ongoing operations
  • funds will be used to retain at least 90% of its workforce at full compensation and benefits until September 30, 2020
  • the recipient intends to restore not less that 90% of the workforce that existed as of February 1, 2020 no later than four months after the termination of emergency declared in response to CoVID-19
  • the recipient will not pay dividends with respect to common stock or purchase equity security listed on the national securities exchange while the direct loan is outstanding
  • the recipient will not outsource offshore jobs for 2 years after repayment of the loan is complete
  • the recipient will not abrogate existing union agreements during the term of the loan and for two years thereafter
  • the recipient will remain neutral in any union organizing efforts during the term of the loan
  • the recipient agrees to certain restrictions regarding employees and officers’ pay

9. Where can guidance from the US government and international bodies be found and monitored?

The CDC’s information on the CoVID-19 may be found here: CDC

U.S. Department of Labor – OSHA’s CoVID-19 Information may be found here: OSHA

The World Health Organization’s information on the CoVID-19 may be found here: WHO site

10. If an employer has a business operation in an affected area, what additional steps should be taken?

Companies operating in affected areas should comply with local and state regulations regarding CoVID-19 response. Various states and cities have issued shelter-in-place orders. Such orders typically exempt work related to essential business. Companies should continue to monitor state and local regulations affecting their business.

Beyond compliance with regulation, companies should ensure measures are taken to properly assess the risks to staff and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

11. Is there any obligation on a private employer to report any cases or suspect cases of CoVID-19 to the relevant local authorities?

CoVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of CoVID-19 if all of the following are met: (1) The case is a confirmed case of COVID-19; (2) The case is work-related; and (3) The case involves one or more of the general recording criteria set forth in OSHA regulations (e.g. medical treatment beyond first-aid, days away from work).