BakerHostetler’s COVID-19 Labor and Employment Issues Task Force issued a set of FAQs on March 18, 2020, March 30, 2020 and April 6, 2020 regarding general legal issues concerning the COVID-19 pandemic. Below are new FAQs that reflect the guidance recently sought by employers related to this topic. In addition, for further information on FFCRA or CARES Acts issues, please refer to our separate FFCRA FAQs and/or our CARES Act FAQs.

Q: Are employers required to provide and/or pay for cloth face coverings for employees?

A: Most likely yes, if the employer requires its employees to wear cloth face coverings at work.

OSHA standards generally require employers to provide personal protective equipment (PPE) to employees free of charge, with some exceptions. Employers are not required to pay for “everyday clothing, such as long-sleeve shirts, long pants, street shoes, and normal work boots or ordinary clothing, skin creams, or other items, used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen.” Although cloth face coverings could arguably be considered “everyday clothing” or “ordinary clothing,” especially if made from a T-shirt, employers should provide and/or pay for the coverings if they require employees to wear them in the workplace.

It’s worth noting that some state and local governments are requiring masks or face coverings to be worn in public and by employees who interact with the public or other employees. In such situations, and depending on the state or local law, employers may be required to provide them and/or pay for them.

Q: May an employer allow a critical infrastructure worker to continue to come to work following the employee’s potential exposure to COVID-19?

A: The CDC defines “potential exposure” as having had household contact or close contact (within six feet) with an individual with a suspected or confirmed case of COVID-19. Guidance issued by the CDC advises that an employee may be permitted to continue to work following a potential COVID-19 exposure if the employee remains asymptomatic and the employer implements additional precautions. The additional precautions include:

• The employer should check the employee’s temperature and assess symptoms prior to the employee starting work and entering the workplace.
• The employee should continue to self-monitor his or her temperature and symptoms and immediately alert the employer if he or she experiences any COVID-19 symptoms.
• The employee should wear a face mask in the workplace for 14 days following the last exposure (the employer can provide face masks or can approve the employee’s supplied cloth face covering).
• The employee should practice social distancing and remain six feet away from other employees and the public.
• The employer should routinely clean and disinfect all common areas, shared electronic equipment and bathrooms.

Q: We are trying to offer available work on a voluntary basis. Can we increase employees’ hourly pay to incentivize them to work instead of collecting unemployment?

A: Yes. You can do this. Keep in mind the following:

• Communicate that the increase is for a fixed period of time.
• Wages are a mandatory subject of bargaining. Thus, if your employees are represented by a union, you are required to notify the union and give it an opportunity to bargain over the temporary wage increase.
• If you increase the wage for a position, the increased rate will apply in paying out any PTO or sick leave. In the alternative, you could add a COVID-19 differential or bonus. .

Q: Should we require an employee who was out ill with COVID-19 to bring back a negative test or a doctor’s release before allowing him/her to return to work?

A: While a negative test or a physician’s note obviously would be preferable, testing is still extremely limited and healthcare providers continue to be overburdened. Some states, such as Ohio, have therefore issued orders prohibiting employers from requiring a doctor’s release or other certification as a condition of returning to work. According to Ohio’s guidance, rather than employees being required to obtain a doctor’s note to return, employees who have been ill with COVID-19 should be permitted to return to work no less than three days after they last had a fever (without the need for medication) and no less than seven days after first becoming symptomatic.

Q: Are employers required to accommodate employees with preexisting mental illnesses that are exacerbated by COVID-19?

A: Possibly. Recent EEOC guidance provides that absent an undue hardship, employers may need to accommodate employees with existing mental illnesses who may have more difficulty dealing with the disruptions caused by the COVID-19 pandemic. Examples of mental illnesses identified by the EEOC that may require an accommodation include anxiety disorder, obsessive-compulsive disorder and post-traumatic stress disorder.

Employers should follow the usual method of determining what accommodation, if any, should be provided. This includes determining whether a disability exists, engaging in the interactive process with the employee, requesting medical documentation when appropriate, and determining whether a reasonable accommodation exists or would cause an undue hardship.

Q: We are cautiously beginning to plan when we can reopen our business after the economy returns to somewhat “normal.” But we know it will take a while for customers and guests to return. Can we change our operations despite our union contract?

A: If ever there was a need to modify business operations, the return to providing services after a pandemic would be a necessary opportunity. This is especially so since it is anyone’s guess how the new economy will respond. Under federal labor laws, you have the right to modify your business operations in the best interests of ownership. You may decide to limit certain services or not provide some right away, or even determine to eliminate some. It is not necessary to bargain about these decisions with the union that represents your employees. But you cannot change job duties, wages or hours of bargaining unit employees without offering to negotiate with their union. So once you decide what is best for the company and what supports future success post-COVID-19, we should review the plan and determine how to lawfully accomplish your objectives.

Q: Some of our employees are represented by a union, and the labor agreement has a “no-strike” clause. A few of the employees have raised concerns about safety in the workplace in light of the COVID-19 pandemic and have told a manager that if these things aren’t addressed, they will refuse to come to work. Can they be disciplined if they do this?

A: Normally, employees cannot refuse to work if a no-strike clause is in effect. There is an exception: Where a work stoppage is in response to “abnormally unsafe” working conditions, the no-strike clause does not apply and employees who participate in a strike cannot be disciplined or permanently replaced. Employees may try to justify an otherwise banned strike by claiming they are concerned about contracting COVID-19 because safety protocols are lacking. Under National Labor Relations Board rules, for this exception to apply, the employees’ belief must be reasonable and based on actual evidence, and the safety threat has to be immediate. It is important that, to the extent possible, the employer make PPE available and train employees on the use of the equipment, as well as taking other reasonable safety measures. These prudent actions should be communicated to the workforce. Taking these steps makes it difficult for employees to claim an abnormally unsafe workplace and may prevent an unexpected work stoppage.

Q: Can a union organize workers who are laid off?

A: Yes, perhaps. Workers who have a reasonable expectation of returning to work when the business conditions improve are still eligible to take part in a union organizing drive. Whether it be a layoff or a furlough, employees who have good reason to believe that they will be coming back to their jobs can sign union cards and even cast a vote in a secret ballot election. This “expectation” of return can be based on the company document that announced the layoff in the first place, hopeful statements made by managers about the intent to restart the business or press releases that talk about plans for the future.

U.S. labor leaders see the COVID-19 pandemic as an opportunity to expand their ranks among the millions of newly laid-off workers. Unions across the country are making employees promises of a safety net during this time of crisis through sophisticated social media campaigns, phone canvassing and public charity events. Utilizing their influence among state and local governments, some unions are looking to push through labor-friendly laws that would make it more costly for a business to reopen and will help their organizing efforts while the workforce is temporarily out of work.

Prudent companies are examining and updating strategies as they consider ending furloughs and extending layoffs, and plan for the business return. Employers should look at whether its laid-off workers have an expectation of returning to work, and if so, how their company will respond to a labor organizer’s message when most of their team is not on the clock. Many more employees may be exposed to an organizer’s message than in times past, and outdated forms of management response may not be fit for this purpose.