DISCLAIMER
This document has been prepared by Trinity HR Consulting, Inc. (“Trinity”) solely for use as a general source of information. As such, it is not intended nor should it be used to take the place of advice from legal counsel or of healthcare/medical professionals. Trinity strongly urges seeking legal and/or healthcare/medical advice on this subject matter prior to taking any related actions or making any related decisions.
With the rapid global spread of coronavirus (officially called COVID-19), employers have or are in the process of taking measures to protect the health and well-being of their employees. Regardless of company size, employers need to be:
1) Aware of what their legal obligations (including at both the federal and state level) may be.
- For example, many companies have already put business travel bans into place.
2) Considering what actions to take
In Part 1, the focus will be on the legal obligations of employers. Look for Part 2 next week in which Trinity discusses actions for you to consider.
LEGAL OBLIGATIONS
In addition to non-discrimination-related laws (including the Americans with Disabilities Act), five important legal obligations are identified below:
1) Occupational Safety and Health Act
This Act obligates employers to provide a workplace free of known health and safety
hazards. The three most prominent employer obligations under OSHA are:
-
- General Duty Clause: Each employer shall furnish to each of its employees 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 to its employees.
- Personal Protective Equipment (PPE) standards require using gloves, eye and face protection, and respiratory protection. When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program.
- Bloodborne Pathogens standard applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus.
- As part of this, employees have the right to:
- File a confidential complaint with the Occupational Safety & Health Administration
- Protection against employer retaliation (fire, demote, transfer or otherwise retaliate against workers) for using their rights under the law
2) Worker Compensation LAWS & TEMPORARY DISABILITY INSURANCE (TDI)
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Each of these laws varies by state. Both address injury or illness—it is merely a question of whether it is work-related (worker’s compensation) or not work-related (temporary disability). If employees become infected, they may file a worker compensation claim alleging they were exposed as a result of their work duties or a TDI claim.
- An employer’s failure to comply with OSHA requirements & standards may tip the scale to having your worker’s compensation insurance carrier approve an employee’s claim. Even if that is denied, a coronavirus illness that results in employees not being able to work will be covered by TDI.
3) Family and Medical Leave Act (FMLA): 50 or more employees
- The FMLA provides eligible employees with twelve-weeks of job and health insurance protected leave for specific qualifying reasons.
- The two most relevant qualifying events are: (1) employee’s own serious health condition; and (2) to provide care for a family member with a serious health condition.
- An employee may seek leave due to being fearful of coming to work. It is highly unlikely a request being on that would qualify.
4) Fair Labor Standards Act (FLSA)
One of the most important questions for employers is, “If due to the coronavirus, we shut down do we have to pay my employees?”
- The short answer is it depends on the FLSA status of the employee as exempt or nonexempt. Below is the general answer (“general” because there are certain exceptions with the Act):
- Exempt employees must be paid an entire week’s salary if they perform any work during the workweek
- Nonexempt employees are required to be paid only for the hours actually worked.
- Unfortunately, many employers have not used the government formal process to make this determination. Consequently, they tend to classify more employees as exempt than truly are.
5) Health Insurance Portability Accountability Act (HIPAA)
If an employer learns of the employee’s medical information, condition, diagnosis etc. through the health plan, act (unless advised otherwise) that such inform is protected under HIPAA.
In addition to an employer being prohibited from sharing an employee has the coronavirus, HIPAA generally prohibits an employer from discriminating against an employee who has a particular medical condition.
- There are also confidentiality provisions within FMLA & the American with Disabilities Act, as well as state worker’s compensation laws.
- Given the “need to know” aspects, the most prudent approach is to inform an employee’s immediate supervisor only that her/his employee is not able to work & is on a leave of absence.
FOR MORE INFORMATION, INCLUDING HOW TRINITY’S TEAM OF CONSULTANTS MAY BE ABLE TO HELP YOU WITH THIS OR OTHER PEOPLE-RELATED MATTERS:
- Email Trinity at info@TrintyHR.net
- Visit our website at www.TrinityHR.net
- Call us at 905.1762 or Toll Free at 877.228.6810
You have HR questions…Trinity has answers!