Starting in mid-March 2020, much of the United States effectively closed down due to the spread of the coronavirus and the illness that it causes, known as COVID-19. State and local governments moved to enforce "social distancing" measures intended to slow the spread of the virus and give the healthcare system time to prepare.
Some employers responded quickly to prepare their workers for telecommuting. Others, particularly those in industries deemed essential, tried to protect their workers' safety while continuing business as usual. All employers need guidance through these extraordinary challenges.
At least three sources at the federal level can offer some direction. Several existing laws play an important role in employers' obligations to their employees, their customers, and others. These include laws providing leave for medical purposes, regulating the questions employers may ask about employees' medical conditions, and granting the government additional authority in times of emergency.
On March 18, 2020, the president signed the Families First Coronavirus Response Act (FFCRA) into law. In addition to providing appropriations for various federal programs to assist with the government's coronavirus response, the bill included temporary provisions (now expired) for paid and unpaid medical leave under federal law.
The portion of the bill known as the Emergency Family and Medical Leave Expansion Act expanded the unpaid leave provisions of the Family and Medical Leave Act (FMLA). Another provision, the Emergency Paid Sick Leave Act (EPSLA), required covered employers to provide paid sick leave to employees.
Both of these parts of the FFCRA have now expired, but employers who choose to offer leave that would qualify under EFMLA or EPSLA are entitled to tax credits to reimburse their costs until early September 2021.
Not all employers and employees were affected by the FFCRA. Both the EFMLA and the EPSLA only applied to employers with fewer than 500 employees. This meant that large employers were not required to provide paid sick leave, nor were they subject to the expanded unpaid sick leave provisions.
Up to 12 weeks of unpaid leave was available to workers at larger employers under the FMLA, provided that they met the eligibility requirements. To be eligible, an employee must have worked for the employer for a minimum number of hours during the previous 12 months.
The FMLA only applies to employers with at least 50 employees. The EFMLA and EPSLA did not set a minimum number of employees, but both allowed a hardship exemption for businesses with no more than 50 employees. Those businesses could seek an exemption when complying with either part of the law "would jeopardize the viability of the business as a going concern."
The EFMLA and EPSLA (now expired) allowed workers to take leave in three different situations. As noted above, employers who continue to offer this leave voluntarily can receive tax credits through September 6, 2021. How much employees receive depends on the purpose for which they're taking leave:
The president, state governors, and certain local officials have the authority to declare a state of emergency. Doing so activates various resources, such as those offered by the Federal Emergency Management Agency (FEMA). It may also allow officials at the state and local level to limit the hours of certain businesses or order their closure. Many governors and mayors declared emergencies in their jurisdictions. The president declared a nationwide emergency due to the coronavirus on March 13, 2020.
Local and state officials may have the authority to enforce quarantines. Even if a business has not been ordered to close, a state of emergency could prevent employees from coming to work through no fault of their own. The array of state and local emergency laws and regulations are too vast to list here, but employers should be aware of emergency declarations in their area.
The CDC has made "Interim Guidance for Businesses and Employers" available on its website. The page draws on information provided by the Occupational Safety and Health Administration (OSHA) in a document entitled "Guidance on Preparing Workplaces for COVID-19." The CDC provides recommendations for employers in three areas:
The CDC advises employers to begin preparing before any employees show symptoms. Employers should identify ways that employees could be exposed to the coronavirus at work, and working to reduce those risks.
Employers should also educate their employees about the risk of transmission, the different levels of risk based on factors like age and underlying health, methods for maintaining a clean work environment, and practices like regular hand washing. Employers should separate any employees that show possible symptoms, and they should encourage employees with possible exposure or symptoms to stay home.
Businesses should form a plan for maintaining operations to the extent possible while promoting the health of their employees. The CDC recommends implementing or maintaining flexible sick leave policies that can adapt to the latest guidance from public health officials. Employers should not require a doctor's note or a positive COVID-19 test, as those requirements are not practical given the current burdens on the healthcare system.
"Social distancing" should become a critical part of business operations whenever possible. Businesses should also plan for how to adapt their business practices in the event of disruptions in supply chains or significant absenteeism due to illness, quarantine, or school closures.
In addition to encouraging employees to wash their hands frequently and stay home if they show symptoms, employers should provide the resources to allow employees to follow these recommendations easily. This may include increased ventilation in the workplace, ample supplies of soap and hand sanitizer, and regular cleaning and disinfecting of areas and surfaces with extensive use.
Employers have an interest in protecting the health of their employees. They also have an obligation, under federal laws like the Americans with Disabilities Act (ADA), to avoid discrimination on the basis of disability, and to provide reasonable accommodations to allow employees with disabilities to perform their jobs.
Employers may not, for example, inquire about an employee's or job applicant's medical history in a way that leads to disparate treatment based on a disability. COVID-19 is not, by itself, a disability within the meaning of the ADA, but employers should still use caution in how they screen for the disease.
The Equal Employment Opportunity Commission (EEOC) has prepared guidance for employers on what they may do without violating the ADA. Generally speaking, employers may ask employees who call in sick about their symptoms, and they may screen job applicants for COVID-19 symptoms, as long as they do so uniformly for all employees or job applicants. They may delay the start date of a new hire because of COVID-19 symptoms.
During the hiring process, the EEOC states that employers may ask about medical history related to COVID-19 after making a conditional offer of employment, and they may withdraw that offer if they conclude that the individual would not be able to enter the workplace safely. Again, employers must apply these practices in a uniform manner.
If you're an employer with questions about how to navigate the uncharted waters of COVID-19, you're not alone. Contact an experienced employment law attorney in your area for guidance—most law offices are continuing to operate remotely during the crisis.