U.S. Department of Labor Issues Workplace Guidelines for Coronavirus Outbreak, Including Specific Guidance on FMLA, FLSA and FECA

March 12, 2020
Background
On March 9, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) issued a new alert[i] and guidance[ii] on preventing worker exposure to and preparing workplaces for COVID-19 (“Coronavirus”). On the same day, the DOL’s Wage and Hour Division issued guidance on common issues that employers may face in responding to various Coronavirus scenarios or other public health emergencies under both the Fair Labor Standards Act (“FLSA”)[iii] and the Family and Medical Leave Act (“FMLA”),[iv] while the Office of Workers’ Compensation Programs published guidance that outlines Federal Employees’ Compensation Act (“FECA”)[v] coverage for federal employees as it relates to Coronavirus. On March 11, the World Health Organization declared Coronavirus a pandemic.[vi]
 
OSHA’s Guidance on Preparing Workplaces for COVID-19
OSHA’s recent guidance, which in large part relies on guidance previously issued by the Centers for Disease Control (“CDC”), is designed to provide useful information for employers “to reduce the impact of COVID-19 outbreak conditions on businesses, workers, customers and the public,” and to help employers identify risks specific to their workplaces and implement appropriate control measures. According to OSHA, this guidance “creates no new legal obligations,” but contains “advisory” “recommendations as well as descriptions of mandatory safety and health standards.”

OSHA’s guidance identifies various steps that “every employer can take to reduce the risk of worker exposure” to Coronavirus in the workplace, including the development of an infectious disease preparedness and response plan, which should take into account the level(s) of risk associated with various worksites and job tasks workers perform at those sites. OSHA outlines what employers should consider in the development of such a plan, including:
  • Identification of Sources of Exposure to Workers. Consider “[w]here, how, and to what sources of [Coronavirus] might workers be exposed, including: The general public, customers and coworkers; and [s]ick individuals or those at particularly high risk of infection.”
  • Prepare to Implement Basic Infection Prevention Measures. “For most employers, protecting workers will depend on emphasizing basic infection prevention measures,” and the guidance then provides specific examples of such measures, including those previously issued by the CDC, such as “[d]iscourage workers from using other workers’ phones, desks, offices or other work tools, when possible,” and “[m]aintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment and other elements of the work environment. When choosing chemicals, employers should consult information on Environmental Protection Agency (EPA)-approved disinfectant labels with claims against emerging viral pathogens. Products with EPA-approved emerging viral pathogens claims are expected to be effective against SARS-CoV-2 based on the data for harder to kill viruses.”
  • Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, If Appropriate. The guidance sets forth, among other things, considerations for employer protocols in connection with responding to an employee who is experiencing COVID-19 symptoms, including isolation and protection of workers in close contact with the sick person.
  • Develop, Implement and Communicate Workplace Flexibilities and Protections. Examples include:  encouraging sick employees to stay home; ensuring sick leave policies are flexible and consistent with public health guidance; cautioning that an employer should not require a healthcare provider’s notice for employees who are sick with acute respiratory illness to validate their illness or return to work, because healthcare providers may be extremely busy and not able to provide such documentation in a timely way; maintaining flexible policies that permit employees to stay home to care for a sick family member; awareness of workers’ concerns about pay, leave, safety, health and other issues that may arise during an infectious disease outbreak; and working with insurers and health agencies to provide information to workers and customers about medical care.
  • Implement Workplace Controls, including:
    • Engineering Controls. Engineering controls involve making changes to the work environment to reduce work-related hazards. These controls are preferential because they are permanent changes that reduce exposure to hazards and do not rely on workers or customers to change their behavior in order to be effective.
      • Examples include:installing high-efficiency air filters, increasing ventilation rates in the workplace, installing plastic barriers (i.e., clear plastic sneeze guards), or installing a drive-through window for customer service.
    • Administrative Controls. Administrative controls modify workers’ schedules and tasks in ways that minimize their exposure to workplace hazards.
      • Examples include:encouraging sick employees to stay home; increased use of email or teleconferences; encouraging flexible work arrangements and telecommuting; and considering changing workplace schedules to minimize the number of workers who must be at the work site at one time.
    • Safe Work Practices. Work practices are procedures for safe and proper work that help to reduce the duration, frequency, and intensity of exposure to a workplace hazard.
      • Examples include:providing resources and a work environment that promote personal hygiene (e.g., providing hand soap, hand sanitizer, tissues, no-touch trash cans and disinfectants for employees to clean their work surfaces).
    • Personal Protective Equipment. Although engineering and administrative controls are considered to be more effective in minimizing exposure to Coronavirus, the use of Personal Protective Equipment (“PPE”) may also be needed to prevent certain exposures. Employers are required to provide their employees with the PPE needed to keep them safe while performing their jobs. The types of PPE required during a Coronavirus outbreak should be based on the risk of being infected while working and job tasks that may lead to exposure (see OSHA’s guidance for each risk category of employees, below). During an outbreak of an infectious disease, such as Coronavirus, recommendations for PPE specific to occupations or job tasks may change and employers are encouraged to check CDC and OSHA guidance regularly.
      • Examples include:gloves, goggles, face shields or masks, and respiratory protection, when appropriate. Employers should also keep in mind that PPE must be based on the hazard to the worker, properly worn, and fitted or re-fitted; properly removed, cleaned, disinfected, and stored (if reusable) or properly removed and disposed of to avoid contamination of self, others, or the environment (if disposable); and regularly maintained and replaced.
The guidance notes that while there is no specific OSHA standard covering Coronavirus exposure, some OSHA requirements may apply to preventing occupational exposure to the virus. Among the most relevant are the PPE standards (discussed above), and the General Duty Clause of OSHA which requires employers to provide a “place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm,” and OSHA’s Bloodborne Pathogens standard that applies to occupational exposure to human blood and other potentially infectious materials.
 
OSHA’s Guidance on Preventing Worker Exposure to Coronavirus
When determining additional control measures to implement, OSHA suggests employers consider into which of four risk categories identified by OSHA their employees fall.  In providing these risk categories, OSHA notes that most American workers likely will fall in the lower exposure risk (caution) or medium exposure risk levels.
  • Lower Risk (Caution). Employees whose jobs do not require contact with people known to be or suspected of being infected with Coronavirus or frequent and/or close contact with (i.e., within six feet of) the general public. Workers in this category have minimal occupational contact with the public and other coworkers.
    • At this time, OSHA’s guidance states that “[a]dditional engineering controls” and “[a]dditional PPE is not recommended for workers” in this category.With respect to administrative controls, OSHA recommends monitoring public health communications.
  • Medium Risk. Employees whose jobs require frequent and/or close contact with (i.e., within six feet of) people who may be infected with Coronavirus but who are not known or suspected Coronavirus patients, such as employees with frequent contact with travelers who may return from locations known to have high incidences of Coronavirus. In areas where there is ongoing community transmission, this category includes employees who have contact with the general public, such as in schools, high-volume retail settings, and high-population-density work environments.
    • Currently, OSHA’s guidance states employers with employees in this risk category should also consider implementing the following:
      • Engineering Controls.  “Install physical barriers, such as clear plastic sneeze guards, where feasible.”
      • Administrative Controls.  Among other things, employers should “[c]onsider offering face masks to ill employees and customers to contain respiratory secretions until they are able to leave the workplace”; “[k]eep customers informed about symptoms of COVID-19 and ask sick customers to minimize contact with workers until healthy again, such as by posting signs . . . or including COVID-19 information in automated messages sent when prescriptions are ready for pick up”; “[w]here appropriate, limit customers’ and the public’s access to the worksite, or restrict access to only certain workplace areas”; “[c]onsider strategies to minimize face-to-face contact (e.g., drive-through windows, phone-based communication, telework)”; and “[c]ommunicate the availability of medical screening or other worker health resources.”
      • PPE. Each employer should select the combination of PPE that protects workers specific to their workplace. Workers in this category “may need to wear some combination of gloves, a gown, a face mask, and/or a face shield or goggles,” which will “vary by work task, the results of the employer’s hazard assessment, and the types of exposures workers have on the job.” In rare circumstances, workers in this category may be required to use respirators.
  • High Risk. Employees with high potential for exposure to known or suspected sources of Coronavirus, such as healthcare delivery and support staff and medical transport workers.
    • Currently, OSHA’s guidance states that employers with employees in the high risk category should consider the following additional controls:
      • Engineering. Among other things, ensure appropriate air-handling systems are installed and maintained in healthcare facilities; place patients with known or suspected COVID-19 in isolation rooms if available; and adopt special precautions when handling specimens from COVID-19 patients.
      • Administrative Controls. Consider offering enhanced medical monitoring of workers during a COVID-19 outbreak; provide all workers with initial and refresher training on COVID-19 transmission and prevention; provide support to address employee stress; and post signs advising patients and visitors to report respiratory illness symptoms on arrival.
      • Safe Work Practices. Provide personnel who may be exposed while working away from a facility (i.e., emergency responders) alcohol-based hand rubs containing at least 60% alcohol.
      • PPE. Most employees in this category “likely need to wear gloves, a gown, a shield or goggles, and either a face mask or a respirator, depending on the job tasks and exposure risks.
  • Very High Risk. Employees with high potential for exposure to known or expected sources of Coronavirus during specific medical, postmortem, or laboratory procedures, such as healthcare, laboratory, or morgue workers. The OSHA guidance applicable to employees in the high risk category also applies to employees in this category.

DOL Guidance on the Fair Labor Standards Act
The DOL’s Wage and Hour Division also issued guidance—in the form of questions and answers—on common issues that employers may face under FLSA and FMLA in connection with responding to Coronavirus and other public health emergencies. We note that employers should determine whether any additional obligations are imposed under state or local laws, as this guidance only addresses federal requirements.

The FLSA Questions and Answers provide guidance on the following topics, among other things:
  • Pay to Non-Exempt Employees During Business Closures. Under the FLSA, employers are obligated to pay non-exempt employees only for the hours worked, not hours the employee otherwise would have worked if the employer’s business had not closed. If telecommuting or working from home is provided as a reasonable accommodation, the employer must pay non-exempt workers the minimum wage, and at least time and one half the regular rate of pay for overtime hours, for hours telecommuting or working from home. For more information on this topic, please see our previous post on employers’ considerations in response to Coronavirus (available here).
  • Pay to Exempt, Salaried Employees, Including Requiring Such Employees to Use Vacation or Leave Without Pay During Business Closures. Under the FLSA, employers are generally obligated to pay exempt, salaried employees their full salary in any week in which they perform any work, with limited exceptions. FLSA does not require employer-provided vacation time. Where an employer offers a bona fide vacation plan, the employer may require salaried employees to use accrued leave or vacation days as long as the employee still receives payment equal to the employee’s guaranteed salary. If an employee does not have enough accrued time to cover the absence, the employer must still pay the employee the full guaranteed compensation amount in order for them to remain exempt. Employers may not deduct from the predetermined compensation amount for absences occasioned by the office closure during a week in which the employee performs any work. Employers are not required to pay exempt, salaried employees in weeks in which they perform no work.
  • Restrictions on Employees Able to Work. Due to increased absenteeism, employers may need to ask other employees to increase their work schedule or perform duties typically outside the scope of their job. Employers may also offer telecommuting as a reasonable accommodation or infection prevention strategy.
    • Hours/Days. The FLSA does not limit the number of hours per day or per week that employees aged 16 and over can be required to work. Again, employers should be mindful of other restrictions, such as state and local laws and wage requirements.
    • Job Duties. Employees aged 18 and over may be asked to perform work outside of their job description. The DOL notes that employers may wish to consult bargaining unit representatives if they have a union contract. Employers may also want to consult their human resource teams if they anticipate assigning employees work outside of their job description during a pandemic.
    • Use of Volunteers. Private sector employers who are short-staffed may seek to use volunteers to perform business tasks. The DOL notes that the FLSA has “stringent requirements with respect to the use of volunteers.” In general, under the FLSA, covered, non-exempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services. Employers that are private, not-for-profit organizations or public agencies may fall under certain exceptions, and are encouraged to check the DOL rules governing the circumstances where volunteering in the public and private, non-profit sectors may be allowed.
    • Temporary Employees. If an employer brings on temporary employees from a staffing agency to supplement its workforce during staffing shortages, an employer may be jointly and severally liable for any unpaid wages if the employer is deemed a joint employer. The DOL recently updated and revised its joint employer guidance. For more information on this topic, please see our previous memorandum, National Labor Relations Board Issues Rule Defining Joint Employer Standard, dated February 25, 2020 (available here).
    • Offering Alternative Work Arrangements to Quarantined Employees. Employers are encouraged “to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.” The DOL specifically notes that telecommuting may be offered as a reasonable accommodation, and employers must provide such employees with the same hourly rate or salary.
  • Requiring or Encouraging Other Employees to Telework. An employer may encourage or require employees to telework as an infection control or prevention strategy. In doing so, employers must not single out employees in violation of any Equal Employment Opportunity (“EEO”) laws. If teleworking is not being provided to an employee pursuant to a contractual requirement or as part of a reasonable accommodation, the employer must pay the employee for the hours actually worked and at least at the minimum wage for regular hours worked and at least time and half the regular pay for hours worked in excess of 40 hours in a workweek. Employers are still required to maintain an accurate record of hours worked for all hourly employees, and are encouraged to work with employees to establish hours of work for employees who telework and a mechanism for recording each teleworking employee’s hours of work.
    • Reimbursement for Telework Expenses. If an employee is required to work from home, an employer may not require an employee to pay for or reimburse the company for business expenses of the employer where doing so reduces the employee’s earnings below the required minimum wage and overtime compensation.
    • Telework or Home Office Requirements. OSHA does not have regulations regarding telework in home offices. In February 2000, OSHA issued a directive stating that it “will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.” If OSHA receives a complaint about a home office, it may informally let employers know about such a complaint but will not follow up with the employer or employee. Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for maintaining such records, even if injuries or illnesses occur in the home office.

DOL Guidance on the Family and Medical Leave Act
The FMLA Questions and Answers provide guidance on the following topics, among other things:
  • Employees Infected with Coronavirus May Be Entitled to FMLA. Employees who are infected with Coronavirus or who are caring for a family member who is sick with Coronavirus “may be entitled to leave under the FMLA under certain circumstances” “where complications arise that create a ‘serious health condition’” as defined by the FMLA. To be eligible for up to 12 weeks of unpaid, job-protected FMLA leave, employees must meet certain requirements if they work for a covered employer, including (1) employment by their employer for at least 12 months, (2) at least 1,250 hours of service over the previous 12 months and (3) work at a location where are least 50 employees are employed by the employer within 75 miles. “Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.” The guidance further notes that workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic, and employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.
  • No Entitlement to FMLA Leave to Avoid Exposure. The guidance states that “FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under FMLA.”
  • No Federal Obligation to Provide Private Sector Employees With Leave to Take Care of Healthy Children Dismissed from School. At this time, no federal law requires an employer to provide non-government employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or child care. That being said, the DOL encourages employers to “review their leave policies to consider providing increasing flexibility to their employees and their families” “given the potential for significant illness under some pandemic influenza scenarios.”
  • No Federal Requirement to Provide Paid Leave. Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu. Although pursuant to Executive Order 13706, some federal contractors may be required to provide paid leave to employees under certain circumstances. Again state and local laws should be independently considered.
  • Sending Employees Home. Employers may send employees home if they show symptoms of pandemic influenza. Employers must be sure to apply any policies or protocols in a uniform, neutral manner and in compliance with laws prohibiting discrimination in the workplace on the basis of race, sex, age, color, religion, national origin, disability, union membership, veteran status, and other categories that may be protected under state and local laws. Employers must obtain objective evidence that the employee poses a direct threat (i.e., a significant risk of substantial harm) and determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat. Employers’ policies on sick leave as well as any applicable employment contracts or collective bargaining agreements could determine whether employers must pay employees who are not at work.
  • Ability to Seek Medical Information From Employees Returning to Work. Employers may require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work; however, the DOL asks that employers bear in mind that during a pandemic, “healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.” Employers are required to notify employees in advance if the employer will require a fitness for duty certification to return to work. If state or local law or terms of a collective bargaining agreement govern an employee’s return to work, those provisions should be applied.
    • Under the Americans with Disabilities Act (“ADA”), an employer is permitted to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom-free before allowing an employee to return to work. The employer must have a reasonable belief based on objective evidence that the employee’s present medical condition would (1) impair his or her ability to perform essential job functions with or without reasonable accommodation or (2) pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.
  • Employers’ Ability to Modify Paid Leave Policy if Become Unable to Pay. “Federal equal employment opportunity laws do not prohibit employers from changing their paid sick leave policy if it is done” in a non-discriminatory manner. Before making any changes to their leave policies, employers should consult state and local laws and any applicable collective bargaining agreements and employee contracts. Employers whose employees are covered by the FMLA must have a sick leave policy that complies with the FMLA.
  • Lay-Offs of Some Employees. If an employer temporarily closes because of a pandemic and chooses to lay off some but not all employees, employers must bear in mind that federal laws that prohibit discrimination still apply. Employers may not discriminate against an employee because he or she has requested or used FMLA leave or similar leave under state or local laws. The Worker Adjustment and Retraining Notification (“WARN”) Act helps ensure advance notice in cases of qualified plant closings and mass layoffs. The DOL encourages employers to “consider other options such as telecommuting” “[i]n lieu of laying off employees” who are taking leave to care for sick family members.
  • Employer Policies to Prevent Abuse of Leave. Under FMLA, employers may require employees seeking to use FMLA leave to provide 30-day advance notice of the need to take leave when the need is foreseeable and such notice is practicable. Employers may also require employees to provide:
    • Medical certification supporting the need for leave due to a serious health condition affecting the employee or a covered family member, including periodic re certification;
    • Second or third medical opinions at the employer’s expense;
    • Periodic reports during leave regarding the employee’s status and intent to return to work; and
    • Consistent with a uniformly applied policy or practice for similarly situated employees, a fitness for duty certification.Employers should note that such certifications may be difficult to obtain during a pandemic.
In certain circumstances, employers may be permitted to require the use of paid sick and paid vacation or personal time as a substitute for FMLA leave.Employers should keep in mind that under the ADA, qualified employees may be entitled to unscheduled or unpaid leave, or modifications to the employer’s sick leave policies as reasonable accommodations.

DOL’s Guidance on the Federal Employees’ Compensation Act
Although the FECA concerns federal employees, employers may find guidance issued by the DOL’s Division of Federal Employees’ Compensation (“DFEC”) informative.
  • DFEC’s guidance states that a federal employee who contracts Coronavirus “while in performance of their job duties would have the full coverage of the FECA for related medical treatment and for wage loss or disability related to that condition or associated complications." To establish coverage, an employee must submit a medical report from a qualified physician reflecting a positive test result for Coronavirus based on established employment-related exposure.
  • Exposure to Coronavirus alone, however, does not constitute a work-related injury entitling an employee to medical treatment under the FECA.
  • The FECA does not authorize payment for the provision of preventative measures such as quarantines and, in general, preventative treatment is a responsibility of the employing agency.
  • A claim for FECA benefits may require evidence of unique or heightened risk of contracting such disease due to the employee's position or post of assignment abroad, if applicable.
Conclusion
As the Coronavirus situation continues to develop, we will continue to review and summarize guidance for employers to consider when responding to Coronavirus. Because each workplace and workforce is different, employers should seek advice specific to their circumstances.


ENDNOTES
[i]            See generally United States Department of Labor, Prevent Worker Exposure to Coronavirus (COVID-19),  March 2020, https://www.osha.gov/Publications/OSHA3989.pdf (last visited March 11, 2020).
[ii]           See generally United States Department of Labor, Guidance on Preparing Workplaces for COVID-19, March 2020, https://www.osha.gov/Publications/OSHA3990.pdf (last visited March 11, 2020).
[iii]           See generally United States Department of Labor, COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers, March 2020, https://www.dol.gov/agencies/whd/flsa/pandemic (last visited March 11, 2020).
[iv]          See generally United States Department of Labor, COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers, March 2020, https://www.dol.gov/agencies/whd/fmla/pandemic (last visited March 11, 2020).
[v]           See generally United States Department of Labor, Division of Federal Employees (DFEC) Information on FECA Coverage for Coronavirus Disease – 2019/COVID-19, https://www.dol.gov/owcp/dfec/InfoFECACoverageCoronavirus.htm (last visited March 11, 2020).
[vi]           See generally World Health Organization, WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020, https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (last visited March 11, 2020).

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