With COVID-19 in the headlines across the globe and the World Health Organization declaring the outbreak a “public health emergency of international concern, ” employer preparation is key before the virus impacts your workforce. This situation is likely to leave employers wondering what exactly the law requires them to do or not do in such a unique situation.

For starters, the Occupational Safety and Health Act of 1970, along with state and local laws, provides that an employer has a general duty to provide a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Likewise, the CDC has issued some recommendations to help prevent workplace exposures in non-healthcare settings including encouraging sick employees to stay home, advising employees to adhere to CDC travel notices, separating sick employees from other employees, encouraging hand washing and frequent disinfecting of surfaces, and providing tissues, hand sanitizer and disinfectant wipes.

However, employers also need to be careful lest they run afoul of the protections afforded to employees under Americans with Disabilities Act, including its prohibitions against discrimination based on perceived disabilities, making improper medical inquiries, requiring medical examinations without business necessity, and disclosing employee’s confidential health information. Likewise, careful consideration needs to be given to the impact of federal and state medical leave laws such as the Family and Medical Leave Act (“FMLA”). In addition, wage and hour laws such as the Fair Labor Standards Act (“FLSA”) must also be considered.

What about Employee Leave and FMLA?

FMLA allows an employee to take up to 12 weeks of unpaid, job-protected leave due to his or her own “serious health condition” or that of a spouse, parent or child. To be “covered,” a private employer must employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer. Employees must also be “eligible” for FMLA leave, meaning (1) they have worked for a covered employer for at least 12 months, which need not be consecutive; (2) they have at least 1250 hours of service during the 12-month period immediately preceding the leave; and (3) they work at a location where the employer has at least 50 employees within a 75-mile radius of the worksite, or they receive direction from a facility that has at least 50 employees within a 75-mile radius (for example, a remote worker who receives instructions and supervision from someone in the corporate office). It is almost certain that COVID-19 would be considered a “serious health condition” qualifying the employee for FMLA leave if the employer is covered and the employee is eligible.

Depending on the jurisdiction, the employer may also be required to comply with state or local medical leave laws. These laws may have broader coverage and more liberal eligibility requirements, as well as more generous leave provisions than FMLA provisions.

In addition to FMLA, many states now have laws requiring paid leave and sick leave to those caring for ill family members.

What about the Fair Labor Standards Act (FLSA)?

In the event of temporary closures, payment of wages under the FLSA will be dependent on the classification of the employee. Non-exempt employees whose work schedule is reduced due to a temporary closure do not need to be paid according to their regular schedule. FLSA sets no minimum hour requirements. However, FLSA does set requirements with respect to how much hourly and salaried non-exempt employees must be paid for the hours they do work. Also, state, local law, and collective bargaining agreements may have their own minimum hours or “show up pay” requirements. On the other hand, exempt employees who work part of the week, must be paid for the entire workweek. However, if an exempt employee is completely relieved of duty during the temporary closure, the employer can elect not to pay them for that workweek.

In addition, there is no limit on the number of hours per day or week that an employee can be required to work in the event of an emergency under the FLSA. However, state and local law may place limits on scheduling.

As the COVID-19 outbreak evolves, it’s important that employers keep abreast with current CDC guidance, and in addition, consult with qualified employment counsel. Our experienced Employment Law attorneys are ready to help with this emerging issue.

Wegman Hessler specializes in business law for business leaders, applying legal discipline to solve business problems to help business owners run smarter. For more than 50 years, this Cleveland business law firm provides full-service strategic legal counsel for closely held businesses. Learn more at www.wegmanlaw.com.