COVID-19 Employer Alert
March 13, 2020
We know employers are monitoring the COVID-19 pandemic closely and are facing unprecedented issues daily about how to address the virus in the workplace. While the situation is developing, the guidance from the CDC suggests that many people will be impacted. Employers are developing and implementing policies and procedures in response to the pandemic concerning health and safety, privacy, remote work, leaves of absence and many others in efforts to protect their employees while continuing to service their customers.
As employers respond to workplace interruptions, it is important to be familiar with the legal obligations to employees who are impacted by the virus. Employers should review their policies relating to paid or unpaid leave, including under the Family and Medical Leave Act (FMLA) and related state leave laws such as New York Paid Family Leave, and California Paid Family Leave. Requests for leave or other accommodations related to COVID-19 may trigger obligations under federal and state discrimination laws, including the Americans with Disabilities Act (ADA) and Title VII. As you navigate these issues, a few helpful reminders:
- Employees may qualify for FMLA or related state leave if they become sick with COVID-19 and may qualify for FMLA or Paid Family Leave if they need to care for a family member who is infected. Short-term disability and worker’s compensation benefits may also be available to employees who are too sick to work.
- For those with employees in New York City, New York City’s Earned Sick Time law permits employees to use sick leave when the workplace has been closed due to a public health emergency or to care for a child whose school or childcare provider is closed due to a public health emergency. Similarly, California employers with 25 or more employees in a single location are required to permit employees to take time up to 40 hours per year to address a school or childcare emergency due to closures.
- Employers should consider implementing policies to minimize exposure in the workplace, including by requiring that employees who may have been exposed to COVID-19 self-quarantine or sending home employees who appear to have a fever or acute respiratory illness symptoms (i.e., cough, shortness of breath). However, any such policies must be drafted carefully and implemented in a non-discriminatory manner.
- Employers are also encouraged to monitor the Centers for Disease Control (CDC) as well as their state and local government authorities for the latest updates. The CDC has prepared an Interim Guidance for Businesses and Employers. The Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces federal laws concerning workplace discrimination, has provided guidance to businesses and employers preparing for and responding to the Coronavirus disease, EEOC Pandemic Preparedness Guidance. In addition, the Occupational Safety and Health Administration (OSHA) has provided Guidance on Preparing Workplaces for COVID19.
- If you need to shut down operations temporarily because of COVID-19, the resulting layoff may be a WARN event. We think that the “unforeseen business circumstances” exception to the 60-day notice requirement may apply, but employers should review the WARN Act and state counterparts if they are considering a layoff or closing related to COVID-19.