© 2020 Eversheds Sutherland (US) LLP

Employers’ Response to the Coronavirus

March 2020Marlene WilliamsMichael Woodson

Eversheds Sutherland (US) LLP

Eversheds Sutherland

Overview

─ Occupational Safety and Health Act (OSHA)

─ Family Medical Leave Act (FMLA)

─ Americans with Disabilities Act (ADA)

─ Fair Labor Standards Act (FLSA)

─ National Labor Relations Act (NLRA)

2

Eversheds Sutherland

Key Websites

─ DOL OSHA Standards

─ OSHA Fact Sheet, Protecting Workers During a Pandemic

─ Centers for Disease Control and Prevention

─ World Health Organization

─ US Travel Advisory Regarding Travel

─ EEOC Pandemic Guidance

─ CDC Print Resources

3

Eversheds Sutherland

OSHA

While there are no specific OSHA standards regarding coronavirus, OSHA has highlighted requirements already in place, specifically:

─ OSHA’s Personal Protective Equipment (PPE) standards, which require using gloves, eye and face protection, and respiratory protection.

─ The General Duty Clause, which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

─ Work-related illnesses that meet certain criteria must be recorded on an employer’s OSHA 300 Log and an OSHA 301 Injury and Illness Incident Report (or their equivalents).

4

Eversheds Sutherland

OSHA—Basic PrecautionsEmployees should:

─ Stay home if they are sick.

─ Regularly wash their hands with soap and water or use hand sanitizer.

─ Avoid touching their noses, mouths, and eyes.

─ Cover their coughs and sneezes with a tissue or their arm.

─ Wash their hands or use hand sanitizer after coughing, sneezing, blowing their noses, or coming into contact with others.

─ Avoid close contact with coworkers and customers by keeping a distance of at least six feet.

─ Avoid shaking hands.

─ Refrain from using other employees’ phones, desks, tools, equipment, or work stations.

─ Lead a healthy lifestyle, including good nutrition, exercise, and smoking cessation, to maintain a better immune system.

─ Avoid face-to-face meetings in favor of video or teleconferencing.

─ Hold meetings in large, well-ventilated areas where employees can maintain a distance of at least six feet from each other.

─ Keep unnecessary visitors, family members, and other members of the general public from visiting the workplace.

5

Eversheds Sutherland

OSHA—Knowledge

─ Differences between seasonal epidemics and worldwide pandemic disease outbreaks;

─ Which job activities may put them at risk for exposure to sources of infection;

─ What options may be available for working remotely, or utilizing an employer’s flexible leave policy when they are sick;

─ Social distancing strategies, including avoiding close physical contact (e.g., shaking hands) and large gatherings of people;

─ Good hygiene and appropriate disinfection procedures;

─ What personal protective equipment (PPE) is available, and how to wear, use, clean and store it properly;

─ What medical services (e.g., vaccination, postexposure medication) may be available to them; and

─ How supervisors will provide updated pandemic-related communications, and where to direct their questions.

6

Eversheds Sutherland

OSHA—Recording

─ Recording and reporting occupational injuries and illness (29 C.F.R. Part 1904).

─ No duty to record the common cold and flu.

─ However, 2019-nCoV is a recordable illness when a worker is infected on the job.

7

Eversheds Sutherland

OSHA—Other Relevant Standards

─ Sanitation (29 C.F.R. § 1910.141).

─ Access to employee exposure and medical records (29 C.F.R. § 1910.1020).

─ Hazard communication (29 C.F.R. §1910.1200).

─ Occupational exposure to hazardous chemicals in laboratories (29 C.F.R. § 1910.1450).

8

Eversheds Sutherland

FMLA

─ The flu and common cold do not typically qualify as serious health conditions under the FMLA.

─ A pandemic virus also does not automatically qualify as a serious health condition under the FMLA.• Inpatient care or continuing treatment by a health care

provider.

─ However, complications from the illness that lead to hospitalization or incapacitation can be a serious health condition.

9

Eversheds Sutherland

FMLA—Fitness For Duty

Employers may require an employee who has been out sick to satisfy any of the following before returning to work:

─ Provide a doctor’s note clearing the employee to return to the workplace.

─ Submit to a medical examination.

─ Remain symptom-free for a specific period of time before returning to work.

Employers must apply uniform standards to all similarly-situated employees

10

Eversheds Sutherland

ADA

─ The flu and common cold are not typically considered disabilities under the ADA.

─ However, complications related to the flu may qualify.

─ The ADA prohibits disability-related inquiries or medical examinations of current employees, unless the employer reasonably and objectively believes the medical condition impairs the employees’ ability to perform the job functions and poses a direct threat to the workforce.

11

Eversheds Sutherland

ADA—Dos and Don’ts

DON’T

─ Employers may not ask employees to disclose health conditions to anticipate potential absenteeism.

─ Employers may not ask employees who are not sick and show no symptoms to disclose whether they have a medical condition that would make them susceptible to a pandemic.

DO

─ Employers may ask questions that are not disability-related, such as questions pertaining to public transportation.

─ Employers may ask employees if they have influenza symptoms, such as fever or chills and a cough or sore throat.

─ Employers may send employees home who become ill or may require employees to stay home.

─ If applicable, promote telecommute or flexible schedules.

12

Eversheds Sutherland

ADA—Medical Privacy

─ An employer has a duty to protect an employee’s medical information.

─ An employer can only disclose this confidential medical information to a limited group: Supervisors, Safety Personnel, Government Officials.

13

Eversheds Sutherland

FLSA

─ Non-Exempt Employees:Employers do not need to pay non-exempt employees who miss work. • Try to be flexible, though.

─ Exempt Employees receive their full salary for any week in which they work, regardless of the number of days or hours worked. • Employers do not have to pay an

exempt employee for any workweek in which no work is performed.

14

Eversheds Sutherland

FLSA—Deductions

Improper deduction to an exempt employee’s salary could lead to a loss of the exemption status under the FLSA.

─ Proper Deductions• An employee misses work because of illness or disability and the

employer has a bona fide sick leave policy, plan, or practice of providing compensation for salary loss caused by illness or disability.

• An employee misses work due to personal reasons.• FMLA Leave.

─ Improper Deductions• No bona fide sick leave policy.• Employer initiates the absence.

15

Eversheds Sutherland

NLRA

─ Employees are protected in engaging in concerted activity of refusal to work based on concerns about safety and health.

─ Under the NLRA, there is no requirement that the employee have a reasonable belief that a situation is unsafe to refuse to work. All that is required is a good faith belief, supported by ascertainable and objective evidence, that the working conditions are abnormally dangerous.

16

eversheds-sutherland.com© 2020 Eversheds Sutherland (US) LLPAll rights reserved.

Michael WoodsonCounselmichaelwoodson@eversheds-sutherland.comHouston+1.713.470.6121

Marlene WilliamsPartnermarlenewilliams@eversheds-sutherland.comHouston+1.713.470.6143