COVID-19 Resources

CWC is pleased to make available the information and resources on this page as a service to all of the nation’s employers who are trying to manage the impact of COVID-19 on their workplace legal and compliance requirements. This page will be continuously updated by our staff regarding COVID-19 compliance and risk management developments at both the federal and state levels. If you have any workplace compliance or risk management questions related to COVID-19, or if you’d like to make us aware of any developments we might have missed, please email us at info@cwc.org.

FAQs

Will an exempt employee under the Fair Labor Standards Act (FLSA) lose exempt status if he or she must work additional time performing nonexempt job duties in light of workforce changes due to COVID-19? As with many questions under the FLSA, the answer is that it depends on all of the facts and circumstances. However, employers should be aware that the Labor Department's regulations interpreting the exemptions for executive, administrative, and professional employee have a special section addressing emergencies. This provision states the general rule that an exempt employee will not lose exempt status by performing nonexempt work in an emergency, and discusses application of this rule in the context of emergencies that threaten the safety of employees, a cessation of operations, or serious damage to an employer's property.

Employers may also wish to review additional DOL commentary (see page 22189) stating that emergencies endangering public health or safety may also qualify as emergencies for the purposes of this rule, depending on circumstances.

Of course, always check your state and local rules, which may be different. 
It depends. If the symptoms of the condition are severe enough to qualify as a “serious health condition” and the employee has not maxed-out the allowable amount of protected leave within the 12-month leave year, then the employee would more likely than not be eligible for FMLA-protected leave. In order to make this determination, employers must conduct an individualized assessment of the employee’s request. 

For more information, go HERE
 
The FMLA protects those individuals who either have “a serious health condition” or for caring for family members who have a “serious health condition.” Serious health condition refers to a an illness, injury, impediment, or physical or mental condition that involves (a) inpatient care at a hospital, hospice, or residential medical care facility; or (b) continuing treatment by a health care provider. Attempting to avoid contracting a serious health condition, such as COVID-19 is not covered under the FMLA. 
However, if an employee has a disability covered by the ADA, this may be a request for an accommodation, which trigger’s the employer’s obligation to engage in the interactive process with the employee  to determine if such an accommodation should be granted. In essence, the employee who has a disability could be seeking an accommodation to avoid exacerbating a current disability.
Under normal circumstances, this line of questioning may be considered a disability-related inquiry, which requires you to show that the question is job-related and consistent with business necessity. However, according to EEOC, because COVID-19 has been declared a pandemic, such question would not constitute a disability-related inquiry. During the pandemic, employers may ask this question to individuals who recently traveled (including business or personal travel). 
 
The short answer is no. Because COVID-19 has been identified as an international pandemic, separating employees who display signs familiar to the condition would be permissible under the ADA and the Rehabilitation Act because the condition is serious enough to pose a direct threat to the workplace — a permissible basis for sending such employee(s) home. 
For more information, go HERE

Under normal circumstances, taking an employee’s temperature would be considered an impermissible medical examination unless you can show that the medical examination is job-related and necessary to conduct your business.  According to the EEOC, because COVID-19 has become widespread in the community, employers may take its employees’ temperatures. Employers should not single out employees, but instead should take all of its employees’ temperatures in the department. 
 
Currently, OFCCP is continuing conducting its compliance reviews, focused reviews, and complaint investigations. However, with respect to physical onsites, the Agency has indicated that it will employ other means, such as using WebEx, Skype, and telephone interviews instead of physically coming onsite. The Agency has also announced that for employers who cannot make employees available, it will remain flexible and provide reasonable extensions when necessary. 
For additional information, go HERE
In short, yes. Because COVID-19 is an international pandemic as emphasized by the World Health Organization, employers who are subject to the Americans with Disabilities Act, as amended, and the Rehabilitation Act may be permitted to do things that would normally be impermissible, such as taking an employee’s temperature. 
For additional information, go HERE

Federal Response Feed

Posted April 8, 2020 by Mr. Michael Eastman

Included within the Labor Department’s final rule implementing the new paid leave mandates included within the Families First Coronavirus Protection Act is a provision discussing application of DOL’s “continuous workday” guidance under the Fair Labor Standards Act (FLSA). This guidance, codified at 29 C.F.R. §790.6, generally states that the workday begins when an employee performs his or her first principal activity of the workday and ends when an employee performs the last principal activity, with the exception of bona fide meal and other breaks consistent with DOL’s regulations.

The continuous workday rule has been a challenge when employees covered by the FLSA’s overtime provisions perform some minor amount of work at home before or after the workday and can have the effect of turning an employee’s normal commuting time into compensable time. This is one of the reasons that many employers prevent nonexempt employees from checking email or otherwise engaging in work tasks at home before or after normal working hours.

The new paid leave regulations (in the rule’s definition of “Telework” at § 826.10(a) and related commentary), DOL states that the guidance does not apply to telework related to COVID-19. This is to encourage employers to utilize “highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to other family responsibilities.” Of course, employees must be paid for all time actually worked.

 

 

Posted April 3, 2020 by MANAGER

Earlier today, DHS announced on Twitter that its rule authorizing 35,000 additional H-2B visas for seasonal, non-agricultural guest workers is being put on hold and that no additional H-2B visas will be released until further notice. 

Posted April 2, 2020 by MANAGER

OFCCP announced today that its Functional Affirmative Action Program (FAAP) team continues to process FAAP requests and certifications from their remote work stations, but that it has made the following adjustments in response to COVID-19:

  • For FAAP contractors, and contractors interested in entering into FAAP agreements, we are available to meet by phone, WebEx, and Skype.
  • All requests for agreement modifications, new application requests, updates, and certifications of FAAP agreements will be emailed for review and electronic signature.
  • Finalized agreements will be signed by the Director and returned to the contractor electronically.

OFCCP also clarified that if contractors are experiencing challenges due to COVID-19, the agency will remain flexible and will provide “reasonable” extensions if requested. If contractors have further questions, or need assistance with their FAAP agreements, they can contact OFCCP’s FAAP unit at OFCCP_FAAP-UNIT@dol.gov.        

Posted April 1, 2020 by Mr. Michael Eastman
The National Labor Relations Board has announced that it will resume conducting union elections on Monday, April 6, 2020. On March 19, the Board had announced that it was suspending all elections through April 3. According to the Board's announcement today, resources are in place to ensure that elections are conducted in a safe and effective manner.
Posted April 1, 2020 by Mr. Michael Eastman
This afternoon, the Department of Labor revealed its final rule implementing the new temporary paid leave laws Congress recently enacted as part of the Families First Coronavirus Response Act. We'll be digging in and will provide our analysis in the near future. In the mean time, please don't hesitate to contact us if you have any questions.

State Response Feed

Posted April 8, 2020 by Mr. Michael Eastman

Two weeks ago, the Los Angeles City Council passed an ordinance that would have imposed an additional paid sick leave mandate on employers with 500 or more employees. While Mayor Gil Garcetti opted not to sign that ordinance, he signed a Supplemental Paid Sick Leave Order yesterday that is very similar to the City Council ordinance, but slightly more business friendly.  Here is a brief summary of the Order:

  • Applies to all Employer that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States.
  • Exempts employers that provide at least 160 hours of paid leave to employees annually (those employees that receive that “generous leave” are not eligible).
  • Covered employees are entitled to up to 80 hours of paid leave.
  • The amount paid to an employee who takes the supplemental paid sick leave cannot exceed $511 per day and $5,110 in the aggregate.
  • This Supplemental Sick Leave is in addition to the up to 48 hours of paid sick leave that is already available to Los Angeles employees annually.
  • An employer may not require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.

In addition, Mayor Garcetti also signed a Worker Protection Order that requires essential workers to wear face masks. Employers are responsible for providing face coverings and ensure that employees have access to clean, sanitary restrooms, stocked with all necessary cleansing products. Among other things, employees must be permitted to wash hands every 30 minutes. The Mayor also signed the Grocery, Drug Retail and Food Delivery Worker Protection Order that modifies the city’s existing ordinance related to predictive scheduling.

Posted April 6, 2020 by MANAGER

Michigan Governor Gretchen Whitmer has issued an executive order protecting workers from adverse employment actions if they stay at home because they or individuals they have close contact with have tested positive for COVID-19 or are exhibiting symptoms until certain timelines have passed. Under the order, employers must treat these employees as if they were taking leave under the state’s Paid Medical Leave Act, but may not limit the amount of leave, whether paid or unpaid as provided under the Act, so long as the employee is taking the leave for reasons allowed under the order. Like many other executive orders issued throughout the country, Michigan's makes exception for those working in critical occupations such as medical workers and first responders.

Posted April 1, 2020 by MANAGER

On March 27, 2020, the Los Angeles City Council passed a Supplemental Paid Sick Leave ordinance that requires large employers with at least 500 employees to provide up to 80 hours of paid sick leave to Los Angeles employees for coronavirus related purposes. Under the ordinance, the Supplemental Paid Sick Leave amount paid to an employee cannot exceed $511 per day and $5,110 in the aggregate.

An employee can take this paid leave for any of the following reasons:

  1. The Employee takes time off because a public health official or healthcare provider requires or recommends the Employee isolate or self-quarantine to prevent the spread of COVID-19;
  2. The Employee takes time off work because the Employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. The Employee takes time off work because the Employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine;
  4. The Employee takes time off work because the Employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation.

An employer may not require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.

This Supplemental Sick Leave is in addition to the up to 48 hours of paid sick leave that is already available to Los Angeles employees annually.

The Supplemental Paid Sick Leave ordinance was sent to Los Angeles Mayor Eric Garcetti on March 28, 2020 for his expected signature, and he has until April 7, 2020 to act.

UPDATE AS OF APRIL 8, 2020: Mayor Garcetti declined to sign the ordinance and instead issued his own Supplemental Paid Sick Leave Order that mostly mirrors the City Council ordinance with some key exceptions.  See CWC's post on the executive order for more details. 
Posted March 31, 2020 by Mr. Michael Eastman
On March 27, the Fresno County California Department of Public Health issued an Order that requires employers, among other things, to conduct daily health screenings of employees. Specifically, employers are to screen for signs of "febrile respiratory illness," which is defined as "a new or worsening episode of either cough or shortness of breath, presenting with fever ... or chills in the previous 24 hours."

In addition, the Order requires employers to exclude from work all employees who have had febrile respiratory illness symptoms for seven days from the day that they are identified as having symptoms.

The Order is silent on whether it applies to employees working on-site or teleworking, raising numerous legal and practical questions. Violation of the Order is punishable by fine or imprisonment, among other sanctions. 





Posted March 25, 2020 by Mr. Michael Eastman
The Health Division of Oakland County, Michigan, has issued an emergency order, effective at noon on March 25, 2020, that requires employers remaining open to conduct health screens of employees daily. Among other things, employers are required to check for fever and, if a touchless thermometer is available,the order strongly recommends preforming a temperature check in lieu of verbal confirmation. More information is available in this news release.

COVID-19 Network

CWC’s newest online community for members to discuss workplace compliance issues in light of the COVID-19 outbreak. Join Now! 

Related Resources

Layoff Notification Laws During Unsettled Times
The dramatic impact of the coronavirus on business operations has created an environment where many employers are considering significant layoffs. Paid Leave Mandates and COVID-19 Web Workshop
Congress passed legislation in March 2020 establishing two new federal leave mandates related to the coronavirus outbreak. This web workshop walks through what we know. Recorded March 26, 2020. Congress Approves Massive Coronavirus Stimulus Bill Creating Temporary Paid Leave Mandates
The coronavirus relief bill signed into law by President Trump on March 18 contains new paid leave mandates that will be in effect until the end of the year. Our memo provides an overview. Legal Considerations and Practical Planning Tips for Responding to the Coronavirus Outbreak
The coronavirus outbreak is becoming an immediate health risk in the U.S. and its effect on the increasing mobility of an international workforce has raised understandable concerns.