As the coronavirus clampdown widens, companies across the country are facing uncertainty in the wake of mandated closures and disruptions to business activities. From the employer’s perspective, there is also growing concern over legal issues that may arise in connection with the COVID-19 pandemic. Even on the smallest scale, at a minimum, employers are left with questions over paid leave and remote workforces.
The Families First Coronavirus Relief Act (the “FFCRA”) has addressed several ambiguities and employers should take a proactive approach to avoid legal issues in the wake of these unprecedented circumstances and new regulations. In particular, the Emergency Family and Medical Leave Expansion Act (“EFMLA”) and the Emergency Paid Sick Leave Act (“EPSLA”) provide employees with paid sick leave and/or job protected leave under designated circumstances related to COVID-19.
Employers should stay abreast of the latest CDC guidelines and limit business travel. Personal travel should also be under scrutiny, especially if businesses do not have remote capabilities. However, if the state in which a worker is located has any statute prohibiting employers from regulating off-duty conduct of employees, then personal travel procedures should be considered in coordination with legal counsel first. Employers should be careful to treat similarly situated employees the same, so as to avoid potential discrimination claims that could be associated with disparate treatment of different countries.
It is the employer’s responsibility to provide a healthy, safe working environment for all of its employees under the General Duty Clause of the Occupational Safety and Health Act (OSHA). In order to maintain a safe workplace, employers should strictly adhere to COVID-19 interim guidance issuances by both OSHA and the CDC. Employers may also implement a policy that requires an employee to inform the employer when the employee poses a direct threat to the safety of other employees (such as a positive diagnosis). However, employers must keep employees’ health information confidential and must ensure that any policy is in compliance with the Americans with Disabilities Act, including any questions that are asked of employees.
The EEOC has issued a technical assistance document on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. This extremely useful guidance contains a series of questions and answers that explain, among other things, what employers can and cannot ask about employees’ health conditions and what actions they can take.
Appropriately tailored plans should be created in order for employers to remain compliant with their legal obligations. Our Labor & Employment team is able to advise employers of their obligations, especially under the FFCRA, EFMLA and EPSLA, as well as the quickly evolving employment law implications of coronavirus in the workforce.
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