BakerHostetler’s COVID-19 Employment Issues Task Force will continue to provide updates on the legal issues concerning the COVID-19 pandemic, as they become available. 

Q – Where do I find definitive guidance on what I, as an employer, should do if the location of the workplace is in an area identified with sustained community transmission?

A – Now that the virus has been declared a pandemic by the World Health Organization and certain areas in the U.S. are actively dealing with sustained community transmission, it is likely that we will soon be dealing with the next phase, where employers want to know what to do in those areas that have sustained community transmission. The following is a link to guidance from the Centers for Disease Control and Prevention (CDC) with respect to one such place, Santa Clara, California.

The document includes a section regarding what employers should do where there is sustained community transmission. The CDC has also issued general guidance for employers where there is not sustained transmission.

Q – Various unions across the U.S., especially in the hospitality, healthcare, food service and transportation industries, recently have used the COVID-19 situation as a tool for union organizing. They are seeking employee support to bargain with employers for paid sick leave, medical testing, reduction of work, layoff protection, increased healthcare coverage and other issues. How should employers prepare?

A – Due to the nature of this pandemic, every employer must review the terms of employment that the union will seek to use to drive a wedge between companies and its employees. Some of them are listed above, but there are many others that make this environment favorable for the union’s initiative.

Where employers can get ahead of any union activity, this is a prudent approach. Becoming familiar with the collective bargaining terms the union has in its contracts regarding health and safety, dignity and respect, healthcare coverage, layoff provisions and severance, and similar issues is absolutely necessary.

Remember that the rules of the National Labor Relations Act apply to both union and nonunion employers. You should not be baited into committing an unfair labor practice as you defend against these union-organizing tactics.

Managers should be briefed and trained on the means that unions use to get employees to join. A “15-minute rule” protocol must be implemented. Communications to employees are a key element of any defensive plan. A checklist of appropriate steps needs to be prepared, updated and reassessed as this situation continues to affect our businesses and the economy at large.

Q – Can we send employees home or ask them to leave work if they exhibit symptoms of COVID-19?

A – Yes. The CDC and the EEOC have both released guidance that employees with symptoms of COVID-19 should not be in the workplace. Sending workers home for symptoms associated with COVID-19 is not disability-related and does implicate the Americans with Disabilities Act (the ADA).

Q – Can we take an employee’s temperature?

A – Yes. The EEOC’s guidance released on March 18, 2020 allows employers to test employees’ body temperature. The EEOC’s guidance states that “[b]ecause 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 – Can we require employees to report that they have tested positive for COVID-19?

A – Yes. You can and should require that any employee who tests positive for COVID-19 report the result to the company immediately and that under no circumstances should that employee report to work.

Q – Now that we had an employee test positive for COVID-19, what should we do?

A – That will depend on your workplace and potential exposure. At minimum, all employees in close contact (three to six feet) with the employee should be sent home for a 14-day quarantine and the employee’s workspace(s) and all common areas should be cleaned. Again, depending on the circumstances, a complete shutdown of the workplace may be warranted. Health officials may have further guidance.

Q – What if we believe that one of our employees has been exposed to COVID-19?

A – Again, the employee should be sent home, and employees known to have been in close contact (three to six feet) should be quarantined for 14 days. The employee’s workspace(s) and common areas should be cleaned immediately.

Q – Can I tell other employees if I learn that an employee has tested positive for COVID-19?

A – The employer must comply with all confidentiality laws related to the employee’s health information and should not identify the employee when informing others so as to protect the employee’s confidentiality and comply with confidentiality laws. The employer should ask the affected employee to identify all employees with whom he or she has worked in proximity within the previous 14 days, and should also ask the employee to identify the locations or positions where he or she worked in the previous 14 days (e.g., the employee worked in a customer- or client-facing role in multiple locations during that time). For employees (or others in the office space) who worked closely with that employee within the previous 14 days, the employer should send those employees (or other affected individuals) home for a 14-day period to ensure the infection is contained. Again, be sure to maintain confidentiality of the health status and identity of the infected individual. Other action items, such as cleaning the workspace(s), notifying nonemployees who may have been in close contact with the affected employee and remote work options should be considered and analyzed.

Q – Can we ask employees to voluntarily disclose symptoms associated with COVID-19 or whether they have been potentially exposed?

A – You can, and you should. Employees who have not actually tested positive but report having symptoms of COVID-19 or the flu should be advised to seek medical guidance and to stay away from work until symptoms have subsided for at least 24 hours without the use of medication.

Q – We have a confirmed case of COVID-19; is it reportable to OSHA?

A – It depends. According to the Occupational Safety and Health Administration (OSHA), “COVID-19 can be a recordable illness if a worker is infected as a result of performing work-related duties. However, employers are responsible for recording cases of COVID-19 only if all the following are met:”

1. There is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19).
2. The case is work-related as defined in 29 CFR 1904.5. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception specifically applies.
3. One or more of the general recording criteria set forth in 29 CFR 1904.7 are met (e.g. medical treatment beyond first-aid, days away from work).

Q – What are my obligations under OSHA?

A – Employers’ obligations depend on the nature of the job and the potential exposure to COVID-19. The most relevant OSHA standards are the General Duty clause requiring employees to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm,” and OSHA’s personal protective equipment standards. Recently, OSHA published guidance on actions employers can take to protect employees from COVID-19. OSHA’s guidance has a continuum of risk that it uses to guide employers on what measures must be taken to protect employees:

• Very high exposure-risk jobs are those with high potential for exposure to known or suspected sources of COVID-19, including healthcare workers, laboratory workers and morgue workers performing work on those with or suspected to have COVID-19.
• High exposure-risk jobs are those with exposure to known or suspected exposure to COVID-19, including healthcare delivery and support staff, medical transport, and mortuary workers who work near or are exposed to those known or suspected to have COVID-19.
• Medium exposure-risk jobs include those that require frequent and/or close contact with (i.e., within six feet of) people who may be infected with SARS-CoV-2 (the virus that causes COVID-19) but who are not known or suspected COVID-19 patients. For areas without ongoing community transmission, this would include workers in frequent contact with travelers. In areas without ongoing community transmission, this would be workers who have contact with the general public.
• Lower exposure-risk (caution) jobs are those that do not require contact with people known to be, or suspected of being, infected with SARS-CoV-2 nor frequent close contact with (i.e., within six feet of) the general public. Workers in this category have minimal occupational contact with the public and other co-workers.

OSHA provides guidance on recommended measures employers can take based on the level of risk. The guidance can be found at here.

Q – If my employees work remotely during the COVID-19 emergency, do I have to pay for equipment or other resources?

A – Potentially. If an employee is required to work from home, the employer may be responsible for paying for required equipment or resources, including computers or phones (or a portion of the service) or internet service. For example, in California an employer is required to indemnify employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” So it is important to understand the requirements of the jurisdictions in which the employee works. Note that employers must consider whether an employee requires a reasonable accommodation. If the employer would be required to provide it in the workplace, then the employer is also likely required to provide the same or a similar reasonable accommodation for remote work, subject to an undue hardship analysis.

Q – We are thinking about adopting a work-from-home policy; what do we need to do?

A – Employers considering a remote work policy need to examine a number of issues beyond just whether they have enough laptops. Employers considering a remote work arrangement should consider whether it is practical for the work to be completed remotely and what additional tools will be necessary to ensure a productive work arrangement outside the typical work setting. Considerations include proper software licensing, digital access to requisite work files and materials, proper security and network access capabilities, telephone communication capabilities, sufficient IT support, and whether the network can physically support remote work.

Q – Do we need a remote work policy?

A – A remote work policy is important for setting forth expectations and guidelines and addressing potential wage and hour violations. Policies should address:

• The duration and reason for implementing the temporary policy.
• Job expectations and the understanding that performance during remote periods will be monitored and enforced.
• Workspace requirements and what the employee must provide to accomplish remote work.
• Network and computer usage, including what devices may be used with the network and guidelines for the usage of employer-provided devices for nonwork-related tasks.
• Security, confidentiality and breach of security protocols.
• For nonexempt workers, a clear understanding of timekeeping requirements, following all legally required breaks, and a strict prohibition against off-the-clock work.

Q – If an employee’s work is such that it cannot be done from home and the employee cannot perform work in the workplace due to COVID-19 concerns, must the employer pay the employee even though he or she is not working?

A – There are multiple aspects to this question. For nonexempt workers, unless a state or local paid leave requirement applies (or if federal legislation is passed that would apply to the employee’s circumstances), nonexempt employees do not need to be paid if they are not performing any work. Axiomatically, nonexempt employees must then be paid for all time worked even if the workweek or shift is not completed when operations cease. For example, if an employer finds out at 10 a.m. that an employee tested positive for COVID-19 and shuts down operations, nonexempt employees must be paid for the work completed to that point. Additionally, collective bargaining agreements and states may have requirements that employees receive a minimum number of hours, usually four, that employees must be paid when they report to work (known as reporting pay). An employer’s paid time off (PTO) or related policy may apply so that employees can receive pay pursuant to those policies.

For exempt workers, unless a state or local paid leave requirement applies (or if federal legislation is passed that would apply to the employee’s circumstances), exempt employees do not need to be paid for any full weeks during which they do not perform any work. If an employee performs any work during the week, the employee must be paid for the full week. Again, an employer’s PTO or related policy may apply so that employees can receive pay pursuant to those policies.

Q – If an employer makes exceptions to policies during this time, such as allowing employees to work from home (if, for example, it is not currently allowed), what impact will that have on future requests for the same exception?

A – Employers should make clear and document that any exception or accommodation that is being provided related to COVID-19 is done as a result of the current, unique circumstance. For example, employers could state, “Due to the unique and emergency situation in the workplace caused by COVID-19, the exception is being provided for a temporary period and is subject to change. We understand that during this period an employee may not be able to fully perform all of a position’s essential job functions because of the changes to the workplace (e.g., working remotely).” If an employer clearly communicates and documents the temporary and unique nature of the exceptions being provided, it will be in a better position to assert that future exceptions are not available or possible during normal working conditions. Of course, depending on the employee, industry and nature of the position, employers should approach certain employee issues on a case-by-case basis.

Q – If we cease or suspend operations or close the business, do we have to comply with the WARN Act?

A – Potentially. If the cessation of operations meets the Federal Workers Adjustment Retraining Notification (WARN) Act’s thresholds, compliance will be necessary. The WARN Act requires that employers who meet a certain threshold provide 60 days’ notice of mass layoffs or plant closings that implicate a certain amount of the workforce. While the exact requirements and considerations exceed the scope of this FAQ, employers should be aware that it applies to even temporary layoffs that exceed a certain length and other employment actions that are not believed to be permanent. Given the unknown duration and implications of COVID-19, temporary layoffs may trigger WARN Act notification. Importantly, the WARN Act has exceptions to the 60-day requirement for unforeseen circumstances where the mass layoff or plant closing was caused by a sudden, dramatic and unexpected action or condition outside the employer’s control.

States also have what is known as mini-WARN Acts that may impose additional requirements beyond their federal counterpart. While unique to each jurisdiction, the mini-WARN Acts may also have specific exceptions different from those of the federal WARN Act.

Q – Are there any special rules in the state of Colorado related to providing paid sick leave and COVID-19?

A – Yes. On March 11, 2020, the Colorado Department of Labor and Employment issued the Colorado Health Emergency Leave with Pay (Colorado HELP) Rules, which pertain to certain employers and require them to provide paid sick leave for employees with flu-like symptoms who are being tested for COVID-19. The Colorado HELP Rules, which are effective immediately, can be found here. The Colorado HELP Rules remain in effect for 30 days or for the duration of the state’s declared state of emergency, whichever is longer, for up to 120 days.

Required employers must provide up to four days of paid sick leave to employees with flu-like symptoms who are being tested for COVID-19. If the employee receives a negative test result, the paid leave ends. Employers covered by the Colorado HELP Rules include those in the following industries or those with employees with the following jobs:

• Leisure and hospitality.
• Food services.
• Child care.
• Education, including transportation, food service and related work at educational establishments.
• Home health, if working with elderly, disabled, ill or other high-risk individuals
• Nursing homes.
• Community living facilities.

Note that if an employer already provides the paid leave necessary to meet the Colorado HELP Rules’ requirements, the employer does not need to provide additional leave. However, if an employer does not already provide enough paid sick leave to comply with the Colorado HELP Rules, it must provide additional paid sick leave to meet the requirements. In addition, if an employee has already exhausted any paid leave allotted by the employer but then has flu-like symptoms and is being tested for COVID-19, the employee is entitled to the additional paid sick days provided by the Colorado HELP Rules.

The Colorado HELP Rules also state that, to the extent feasible, employers should comply with the procedures of the Family Medical Leave Act (FMLA) to pursue and provide paid sick leave under the Colorado HELP Rules, except that “(A) no employer may terminate an employee for inability to provide documentation during an illness covered by these rules, and (B) FMLA provisions do not narrow the rights and responsibilities provided by these rules.”

An employer’s failure to provide paid sick leave required by the Colorado HELP Rules will be deemed a failure to provide wages under Colorado law, the Colorado Department of Labor and Employment will enforce and investigate complaints, and a private right of action exists.