UPDATED 3/16/20: The Department of Labor issued new guidance for employers handling issues related to the coronavirus (COVID-19).
OSHA has information available to employers related to infection prevention and safety, available here. Notably, that guidance includes much of the information we are already aware of about “social distancing” (keeping approximately 6 feet between persons) and cleaning surfaces. OSHA clarified employer duties from a federal safety law perspective. The obligations largely fall under the General Duty Clause, which requires employers to furnish each worker with a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Other potential applicable standards that apply are the personal protective equipment (PPE) standard for gloves, eye and face protection, and respiratory protection and the bloodborne pathogens standard. Those two standards are much more likely to apply to healthcare employers and first aid trained employees. There is specific guidance on employers in the healthcare industry and for business travel. Basically, for business travel, the guidance is to avoid travel in any areas affected by a U.S. State Department Advisory related to the outbreak.
Wage and Hour
The Wage and Hour division released a question and answer guide on Fair Labor Standards Act (FLSA) considerations related pay and hours, available here. Notably, if your workplace closes, hourly non-exempt employees are only paid for hours actually worked if they are sent home. Salaried exempt employees can be required to take vacation, sick time, or PTO if they are sent home or if the office is closed. Further, for employees without sufficient sick pay, vacation, and/or PTO to cover a partial week absence, there is no law prohibiting tracking a negative sick, vacation, or PTO balance for the employees. Yet, a salaried exempt employee cannot be forced to take leave without pay if he/she works any portion of the workweek. If, however, the office closure or layoff lasts a full workweek, the exempt employee can be forced to take unpaid leave. Employees who volunteer, even on behalf of the employer, in performing emergency work for a government agency or non-profit are not entitled to pay, unless the volunteer service is required as a condition of employment. If employees are mandated to work remotely, they must be paid a salary and hourly rate for hours worked. A reduced hourly rate for telework would be permitted, so long as it met the state and federal minimum wage (and any union contract, if any). If an employer brings on additional staffing to cover increased production needs, joint employment liability should be a concern.
Family and Medical Leave (FMLA)
FMLA-related guidance also was released by the Wage and Hour Division, available here. Leave related to an employee’s own coronavirus illness or care for a spouse, child, or parent of the employee for coronavirus may be covered by the FMLA. It will depend on whether the illness and complications rise to the level of a “serious health condition” or require hospitalization. Generally, the time to consider whether the FMLA applies is when the employee has been absent for 3 or more days or is hospitalized. There is no requirement to provide paid time off for pandemic illness, except some federal contractors and subcontractors under Executive Order 13706. Employers are permitted to send employees home who are sick and require that they are symptom free before returning to the workplace.
Unemployment & OH
The federal Department of Labor issued guidance to states on flexible unemployment insurance to assist employees with the coronavirus outbreak, available here. The Ohio Department of Job & Family Services has responded with questions and answers, available here. Benefits will be available if a workplace shuts down or lays off works for the coronavirus or reduced productivity. If an employee self-quarantines or is subject to mandatory quarantine because of suspicion of having the virus, the employee is eligible for benefits. (Ordinarily, they would not be because they are not “available for work.”) Per the Executive Order issued by Gov. Dewine over the weekend: Unemployment benefits will be available for eligible individuals who are requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of COVID-19, even if they are not actually diagnosed with COVID-19. In addition, the one-week waiting period for eligible Ohioans to receive unemployment benefits will be waived.