Protecting Workers and Employers Amidst the Coronavirus

By Lauren White, RCS Reporter.

Workers rights, fair labor standards, and new guidelines from the U.S. Department of Labor.

People are quarantined, schools are closing, and businesses have asked employees to work remotely.  Many employees and employers may be wondering what their rights are and what laws are in place to protect them from the effects of a pandemic.  As the coronavirus continues to affect people and businesses, OSHA, the Department of Labor, Office of Workers’ Compensation Programs, and others, are enacting and/or changing policies to protect laborers. 

While there are no specific OSHA standards that cover COVID-19, there are some requirements that may help prevent occupational exposure to the coronavirus.  The first is PPE (personal protective equipment) standards, which require workers to use gloves and eye, face, and respiratory protection.  The General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970, requires employers to provide each worker with, “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.”  In the same act, Section 11(c) “prohibits employers from retaliating against workers for raising concerns about safety and health conditions.”  

Information was released by the Division of Federal Employees’ Compensation regarding employee coverage from FECA (Federal Employees’ Compensation Act).  Under the Claims for Compensation Under the Federal Employees’ Compensation Act, “...exposure to COVID-19 alone does not constitute a work-related injury entitling an employee to medical treatment under the FECA.  The employee must actually be diagnosed with COVID-19 to potentially be afforded coverage.” In order to establish coverage, a medical report from a qualified physician, showing a positive test result for COVID-19 must be submitted.

The U.S Department of Labor announced that starting on March 12, 2020, there are new guidelines “outlining flexibilities that states have in administering their unemployment insurance (UI) programs to assist Americans affected by the COVID-19 outbreak.”  The federal law will permit flexibility for states to make amendments to their laws in order to provide UI benefits in certain COVID-19-related scenarios. “Federal law does not require an employee to quit in order to receive benefits due to the impact of COVID-19,” according to the Department of Labor.  

Federal law is allowing states to pay benefits if: an employer ceases operations due to COVID-19 and prevents employees from coming to work, an individual is quarantined and is expecting to return to work once the quarantine ends, and if an individual stops coming to work to reduce risk of exposure or infection, or to take care of someone in his or her family.

Due to illness, quarantine, fear of getting sick, or taking care of a family member, many businesses are experiencing a shortage of workers.  If your business is affected by this and is looking for “volunteers” to help out, the Department of Labor wants to make sure you’re cognizant of the Fair Labor Standards Act (FLSA) requirements regarding the use of volunteers.  “In general, covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.”  

Other policies regarding pay apply to hourly-paid employees and quarantined individuals.  If an hourly-paid employee works a partial week due to the business closing, employers are not required to pay nonexempt employees for hours the employee would have worked, since the FLSA applies only to hours worked.  If an employee is under government-imposed quarantine, the Wage and Hour Division (WHD) is asking employers to be accommodating and flexible with them. According to the Department of Labor, “Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.”

If a business closes and requires its employees to work from home, whether workers are able to perform their job at home or not, employers must still pay their workers for the hours they worked.  “If you do not have a union contract or other employment contracts, under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office,” according to the Department of Labor.  Employers are encouraged to accommodate their employees who are unable to work from home. Staggered work shifts are a good alternative to allow them to continue working while also practicing social distancing.

Nonexempt workers must be paid at least minimum wage for their hours worked under the FLSA.  Exempt employees who are salaried “...generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions,” the Department of Labor clarifies.

As businesses are limiting hours or closing their doors, employers are encouraging or requiring their employees to work from a different location, besides the office, as an infection control or prevention strategy.  According to the Department of Labor, “Employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the Equal Employment Opportunity laws.”

Currently, there are no OSHA regulations for teleworking in home offices.  As of February 2000, the agency issued a directive saying they won’t “conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees,” according to the Department of Labor.  Employers still must maintain accurate records of hours worked for all employees, including those working from home or utilizing other flexible work arrangements. 

Employees working from home may incur additional costs, such as purchasing a computer, internet access, an additional phone line, increased use of electricity, etc.  Employers cannot require their employees, who are covered by the FLSA to pay for or reimburse their employers for such business expenses if doing so would reduce an employee’s wages below minimum wage or overtime compensation.

As employers and employees, it’s important to know your rights and how this pandemic may or may not affect your job, hours worked, and income.  

Read our other blog about work from home policies and the resources available to companies.