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

Posted July 9, 2020 by Mr. Michael Eastman
Yesterday, the Internal Revenue Service announced that it has published new guidance regarding how employers should report paid leave benefits taken under the Families First Coronavirus Response Act on W-2 Forms. The new guidance is available here.
Posted June 29, 2020 by MANAGER

On June 22, 2020, President Trump issued a Proclamation titled “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” suspending certain nonimmigrant employment-based visas for aliens currently outside the U.S., including H-1B visas. The Proclamation was issued in response to the unemployment woes Americans are facing in light of the Coronavirus.  

In addition to suspending new H-1B visa petitions for foreign workers, the Proclamation also suspends H-2B visas for nonagricultural seasonal workers, L visas for intra-company transfers, and most J visas for cultural exchange visitors.  Per the Proclamation, the admission of these nonimmigrants “presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.”

Notably, the suspension of these nonimmigrants visas does not apply to individuals who are already in the U.S. or to those who already have a valid nonimmigrant visa as of June 24, 2020. Nor does it apply to lawful permanent residents, spouses or children of a U.S. citizen, and any alien seeking to enter the U.S. to provide temporary labor or services essential to the United States food supply chain or other services deemed to be in the national interest. 

In addition to suspending certain nonimmigrant visas, the Proclamation also extends until at least December 31, 2020, the Trump Administration’s April 22, 2020 suspension of new green cards for immigrants not currently in the country.

Members of the Center for Workplace Compliance can read more HERE.
Posted June 17, 2020 by Mr. Michael Eastman
Today, the EEOC added a new question and answer to its guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws addressing whether employers can require employees to get antibody testing before returning to the workplace. According the the EEOC, such a requirement would violate the Americans with Disabilities Act (ADA) because at this time antibody tests do not meet the ADA's "job related and consistent with business necessity" standard for medical examinations or inquiries. This is in contrast to tests for COVID-19, which the EEOC has said are currently permissible.

The EEOC also notes that the Centers for Disease Control has issued Interim Guidelines for COVID-19 Antibody Testing. According to this guidance, antibody test results should not be used to make decisions about returning persons to the workplace.
Posted June 16, 2020 by MANAGER

The Department of Homeland Security (DHS) announced today that it was extending for an additional 30 days its March 20, 2020 policy that allows employers who have implemented remote working policies in response to COVID-19 to review a new employee’s work authorization documentation remotely when completing the Form I-9.  The expiration date for these accommodations is now July 19, 2020. 

In addition, employers who were served notices of inspection (NOIs) by U.S. Immigration and Customs Enforcement (ICE) during the month of March 2020 and had not already responded were granted an automatic extension for 60 days from the effective date. ICE will grant an additional extension of 30 days to these employers.  According to the press release, this will be the final extension for NOIs served in March 2020.

Posted June 11, 2020 by Mr. Michael Eastman

Today, the EEOC updated its COVID-19 guidance for employers by adding nine new questions and answers. Among the topics addressed in the new guidance are:

  • Whether employees are entitled to an accommodation in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19;
  • Best practices for inviting employees to request flexibility in work arrangements before returning to the workplace;
  • How to respond if an employee requests an alternative method of COVID-19 screening due to a medical condition;
  • Whether an employer may exclude an employee from the workplace involuntarily due to pregnancy; and
  • The extent to which nondiscrimination laws grant a right to an accommodation based on pregnancy during the pandemic.

State Response Feed

Posted June 29, 2020 by MANAGER

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.

Posted June 5, 2020 by MANAGER

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.

Posted May 29, 2020 by MANAGER

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.

Posted May 21, 2020 by MANAGER

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.

Posted May 19, 2020 by Mr. Michael Eastman

Last week, the Oakland City Council approved an emergency ordinance to provide paid leave for certain reasons related to COVID-19. As with many state and local mandates to provide paid leave for COVID-19 related reasons, Oakland’s new ordinance also applies to large employers rather than smaller employers covered by federal law.

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

State 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. State 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.