In response to the COVID-19 pandemic, the United States Department of Labor (“DOL”) has issued updated guidance addressing common workplace issues arising under the Occupational Safety and Health Act, the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”). While none of the guidance constitute changes to governing law, the DOL seeks to reinforce existing laws and aid employers in making sound employment related decisions in light of the crisis.
On March 9, 2020, the Occupational Safety and Health Administration (“OSHA”) issued guidance on preventing worker exposure and preparing the workplace for COVID-19. https://www.osha.gov/Publications/OSHA3990.pdf. In its guidance, OSHA highlighted various steps employers may take to reduce the risk of worker exposure to COVID-19 and developing infectious disease preparedness and response plans. In creating such plans, OSHA recommends, among other things, that employers:
- Identify potential sources of exposure to workers (e.g. exposure to the general public, customers and sick coworkers)
- Prepare to implement preventative measures to limit potential exposure (g. discourage workers from sharing desks, phones and common workspaces)
- Implement enhanced sterilization and cleaning procedures (e.g. cleaning surfaces with disinfectants)
- Develop policies and procedures to promptly identify and isolate employees who have been exposed to COVID-19
- Develop and implement flexible work schedules and telecommuting policies to reduce interaction between employees
For those employers requiring the use of respirators in the workplace, on March 14, 2020, OSHA issued new temporary guidance regarding the enforcement of its Respiratory Protection Standard. This guidance provides discretion to Compliance Safety and Health Officers and is aimed at ensuring healthcare workers have full access to needed N95 respiratory protection in light of anticipated shortages. https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit.
OSHA recommends employers follow existing CDC guidelines, including taking measures to conserve supplies of these respirators while safeguarding health care professionals (“HCP”). One such measure is that healthcare employers may provide HCP with another respirator of equal or higher protection, such as N99 or N100 filtering facepieces, reusable elastomeric respirators with appropriate filters or cartridges, or powered air purifying respirators (“PAPR”). Another measure is that healthcare employers may change the method of fit testing from a destructive method (i.e., quantitative) to a non-destructive method (i.e., qualitative). For filtering facepiece respirators, qualitative and quantitative fit-testing methods are both effective at determining whether the respirator fits properly. See 29 CFR § 1910.134, Appendix A, Fit Testing Procedures. The fitted respirator can then be safely used for work tasks that on respiratory protection. For additional guidance, see Strategies for Optimizing the Supply of N95 Respirators.
DOL Guidance on the FLSA:
The DOL’s Wage and Hour Division also issued guidance, in the form of Questions & Answers on common issues that employers may face under the FLSA in connection with responding to COVID-19. The FLSA Questions and Answers provide guidance on the following topics:
- Pay to non-exempt employees during business closures
- Pay to exempt, salaried employees including requiring such employees to use vacation or leave without pay during business closures
- Restrictions on employees able to work including:
- Hours/Days an employee can work
- Expansion of job duties
- Use of Volunteers
- Use of Temporary employees
- Requiring or encouraging employees to telecommute, including:
- Reimbursement for expenses
- Telework or Home office requirements/inspection
The DOL’s full Questions and Answers guidance for FLSA may be located at https://www.dol.gov/agencies/whd/flsa/pandemic. While the guidance addresses current federal law, it is noted that employers should determine whether any additional obligations are imposed under state or local laws or applicable collective bargaining agreements.
DOL Guidance on the FMLA:
The DOL also issued Questions and Answers guidance to assist employers with compliance with the FMLA for absences related to COVID-19. The guidance addressed the following topics:
- Employees affected by COVID-19 may be entitled to FMLA leave to care for themselves or an infected family member
- FMLA need not be provided to employees absent from work to avoid exposure
- FMLA need not be provided to employees absent to care for healthy children dismissed from school
- Current federal law does not provide for paid leave
- Employers may send employees home if they show symptoms of COVID-19 in compliance with laws prohibiting discrimination and after determining that no reasonable accommodation exists to safely maintain the employee at the workplace
- Employees may be required to provide clearance to return to work after recovering from COVID-19
- Employers may modify paid leave policies in nondiscriminatory manners and in compliance with state and local laws
- Employers may layoff employees due to temporary closures in compliance with discrimination laws and the Worker Adjustment and Retraining Notification (“WARN”) Act
The DOL’s full Questions and Answers guidance for FMLA may be located at https://www.dol.gov/agencies/whd/fmla/pandemic. While the guidance addresses current federal law, it is noted that employers should determine whether any additional obligations are imposed under state or local laws or applicable collective bargaining agreements.
Takeaway for Employers:
While the DOL guidance do not modify any existing laws, employers may find them helpful for compliance during the COVID-19 pandemic.
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