IN BRIEF

How Coronavirus Is Affecting Labor and Employment

April 2, 2020

Passenger boarding DC metro
On April 13, 2020, a Union Station in Washington, D.C., is nearly empty as many typical commuters work from home. (Al Drago/Bloomberg)

[For additional guidance on navigating coronavirus concerns related to labor and employment and more, please visit our resource page.]

The coronavirus is having a tremendous effect on the labor and employment field. A growing number of companies are shifting their workforces to teleworking, some for the very first time. Employers must prepare to comply with new leave laws that have already been enacted or are likely to pass in the near future. And they must also ensure they are continuing to comply with all existing labor laws.

Dori Goldstein, a senior legal analyst at Bloomberg Law identified the major questions that labor and employment lawyers are facing as they navigate the fallout from the coronavirus. And for more, be sure to check out Bloomberg Law’s recent webinar, “Tackling Labor and Employment Challenges Due to Coronavirus.”

What’s new in sick leave laws and policies?

A new rule from the Labor Department, will implement the Families First Coronavirus Response Act (Public Law 116-127). Generally, the regulation will require employers with fewer than 500 workers to provide two weeks of paid sick leave to employees unable to work due to the virus. Those companies also must offer up to 10 weeks of partially paid leave under expanded Family and Medical Leave Act (FMLA) coverage to care for a child whose school or daycare is closed from the pandemic.

States and other localities have also passed their own paid sick leave laws or policies, including ColoradoNew York, and Los Angeles.

How are companies navigating the shift to a remote workforce?

To slow the spread of the virus, many companies have instructed employees to work from home. And as states have announced school closures, some extending through the end of this school year, employers are having to adjust or relax their telework rules to accommodate employees juggling caregiving and work.

Shifting to a largely remote workforce is raising some new concerns and potential legal issues for employers. For example, navigating how to monitor productivity without running the risk of lawsuits over handling more sensitive employee data.

Telework also raises the possibility of wage and hour battles, or conflicts related to overtime pay. “We live in a world where you can telework, but at the same time, employers need to be careful to have strict guidelines in place. This could lead to pitfalls for companies,” said Garrett Broshuis, an attorney in St. Louis with Korein Tillery, who represents workers.

The Labor Department recently offered new guidance regarding elements of wage and hour rules through 15 questions and answers that address a range of scenarios and concerns, including those related to teleworking.

Meanwhile, unions and management may be navigating new territory. Only about 3.9% of union contracts in the past five years mention “telecommuting,” “telework,” or “work from home,” according to an analysis of more than 4,300 documents in Bloomberg Law’s library of collective bargaining agreements.

[Sign up for our April 15 webinar: “Health Law and the Coronavirus: What Attorneys at the Front Line of the Pandemic Need to Know”]

Practical Guidance: Coronavirus Telework/Remote Work

Bloomberg Law’s annotated telework/remote work policy sample can help you update your company’s guidelines.

What adjustments do workplaces need to make to continue to fulfill OSHA requirements for a safe workspace?

After announcing that employers must track coronavirus infections incurred in the workplace –unlike cold and flu cases – OSHA clarified reporting requirements. A business is required to report confirmed cases of Covid-19 that are work-related and meet recording criteria set in OSHA regulations, such as days away from work or requiring medical treatment beyond first aid.

OSHA requires hundreds of thousands of employers with 10 or more workers to keep a log of every workplace injury or illness that requires medical treatment beyond first aid or keeps a worker away from work for at least one day.

The new guidance still leaves confusion, however, about how to prove whether a worker actually contracted the virus on the job, according to workplace safety attorneys.

Employers are also dealing with the costs of keeping the workplace clean enough to be safe. Business is booming for biohazard remediation companies, as workplaces shell out thousands of dollars for in-depth cleanup.

Meanwhile, as personal protective equipment (PPE) supplies swiftly dwindle, many organizations – particularly those related to health care – are confronting legal concerns related to recommendations about DIY PPE. CDC guidance provides allowances for DIY PPE due to shortages, but it’s unclear whether OSHA will follow those same guidelines when deciding whether to cite an employer for violating typical PPE standards.

As workplaces navigate OSHA complexities and request temporary reprieve and leeway, experts are cautioning their clients that there are typically no exceptions to OSHA requirements, even in emergency situations.

How should employers handle Covid-19 issues without violating workers’ rights, such as those related to the Americans with Disabilities Act?

While employers strive to keep everyone in their workplaces safe, they still need to ensure they’re upholding mandates related to workers’ rights. Some key tips for companies to follow:

  • Do not treat employees differently based on pregnancy, age, or nationality.
  • Though checking employees’ temperatures can constitute an ADA violation under normal circumstances, the EEOC now says employers can do so during the pandemic and can also bar employees with elevated temperatures from the workplace.
  • If employees refuse to answer questions about whether they have Covid-19 or related symptoms, the EEOC’s current guidance is that they can be barred from the workplace.
  • The EEOC advises storing private data, such as recorded body temperatures, in files separate from employees’ personnel files.
  • Experts advise that employers have a uniform policy for checking everyone’s temperature and an established threshold for sending people home.
  • If you learn an employee has Covid-19 and have not been contacted by local health authorities, reach out to them for guidance on how to communicate the situation to other employees.

Will there be exemptions to rules surrounding layoffs, furloughs, and unemployment?

With workplaces and business disrupted, layoffs and furloughs are an unfortunate but necessary side effect of Covid-19 for many companies.

As businesses consider whether to implement layoffs or furloughs, they must also consider their related legal obligations. The federal Worker Adjustment and Retraining Notification Act (WARN) generally requires employers to give workers 60 days’ notice before mass layoffs and imposes steep penalties, including back pay and fines, for companies that don’t fulfill that responsibility.

Some employers are turning to the Labor Department for guidance on possible exemptions to WARN Act stipulations, based on “unforeseen business circumstance” or natural disaster.

The Labor Department also recently released guidance to states regarding amending laws to offer unemployment benefits to workers who miss work because of quarantine, avoiding the risk of exposure, or caring for family members, as well as those whose employers cease or limit operations because of Covid-19.

As a result of an influx of unemployment claims, states are reaching out to the federal government for financial and administrative support. Claim filings have soared, resulting in several unemployment insurance websites crashing.

[For additional guidance on navigating coronavirus concerns related to labor and employment and more, please visit our resource page.]


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