COVID-19 Resources

CWC is pleased to make available the information and resources on this page as a service to all of the nation’s employers who are trying to manage the impact of COVID-19 on their workplace legal and compliance requirements. This page will be continuously updated by our staff regarding COVID-19 compliance and risk management developments at both the federal and state levels. If you have any workplace compliance or risk management questions related to COVID-19, or if you’d like to make us aware of any developments we might have missed, please email us at info@cwc.org.

FAQs

Will an exempt employee under the Fair Labor Standards Act (FLSA) lose exempt status if he or she must work additional time performing nonexempt job duties in light of workforce changes due to COVID-19? As with many questions under the FLSA, the answer is that it depends on all of the facts and circumstances. However, employers should be aware that the Labor Department's regulations interpreting the exemptions for executive, administrative, and professional employee have a special section addressing emergencies. This provision states the general rule that an exempt employee will not lose exempt status by performing nonexempt work in an emergency, and discusses application of this rule in the context of emergencies that threaten the safety of employees, a cessation of operations, or serious damage to an employer's property.

Employers may also wish to review additional DOL commentary (see page 22189) stating that emergencies endangering public health or safety may also qualify as emergencies for the purposes of this rule, depending on circumstances.

Of course, always check your state and local rules, which may be different. 
It depends. If the symptoms of the condition are severe enough to qualify as a “serious health condition” and the employee has not maxed-out the allowable amount of protected leave within the 12-month leave year, then the employee would more likely than not be eligible for FMLA-protected leave. In order to make this determination, employers must conduct an individualized assessment of the employee’s request. 

For more information, go HERE
 
The FMLA protects those individuals who either have “a serious health condition” or for caring for family members who have a “serious health condition.” Serious health condition refers to a an illness, injury, impediment, or physical or mental condition that involves (a) inpatient care at a hospital, hospice, or residential medical care facility; or (b) continuing treatment by a health care provider. Attempting to avoid contracting a serious health condition, such as COVID-19 is not covered under the FMLA. 
However, if an employee has a disability covered by the ADA, this may be a request for an accommodation, which trigger’s the employer’s obligation to engage in the interactive process with the employee  to determine if such an accommodation should be granted. In essence, the employee who has a disability could be seeking an accommodation to avoid exacerbating a current disability.
Under normal circumstances, this line of questioning may be considered a disability-related inquiry, which requires you to show that the question is job-related and consistent with business necessity. However, according to EEOC, because COVID-19 has been declared a pandemic, such question would not constitute a disability-related inquiry. During the pandemic, employers may ask this question to individuals who recently traveled (including business or personal travel). 
 
The short answer is no. Because COVID-19 has been identified as an international pandemic, separating employees who display signs familiar to the condition would be permissible under the ADA and the Rehabilitation Act because the condition is serious enough to pose a direct threat to the workplace — a permissible basis for sending such employee(s) home. 
For more information, go HERE

Under normal circumstances, taking an employee’s temperature would be considered an impermissible medical examination unless you can show that the medical examination is job-related and necessary to conduct your business.  According to the EEOC, because COVID-19 has become widespread in the community, employers may take its employees’ temperatures. Employers should not single out employees, but instead should take all of its employees’ temperatures in the department. 
 
Currently, OFCCP is continuing conducting its compliance reviews, focused reviews, and complaint investigations. However, with respect to physical onsites, the Agency has indicated that it will employ other means, such as using WebEx, Skype, and telephone interviews instead of physically coming onsite. The Agency has also announced that for employers who cannot make employees available, it will remain flexible and provide reasonable extensions when necessary. 
For additional information, go HERE
In short, yes. Because COVID-19 is an international pandemic as emphasized by the World Health Organization, employers who are subject to the Americans with Disabilities Act, as amended, and the Rehabilitation Act may be permitted to do things that would normally be impermissible, such as taking an employee’s temperature. 
For additional information, go HERE

Federal Response Feed

Today, the Department of Labor's Wage and Hour Division announced that it has added new guidance to a set of Frequently Asked Questions (FAQs) relating to temporary leave mandates that Congress enacted last year as part of the Families First Coronavirus Response Act. The federal leave mandates expired at the end of 2020. While employees are no longer entitled to leave under the program, DOL will continue to receive complaints and, where appropriate, seek enforcement of the law's provisions for violations that occurred prior to the expiration of the program.
On December 29, 2020, the Department of Labor's Wage and Hour Division (WHD) published two guidance documents, known as Field Assistance Bulletins, addressing compliance questions that have arisen during the pandemic.

The first addresses the extent to which an employer may satisfy notice posting requirements under the laws WHD enforces (including the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA)) by electronic means. 

The second addresses whether telemedicine visits can be considered an "in-person" visit for the purposes of determining if an employee has a "serious health condition" under the FMLA. 

CWC intends to publish an analysis of each Bulletin in the near future.
Today, the Equal Employment Opportunity Commission published new guidance related to COVID-19 vaccine policies and practices and EEO laws. The new guidance is available on the EEOC's web page. CWC will publish an analysis of the guidance in the immediate future.
Earlier this week, the Labor Department’s Occupational Safety and Health Administration (OSHA) issued updated FAQs on its website to remind employers of their obligation to report employees’ in-patient hospitalizations and deaths that are work-related and occurred due to the coronavirus. Applying OSHA’s current reporting and recording requirements, if an employer learns that an employee has died within 30 days due to a work-related incident, and subsequently discovers that the death occurred due to a work-related incident of having contracted COVID-19, the employer must report that case within 8 hours.

The Department of Homeland Security (DHS) recently announced that it was extending its March 2020 policies that
1) allows employers who have implemented remote working policies in response to COVID-19 to review a new hire’s work authorization documentation remotely when completing the Form I-9, and
2) provides automatic 60 day extensions to assist applicants and petitioners who are responding to certain agency requests such as Requests for Evidence.

The expiration date for the I-9 remote review accommodation is now November 19, 2020.

The automatic 60 day extension to respond to agency requests applies to the documents listed below that have an issuance date between March 1, 2020 and January 1, 2021:

  • Requests for Evidence (RFE);
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

State Response Feed

              On July 15, Virginia’s Safety and Health Codes Board issued Statewide Emergency Workplace Safety Standards “designed to establish requirements for employers to control, prevent, and mitigate the spread of [COVID-19]”. Many of the requirements mirror those published by the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA), however, the new standards contain several specific provisions that place more onerous responsibilities on employers in the state. For example, in addition to providing flexible sick leave and telework policies, assessing the risk for exposure in certain job duties, and maintaining various workplace sanitation practices, employers must, among other things:

  • Notify state health officials about a positive COVID-19 test;
  • Notify state safety officials about three or more positive tests within a two-week period;
  • Develop a COVID-19 response and preparedness plan within 60 days and provide training to employees; and
  • Distribute state-provided COVID-19 information to employees.

Lastly, the rules prohibit employer retaliation for whistleblower employees who raise concerns about an employer’s compliance with the provisions and employers who fail to comply with the new regulations could face fines up to $13,000 or for repeated intentional non-compliance, up to $130,000. The new standards are expected to take effect the week of July 27th and are set to expire after six months or at the termination of the state’s COVID-19 emergency order, whichever is sooner.

In May 2020, the Department of Labor issued UIPL 13-20 directing state unemployment agencies to develop and issue notices for employers in their state to use to notify employees of the availability of unemployment benefits. After more than a month having passed, these notices are challenging to find, even on a state’s newly developed COVID-19 unemployment webpage. Ostensibly, many of these notices may not even exist. To date, CWC has been able to locate approximately 11 of these new notices, many of which were issued by states that did not require that notice be given before COVID-19. We have been able to locate notices for Alaska, Arkansas, Arizona, Idaho, Maryland, Minnesota, Missouri, Montana, Nebraska, Nevada, and Washington.

For states which have neither published COVID-19 related notices, nor previously required them, members may wish to give departing employees a copy of a state’s general unemployment workplace poster. As an aid to members, CWC has developed a State Unemployment Notice Requirements resource which lists state notice requirements that were in effect before the pandemic.

In an effort to encourage businesses to reopen in the wake of the COVI-19 pandemic, states are enacting laws that give certain employers immunity from civil lawsuits brought by employees or customers who might allege that they were exposed to or contracted the virus due to some action or inaction by the business. Currently, North Carolina, Oklahoma, Utah , and Wyoming have some type of COVID-19 immunity law on the books, with states like Arizona, Louisiana, and Ohio positioned to pass similar bills in the near future.

While these laws vary, most provide that businesses who follow published COVID-19 government guidance will be immune from lawsuits, so long as their conduct doesn’t rise to the level of gross negligence or could be considered willful. Note, however, that several states have chosen to grant this immunity only to certain employers, such as those in the restaurant or health care industries.

As part of its response to COVID-19, the Chicago City Council recently enacted an ordinance prohibiting employers in the city from taking an adverse employment action against an employee for obeying a city or state official’s stay-at-home order, or a treating healthcare provider’s order requiring the employee to quarantine. Employers are also prohibited from retaliating against an employee who must care for a family member subject to one of these orders. The ordinance went into effective immediately.

As many states begin to allow certain employees to physically return to the workplace, some jurisdictions are requiring that employers post a specific safety notice related to COVID-19 in a conspicuous place on site.

For example, Illinois Governor J. B. Pritzker issued Executive Order 2020-32 mandating that all businesses having employees physically reporting to a work-site post safety guidance from the state department of health and the state attorney general and maintain the posting throughout the COVID-19 emergency. The Illinois poster is available online here.

Similarly, Pennsylvania Governor Tom Wolf has published guidance requiring all employers conducting in-person operations to post a “COVID-19 Safety Procedures for Businesses” flyer in the workplace. The flyer must be signed by the business’s corporate officer, site manager, site foreperson, or equivalent. The flyer also contains a space for the business to indicate the employee who is the “Pandemic Safety Officer,” or the person in charge of the COVID-19 safety procedures for specific worksite. The Pennsylvania poster is available online here.

COVID-19 Network

CWC’s newest online community for members to discuss workplace compliance issues in light of the COVID-19 outbreak. Join Now! 

Related Resources

Final Pay Requirements CWC's State Final Pay Requirements resource allows members to quickly see a state's applicable end of employment pay requirements, including links to the applicable state statute. Unemployment Notice Requirements CWC's State Unemployment Notice Requirements tool enables members to locate which jurisdictions require an employer to give departing employees notice of unemployment benefits and provides a link directly to any applicable state form. Layoff Notification Laws During Unsettled Times The dramatic impact of the coronavirus on business operations has created an environment where many employers are considering significant layoffs. Paid Leave Mandates and COVID-19 Web Workshop Congress passed legislation in March 2020 establishing two new federal leave mandates related to the coronavirus outbreak. This web workshop walks through what we know. Recorded March 26, 2020. Congress Approves Massive Coronavirus Stimulus Bill Creating Temporary Paid Leave Mandates The coronavirus relief bill signed into law by President Trump on March 18 contains new paid leave mandates that will be in effect until the end of the year. Our memo provides an overview.