United States: A Guide to Prevent Collapse During Coronavirus

Emily Kuhnert March 23, 2020

We have gathered information on what measures you can take as an employer to help preserve your employees while keeping your business intact. As more information comes in, we will update this post.

If you have any questions on the impact of Coronavirus on labor laws, visit our Linkedin AMA post and leave us your questions in the comment section and we will reply.

[AMA] Impact of Coronavirus on Labor Laws

 

Updated: March 26, 2020 

Indiana- Non-essential businesses have been ordered to shut down from March 24th-April 26th.

Hawaii- Non-essential businesses have been ordered to shut down from March 25th- April 30th.

Oklahoma– Non-essential businesses have been ordered to shut down from March 25th-April 30th.

West Virginia– Non-essential businesses have been ordered to shut down until further notice.

Wisconsin– Non-essential businesses have been ordered to shut all operations down except for minimal operations.

Updated: March 25, 2020 

Georgia-  On March 23rd, the Atlanta Mayor ordered all non-essential employees to stay home for 14 days unless one is in need of essential care or for work related purposes.  You can find the full order here.

Washington State- The governor of Washington also ordered a 2 week stay at home order until April 6, 2020 unless one is in need of essential care.

Michigan- The governor of Michican ordered a 2 week stay at home order until April 13, 2020 unless one is in need of essential care.  The order can be found here.

Ohio- The governor of Ohio ordered a 2 week stay at home order until April 6, 2020 unless one is in need of partaking in essential activity including care.

Texas- In Dallas Country, all persons are ordered to stay at home until April 3, 2020 unless one is in need of partaking in essential activity including care.

Massachusetts- The governor of Massachusetts has ordered all non-essential businesses to close and encouraged businesses to allow their employees to work from home.

Updated: March 24, 2020 

California- The WARN Act in California states that when preparing for a mass layoff, employers must give 60 days ‘ notice to their employees and generally applies to all establishments that have had over 75 employees in the last year. When the employer does not give proper notice, they are liable to pay 60 days’ wages to the laid of employee and pay other penalties.

However, due to the current situation, the Governor of California has issued an executive order which temporarily suspends the WARN Act.  However, the following must be done:

  • Employers must still give notice to the employee with an explanation for the shortened notice period
  • The proper governing bodies must be notified by the employer
  • Cause for the layoff must be for unforeseen circumstances due to COVID-19
  • The following statement must be added to the notice: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at https://www.labor.ca.gov/coronavirus2019/.”

Updated: March 23, 2020 

New York – Job protection and paid leave measures were introduced to help protect employees that are quarantined due to the coronavirus.

Employees who are on mandatory quarantine or precautionary quarantine and work for an employer with 10 or less employees from January 1, 2020 will receive job-protected unpaid sick leave until the quarantine period expires.  However, it is possible for the employee to received paid parental or family leave.

For a company with fewer than 10 employees and a net income of $1 million from the previous tax year must provide their employees with 5 days of paid sick leave as well as unpaid leave until the employee is no longer in quarantine. After the 5 days of sick leave, the employee may be entitled to paid parental or family leave.

For companies with 11-99 employees as of January 1, 2020, employees in quarantine are entitled to 5 days paid sick leave and unpaid leave until the end of the quarantine period.  After the 5 days, the employee may also be entitled to paid parental or family leave benefits.

For companies with more than 100 employees, employees are entitled to 14 days of paid sick leave if quarantined.

For the above listed leave, this shall not effect what the employee has already accrued. However, the above does not apply to employees who are mandated to quarantine after a trip abroad.

Updated: March 23, 2020 

In the US, amendments to the Family and Medical Leave Act have been made to allow an employee who has been employed for at least 30 days to be entitled to up to 12 weeks of unpaid, job protected leave and can be used if a family member has been exposed and requires care, if an employee is in quarantine, or if a child’s school has been closed.   After 2 weeks of paid leave, the employer must pay at least 2/3 of the employee’s regular pay.  However, this only applies to companies with less than 500 employees and government employees.

In addition, the US is looking into companies being able to reduce the number of hours of work for an employee instead of laying them off.  This way, employees would still benefit from a partial salary and would be able to receive partial unemployment benefits to supplement for any wage loss due to shortened hours.

Another measure the US has taken by introducing the Emergency Paid Sick Leave Act which would give employees 2 weeks paid sick leave at 100% of their regular wages if the employee is in quarantine or needs to take preventative measure   s against the coronavirus.  If the employee needs to care for a family member that is sick, pay rate is 2/3 of their normal salary.  For hourly workers, this benefit would allow an employee to take paid leave for the same number of hours they would normally work in a work week.

Employer and Employee Rights & Obligations Q&A

Source: Baker McKenzie

1. Are employees obliged to disclose themselves as a “risk-factor” to the employer? 

  • Employees are not required to disclose disabilities to their employer. A “risk factor” that makes employees susceptible to COVID-19 or that may make the disease more severe if contracted normally does not have to be disclosed. However, in times of severe pandemic, employers may require employees to respond to disability-related questions if the information is jobrelated and consistent with business necessity.
  • Employees who have a positive COVID-19 diagnosis and who may be infectious to others in the workplace should report their infectious status to their employer, and should also stay out of the workplace. In most US states, employees owe their employer a “duty of loyalty,” under which they must refrain from behaving in a manner that would be contrary to the employer’s interests. An employee who knowingly concealed an infectious disease while working arguably would violate the duty of loyalty. The employee may not have to reveal the underlying diagnosis or prognosis, but should inform the employer about the potential for infectious disease transmission if the employee comes to work.
  • Several other laws impose obligations on the employer to report workplace related illness to government agencies, and some of these statutes require employers to take steps to ensure that employees report workplace illness and injuries. For example, the Occupational Safety and Health Administration (OSHA) imposes reporting and recordkeeping requirements on employers. COVID-19 is an illness that must be recorded (and sometimes reported to OSHA) when an employee is infected on the job. OSHA requires employers to establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately, and to inform employees of the procedures for reporting. . Additionally, workplace infections may be occupational injuries covered by workers’ compensation regimes. Most states require employees to report workplace injuries to their employers, and require employers to promptly respond to such reports.
  • If employees provide the employer with medical information, including that they have been diagnosed with COVID-19 or that they are experiencing symptoms of COVID-19, employers must maintain this information in a confidential medical file separate from the employee’s personnel file, with limited accessibility.

2. Can the employer demand employees to disclose themselves as being a “risk-factor”?

  • An employer may require employees who become ill at work with symptoms to notify a supervisor so that appropriate measures can be taken (i.e., separating symptomatic employees from other employees or sending the sick employee home). Employers may also require employees to disclose: whether they have recently returned from a region with high rates of community spread of COVID-19 (generally Health Travel Alert Level 2 or 3 countries listed by the CDC), whether they are experiencing any of the symptoms of COVID-19, and whether they or a person with whom they have had close contact has been diagnosed with or is awaiting confirmation of COVID-19 infection.
  • Employers must maintain all employee medical information in a confidential medical file separate from the employee’s personnel file, with limited accessibility.

3. Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness) to the employer?

  • Employers are required by OSHA and other workplace safety laws to maintain a safe workplace. As part of this general duty, OSHA requires employers to inform employees of the procedures for reporting concerns about workplace safety (or work-related illness and injuries). While employers generally should not instruct employees to report co-workers with symptoms of COVID-19, employers must inform employees how they can report such concerns.

4. Can employees refuse to come to work? 

  • Employees can always refuse to come into work. In most circumstances, an employer can then impose discipline for violation of the employer’s attendance policy if the employee does not have a valid reason for refusing to report. Below are some of the exceptions to that general rule.
  • Employees can refuse to come to work if they reasonably believe they are in “imminent danger” as defined by Section 13 of the Occupational Safety and Health Act (OSH Act). They must have a reasonable belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period of time. Practically speaking, an employee can refuse to come to work if: i. there is more than a generalized fear of contracting a COVID-19 infection in the workplace, ii. the employee has a specific fear based on articulable facts, and iii. the employer cannot address the employee’s specific fears in a manner designed to ensure a safe work environment.
  • Section 7 of the National Labor Relations Act (NLRA) also grants employees the right to join together to engage in “protected concerted activity for mutual aid or protection” with regard to terms and conditions of employment, which can include the activity of one individual asserted on behalf of co-workers. Employees asserting such rights, including participating in concerted refusal to work in unsafe conditions, are generally protected from discipline, including discharge, for engaging in such activity. In addition, Section 11(c) of the OSH Act protects employees from retaliation for raising concerns about health and safety conditions in the workplace.

5. Can employees refuse to attend meetings or to travel?

  • See Answer to question No. 4. The same standard applies to the employer’s worksite and travel for work. Given the current severity of the COVID-19 pandemic, employers should not require employees to travel to Level 2 or 3 countries.

6. Can the employer send employees on suspension from work?

  • Employers may send sick employees home. Employers may also require employees to present “fitness for duty” certifications before returning to work.

7. When is the employer forced to shut down its operations?

  • Governmental authorities may order worksites to be closed or limited. Authorities may also order employees to “shelter in place” or self-quarantine. Otherwise, decisions regarding closure are left to the employer.

8. Does the employer have the obligation to report infections occurring in the business to the health authorities?

  • No. Employers who are not healthcare providers do not have an affirmative duty to report the presence at the worksite of a person who has tested positive for COVID-19, except as noted in Answer to question No. 1.

9. Can the employer require an employee to see a doctor?

  • In most circumstances, employers may recommend, but should not insist that employees seek medical attention. In limited circumstances, employers may require employees to consult with health care providers to confirm the employee’s need for leave or accommodation, or to obtain a fitness for duty certification.

10. If employees are sent on suspension from work, or refuse to come to work or if an operation is being shut down, do the employees still need to be paid?

  • It depends. In general, the normal wage and hour rules for exempt and non-exempt employees will apply. Non-exempt employees (i.e., hourly employees) do not have to be paid for time not worked (time in which they perform no work) due to a shutdown, suspension or refusal to work.
  • Exempt employees (i.e., salaried employees) are entitled to be paid the full week’s salary for any week in which the employee performs any work. However, if an employer “suspends” or furloughs exempt employees for an entire workweek or longer, no salary is owed. If non-exempt or exempt employees work from home or while “suspended,” they must be paid.
  • Employees who are impacted by COVID-19 may be eligible for paid sick leave, state or private disability insurance, paid family leave, unemployment insurance, state work sharing, or, in limited circumstances, workers’ compensation benefits. Employees who are still employed but off work also may be eligible to use paid PTO, vacation, personal, or family leave. A new federal law, the Families First Coronavirus Response Act (FFCRA) will require many employers to provide paid Family and Medical Leave and paid sick leave to employees impacted by the COVID-19.
  • In some circumstances, employers may be required to provide 60 or 90 days’ notice of a shutdown or mass layoff.

11. If kindergartens and schools are being closed and employees need to stay home and cannot work, does the employer need to pay them and – if so – for how long? 

  • Certain states and cities, such as California, Chicago, Michigan, New Jersey, New York, and San Diego, require employers to provide paid or unpaid leave in the event of emergency school closures. For example, California Labor Code section 230.8 requires employers with 25 or more employees working at the same location to provide up to 40 hours each year to address child care provider or school emergency closures. Paid sick leave and “kin care” laws also may require employers to provide time off for parents dealing with school closures.
  • The FFCRA (see Answer to question No. 10) will authorize up to 10 weeks of partially-paid FMLA leave and up to 80 hours of paid sick leave when needed because of school closures or loss of childcare.