COVID-19: The Employer’s Main Legal Obligations – Connect HR Strategy. Atlanta

COVID-19: The Employer’s Main Legal Obligations

How To Create An Inclusive Workforce
August 14, 2020

The C0VID-19 pandemic raises many questions between employees and their employers. It is worthwhile for both groups to become familiar with their respective rights and obligations.

Below are the main issues that most employers and employees are facing during the COVID-19 pandemic, along with the employer's most important rights and obligations.

1. What are an employer's main legal obligations?

  • Ensure the health and safety of employees in the workplace under the Occupational Health and Safety Act;
  • Comply with Wage and Hour obligations under the Fair Labor Standards Act and state laws;
  • When applicable, compliance with the ("ADA") Americans with Disabilities Act;
  • Family Medical Leave ("FMLA");
  • Family Coronavirus Response Law ("FFCRA") (for a company with less than 500 employees);
  • State and local sick leave laws;
  • Ensure that employees are covered by workers compensation insurance;
  • Timely reporting of illness/injury/death in accordance with OSHA regulations;
  • In the event of dismissal or reduced wages, employers must consider their obligations under federal and state WARN (Worker Adjustment and
  • Retraining Notification Act of 1988) laws.

2. Should I prepare and implement a work plan to deal with COVID-19?

In the United States, there is no legal obligation to do so. However, to minimize potential liability, you should show that you have done everything possible to avoid damages. A good plan should address how to prevent an outbreak of COVID-19 and the steps to be taken should one occur.

It is important to have a multifunctional emergency management team (“EMT”), preferably representatives from the HR, IT and legal departments, in order to address all health and safety issues in the workplace, with the authority to make adjustments as required.

3. Can I instruct my employees to go home or stay home if there is an outbreak?

Yes, but be careful not to discriminate by favoring or treating a particular employee differently.

4. Are employers allowed to require quarantined employees to take paid leave?

Yes, as long as they don't work during that time. In the case of unionized employees, there may be a need to negotiate quarantine policies based on the union rights clause, such as wages and working hours.

5. What is the federal "FFCRA" law and how can employees affected by COVID-19 benefit from it?

“FFCRA” (Family Coronavirus Response Law) applies to a company with less than 500 employees and requires the employer to provide its employees:

  • Two weeks sick leave for those who cannot work (or telework);
  • Up to 12 weeks of paid leave for those who need to stay at home due to the closing of schools and daycare centers because of COVID-19.

Remember that the employer that provides paid leave under FFCRA) is entitled to tax credits to cover the costs of payment of the benefit.

6. If the employee wishes to stay at home to avoid the risk of falling ill, with no indication of an imminent danger of exposure to the virus, will he/she be entitled to receive government benefits?

No. The absence is only authorized in cases where there is a risk of death or serious physical injury according to the investigation by OSHA. Otherwise, the employee will be able to make use of accumulated vacation or unpaid time off, as he will not be entitled to leave under the ADA, FMLA or medical leave.

7. Can I advise an employee to consult a doctor?

Yes, employers can and must require a medical certificate before allowing the employee to return to work in case of symptoms or contagion with COVID-19.

8. Can I ask my employees to report suspected cases of COVID-19?

Yes, the key is to ask questions correctly so as not to interfere with the employee's privacy; maintain confidentiality regarding medical information if one has symptoms and/or has been diagnosed with the disease. However, you should report to public health agencies as required by law.

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Source: Guide to Managing HR Through COVID-19 by Mayer Brown April 20, 2020 page 41-46