COVID-19 QUESTIONS AND LEGAL IMPLICATIONS
COVID-19 QUESTIONS AND LEGAL IMPLICATIONS
Henry A. Arnett
Colleen M. Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
The coronavirus has employers, employees and labor unions across this nation sailing into uncharted waters. We know many employees, unions and their representatives have questions about the coronavirus and its effects on the operations of the employer and the obligations and responsibilities of unions. We are going to try to answer some of those questions. However, to be honest, at this point there are many more questions than there are answers. And it should be noted that every day brings new developments, new legislation, new executive orders, and new issues.
The coronavirus pandemic is raising a number of issues that are not typically addressed in collective bargaining agreements. Even the various employment laws that apply to employers and union members are often not designed to handle the issues raised by this crisis.
DECLARATION OF EMERGENCY
Our first and maybe most important piece of advice to you is that, on just about any issue that may come up, you need to review your collective bargaining agreement to see if that issue is addressed by the agreement. If it is, then obviously the employer should follow the agreement unless the union agrees otherwise.
One potential problem is that many collective bargaining agreements contain language that would allow for a waiver or a suspension of the terms of the collective bargaining agreement if there is a declared emergency of one sort or another. If you have such a provision and if your local government or other government official does indicate that an emergency has been declared, check the terms of that emergency order, verify that the procedure for declaring an emergency has been followed, and then review what portions, if any, of your collective bargaining agreement may be suspended as a result of that emergency. For instance, some contracts may state that in the event of an emergency, time deadlines (such as answering a grievance) may be suspended, while other contracts may allow suspension of the whole contract. In short, verify exactly what effect an emergency declaration has on your agreement.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT (H.R. 6201)
On March 18, 2020, the Senate passed the Families First Coronavirus Response Act, and will become effective on April 1, 2020. This Act provides employers with tax write-offs in return for providing employees with paid time off during the pandemic if necessitated by sickness caused by COVID-19.
In part, this Act expands FMLA on a temporary basis, and requires that private employers with fewer than 500 employees provide up to 12 weeks of job-protected public health emergency leave, ten weeks of which must be paid leave, to their employees through December 31, 2020. The requirement for paid leave is a substantial change from current FMLA requirements.
Another significant change broadens the number of employees who will qualify for such leave by extending eligibility to any employee who has been employed for 30 or more days for such paid job-protected leave if they have a qualifying need related to a public health emergency. An employee no longer has to have 12 months of service to be covered. The only “qualifying need” is if the employee is unable to work (or telework) because he or she is caring for their minor child if the child’s school is closed or the child’s regular childcare provider is unavailable due to the public health emergency.
It should be noted that the first ten days of leave is unpaid, but an employee may choose to apply any accrued but unused PTO they already have earned during this time. Paid leave for full-time employees is calculated using no less than 2/3 of the employee’s regular rate of pay. However, daily pay cannot exceed $200 per day, and paid leave under this Section is not to exceed $10,000.00 per employee. Part-time employees are also eligible for paid leave, but it is calculated based on the average number of hours worked during the previous six months before taking leave, or based on the reasonable expectation that the employee had at the time of hire regarding his or her expected hours of work (if the employee has not worked during the prior six months).
The Act also provides that employees be provided with paid sick leave to the extent an employee is unable to work (or telework) due to: being subject to a federal, state, or local quarantine order related to COVID-19; having been advised by a health care provider to self-quarantine; experiencing symptoms of COVID-19 and is seeking a diagnosis; caring for an individual that is subject to an order for quarantine; or, caring for the employee’s son or daughter because the child’s school is closed and/or their regular caregiver is unavailable. Note that child care, in the absence of the child having a serious medical condition, would not have qualified for leave before, but it may now. Until December 31, 2020, all full-time employees (regardless of the length of employment) are entitled to 80 hours of paid sick time. Part-time employees are entitled to paid sick leave in a number of hours equal to the number of hours that such part-time employee works on average every two weeks.
Despite all of this, it is very important to note that the Secretary of Labor is authorized to issue regulations for good cause that exempt businesses with fewer than 50 employees from both paid family leave and paid sick leave under the Act if providing it would jeopardize the viability of the business as a going concern. However, at this time, there are no proposed regulations, but it is something to keep our eyes open for.
Emergency Unemployment Insurance Stabilization and Access Act of 2020
This Section of H.R 6201 makes changes to the unemployment benefit process to benefit employees and provides emergency funding to states for increasing access to unemployment benefits, including the following changes: Individuals may apply for unemployment benefits online or via telephone; There is no longer a one-week waiting period; Employees do not have to be actively searching for other employment to receive unemployment benefits; Employers impacted by COVID-19 will not be responsible for benefits paid resulting from these changes.
Typically, medical information obtained by or provided to the employer is confidential. If, for instance, the employer finds out that an employee has ever tested positive for HIV, the employer could not release that information and would have to keep the identity of that employee and his condition private. But what if the employer finds out that an employee has contracted the coronavirus? The law would probably say that the employee’s identity and his condition is confidential and should not be revealed. But common sense would suggest that the employer, which does after all have a duty to maintain a safe working environment, should reveal this information to some extent. Disclosure may be necessary so that those individuals who may have interacted with that employee know of their possible exposure and can take appropriate actions.
Of course, the question might still remain as to the extent of the disclosure. Should disclosure be made to the employee’s co-workers? To the entire company? To members of the public? At this point, an employer who reveals what would otherwise be considered confidential information is probably not going to face repercussions so long as the disclosure is limited to what would reasonably be necessary to protect the health and safety of co-workers and the public.
Most employers generally cannot require their employees to take physical examinations, at least in the absence of a reasonable belief that the employee is unable to perform his or her job or presents a risk to the health and safety of others. This would include something as simple as asking an employee to have his or her temperature taken. A number of people are questioning whether this legal requirement would still hold in light of the current situation, and whether employers can now legally require employees to submit to an exam, such as having their temperatures taken, before entering the workplace.
As we know, Ohio Governor Mike DeWine recently requested that any Ohio employer that remains open during the current public health crisis take the temperatures of its employees daily before beginning work. In ordinary times this would typically not be allowed as measuring an employee’s body temperature is considered a medical examination under the Americans with Disabilities Act (which prohibits medical examinations unless they are job-related and consistent with business necessity). However, we are currently facing a unique and unprecedented situation. According to guidance recently issued by the EEOC, employers may measure employees’ body temperature because the CDC and state/local health authorities have acknowledged community spread of COVID-19. The EEOC also confirmed that employers may screen applicants for COVID-19, including by taking applicant temperatures.
As previously mentioned, any employee temperatures should be treated as confidential medical records.
Another legal issue that could arise from this “physical exam” is that for nonexempt (overtime eligible) employees, time spent waiting in line to have their temperatures taken should be recorded and treated as compensable time.
With the possibility that some places of employment may experience a significant absenteeism problem because of employees being sick or otherwise unable to report to work or excused from working, the possibility of mandated overtime or involuntary holdovers becomes very real. What to do about this? While mandatory overtime might generally be considered a management right, again, you need to review your collective bargaining agreement. Is mandated overtime prohibited? Has past practice been not to allow involuntary overtime? Or has the employer been allowed to mandate overtime or require employees to involuntarily holdover in the past? If the answer is not clear-cut based upon your contract, demand bargaining on the issue.
Many people might assume that if an employee contracts the coronavirus as a result of exposure on-the-job (e.g., handling soiled garments), that the disease would be covered by workers compensation. That might not be a safe assumption. Although laws vary from state to state, generally only a true occupational disease is covered, and there is nothing about the coronavirus that makes it an occupational disease. You obviously do not need to be employed in a specific profession or job to contract the virus. Consider that right now an employee who contracts the flu, as a result of an exposure while working, would not have the flu considered a covered workers compensation claim. Again, anyone can contract the flu.
The Ohio Bureau of Workers Compensation (OBWC) has now addressed the question whether a COVID-19 illness would be covered. In a FAQ’s page just posted on its website, OBWC states the following:
Q 1: If I contract COVID-19, is it a compensable workers’ compensation claim?
A: It depends on how you contract it and the nature of your occupation. Generally, communicable diseases like COVID-19 are not workers’ compensation claims because people are exposed in a variety of ways, and few jobs have a hazard or risk of getting the diseases in a greater degree or a different manner than the general public. However, if you work in a job that poses a special hazard or risk and contract Covid-19 from the work exposure, BWC could allow your claim.
Note that OBWC does not say it would allow the claim, even if you work in a job that poses a special hazard or risk, only that it could allow the claim. That tells us that a final decision on this issue really hasn’t been made yet. Still, at least it is a good sign that OBWC didn’t rule out coverage. We suggest that if an employee does become ill from the coronavirus, and can show that the employee’s job poses a special hazard or risk and there was an on-the-job exposure, the employee should consider filing a claim. The worst that can happen is that the workers compensation agency says no.
OBWC also addresses several other issues on the FAQ’s page. These include the following:
OBWC makes it clear that workers compensation benefits will not be paid if someone is quarantined due to COVID-19. If you are not actually sick, there will be no benefits such as temporary total compensation. However, unemployment compensation benefits might be available. See the discussion of the Emergency Unemployment Insurance Stabilization and Access Act of 2020, above.
Some benefits, such as temporary total compensation, are being extended to April 30, 2020, even if the claimant cannot obtain the medical documentation that would otherwise be required for an extension.
OBWC is temporarily suspending all independent medical examinations (IME’s). If permitted by the law, OBWC will be using physician file reviews to a greater extent. OBWC is also exploring alternative means of obtaining IME’s, including “virtual” exams.
Although questions still remain, states are obviously working to answer many of the issues raised by COVID-19.
RESTRICTIONS ON TRAVEL
Some employers have indicated that they are going to prohibit employees from traveling or quarantine an employee after they get back from traveling (even if the employee is not exhibiting any symptoms). If there is nothing in your contract that addresses this, then it would be considered a change in the terms and conditions of employment and must be bargained with the union.
BARGAINING WITH THE EMPLOYER
As you can see, it is apparent that there are a number of issues that may not be adequately answered by an existing contract or the law. This memorandum probably only addresses a few of those issues; others are certain to arise.
As a union, you need to inform the employer that you are always willing to work with it to accomplish what is best for the company and your members. Still, you need to make it known to your employer that just because there is a crisis, that does not give the employer free rein to unilaterally make changes, ignore the contract, disregard the law, or take any other action it deems desirable despite the adverse effect on the employees. Your union still represents your members, and any changes to their terms and conditions of employment should be bargained, not just imposed by the employer.
Some employers may argue that because of exigent circumstances it can take unilateral action without negotiating with the union. Make it clear that despite all of the uncertainties with the coronavirus, there is always time to sit down with your union, discuss the issues, and reach an agreement on how best to resolve those issues.
These are challenging times, but they are also times that show the importance of being united and having the protection, assistance and guidance of your union. Please do not hesitate to contact us if you have any other questions.