The 2019 novel coronavirus, officially named COVID-19 by the World Health Organization, currently presents as a public health emergency of international concern.
Employers should be prepared in the event that COVID-19 becomes a pandemic, which is likely, based on the current global circumstances. We have summarized legal concerns facing employers in preparing and responding to a pandemic, including:
- How to maintain a safe and healthy workplace as required by the Occupational Safety and Health Act and recommended by the CDC;
- How to ensure compliance with federal and state laws prohibiting discrimination based on national origin, race, and disability;
- What leaves the employees are entitled to under the Family and Medical Leave Act and the Michigan Paid Medical Leave Act; and
- When or how pay can be deducted under the Fair Labor Standard Act if employees are absent.
Contacts:
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| Nhan Ho +1.313.496.7930 | Megan Norris +1.313.496.7594 | Brian Schwartz +1.313.496.7551 |
Part 1: Safety
Obligations under the Occupational Safety and Health Act
The Occupational Safety and Health Act (OSHA) governs the health and safety of workers and workplace. Under Section 5(a)(1), employers have a general duty to provide a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harms to the employees. Accordingly, in a pandemic, an employer can violate OSHA if it subjects the workers to exposure to the pandemic virus or fails to take adequate measures to reduce the exposure and spread of the pandemic virus present in the workplace.
The Occupational Safety and Health Administration (“the Administration”) has acknowledged the risk of COVID-19 exposure in the workplace by issuing guidance on COVID-19. The guidance is expected to change in light of the changing circumstances surrounding the spread of COVID-19 internationally and in the U.S. To date, the Administration nonetheless maintains that risks of infection for most U.S. workers are not significant, but that the exposure risk is elevated for those involved in healthcare, deathcare, airline operations, waste management, and business travel to areas where the virus is spreading.
No specific OSHA standards or regulations specifically concerning pandemics currently exist. However, certain OSHA standards may be applicable and impose obligations on employers to protect workers from COVID-19. Some standards, such as those for personal protective equipment ("PPE," 29 C.F.R. §1910.132) and respiratory protection (29 C.F.R. § 1910.134), may require employers to assess the potential hazards of COVID-19 in the workplace. In their assessments, employers should:
- Consider if workers may encounter someone infected with COVID-19 in the course of their duties.
- Determine if workers could be exposed to environments or materials contaminated with the virus.
- Depending on the setting, rely on the identification of sick individuals who were potentially infected with the virus to ascertain exposure risks and implement appropriate control measures.
Other standards, such as OSHA Bloodborne Pathogens standard (29 C.F.R. 1910.1030), can offer a helpful framework to control some sources of the virus, including exposures to body fluids. Additionally, in a pandemic, employers may have obligations under applicable OSHA general industry standards, for instance, those concerning recording and reporting occupational injuries and illnesses (29 C.F.R. Part 1904), sanitation (29 C.F.R. § 1910.141), access to employee exposure and medical records (29 C.F.R. § 1910.1020), hazard communication (29 C.F.R. —1910.1200), and occupational exposure to hazardous chemical in laboratories (29 C.F.R. § 1910.1450). And, pursuant to OSHA Section 11(c), employers may not retaliate against workers for raising concerns about safety and health conditions, including occupational exposure to COVID-19.
The Administration has also developed interim guidance for control and prevention of COVID-19, which advises employers to:
- Remain aware of the evolving outbreak situations.
- Promptly identify and isolate potential infectious individuals where exposure to the COVID-19 may occur.
- Carefully evaluate whether work areas occupied by people suspected to have the virus may have been contaminated and whether decontamination is necessary. However, OSHA notes that, typically, there is a limited need for decontamination outside of healthcare and deathcare facilities.
- Train all workers with reasonably anticipated occupational exposure to COVID-19 about the sources of exposure to the virus, the hazards associated with that exposure, and appropriate workplace protocols in place to prevent or reduce the likelihood of exposure.
- Consult the interim guidance for specific worker groups at higher risk of occupational exposures to COVID-19.
Recommendation for Employers from the Center for Disease Control and Prevention
Employers should also consult the Center for Disease Control and Prevention (“CDC”)’s recent interim guidance for businesses to plan and respond to COVID-19. According to the CDC, employers are recommended to implement the following strategies:
- Actively encouraging sick employees to stay home.
- Separating sick employees.
- Promoting respiratory etiquette and hand hygiene in the workplace.
- Performing routine environmental cleaning, especially of all frequently touched surfaces.
- Advising employees to take certain precautionary steps before traveling.
- Instructing employees who have a sick family at home with COVID-19 to notify their supervisor and referring the employees to CDC guidance regarding potential exposure.
- Notifying employees, whose co-worker is confirmed with COVID-19, of their possible exposure to COVID-19, while maintaining confidentiality as required by the ADA, and referring the employees to CDC guidance regarding potential exposure.
Employers are also advised to plan and be prepared to respond to COVID-19. In designing and implementing an infectious disease outbreak response plan, employers should:
- Identify sources of work-related exposure and health risks to employees.
- Review policies and practices to make sure that they are consistent with law and public health guidance.
- Explore whether certain policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), can be established.
- Prepare to minimize exposure between employees and also between employees and the public, if public health officials call for social distancing.
- Identify the critical elements for the business to operate, and plan for operation in the event of increasing absenteeism or interrupted supply chains.
- Set up authorities, triggers, and procedures for activating and terminating the response plan, altering business operations, and transferring business knowledge to key employees.
- Establish a communication process to employees and business partners about the response plan and latest COVID-19 information, in light of anticipated fear, anxiety, rumors and misinformation.
- Study local community plans in place by local public health officials where employers have a business.
- Engage state and local health departments to confirm channel of communication and methods for dissemination of local outbreak information.
- If there is evidence of a COVID-19 outbreak in the U.S., consider canceling non-essential business travel to additional countries per CDC’s travel guidance and canceling large work-related meetings or events.
CDC also has additional guidance for business travel, airline workers, health care professionals, and laboratories.
Part II: Non-discrimination
The increasing fear around COVID-19, which was first detected in China, can lead to stigmatizing Chinese or other Asian individuals. However, according to the CDC, just being Chinese or Asian does not increase the chance of contracting or spreading COVID-19. Treating an employee adversely because of his or her race or national origin solely out of fear of pandemic virus implicates the non-discrimination obligation imposed on employers by Title VII of the Civil Rights Act (Title VII) and the Elliott-Larsen Civil Rights Act (ELCRA.)
Title VII prohibits employment discrimination on the basis of race and national origin, for example, discrimination against Chinese or individuals of Asian descent. The duty to not discriminate is also imposed on Michigan employers by the ELCRA.
Employers should take measures to ensure a workplace free of discrimination against and stigma toward certain protected classes, such as:
- Maintaining privacy and confidentiality for those seeking health care and those suspected of COVID-19 infection.
- Providing training for employees to communicate the fact that viruses do not target specific racial or ethnic groups and how COVID-19 actually spread.
- Reminding employees of and strictly enforcing workplace policies that prohibit discrimination and harassment.
- Encouraging employees to speak out against or report negative, bullying, and stereotyping behaviors.
Disability
Title I of the Americans with Disabilities Act (ADA), applicable to employers with 15 or more employees, protects qualified employees with disabilities. While temporary, non-chronic impairments of short duration and little or no long term or permanent impact, such as influenza, are generally not disabilities recognized by the ADA, the complete clinical picture of COVID-19 has not been fully understood. COVID-19 and the illnesses caused by it may potentially constitute an actual disability under the law. Additionally, because of the mass fear around COVID-19, there is a risk that one carrying the virus might be deemed as having an impairment, thereby making a case for a "regarded as" disability claim. Ultimately, employers should be aware of the obligations imposed by the ADA in preparing and responding to a potential pandemic.
In response to the 2009 H1N1 pandemic, the EEOC issued a technical assistance document on Pandemic Preparedness in the Workplace and the American with Disabilities Act. This guidance is instructive for employers preparing for and responding to the potential COVID-19 pandemic in a manner that complies with the ADA. As the EEOC guidance notes, the ADA is relevant to pandemic preparation and response in the following ways:
- The ADA regulates employers' inquiries and examinations into employees’ disabilities, physical or mental impairments, or health.
- The ADA prohibits employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat.
- The ADA requires employers to make reasonable accommodations for individuals with disabilities.
Following are some examples of what employers can and cannot do in preparing for and responding to an influenza pandemic such as COVID-19:
- Before a pandemic:
- Employers may not ask health-related questions to anticipate potential absenteeism.
- Employers may make inquiries that are not disability-related (e.g., if public transportation was no longer available because of a pandemic, would the employee be able to get to work).
- Employers may also provide employees with a survey that lists all the reasons, both health and non-health related, that would cause the employees to be absent from work in a pandemic, and ask the employees to answer a single “Yes” or “No” if they could not be able to come to work for any of those reasons.
- During a pandemic:
- Employers may send employees home if they display influenza-like symptoms.
- Employers may ask employees who report feeling ill at work or who call in sick if they are experiencing influenza-like symptoms.
- Employers may ask questions about exposure to pandemic influenza while traveling.
- Employers may not ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications.
- Employers may encourage employees to telework as an infection-control strategy.
- Employers may require employees to adopt infection-control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal.
- Employers may require employees to wear personal protective equipment.
- An employer may not discontinue providing reasonable accommodations with employees with known disabilities unrelated to pandemic, barring undue hardship.
- After a pandemic: Employers may require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work.
Employers should be reminded that the ADA always requires employers to keep employees' medical and health-related information and records confidential and separate from the employees' personnel files. Employees' symptoms of or diagnosis with the pandemic virus cannot be shared with coworkers or customers.
Michigan employers with at least one employee must also comply with the Michigan Persons with Disabilities and Civil Rights Act (PWDCRA). The obligations imposed on employers by the PWDCRA are similar to those imposed by the ADA.
Part III: Leave
The Family and Medical Leave Act
Employers covered by the Family and Medical Leave Act ("FMLA") must allow an eligible employee to take leave due to a serious health condition of the employee or to care for the employee’s close family member with a serious health condition. The Department of Labor, and at least one Michigan federal court, has taken the position that ordinary flu with no complications is not the sort of chronic serious health problem contemplated by the FMLA. While COVID-19 shares flu-like symptoms, it is known to cause severe illnesses, complications, hospitalizations, incapacitation, and even death. Thus, it is possible that infection by COVOID-19 may involve a serious health condition, requiring covered employers to provide eligible employees with FMLA job-protected leave.
According to the Department of Labor's guidance, Pandemic Flu and the Family and Medical Leave Act: Questions and Answers, in dealing with pandemic influenza and providing FMLA leave for employees, employers should keep in mind that:
- Not all leaves related to a pandemic are protected by the FMLA. Leaves taken by an employee to avoid exposure to the pandemic influenza or to care for healthy children whose schools are closed because of the pandemic are not protected by the FMLA. However, employers should explore flexible leave policies for their employees in these circumstances.
- Employers can still require employees to obtain medical certification to support FMLA leave. However, considering the potential hysteria around a pandemic, it might be difficult for employees to see their doctors. As a practical matter, it might seem appropriate to relax the medical certification requirement during a pandemic.
- Employers may require an employee to do certain things before returning to work, such as providing a fitness-for-duty certification, undergoing a medical examination, or remaining symptom-free for a specific period of time before returning to work.
- Except where otherwise provided pursuant to a collective bargaining agreement, employers may require the employees to substitute paid sick and paid vacation/personal leave for unpaid FMLA-qualified leave.
- Policies and practices should be applied uniformly to employees in similar situations. Decisions should comply with laws prohibiting discrimination in the workplace based on a protected characteristic.
Michigan Paid Medical Leave Act
As of March 29, 2019, the Michigan Paid Medical Leave Act ("PMLA") requires Michigan employers that employ 50 or more individuals to provide eligible employees paid medical leave. Excluded from the definition of "eligible employees" are: those who are FLSA "exempt;" private-sector employees covered by a collective bargaining agreement; employees employed by the U.S. government, another state, a political subdivision of another state; an employee whose primary work location is in another state; temporary employees who work less than 25 weeks in a calendar year; and employees who work less than 25 hours per week on average.
Eligible employees may take paid medical leave for qualified reasons, including:
- Physical or mental illness, injury, or health condition of the employee or his or her family member.
- Medical diagnosis, care, or treatment of the employee or the employee’s family member.
- Preventative care of the employee or his or her family member.
- Closure of the employee's primary workplace by order of a public official due to a public health emergency.
- The care of his or her child whose school or place of care has been closed by order of a public official due to a public health emergency.
- The employee’s or his or her family member’s exposure to a communicable disease that would jeopardize the health of others as determined by health authorities or health care provider.
Accordingly, in a pandemic, eligible employees who work for covered employers may take paid leave for their own or their family members’ sickness caused by pandemic influenza. Unlike the FMLA, there is no requirement that the leave be taken for a "serious health condition" under the PMLA. Eligible employees can also take paid leave for reasons not FMLA-qualified, such as to care for healthy children whose schools are closed because of the pandemic. However, leave provided under the PMLA is limited. In contrast to the 12-week (or 26-week for military family leave) leave allowed under the FMLA, the amount of paid family leave provided and used under the PMLA can be capped at 40 hours per year.
In requesting paid medical leave, eligible employees may be required to comply with the covered employer’s usual and customary notice, procedural and documentation, but the employer must provide the employees with at least three (3) days to provide requested documentation (unlike the 15 days allowed under the FMLA). The employer may discipline or discharge an employee who fails to comply with the employer's usual and customary notice, procedural and documentation requirements.
Part IV: Pay
With the expected spike of absenteeism, wage and hours problems can arise during a pandemic. Employers must always keep their obligations under the Fair Labor Standard Act ("FLSA") in mind in dealing with these issues. Additionally, employers should review the U.S. Department of Labor – Wage and Hour Division's guidance on Pandemic Flu and the Fair Labor Standards Act.
The very first question that employers must consider before deciding to not pay an employee for time missed from work is whether the employee is subject to the minimum wage and overtime requirements. The answer to that question will determine if and how the employee’s pay can be withheld for absenteeism.
Non-exempt Employees
Non-exempt employees must be paid at least the minimum wage and are entitled to overtime pay. For these employees, employers only have to pay them for the time they worked. In other words, employers are not required to compensate non-exempt employees absent from work. Likewise, during a pandemic, these employees may be sent home without performing any work and not be paid for the time they would otherwise have worked.
However, employers must compensate non-exempt employees who perform work, regardless of whether they are at work. For example, if the workplace is closed down during pandemic, but non-exempt employees can or are required to work from home, they must be paid for the hours worked.
Exempt Employees
Employees who are properly classified as exempt under the FLSA are not entitled to overtime and are paid on a salary basis regardless of the number of hours worked. With limited exceptions, if an exempt employee performs any work during a week, he or she must generally be paid the full week’s salary. An employer's practice of improper deductions from an exempt employee’s salary may lead to declassification of the exempt status, in which case the employee will be entitled overtime.
If an exempt employee misses work during a pandemic, an employer may deduct from the employee’s salary for:
- Full-day absences for sickness or disability, pursuant to the employer’s sick leave policy, plan, or practice of providing compensation for salary loss caused by illness or disability.
- Full-day absences for personal reasons other than sickness or disability.
- Full-day or partial-day absences taken as unpaid leave under the Family and Medical Leave Act.
On the other hand, the employer may not deduct from the employee’s salary for:
- Absences due to sickness or disability when the employer does not have a sick leave policy. However, if the employee misses the entire workweek, the employer does not need to pay the employee for the week missed from work.
- Absences occasioned by the employer or by the operating requirement of the business, e.g., when the employer closes the workplace because of the pandemic. However, employers can require the employees to use accrued vacation or PTO for the days they are required to stay home and may require the exempt employees to make up lost work time.
