Employment law is changing at a dizzying pace as the government reacts to the evolving crisis from COVID-19. If you are an employer and struggling to make sense of your legal obligations to employees, you are not alone.
There are dependable resources that may help answer your questions. As infection rates continue to fluctuate, it is worth periodically revisiting these resources and reevaluating your response and policies.
Currently, the best resources to understand how to safely operate and protect the health and safety of your employees is provided at the local or state level. Businesses that comply with federal recommendations issued by the CDC are likely not satisfying the specific legal obligations required by state and local regulators. In Washington, for example, health and safety requirements are found in Governor Jay Inslee’s industry-specific guidance, available at: https://www.governor.wa.gov/issues/issues/covid-19-resources/covid-19-reopening-guidance-businesses-and-workers.
Another important resource is your state department of labor and industries. In Washington, the Department of Labor and Industries has compiled COVID-19 resources on a single webpage. This page provides answers to common questions on paid sick leave, answers to questions regarding workers’ compensation coverage and coronavirus, and industry-specific resources from the Division of Occupational Safety & Health (DOSH). This page is available at: https://lni.wa.gov/agency/outreach/novel-coronavirus-outbreak-covid-19-resources.
The U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) has also prepared and compiled detailed guidance for specific employers, which is available at: https://www.osha.gov/SLTC/covid-19/controlprevention.html. However, as noted above, this federal guidance may not address the specific requirements associated with your state’s stay-home orders.
Medical Privacy and the ADA
The U.S. Equal Opportunity Commission (EEOC) has issued a helpful guide to employers titled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This guide is updated regularly and answers important questions, including:
– “When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?”
– “An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests?”
– “The CDC identifies a number of medical conditions that might place individuals at ‘higher risk for severe illness’ if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?”
The full guide is available at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
It is highly recommended that all employers read this guide and revisit it in the months to come, as the information is updated regularly.
In Washington state, leave laws have undergone a massive change in a short time. State sick leave was implemented in 2018, and state paid family medical leave (PFML) was implemented in January 2020. In April, the federal government also implemented two new paid leave programs under legislation called the Families First Coronavirus Response Act (FFCRA).
When an employee requests leave, you need to analyze all potential leave programs, which may include paid time off, state sick leave, federal emergency paid sick leave, expanded family and medical leave (FMLA), regular FMLA, leave under the ADA as a reasonable accommodation, domestic violence leave and, for Washington employers, state paid family and medical leave (PFML). Each of these legal entitlements have specific and unique qualifiers and employer obligations.
Protected leave laws vary on the amount of leave available, whether the leave is paid and whether the employee is entitled to job restoration upon return from leave. Given this variation, employers need to determine which leave program an employee is using. A helpful resource to Washington employers regarding the state leave programs is available at: https://lni.wa.gov/workers-rights/leave/paid-sick-leave/.
In addition, the U.S. Department of Labor issued a helpful Q&A on FFCRA (which includes federal emergency paid sick leave and expanded FMLA). This online Q&A is available at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
The issue of leave also overlaps with unemployment. The federal CARES Act implemented a $600 federal unemployment benefit. This benefit was set to expire on or before July 31, assuming it was not extended. In addition to the CARES Act, many state governments have also expanded unemployment coverage. Before you refute unemployment, review any recent changes to your state’s unemployment insurance. Washington state employers can find helpful information at: https://esd.wa.gov/newsroom/covid-19-employer-information.
Although employees may be at-will (meaning they can be terminated for any reason), it is against the law for an employer to retaliate against an employee for exercising a protected right. An illegal act of retaliation is not limited to termination; it also includes suspensions, demotions, reducing hours, altering work schedules, or a similar adverse employment action. Under state and federal law, employees are legally protected from retaliation for wage and hour complaints under the Minimum Wage Act, safety complaints, use of protected leave, injured worker claims and unlawful employment discrimination.
There is a lot of information to consider and it is changing at a rapid pace. If you can, dedicate an employee to stay up to date on these changes and the resources provided above, or reach out to a consultant or employment lawyer for answers to difficult questions.
Stephanie Boehl practices law in Wenatchee, WA at Jeffers, Danielson, Sonn & Aylward. Her practice primarily involves employment law and business transactions. She was also an adjunct professor at Seattle University School of Law, where she taught Cannabis Law and Policy. She can be reached at firstname.lastname@example.org