Employers large and small are faced with the challenges of adapting their workplaces and practices to meet COVID-19 requirements as workers return to or continue to work during the pandemic. It can be a challenge navigating the myriad of rules and regulations.
Here’s a snapshot of the major acts and agencies as of now to monitor as you move forward.
CDC (Centers for Disease Control)
The CDC engages in scientific study and provides health information to help guard against widespread health threats. In regard to COVID-19, if you become aware of a case among your workers, you should follow their recommendations for community-related exposure to someone with known or suspected COVID-19; when employees can return to work after having COVID-19; and cleaning and disinfection recommendations to protect other employees. Check out: https://www.cdc.gov/coronavirus/2019-ncov/index.html
OSHA (Occupational Safety & Health Administration)
Established in 1970, OSHA works to establish and ensure safe, healthy working conditions through training, outreach and education, as well as related compliance requirements for most private sector employers and their workers, as well as some in the public sector. In relation to the virus, no specific OSHA employer standards have been set, but some existing requirements apply in preventing occupational exposure, particularly regarding PPE (Personal Protective Equipment) and the “General Duty Clause”—which requires an employer to furnish a workplace free of recognized serious hazards. OSHA itself does not require employers to notify other employees if a coworker gets COVID-19. However, based on its more general requirements, employers must take appropriate steps to protect other workers from exposure. If a case is confirmed, the employer must clean and disinfect the work environment; notify other workers to monitor themselves for signs or symptoms; and implement a screening program in the workplace for signs/symptoms. Check out: https://www.osha.gov/SLTC/covid-19/
FFCRA (Families First Coronavirus Response Act)
This act requires certain types of employers to provide employees with paid sick leave or expanded family and medical leave for specified COVID-19 reasons. Housed within the DOL (The U.S. Department of Labor), its provisions currently apply through December 31, 2020. Generally, the Act provides that employees of covered employers are eligible for two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay if the employee is unable to work due to mandatory or medically-advised quarantine or if they are experiencing coronavirus-related symptoms and are seeking confirmation of diagnosis. It also may apply to those employees who cannot work due to caring for someone else under quarantine or for a child whose school is closed or otherwise unavailable due to the virus. Small businesses with fewer than 50 employees may qualify for exemption from the “caring for other” provisions if they can demonstrate that provision would jeopardize the viability of the business. Check out: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
EEOC (U.S. Equal Employment Opportunity Commission)
The EEOC enforces workplace anti-discrimination laws, including:
- Americans with Disabilities Act (ADA), and the Americans with Disabilities Act Amendments Act (ADAAA), which protect individuals with disabilities from discrimination in the workplace, as well as school and other settings where Title I applies to private employers with 15 or more employees. The ADAAA expanded the definition and qualifications of “disability” to include more people and on whether or not discrimination occurred. Among other things, the ADA/ADAAA restricts when and how much medical information an employer may obtain (it must be job-related and of business necessity).
- Rehabilitation Act, which includes reasonable accommodation and non-discrimination based on disability
- Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, national origin, religion, and sex
- Age Discrimination in Employment Act, which prohibits discrimination based on age for those age 40 and older
- Genetic Information Nondiscrimination Act (GINA), in which Title II prohibits genetic information discrimination in employment, took effect on November 21, 2009. In regard to the virus, it prohibits employers from asking medical questions about employee family members but does not prohibit asking more generally if the employee has had contact with anyone diagnosed or with symptoms.
- Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy. Additional rights are also provided under the PWFA (Pregnant Workers Fairness Act), focused on eliminating discrimination and providing reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.
Pandemic-specific EEOC provisions allow for situations where employers may ask employees if they are experiencing symptoms of the virus (however, not those teleworking and not physically interacting with others); may measure employees’ body temperature; may ask whether an employee is returning from travel ban areas; and may bar an employee from physical workplace if they refuse to have their temperature taken, refuse to answer questions about whether they have COVID-19, have symptoms associated with COVID-19, or are awaiting COVID-19 test results or has tested positive. And, when an employee is out with symptoms, the employer may require a medical note certifying fitness for return to work. In addition, employers may withdraw an immediate need job offer due to symptoms or diagnosis. Note that the EEOC does not interfere with CDC or COVID-19 related state/local requirements. Check out: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
The CARES Act (The Coronavirus Aid, Relief, and Economic Security Act)
This act was passed in March 2020 to provide economic relief based on the public health and economic impacts of COVID-19. Under the act, through July 31, 2020, states could extend unemployment benefits by up to 13 weeks under its Pandemic Emergency Unemployment Compensation (PEUC) program. In addition, its Paycheck Protection Program provided federally guaranteed loans to certain eligible businesses and entities from February through June 2020. Check out: https://home.treasury.gov/policy-issues/cares
FEMA (Federal Emergency Management Agency)
FEMA exists to reduce and contain loss of life and property by providing comprehensive, risk-based emergency management through mitigation, preparedness, response, and recovery. Based on the pandemic and its effects, the agency extended the grace period to renew flood insurance policies from 30 to 120 days and provided additional COVID-19 funding opportunities to state, local, tribal and territorial partners through its Emergency Management Performance, Assistance to Firefighters and Emergency Food and Shelter grant programs. Check out: https://www.fema.gov/disasters/coronavirus/economic
ACA (Affordable Care Act) & COBRA (Consolidated Omnibus Budget Reconciliation Act)
The Affordable Care Act, officially titled the Patient Protection and Affordable Care Act and commonly referred to as “Obamacare”, was passed to reform the private insurance market (especially for individuals and small-group purchasers), expand Medicaid to those with income below 134% of the federal poverty level, and change the way that medical decisions are made. COBRA mandates an insurance program which gives some employees the ability to continue health insurance coverage after leaving employment. COVID-19 related provisions focus on qualification for special enrollment periods due to lost employer health coverage due to resulting job termination or furlough. COBRA continuation coverage eligibility expansions should currently be offered when a reduction in hours or termination of employment causes a loss of health coverage. Check out: https://www.healthcare.gov/coronavirus/
FMLA (Family and Medical Leave Act)
FMLA is a labor law that requires covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. FFCRA created a new FMLA-covered leave of absence in the event that an employee must take a leave of absence to care for a child due to a COVID-19 related school closing. Employees cannot receive benefits from these programs and Unemployment Insurance at the same time. Check out: https://www.dol.gov/agencies/whd/fmla/pandemic
In addition to these various acts and agencies, employers should also stay up on pandemic-related implications of evolving state and local requirements, contractual obligations and industry-specific licenses, certifications and permits. Want some strategies and tools to assist your workers in protected classes and/or with disabilities to return a safe and conducive workplace?
Please join me on 10/22 when I will share what to do to accommodate such needs during the current pandemic environment, and as it continues to evolve.
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Meeting Employee Accommodation Requirements During COVID & Beyond
Disclaimer: Ms. Coussens is not an attorney. This article is intended to provide useful information but should not be construed as legal or financial fact or individual advice.