Navigating COVID-19 compliance during this challenging time is a struggle for many employers. The current global pandemic is something employers have not faced before. Below, we have compiled links to relevant information which may be useful during this time of uncertainty. Because the situation surrounding the global COVID-19 pandemic is constantly evolving, there may be guidance included below that may change as a result of additional legislation or executive action.
Stay at Home Orders
On March 27, 2020, Governor Roy Cooper announced a state-wide “stay at home order” suspending the business operations of entities who cannot meet social distancing requirements and ordering all individuals currently in the State of North Carolina to stay at home except as allowed in the Executive Order. The Governor’s Order went into effect at 5:00pm on March 30, 2020. In addition, Mecklenburg County, Wake County, Guilford County, Orange County, Durham County, and the City of Winston-Salem (among several other localities) have already issued more restrictive emergency orders suspending the operation of non-essential businesses and ordering residents to stay at home.
Under both the state and local orders, all businesses may continue operating with employees who work exclusively from their own homes. In addition, there are several exceptions for essential government services, the operation of critical infrastructure services, healthcare and public health operations, financial and insurance institutions, critical trades (such as building and construction), and other employers engaged in the sale of groceries, household goods, and prepared foods for consumption off-premises.
All employers who have employees still reporting to work pursuant to a relevant exception should at all times reasonably comply with the Centers for Disease Control’s (CDC) recommendation to maintain at least a six-foot distance between themselves and any other individual, except as reasonably necessary to perform essential activities as defined by any applicable stay at home order. The current CDC guidelines for businesses and employers are briefly addressed below.
Paid Leave Under the Families First Coronavirus Response Act
On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) which mandates businesses with fewer than 500 workers to provide emergency short and long-term leave. The law takes effect April 1, 2020 and will expire on December 31, 2020.
The law provides two weeks of time off at full pay to workers who can’t work for various reasons related to the virus, including if they’ve been quarantined or have COVID-19 symptoms and are seeking a diagnosis. The law applies to both part-time and full-time workers, providing them as many hours off as they generally work in two weeks, up to 80 hours.
In addition, the law provides up to 80 hours at two-thirds pay for workers who need to care for a family member affected by the virus, and as many as 10 more weeks off at two-thirds pay to those who can’t work because they need to care for a child whose school or care provider has closed.
Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing the notice to employees or posting the notice on an employee information internal or external website.
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as an going concern. The DOL’s temporary rules for FFCRA were released on April 1, 2020 and can be found here. These rules are set to be finalized on April 6, 2020. For U.S. Department of Labor (DOL) guidance related to the FFCRA, visit the DOL’s page dedicated to the pandemic and see the guidance documents regarding Employer Paid Leave Requirements and Employee Paid Leave Rights.
Pay for Hours Worked During Suspension of Operations
The DOL has also published a Q&A regarding the Fair Labor Standards Act (FLSA) and COVID-19. According to the DOL, the FLSA generally applies to hours actually worked and does not require employers who are unable to provide work (to non-exempt employees) to pay for hours the employees would have otherwise worked. With respect to salaried, exempt employees, these individuals generally must receive their full salary for any week in which they perform any work, subject to certain very limited exceptions. The DOL’s Q&A regarding the FLSA and COVID-19 can be found here.
The DOL’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices. However, to the extent that employers still have employees reporting to work, they should be mindful of OSHA’s guidance regarding preparing workplaces for COVID-19. The guidance, which can be found here, encourages employers to implement appropriate workplace controls to prevent infection in the workplace. These controls may include engineering controls (such as installing high efficiency air filters), administrative controls (such as minimizing contact among workers and discontinuing non-essential travel), safe work practices (such as requiring regular hand washing and providing personal hygiene products), and personal protective equipment, or PPE (such as gloves, face masks, and respiratory protection). With respect to general pandemic preparedness, in addition to requiring employees to stay home when sick (in accordance with CDC guidance), OSHA promotes the following principles of worker protection: (1) consistently practice social distancing (2) cover coughs and sneezes (3) maintain hand hygiene, and (4) clean surfaces frequently. The general OSHA Fact Sheet regarding Protecting Workers During a Pandemic can be found here.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, which include reasonable accommodation requirements and the rules regarding medical examinations and inquiries. While the ADA and other EEO laws continue to apply, the EEOC has acknowledged that these laws do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.
For instance, the EEOC has acknowledged that employers may bar employees who become ill with symptoms of COVID-19 from the workplace. In addition, employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all health-related information as a confidential medical record in compliance with the ADA. You can find a copy of EEOC’s COVID-19 guidance document here. You should also access the EEOC’s Guidance Related to Pandemic Preparedness in the Workplace and the Americans with Disabilities Act which has been recently updated.
The CDC’s latest Interim Guidance for Businesses and Employers to Plan and Respond to the Coronavirus Disease 2019 can be found here. Please keep in mind that the CDC’s Guidance should take precedence in all matters involving your workforce.
The Banks Law Firm, P.A. provides advice and counsel to public and private employers in a variety of employment law-related matters and represents employers before courts and administrative agencies. If you have compliance questions or need assistance navigating this unchartered territory, you can reach an employment attorney at 919-474-9137.