Coronavirus Concerns in the Workplace
Preparing Employers and Employees for Public Health Emergencies and COVID-19
On January 30, as the World Health Organization (WHO) declared that the coronavirus was a global public health emergency, many uncertainties resulted from the spread of the virus for both employers and employees.
Employers across the country now find themselves resorting to voluntary, and in some cases, mandatory employee work-from-home quarantine procedures, while many employees face the prospect of being out of work for two weeks or more.
What is coronavirus? According to the WHO, COVID-19 (the “coronavirus”) common signs of infection include respiratory symptoms, fever, cough, shortness of breath, breathing difficulties, and can lead to respiratory illness. In severe cases, infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and even death. The WHO has recommended various precautions to prevent the spread of coronavirus, including that people avoid close contact with individuals showing symptoms of respiratory illness, such as coughing and sneezing.
Why should employers take action? Employers and employees alike can take some commonsense steps to prevent the spread of COVID-19. Under the federal Occupational Safety and Health Act of 1970 and applicable state and local laws, employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Given the ongoing pandemic, and an evolving medical understanding of the virus’ transmission and recommended incubation, it is important for employers to consider what preventative measures to take to maintain safety and protect their employees.
If an employer or employee is out with the flu or is caring for ill family members, such leave may be covered under the Family and Medical Leave Act (FMLA). Under the FMLA, covered employers must provide employees job-protected, unpaid leave for specified family and medical reasons, which may include the flu where complications arise.
Which employees are eligible to take FMLA leave?
An employee is eligible to take FMLA leave if s/he works for a covered employer and:
- has worked for their employer for at least 12 months;
- has at least 1,250 hours of service over the previous 12 months; and
- works at a location where at least 50 employees are employed by the employer within 75 miles.
In North Carolina, the Family and Medical Leave Act in North Carolina is applicable only to employers with 50 or more employees. If a North Carolina company has fewer than 50 employees, the company may provide the employee with either paid or unpaid leave at the discretion of the employer.
An employee who is sick or whose family members are sick may be entitled to leave under certain circumstances. Eligible employees of covered employers under the FMLA are entitled to take to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.
To minimize the spread of the COVID-19 pandemic, employees who are ill with the flu or have a family member with the flu are urged to stay home. The Department of Labor encourages employers consider flexible leave policies for their employees in these circumstances.
Is an employer required by law to provide paid sick leave to employees who are out of work because the flu, have been exposed a family member with the flu, or are caring for a family member with the flu?
Federal law generally 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. State and local laws may have different requirements, which should be independently considered by employers when determining an obligation to provide paid sick leave.
Employers should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.
The Department of Labor (DOL) has recently issued a statement encouraging employers to support these and other community mitigation strategies and to consider flexible leave policies for their employees.
Under the DOL’s guidance, federal law permits states to give significant flexibility to amend their unemployment insurance laws to provide benefits in multiple scenarios related to the coronavirus.
For example, federal law allows states to pay benefits where:
(1) An employer temporarily ceases operations due to COVID-19, preventing employees from coming to work;
(2) An individual is quarantined with the expectation of returning to work after the quarantine is over; and
(3) An individual leaves employment due to a risk of exposure or infection or to care for a family member.
Additionally, federal law does not require an employee to quit in order to receive benefits due to the impact of COVID-19.
In lieu of laying off employees in this situation, consider other options such as preparing a plan of workplace plan of action or permitting employees to work remotely.
If you have human resources or employment-related questions related to your individual employer situation during the COVID-19 pandemic, consider speaking with an attorney to review your rights and obligations under North Carolina law. Call 704-755-5254 or email firstname.lastname@example.org to schedule an initial consultation.