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COVID-19 EMPLOYMENT ISSUES 

This is only a small breakdown of the guidelines and recommendations from various sources in response to the COVID-19 pandemic. If you have questions or concerns regarding any of these areas, Flaherty stands ready to assist you. For more information, please contact Scott Evans 304.347.4214 wsevans@flahertylegal.com or Michael Secret 304.225.3055 msecret@flahertylegal.com.

As COVID-19 continues to spread and we as a country continue to react, it will become more and more important for employers to be aware of the rules, regulations, and recommendations from various governing bodies relating to employment practices. It can be confusing to attempt to navigate this spiderweb of regulations while ensuring that your business practices relating to your employees and customers are safe and comply with all applicable law. The following government organizations have provided guidance on preparing workplaces for COVID-19 and its effects, and we have broken them down into bite-sized samples for your business to consider in these trying times:

UNITED STATES DEPARTMENT OF LABOR RECOMMENDATIONS – GUIDANCE ON PREPARING WORKPLACES FOR COVID-19

The Department of Labor has put forth basic steps that every employer can take to reduce the risks that the virus presents to their workplace, even in high exposure areas. These steps are:

  1. Actively encourage sick employees to stay home.
  2. Ensure that sick leave policies are flexible and consistent with public health guidelines and that employees are aware of these policies. 
  3. Encourage companies that provide your business with contract or temporary employees to encourage employees to stay home and develop non-punitive leave policies. 
  4. Do NOT require a healthcare worker’s note for employees who complain of acute respiratory illness to validate their illness or to return to work. 
  5. Recognize that workers with ill family members may need to stay at home to care for family members.
  6. Be aware of workers’ concerns about pay, leave, safety, health, and other issues that may arise during infectious disease outbreaks. Informed workers who feel safe at work are less likely to be unnecessarily absent. 
  7. Work with insurance companies and state and local health agencies to provide information to workers and customers about medical care in the event of a COVID-19 outbreak. 
  8. Consider installing high-efficiency air filers and increase ventilation rates for the work environment. Specialized negative ventilation in some settings, such as for aerosol-generating procedures. 
  9. Consider installing physical barriers such as clear plastic sneeze guards and drive-through windows for customer service. 

ANSWERS TO FREQUENTLY ASKED QUESTIONS UNDER THE FAIR LABOR STANDARDS ACT

  1. Regarding volunteer workers, the FLSA has stringent requirements for the use of volunteers. In general, covered, non-exempt workers working for private, for-profit employers must be paid at least the minimum wage and cannot volunteer their services. 
  2. The FLSA generally applies to hours worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked. 
  3. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to employees impacted by government-imposed quarantines. 
  4. The FLSA does not limit the types of work employees age 18 and older may be required to perform. However, there are restrictions on what employees under 18 can do. 
  5. Individuals who volunteer their services in an emergency relief capacity to private, not-for-profit organizations for civil, religious, or humanitarian objectives without contemplation or receipt of compensation are not considered employees that are sue compensation under the FLSA. However, employees of such organizations may not volunteer to perform on an uncompensated basis, the same services that they were employed to perform. 
  6. Under the FLSA, employers generally must pay employees only for the hours that they work, whether at home or the employer’s office. However, an employer is required to pay non-exempt employees at least the minimum wage for all hours worked from any location. Salaried exempt employees generally must receive their full salary in any week in which they perform any work. 

CENTER FOR DISEASE CONTROL AND PREVENTION: INTERIM GUIDANCE FOR BUSINESSES AND EMPLOYERS

  1. Actively encourage sick employees to stay home. Make sure that sick leave policies are flexible and consistent with public health guidelines. 
  2. Perform routine environmental cleaning. Routinely clean all frequently touched surfaces in the workplace, such as countertops and doorknobs. Use cleaning agents that are typically used on said surfaces as no additional disinfection beyond routine cleaning is recommended at this time. 
  3. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use. 
  4. Establish a process to communicate information to employees and business partners on your infectious disease precautions. Anticipate employee fear, anxiety, rumors, and misinformation and plan communication accordingly. 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: PANDEMIC PREPAREDNESS IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT

  1. An inquiry asking an employee to disclose a compromised immune system or a chronic health condition is disability-related because the response is likely to reveal the existence of a disability. The ADA does not permit such an inquiry in the absence of objective evidence that pandemic symptoms will cause a direct threat. Such evidence is completely absent before a pandemic occurs. 
  2. Employers may make inquiries of employees that are not disability-related. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic (e.g., curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that increase the risk of complications). The inquiry should be structured so that the employee gives one answer of “yes” or “no” to the whole question without specifying the factor(s) that apply to him. The answer need not be given anonymously.
  3. New entering employees may be required to have a post-offer medical examination to determine their general health status if all entering employees in the same job category are required to undergo the medical examination and if the information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record. However, an employer may not rescind a job offer made to an applicant based on these results unless the applicant would pose a direct threat to other employees under the ADA.
  4. During a pandemic, employers must continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic. 
  5. ADA-covered employers may ask such employees if they are experiencing COVID-19-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.