COVID-19 Update: Employment Law Issues

Vanessa A. Gonzalez, partner and leader of the Firm’s Employment Law practice, provides a general overview of some of the employment law issues that employers may be dealing with as a result of the coronavirus pandemic. The information provided below is fluid, and changes to these updates may occur as further developments unfold.

• Families First Coronavirus Response Act (FFCRA) – signed into law on March 18, 2020 by President Trump. The FFCRA is effective April 2, 2020 until December 31, 2020. It expands two laws in light of the pandemic.

• • Emergency Family and Medical Leave Expansion Act — allows 12 weeks of partially compensated Family and Medical Leave Act (FMLA) leave to care for a child whose school or child care facility has been closed due to COVID-19. The leave applies only to workers who have been employed by their current employer for 30 days. The new FMLA leave must be compensated after the first 10 days, at two-thirds of an employee’s wage, up to $200 per day.

• • Emergency Paid Sick Leave Act — requires employers to provide 80 hours of paid sick time to employees in specified circumstances, including:
    • a quarantine or isolation order for the employee or someone the employee is caring for, or medical advice to self-quarantine;
    • when the employee has symptoms of COVID-19; or
    • when the employee’s child’s school or child care facility is closed.

• Employers with 500 employees or more are exempt from the laws, and employers may exclude employees who are health care providers and emergency responders. The legislation also allows for future regulations exempting businesses with fewer than 50 employees from providing leave for child care reasons if the leave would jeopardize the viability of the business. This will be updated after the Department of Labor issues the regulations.

• New EEOC guidance on the American’s with Disabilities Act: The American’s with Disabilities Act (ADA) requires employers to provide reasonable accommodations to disabled employees to allow them to perform the essential functions of their job. The employer is normally not permitted to obtain information medical information about the employee and only needs to know the employees limitations so that it may offer reasonable accommodations. The new EEOC guidance gives leeway in light of the pandemic including allowing employers to ask employees if they have symptoms such as fever, chills, cough, shortness of breath or sore throat and even allowing employers to take the temperature of employees. Employers must maintain all information about employee illness confidential medical information in compliance with the ADA.

• Employers are required to keep a safe work environment. Examples of physical controls include high efficiency air filters, increasing ventilation, installing physical barriers, such as clear guards, installing drive-through window service, etc. Examples of administrative controls include encouraging sick workers to say home, minimizing contact among workers, implementing virtual communication and remote working or establishing alternate days of work, discontinuing nonessential travel, COVID-19 training, and protective clothing. Examples of safe work practices include promoting personal hygiene, no touch trash cans, require hand washing, frequent cleaning, and providing cleaners. In some positions, personal protective equipment may be needed.

• Employees can file Worker’s Comp claims if they can show they were assigned tasks more likely to expose them to the virus. Also, if you allow employees to work from home, you should confirm your worker’s compensation insurance includes coverage for working from home just in case the employee is injured at home while performing job duties at home.

• Employees have a right to speak out under Title VII, the FLSA, OSHA, the Texas Whistleblower Act and First Amendment and should not be retaliated against for speaking out.