In General

What COVID-19 issues should employers be concerned about once employees begin returning to the work site?

While many employers are navigating return-to-work issues, employee-side attorneys, unions, and administrative agencies are gearing up. The decisions made over the last two months by employers are being scrutinized, and, fair or not, will be the subject of intense debate, litigation, and investigations. We created this Prospectus as a resource to help you assess where you stand with respect to some of the activity that we anticipate.

What should employers think about if an employee may have had exposure to COVID-19?

Primarily, two things: (1) protecting other employees, as well as third parties who may be affected, and (2) preserving the dignity and privacy of the employee who has been exposed to the extent possible. For the first, please see our OSHA/Workplace Safety FAQs. For the second, please see our Equal Employment Opportunity FAQs.

What should an employer do if it learns that an employee has COVID-19?

What laws could apply in the event of a COVID-19-related workplace situation?

A number of federal laws could apply. Most significantly, the Occupational Safety and Health Act will apply in keeping your workplace safe for your employees. The Americans with Disabilities Act could apply to an employee who either has COVID-19 or who has an underlying medical condition that makes him or her particularly vulnerable to COVID-19. The ADA also governs reasonable accommodations of disabilities, and “medical inquiries” made in connection with employment and confidentiality of employee medical information. Of course, the new Families First Coronavirus Response Act requires paid leave for employees who are unable to work for certain specified COVID-19-related reasons. (The FFCRA applies to private sector employers with fewer than 500 employees, and to most public sector employers.) The Family and Medical Leave Act might apply with, or instead of, the FFCRA.

For employees who are able to telework while a shelter-in-place order is in effect, employers need to be conscious of their obligations under the Fair Labor Standards Act, and take appropriate measures to protect their confidential and proprietary information, and preserve data privacy, while employees are working from home.

The coronavirus crisis has also resulted in immigration law concerns for employers of H-1B employees.

In addition to all of the above, employers need to be aware of any applicable state or local laws that might apply to their employees.

CARES Act

What types of loans are available to small and medium-sized businesses under the CARES Act?

Are any other loans available?

Doesn’t the CARES Act have provisions related to unemployment that occurs as a result of the pandemic?

Data Privacy

Fortunately, most of our employees have been able to work remotely during the COVID-19 crisis. Of course, we are also worried about the security of our data, and our confidential and proprietary information, with all of those remote employees. What should we be doing to protect ourselves?

Our company has facilities in California. We have been taking temperatures of employees before they enter our facility, and sending home anyone with a fever. Now that the U.S. Equal Employment Opportunity Commission says that employers may actually test employees for COVID-19, we plan to do that, too. Are there any precautions we should take to protect the data that we gather through these requests?

Discrimination/EEO

Is COVID-19 a “disability” within the meaning of the Americans with Disabilities Act?

Are employers required under the ADA to make reasonable accommodations for employees with coronavirus?

Are we allowed under the Americans with Disabilities Act to take employee temperatures or test employees for COVID-19?

If we learn that an employee has coronavirus or has been exposed, how much can we say to other employees without violating the ADA’s confidentiality provisions?

It’s known that older people are more vulnerable to COVID-19 than younger people. For the safety of our older workers, all of whom are healthy and do not have any known disabilities, can we send them home until the pandemic is over, or reaches a safer level?

Would the same principles that apply to older employees also apply to pregnant employees, whom we would not want to put at risk?

If we have applicants or employees from “high risk” parts of the United States or the world, can we make them go through more rigorous medical screening than we'd require of their counterparts from lower-risk areas?

Families First Coronavirus Response Act

What is the Families First Coronavirus Response Act all about?

The Families First Coronavirus Response Act was signed into law on March 19 and contains two key provisions that require some employers to offer paid leave to employees who can’t work (or telework) for specified reasons. The FFCRA will expire on December 31 of this year.

The FFCRA paid leave provisions apply to private sector employers with fewer than 500 employees, and to virtually all public sector employers. Private sector employers who provide leave required by the FFCRA are entitled to payroll tax credits to cover the expense.

The Emergency Family and Medical Leave Expansion Act allows employees to take paid leave to care for a son or daughter who is home because of a school or child care closing, or because the child care provider is unavailable. Employees can take up to 12 weeks’ leave in a rolling 12-month period, and after the first two weeks, the leave is paid at 2/3 times the employee’s regular rate, up to a maximum of $200 a day or $10,000 total.

The Emergency Paid Sick Leave Act provides up to 80 hours of paid leave for six coronavirus-related reasons:

  1. The employee is under a federal, state, or local quarantine or isolation order because of COVID-19,
  2. The employee is advised by a health care provider to self-quarantine because of COVID-19,
  3. The employee has symptoms of COVID-19 and is seeking a medical diagnosis,
  4. The employee is caring for an individual who meets one of the first two conditions, above,
  5. The employee is caring for a son or daughter whose school or “place of care” is closed because of COVID-19 precautions, or whose care provider is unavailable for the same reason, or
  6. “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”

If the leave is for Reason No. 5, the 80 hours of paid leave can cover the first two weeks of unpaid leave under the expanded FMLA. If the employee is off for Reasons 1-3, the employee is paid at 100 percent of his or her regular rate, up to a maximum of $511 a day, or $5,110 total. If the leave is for Reasons 4-6, the employee is paid at 2/3 of his or her regular rate, up to a maximum of $200 a day, or $2,000 total.

To be eligible for expanded FMLA leave, the employee must have been employed by the employer for at least 30 days before the date that the leave would begin. Employees are eligible for leave under the Paid Sick Leave Act as soon as they are employed.

More information about these laws is available here.

What if an employee needs time off for a legitimate coronavirus-related reason that is not covered by the FFCRA?

Even if the FFCRA does not cover the time off, the employee may be entitled to paid leave under the employer’s policies or short-term disability, or to job-protected unpaid leave. Depending on whether the employer is “covered” and whether the employee is eligible and has a qualifying condition, the time off may be covered under the “unpaid leave” provisions of the Family and Medical Leave Act, or as a reasonable accommodation under the Americans with Disabilities Act.

Can an employee have paid leave under the FFCRA if the leave is for an illness that is not coronavirus-related?

No. The FFCRA applies only when the leave is for one of the six specified coronavirus-related reasons. See here for additional information. 

Can an employee take paid leave under the FFCRA or unpaid FMLA leave if the employee prefers to stay home to avoid being exposed to coronavirus?

Generally, no. However, if the employee has a medical condition that makes the employee especially vulnerable (such as an immune disorder), the employee could conceivably qualify for FMLA leave for a serious health condition or leave as a possible reasonable accommodation under the Americans with Disabilities Act.

If an employee has been exposed to COVID-19, has symptoms, or has returned from travel to a coronavirus “hot spot,” can the employer send the employee home?

Generally, yes. If the employer offers paid time off, the employee should be able to use it for this purpose. As always, employers should comply with any applicable state or local laws, as well as federal law.

Immigration

How do I prepare a Form I-9, now that our employees are working remotely?

Has any relief been granted by U.S. Immigration and Customs Enforcement to respond to Notices of Inspection? 

Are there any changes to the E-Verify process as a result of COVID-19?

Can U.S. citizens or permanent U.S. residents travel abroad?

I heard that President Trump recently issued an Executive Order banning immigration for 60 days. Is that correct?

Who can be admitted to the United States during the COVID-19 travel ban?

Can I get a summary of the latest restrictions on repatriation?

Will the U.S. consulate abroad conduct my immigrant/nonimmigrant visa interview?

Most up to date information can be found here.

Is the USCIS keeping biometrics and interview appointments?

I was admitted to the United States under the Visa Waiver Program. My 90-day stay is about to expire, but I can’t leave the U.S. because of COVID-19. Can I extend my status and stay here?

Has the USCIS provided guidance to temporary visa holders who can’t leave the country until after their visas expire?

What’s happening with H-1B applications?

Will premium processing be available for H-1B cap petitions?

Is there any way for me to expedite my case since premium processing is not available?

Yes. You may ask the USCIS to expedite the adjudication of an application or petition for an immigration benefit. Each case will be reviewed on a case-by-case basis.  

In order for the USCIS to consider an expedite request, the request generally must meet one or more of the following criteria: 

All expedite requests claiming severe financial loss, regardless of the immigration benefit sought and regardless of whether the claimed loss is to a company or a person, must include documentation to establish the loss and that the requestor is not able to withstand the temporary financial loss that is the natural result of normal processing times.  

Can H-1B workers telecommute if their employers’ facilities are closed?

What if I can’t provide an original document or signature that is required because I am working remotely?

How do we comply with our posting obligations if our facility is closed?

We were served with a Notice of Inspection in March. What happens now?

Have the deadlines for responses to a Request for Evidence or Notice of Intent to Deny and other USCIS Actions been extended? 

I’m a permanent resident. If I apply for unemployment benefits, will the new public charge rule apply, negatively affecting my application for citizenship in the future?

No.  An application for, or receipt of, unemployment  benefits is not considered by the USCIS to be a factor in the public charge analysis for those applying for citizenship in the future. 

The following is a non-exhaustive list of public benefits that the USCIS does not consider in the public charge inadmissibility determination because they are considered earned benefits:

Can foreign students whose schools are offering only online courses retain their visas?

Yes. The U.S. Immigration and Customs Enforcement has agreed to rescind a directive that barred foreign students, even during the COVID-19 pandemic, from taking only the online courses offered by their colleges and universities. ICE issued the directive on July 6 but was challenged in a lawsuit brought by Harvard University and the Massachusetts Institute of Technology. On July 14, at the outset of a hearing in federal court in Boston, ICE agreed to the rescission.

As result, ICE will revert to the policy it announced on March 13 as a result of the pandemic. Under the March 13 policy, the Student and Exchange Visitor Program, run by ICE, suspended pre-COVID regulations that limited foreign students to one online class, or three credit hours, per semester. The March 13 policy was adopted as a way to provide flexibility to foreign national students whose educational institutions transitioned to all online classes or remote learning as a result of the pandemic. More information is available here.

Labor 

What should unionized employers be thinking about with respect to the pandemic?

We have a collective bargaining agreement. If we need to eliminate jobs, place employees on furlough, or reduce pay, what should we do?

Would a no-strike clause have any bearing on the employers’ response to employees who refuse to work because of coronavirus fears?

We do not have a union, but we are concerned about labor issues that might arise when employees begin returning to work. Is there anything we can be doing about that now?

Yes. This is a good time to identify the employees who are your “supervisors” within the meaning of the National Labor Relations Act, review your personnel policies and make any needed changes now, develop a communications plan, determine what the appropriate bargaining units would be, engage a labor consultant, and develop a public relations strategy. All of these actions are best taken before you become aware of union organizing activity.

For more on this, please read The COVID-19 pandemic may spur union organizing and complicate union relations.

Can an employee who is concerned about coronavirus simply refuse to come to work?

An employee’s right to refuse to do a task is protected if all of the following conditions are met:

Employers should also be mindful of Section 7 of the National Labor Relations Act. According to the NLRB’s website, Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."

Whether a refusal to work is protected under the Occupational Safety and Health Act or constitutes protected concerted activity under Section 7 of the NLRA is a nuanced and fact-specific question. Employers should consult counsel regarding this issue.

Safety and Health
Is there any guidance available for employers who are reopening their offices?

What should employers do in the event of an exposure to COVID-19 in the workplace?

DO: 

DON’T:

Should COVID-19 cases in the workplace be recorded on the OSHA-300 Log?

On May 19, OSHA issued a Revised Enforcement Guidance document, rescinding interim guidance that was issued on April 10. The Revised Guidance, which takes effect May 26, explains, in very broad terms, the circumstances under which a case will be determined to be work-related and recordable. 

The new guidance first reiterates the OSHA recordkeeping criteria for recording a case of COVID-19: 

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention; 
  2. The case is work-related under § 1904.5, the recordkeeping regulation that deals with work-relatedness; and  
  3. One or more of the general recording criteria in § 1904.7 are met, such as medical treatment or days away from work. 

The first step of the above three-step process is met only if the diagnosis of COVID-19 is established by a positive test result for SARS-CoV-2. Thus, it does not appear that symptoms alone, or even a diagnosis alone, would be enough to establish a confirmed case.  

The key to COVID-19 recordkeeping determinations is the second step: whether the case is work-related. OSHA acknowledges that because of the “ubiquity of community spread,” it is difficult to determine whether a COVID-19 illness is work-related. Employers are expected to make a “reasonable” investigation as to whether the case is work-related. According to OSHA, this means that an employer should, among other things, do the following: 

OSHA also notes in a different section of its Guidance document that “due weight” should be given to the opinion of a medical provider or public health authority as to whether the case is work-related. 

More information is available here. 

Is there any circumstance in which an employer would have to report a COVID-19 case to OSHA?

In July, OSHA issued new Frequently Asked Questions addressing when employers governed by the federal agency must report work-related cases of COVID-19. The most significant new information concerns the circumstances under which an employer must report to OSHA when an employee is hospitalized as a result of contracting COVID-19 at work.

Under the new FAQ, an employer must report COVID-19-related hospitalizations when the employer has knowledge that 1) the employee has been hospitalized 2) as a result of COVID-19. As we have reported, this FAQ conflicts with the existing recordkeeping regulation on reporting, which requires a case to be reported only if the hospitalization occurs within 24 hours of a work-related incident.

If an employee is hospitalized with what is apparently work-related COVID-19, but the case is not confirmed until after the hospitalization, the employer would have to report the case to OSHA within 24 hours of when the employer learned that the case of COVID-19 had been confirmed. OSHA says that a confirmed case means that “at least one sample tested positive for SARS-CoV-2.”

The FAQ does not afford as much clarity as the Agency may think because it is not clear that employers would receive any formal confirmation of a positive test.

To stay out of trouble and avoid a citation for untimely reporting, it is prudent to report to OSHA within 24 hours of when you learn of a COVID-19-related admission to a hospital. But if you inadvertently miss this new deadline, we advise against conceding that there has been a violation of your obligation to report to OSHA when there has been a hospitalization. If that hospitalization occurred more than 24 hours after the “work-related incident,” then we believe that as a matter of law the rule in §1904.39(b)(6) still controls and does not require reporting.

How will OSHA be handling employee complaints about COVID-19 in the workplace?

The Occupational Safety and Health Administration has now issued an Interim Enforcement Response Plan for Coronavirus Disease (COVID-19), which provides guidance to its Area Offices and Compliance Officers about how to handle COVID-19-related complaints and inspections.

As with most of the guidance provided by OSHA on COVID-19 to date, the Agency distinguishes between 1) health care and jobs with high or very high risks of exposure, and 2) the vast majority of other jobs, with what OSHA describes as medium or lower exposure risk. The Interim Enforcement Response Plan provides that “fatalities and imminent danger exposures related to COVID-19 will be prioritized for inspection, with particular attention given to healthcare organizations and first responders.”

Although OSHA’s practice has been to conduct an on-site inspection whenever a formal complaint (a complaint signed by an existing employee) is filed, under the new Enforcement Response Plan, even a formal complaint alleging “unprotected exposures” of workers with high or very high risk of transmission “may warrant” an on-site inspection.

More information is available here

Because of COVID-19-related issues, we have not been able to conduct our required audits, training, or assessments. Are we in trouble?

Not necessarily. In a nod to the challenges facing many employers during the ongoing pandemic, the Occupational Safety and Health Administration has issued a “discretionary enforcement policy” titled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts during the Coronavirus Disease 2019 (COVID-19) Pandemic.” This policy is intended to be applied across both federal and state OSHA jurisdictions.

If an employer has not been able to comply with “annual or recurrent audits, reviews, training, or assessments” because of the COVID-19 pandemic, OSHA Area Offices have the discretion not to issue citations. But, if non-compliance is to be excused, OSHA must conclude that an employer has tried in good faith to comply but has been unable to do so because of COVID-19-related reasons, such as the unavailability of third-party consultants or industrial hygiene services.

More details are available here.

Can an employee who is concerned about coronavirus simply refuse to come to work?

An employee’s right to refuse to do a task is protected if all of the following conditions are met:

Employers should also be mindful of Section 7 of the National Labor Relations Act. According to the NLRB’s website, Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."

Whether a refusal to work is protected under the Occupational Safety and Health Act or constitutes protected concerted activity under Section 7 of the NLRA is a nuanced and fact-specific question. Employers should consult counsel regarding this issue.  

Telework

From a wage and hour standpoint, what challenges does teleworking present?

What other concerns should be taken into account with teleworking arrangements?

Unemployment

If our employees are laid off or furloughed, or their pay reduced, because of COVID-19, are they eligible for unemployment?

Eligibility for unemployment is generally state-specific. Please go to our State and local law section, which has details about some of the states.

The federal CARES Act has special federal provisions that apply to unemployment that occurs for reasons related to COVID-19. There are three components of particular interest to employers and employees:

Pandemic Unemployment Assistance: Provides for unemployment benefits for individuals who would not normally be eligible under state or federal law, including gig workers, independent contractors, and self-employed individuals, as well as individuals who have already exhausted their “regular” unemployment benefits under state law. According to the U.S. Department of Labor, “To be eligible, among other requirements, individuals must demonstrate that they are otherwise able to work and available for work within the meaning of applicable state law, except that they are unemployed, partially unemployed, or unable or unavailable to work because of COVID-19 related reasons.”

Federal Pandemic Unemployment Compensation: This component allows “eligible individuals who are collecting certain [unemployment] benefits, including regular unemployment compensation, [to] receive an additional $600 in federal benefits per week for weeks of unemployment ending on or before July 31, 2020.” The Department of Labor notes, 

FPUC is not payable for any week of unemployment ending after July 31, 2020. Accordingly, in states where the week of unemployment ends on a Saturday, the last week that FPUC may be paid is the week ending July 25, 2020. For states where the week of unemployment ends on a Sunday, the last week that FPUC is payable is the week ending July 26, 2020.  

Pandemic Emergency Unemployment Compensation: This component “allows those who have exhausted benefits under regular unemployment compensation or other programs to receive up to 13 weeks of additional benefits. States must offer flexibility in meeting PEUC eligibility requirements related to ‘actively seeking work’ if an applicant’s ability to do so is impacted by COVID-19.”

More details about the PUA, the FPUC, and the PEUC are available here. And the U.S. Department of Labor has created this handy chart.

Wage and Hour

Does an employer have to pay employees if it is closed because of COVID-19?

It depends on whether the employees are exempt or non-exempt under the federal Fair Labor Standards Act and any applicable state wage and hour laws. The following applies to the FLSA only:

Can an employer require employees who are not sick to use PTO or other paid leave while a facility is closed?

Generally, yes. As long as it is not prohibited by the terms of the paid leave plan or applicable state or local law, the employer can direct employees to use available paid leave. 

An employer cannot require an employee to use PTO if the employee is entitled to paid leave under the FFCRA (although the employee can choose to use PTO before using FFCRA leave). But to be eligible for paid leave under the FFCRA, the employee must be unable to work or telework for one of the specified reasons even though the employer has work available.

Are employers required to cover additional costs that employees may incur if they work from home (e.g., internet, computer, extra phone lines, increased use of electricity)?

May employers change their sick leave policies if too many employees are out and the employer cannot afford to pay them all?

 If I bring in temporary employees through a staffing agency, is my company responsible for making sure that they are paid in accordance with the FLSA?

Workers' Compensation

Can employees with COVID-19 file workers’ compensation claims?

Employees may file claims if they believe they contracted COVID-19 at work, although that does not mean it is a compensable claim. Although workers' compensation laws vary by state, generally it will be difficult to prove work-relatedness because diseases to which the general public is exposed are usually excluded. That having been said, we are seeing more questions about employees who travel for work, or who  work in positions with heightened risks of exposure (for example, health care or emergency responders). Under current law, the increased "risk" even with these jobs is not generally sufficient to result in a finding of compensability. However, a number of states have or are considering changes to their workers’ compensation laws as a result of coronavirus. Most of these proposals would provide that a COVID-19 illness is compensable for health care workers and safety professionals (firefighters, first responders, police officers, etc.). In other words, those employees whose “front-line” job duties expose them to a greater risk of COVID-19 would receive the benefit of the presumption in those states based on these legislative proposals. 

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