The COVID-19 pandemic has affected nearly every aspect of our day-to-day lives, and employment is certainly no exception. There are several laws that may provide some protection to employees during this time and there are other laws.
More employees, including our own, are working remotely and both employees and employers are navigating new territory. Social distancing is not just for socializing. Workplaces who can implement social distancing measures, such as remote work and staggered shifts should do so in order to help minimize the spread of this virus and minimize the burden on our healthcare system. But this does not come without its own concerns.
Not all employees have the ability to work at home, so employers will need to consider how to handle ensuring their employees have the tools – such as computers and access to internet.
In addition, employers who do not set clear guidelines for working from home, may be opening themselves up to overtime and minimum wage claims, should employees work additional hours.
Further, employees in certain sectors, like the health care industry, may be working more hours than usual. The Fair Labor Standard Act (“FLSA”) requires the payment of a minimum wage for all hours worked and payment of time-and-one-half for all hours worked over 40 to non-exempt employees. We expect to see a rise in unpaid wage and FLSA claims where employers fail to pay employees as required.
There are many employees who cannot work remotely. Employers should implement other procedures, such as staggering shifts, creating additional space between employees, and increasing the frequency of workplace cleaning. The Occupational Safety and Health Act may also provide protection to employees as employers are responsible for providing a safe workplace.
As the coronavirus spreads, more employees are going to become sick. Current CDC guidelines recommend that individuals must self-quarantine until they are symptom-free for a period of time. This will likely require more sick leave than usual. Congress is currently considering a bill that would offer paid sick leave to certain employees. However, at this time, there are no federal or state laws guaranteeing paid sick leave to employees in Florida.
Individuals who contract COVID-19 or those who are caring for someone who has contracted it, may be eligible for unpaid Family and Medical Leave Act (FMLA), which provides up to 12 weeks of unpaid leave in a year to employees who work for large employers (50+) and have worked there for at least 1 year and for at least 1250 hours. FMLA is primarily job protection, not paid leave.
The CDC also recommends a 14-day quarantine to individuals who have been exposed to the coronavirus or who have traveled to certain countries with a high number of cases. In the event an employee must self-quarantine, but is not sick or caring for someone who is sick, there will be little to no job protection. One would hope employers would maintain flexibility and allow employees to return upon the end of the quarantine period or to work from home during that period if possible.
Most people who contract COVID-19 will exhibit only mild symptoms and will recover without medical intervention. However, certain individuals are at higher risk, such as older individuals and the immunocompromised. The Americans with Disabilities Act (“ADA”) may provide some protection in the form of reasonable accommodations to those with underlying health conditions who are at risk. The Age Discrimination in Employment Act (“ADEA”) may protect employees who are treated differently than other employees because of their age.
Additionally, if employees of certain ethnicities are targeted, they may have race or national origin discrimination claims under Title VII or state law.
Finally, and unfortunately, there will be lay-offs due to the pandemic. This is affecting the economy as more people stay home. Certain industries, like travel and dining are being hit extra hard. Employees at large employers covered by the Worker Adjustment and Protection Act (WARN Act) are generally entitled to the 60-days’ notice prior to being laid off. There are defenses to this required notice, such as unforeseen circumstances.
This is a quickly developing situation and employers and employees are sure to have questions. We are available to conduct phone and video consultations. Please call our office today if you need assistance navigating the COVID-19 pandemic.