The Coronavirus in Relation to Labor Laws
As you know, the United States is diligently preparing to mitigate the spread of the arriving Coronavirus. As part of Allevity's response, we've prepared this guidance to our partners on suggested practices in relation to labor laws. Keep in mind that government regulations may change, and with them, the options available to you.
Below are some scenarios that employers may face due to COVID-19, and our suggestions pertaining to labor laws.
If a healthy uninfected employee refuses to work due to preventative measures
Let the employee know that the current situation is not dire enough to warrant their refusal to work, and that they may face repercussions for doing so. According to Section 13(a) of the Occupational Safety and Health Act, employees are only entitled to refuse to work if they believe they are in imminent danger. Most work conditions in the United States currently do not reach this standard. Requiring travel to China or work with patients in a medical setting without personal protective equipment may rise to this threshold. This is just a guide and not a rule. Look at your unique situation and apply common sense.
If an employee tests positive for COVID-19
If an employee tests positive for COVID-19 you should send them home along with any employees that worked within a close proximity to them for a fourteen-day period. Ask the infected individual to think of everyone they have worked in close proximity to in the last fourteen days, and send these people home for the fourteen-day period as well. Do not tell your other employees who the infected person is, as this may break confidentiality laws. Make sure to disinfect your office, or consider hiring a cleaning company to deep clean the space. Furthermore, if you work in a shared office, notify management so they can take proper precautions as well.
If an employee has a suspected, but unconfirmed case of COVID-19
Treat the situation like it is a confirmed case. Keep lines of communication with your employees open, let them know the disease is not yet confirmed, and you want to err on the side of caution.
How can we distinguish between a “suspected but unconfirmed” case of COVID-19 and a typical illness?
This is not an easy thing to do, but let common sense be your guide. Was this person recently traveling in any of the high-risk areas? Was this person exposed to someone who may have been in one of these places? You may ask your employees if they are experiencing any of the main COVID-19 virus symptoms, which are fever, cough, and shortness of breath. If they match the symptoms of COVID-19, send them home and treat it as a confirmed case.
One of our employees has been exposed to the virus, but only found out after they had interacted with clients and customers.
Take the same precautions as if the employee had a confirmed case, and notify clients or customers who came into close proximity with this person about the situation.
Must we keep paying employees who are not working?
For the most part, the answer is no. According to the Fair Labor Standards Act only employees who are working are entitled to wages under the FLSA. With that being said, employers may owe Reporting Time pay to employees sent home due to COVID-19. Furthermore, employees have the option of using their paid sick leave, or other paid leave if their employer's policy allows. Once again, these are general guidelines. Be sure to look at your current policy and speak with your employees.
What if I shut down my business due to the virus? What benefits are available to my employees?
If you shut down operations or reduce hours due to COVID-19, employees can file an Unemployment Insurance (UI) claim. Through UI, workers who lose their job or have their hours reduced through no fault of their own can receive partial wage replacement benefit payments. Workers temporarily unemployed due to COVID-19 and expected to return to work with the same employer within a few weeks are not required to actively seek work each week; nevertheless, those workers must remain available and ready to work during their unemployment for each week of benefits claimed, as well as meeting all other eligibility criteria. UI'sone-week unpaid waiting period has been waived due to the virus, so workers can collect UI benefits for the first week they are out of work. If workers are eligible for UI, the Employment Development Department (EDD) processes and issues payments within a few weeks of receiving claim. Eligible individuals can receive benefits ranging from $40-$450 per week. If the employer does not state a specific return-to-work date, employees may use any available paid vacation time, as that will not interfere with unemployment benefits. The only time that using paid vacation time would interfere with benefits is if, at the time of layoff, the employer specifies to the employee a definite date for their return to work.
Employers are required to pay non-exempt employees only for hours they actually work. But if the shutdown occurs in the middle of a shift, certain states (i.e. California and New York) require a certain number of hours to be paid as reporting time pay.Salaried/exempt employees must be paid their full salaries for any week in which they perform work, which means if the shutdown occurs in the middle of the week these employees must be paid their full salary for the entire week. If the employee performs no work at all in the workweek, no salary needs to be paid.
What if an employee cannot work because they have contracted the virus, need to be quarantined, or need to care for a family member who has contracted or been quarantined?
If the time off is for their own illness or the illness of an immediate family member, the employee may file a Disability Insurance (DI) claim. (DI provides short-term benefit payments to eligible workers who have a full or partial loss of wages due to a non-work-related illness, which now includes COVID-19.) Employees are required to provide medical certification.The one-week unpaid waiting period has been waived due to the virus, so employees can collect DI benefits for the first week they are out of work. If they are eligible, the EDD processes and issues payments within a few weeks of receiving a claim. Benefit amounts are dependent upon income, are approximately 60-70 percent of wages, and range from $50-$1,300 per week. Employees may use available sick time, but sick time must be coordinated with their SDI benefits so the employee does not make more than 100% of their normal wages. Employees my also use available vacation time, which will not interfere with their SDI benefits.
If you’re unable to work because you are caring for an ill or quarantined family member with COVID-19, you can file a Paid Family Leave (PFL) claim.
Workers who have a full or partial loss of wages because they need time off to care for a seriously ill family member or to bond with a new child may file a Paid Family Leave claim, which provides up to six weeks of benefit payments. Employees are required to provide medical certification. Benefit amounts are dependent upon income, are approximately 60-70 percent of wages, and range from $50-$1,300 a week. If employees are eligible, the EDD processes and issues payments within a few weeks of receiving a claim. Employees may use available sick time, but sick time must be coordinated with their SDI benefits so the employee does not make more than 100% of their normal wages. Employees may also use available vacation time, which will not interfere with their SDI benefits.
What if an employee cannot come to work because they have to care for a child who is out of school due to a school closure that is a result of the COVID-19 virus?
If an employee needs to miss work to care for a child whose school is closed, the employee may be eligible for Unemployment Insurance benefits. Eligibility considerations include whether or not there are other care options, and if the caretaker is unable to continue working their normal hours remotely. File an Unemployment Insurance claimand EDD representatives will decide if the caretaker is eligible for payments. Employees may also use available vacation pay, which will not interfere with unemployment benefits.
My employee alleges that they contracted COVID-19 while at work. Will this result in a compensable workers’ compensation claim?
If the employee is a health care worker or first responder, then more than likely yes, but for most other occupations, probably not. Here's why. The workers' compensation system is a no-fault system, which means the person filing the claim only needs to prove that the injury occurred at work and was caused by their employment. COVID-19 is not an injury, but could be considered an occupational disease. For that to happen,the employee must show the illness or disease is “occupational,” meaning it must arise out of or be caused by conditions peculiar to the employees work, which creates a risk of contracting the disease in a greater degree and in a different manner than in the general public.
Proposed federal regulations may change an employer's legal obligation around leave and pay, but currently no new regulation or laws have been officially passed.
In conclusion, refer to this resource as a guide, pay attention to your specific industry standards, and apply common sense to each unique situation you may face. Furthermore, we encourage our partners to do what they can and to be as accommodating to their employees as possible. Stay safe out there.
If you'd like to know more about how to prepare for COVID-19 in your workplace, click here for an in-depth PDF prepared by OSHA about the issue.