The COVID-19 outbreak has significantly impacted the world economy, causing vast confusion across industries, including construction. From an employment perspective, COVID-19 intersects with a variety of laws, including:
- The Fair Labor Standards Act (FLSA)
- The Family and Medical Leave Act (FMLA)
- Americans with Disabilities Act (ADA)
- Occupational Safety and Health Act (OSHA)
- National Labor Relations Act (NLRA)
- Workers’ Compensation
- Unemployment Compensation
- Workshare Programs
- Worker Adjustment and Retraining Notification Act of 1988 (WARN)
Circumstances surrounding COVID-19 are changing rapidly, which leaves many construction, engineering and architecture firms questioning what to do when an employee becomes sick, how to handle an emergency shut down and whether they should offer paid sick leave.
This article will explain relevant employment laws and best practices for addressing these issues. As federal, state and local governments work to address the many implications of COVID-19, there could be changes to how these and new laws apply. It’s important to keep informed.
Paid sick leave
Recently, the U.S. House of Representatives passed the Families First Coronavirus Response Act, which addressed, among other things, paid sick leave and paid family medical leave during a public health emergency. If enacted, this bill will provide up to 14 days of paid sick leave and up to 12 weeks of family medical leave to eligible employees dealing with exposure to, diagnosis or symptoms of the novel coronavirus.
If the bill isn’t enacted, the original FLSA and FMLA rules will apply. Generally, under the FLSA, employers must only pay non-exempt employees for hours actually worked. There is no obligation for sick pay under federal law. Both exempt and non-exempt employees may qualify for paid sick leave under company policies. Those policies dictate when and how that is taken.
If an absence extends beyond three continuous days for employees—or is required to care for certain family members of the employee—employed by a company with 50 or more employees within 75 miles of their location, and who have worked one year and 1,250 hours, the leave could be protected under the FMLA. FMLA-eligible employees are entitled to take unpaid leave. They must be restored to the same or an equivalent job upon return.
With companies considering reducing staff and ceasing operations temporarily, legislation mandating paid sick leave is quickly working its way through Congress. Some states and cities already have paid sick leave requirements in place. Employers must adhere to those laws where applicable and continue to follow company policies as necessary.
Many companies are instituting temporary paid leave policies allowing certain employees—those who have contracted COVID-19 or have been quarantined by government officials—to take up to a certain amount of paid leave. While this practice hasn’t yet been mandated, its goal is to prevent future infection by encouraging sick employees to stay home without penalty.
Beyond paid sick leave, there are other laws at issue. For example, employers must comply with OSHA standards, which require employers to provide employees with a workplace free from recognized hazards that may cause death or serious physical harm. With the information that is out there about COVID-19, this may mean that if an employer suspects an employee is sick, the employer should send an employee home for the safety of the workplace. There could be disinfectant requirements as well. Check here for further guidance from OSHA regarding employers’ obligations relative to workplace safety and COVID-19.
The ADA also comes into play. While COVID-19 would likely not qualify as a disability under the act, meaning there are no accommodation requirements—and meaning companies can take certain actions—there are still risks. These include treating an employee as if the virus is an impairment, which could lead to a regarded-as claim. Employers must also be mindful of what screening and monitoring efforts are appropriate. Employees could also refuse to engage in certain screening under Section 7 of the NLRA as a protected, concerted activity.
In addition, an employee may also try to seek coverage under state workers’ compensation laws if the employee contracts COVID-19 while at work. But to participate in workers’ compensation benefits, the employee will have to prove that the disease was:
- contracted in the course of employment
- that it was peculiar to the employment
- that the employment created a risk of contracting the disease in a greater degree and in a different manner than in the public generally
Neither the FMLA nor H.R. 6201 allows an employee to qualify for FMLA leave solely out of fear of contracting COVID-19. But there may be an underlying mental health condition that a health care provider uses to attempt to qualify an employee for intermittent or continuous leave.
Section 13 of OSHA’s act, by contrast, allows employees to refuse to work if an imminent danger is present. However, unless there is a clear danger present, such as confirmed cases of employees at the workplace contracting COVID-19, it’s unlikely that this would apply.
Still, Section 7 of the NLRA prohibits an employer from retaliating against employees engaging in concerted activities for “mutual aid or protection,” which can include refusing to work in unsafe working conditions. An employee engages in protected concerted activity when the employee engages with at least two or more co-workers about certain working conditions. A single employee can engage in protected concerted activity if the employee is acting as a representative of a group of employees. This section could protect employees who wish to stay home to avoid contracting COVID-19 if the request is brought by multiple employees sharing the same concern.
However, employees with the ability to work remotely wouldn’t fall under these broad protections. Of course, each case is fact specific, and employers should consult with an attorney before refusing an employee’s request to stay home.
Closures and layoffs
Employers who are required to shut down facilities or lay off employees should be aware of unemployment compensation laws, workshare programs and the WARN Act. H.R. 6201 also addresses unemployment compensation and workshare programs.
Workshare programs—sometimes referred to as short-time compensation programs—allow employers to keep their staff, but temporarily reduce their hours instead of laying them off. The employer must submit relevant information, and once approved by the applicable state agency, the employees can receive unemployment compensation to offset their wage losses. As it stands, most states don’t guarantee prompt processing of workshare programs, and it could take up to a month to process and approve employer submitted plans.
However, if enacted, H.R. 6201 requires the Secretary of Labor to provide technical assistance to states with workshare programs. This assistance may allow employers to promptly begin to participate in state workshare programs.
In the absence of a workshare program, employees may still qualify for unemployment benefits if they are displaced from working through no fault of their own. H.R. 6201 would provide additional funding to states to help processing and paying unemployment insurance benefits under certain circumstances.
If an employer is forced to close its facilities or lays off employees, compliance with the WARN Act and similar state mini-WARN Acts may be necessary. Under the WARN Act, employers are required to give employees or a union representative, if applicable, at least a 60-calendar day notice before closing a plant or laying off employees, except under limited circumstances.
Employers are subject to the WARN Act if they have 100 or more employees and 50 or more of those employees experience a resulting employment loss following a closure or mass layoff. Employees who are laid off for less than six months, however, don’t experience an employment loss, and WARN Act notice requirements aren’t triggered. Keep in mind that it may be difficult to know how long the layoff will stay in place, so providing notice may be the most prudent approach.
Employers may rely on the WARN Act’s exemption applicable when layoffs occur due to unforeseeable business circumstances. The employer, however, must still provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.”
Accordingly, the employer is in a position to evaluate the impact on its workforce, and the employer must provide notice to employees who will be affected by a temporary shutdown. The WARN Act also has an exception for a “natural disaster.” However, the Act does not specifically address whether a pandemic qualifies as a natural disaster; therefore, it’s not advisable to rely on this exception to avoid notice requirements.
Please keep in mind that each case is fact specific, and new information is discovered daily. This article is for informational purposes only and should not be construed as legal advice. If you have any questions about the implications COVID-19 will have on your business, or how to comply with your legal obligations under the laws referenced above, please contact us here.