The following information was supplied the Ohio Manufacturing Extension Partnership (Magnet) part of the same MEP National Network that WMEP Manufacturing Solutions belongs to.


We consulted the experts in labor law for a look at “Labor and Employment Laws in a COVID-19 World.” This information comes directly from Kastner, Westman & Wilkins, LLC. For more information feel free to email Tom Green at [email protected] .

Below are some answers to frequently asked questions (FAQs) regarding the employment challenges manufacturers are facing.  What follows is not legal advice, but instead general guidance relating to the current pandemic.  Always consult legal counsel with questions about specific employment decisions impacting your workplace.

 

Labor & Employment Laws in a COVID-19 World

Note that the national law that changes unemployment law has is in flux and is not addressed here.

Below are some answers to frequently asked questions (FAQs) regarding the employment challenges manufacturers are facing.  What follows is not legal advice, but instead general guidance relating to the current pandemic.  Always consult legal counsel with questions about specific employment decisions impacting your workplace.

  • What can or can’t I ask my employees about their health because of HIPAA?
    • Most employers, and likely all manufacturers, are not “covered entities” under HIPAA and are therefore not obligated to abide by its privacy rules. Although HIPAA likely doesn’t apply, normally other laws – like the Americans With Disabilities Act (ADA) – would limit an employer’s ability to lawfully question their employees about medical issues. We are not in normal times, though. Consistent with guidance from the CDC, EEOC, and Governor Mike DeWine, employers are permitted to question their employees about their exposure to COVID-19. You can question an employee on whether he or she is currently experiencing, or has experienced in the past 14 days, any of the symptoms associated with COVID-19 (cough, fever, shortness of breath). Yesterday, Governor DeWine encouraged employers to take the temperature of each employee before they began their shift. This request from the Governor is not mandatory.

 

  • When can or can’t I put someone on unemployment insurance? What if they need to take care of kids? What if they are quarantined? What if I just want them to go home because they are worried?
    • It’s important to recognize the difference between granting employees leave (whether paid or unpaid) and termination or furlough. According to your policies and applicable law, employees may be eligible for paid or unpaid leave due to lack of child care, illness, or care for a family member. Congress recently passed and the President signed a federal law that requires some employers to provide certain amounts of paid and unpaid leave to employees for all of the reasons above.  The alternative to granting extended unpaid leave is to terminate or furlough the employee, which would allow them to apply for unemployment benefits.  If an employee has worked long enough and earned enough wages throughout the past year, he or she will be eligible for unemployment benefits if they are laid off due to COVID-19. An employee may even be eligible for benefits if his or her hours are drastically cut, but that determination will depend on the amount of wages the employee earned in the preceding year and the amount of wages an employee is earning while partially unemployed.

 

  • Is there a best practice with regard to a manufacturer who has seen an infection? What does the law say and what is best practice once we have sent someone home? Do we have any risk because the infected person was in the shop and touched surfaces? What might we actually have to shut our facility down legally and from best practice?
    • Both best practice and the applicable law would likely require a manufacturer to immediately identify who the sick employee was in close contact with during the preceding 14 days. Current OSHA guidance for COVID-19 includes the following recommendations:
      • Immediately isolate people suspected of having COVID-19. For example, move potentially infectious people to a location away from workers, customers, and other visitors
      • Take steps to limit spread of the person’s infectious respiratory secretions, including by providing them a face mask and asking them to wear it, if they can tolerate doing so
    • Manufacturers should not permit the infected employee to return to work until the employee is free of COVID-19 symptoms for 24 hours without the use of symptom-altering medication. The company can require the employee to provide a doctor’s note before returning to work, but the strain on the healthcare system posed by COVID-19 may hinder an employee’s ability to obtain the note in a timely manner.
    • Handling coworkers that came in close contact with the sick employee should be done on a case-by-case basis.  If the coworker had prolonged close contact with the sick employee, error on the side of caution and send the employee home. If contact was minimal, and the employee is not exhibiting any symptoms, advise the employee to closely monitor his or her condition and allow the employee to stay at work.
    • OSHA also advises that employers should consider decontaminating the work areas that was occupied by the sick employee. Better to play it safe than sorry in this situation, especially as it relates to any quarantine or decontamination issue.  Consider hiring a qualified third party to implement decontamination issues.
    • There is no current legal requirement for any manufacturer to shut down.  Even if an employee tests positive at your facility, there is no mandate to quarantine the entire facility or send all employees home.

 

  • Can an employer send an employee home if the employee displays symptoms associated with COVID-19?
    • Yes. According to the Centers for Disease Control and Protection (CDC), employees who experience symptoms associated with COVID-19 such as cough and shortness of breath should leave work and stay home until they are symptom free for 24-hours without use of symptom-altering medicines.
    • With this and several other questions, employers should err on the side of employee health and safety.  Employers can reverse the effects of a hastily-made decision to send an employee home, but it cannot reverse the effects of a delayed decision that causes an employee to become ill.

 

  • Can an employer send an employee home if the employee has travelled to a location with reported cases of COVID-19, but is not showing signs of the disease?
    • Perhaps, depending on the severity of the outbreak and the employee’s potential exposure.  The CDC currently recommends that travelers returning from China, Iran, South Korea, the United Kingdom, Ireland, and most countries in Europe stay home from work for 14 days until it is clear they do not have symptoms of the disease.  Employers can question employees about their travel to these areas even if the travel was for personal reasons.
    • If the employee’s travel was not to one of the designated high-risk zones, and the employee reports he or she did not have close contact with an individual suffering from COVID-19, then the employee should be permitted to return to work.

 

  • Can an employer take employees’ temperatures to screen them before they come to work?
    • Perhaps, but companies need to be cautious. Under the Americans With Disabilities Act, employers are typically prohibited from performing medical examinations on their employees. However, the EEOC has previously provided guidance that suggests if COVID-19 becomes widespread in the employee’s community, employers may take employees’ temperatures because the disease poses a direct threat to other employees. Companies should recognize that many medical conditions cause fevers, and it is not the only symptom associated with COVID-19.

 

  • What should an employer do if an employee tests positive for COVID-19?
    • Ensure that the infected employee stays home from work and does not return until cleared by a medical professional.
    • Do not disclose the infected employee’s name to coworkers and keep any medical information about the employee confidential.
    • Protect workers in close contact with the sick employee by using safe work practices and PPE.

 

  • Can employees refuse to come to work due to their fear of becoming infected with COVID-19?
    • Probably not.  Under OHSA regulations, an employee may only refuse a work assignment that involves “risk of death or serious physical harm” under certain circumstances.  Recent OSHA guidance regarding COVID-19 states that most employers, including manufacturers, are at a low risk for exposure to the virus. Based on current information, it seems unlikely that an employee could lawfully refuse a work assignment based on the risk of exposure to COVID-19.
    • That said, employers are of course able to relax their attendance policies to address employees with a concern about COVID-19.  Balancing employee concerns and the need to operate the business is the most difficult part of the pandemic, and is different in each business, and may even be different among positions in the same business.

 

  • Can an employer be held liable if an employee becomes ill while at work?
    • Possibly.  Employers are required to comply with the OSHA “general duty clause”, which mandates employers maintain “a workplace that is free from recognized hazards.” As with other contagious diseases, employers may be liable if the employer allows or directs a known infected employee to come to work and then exposes other employees to the risk of infection.

 

  • Can an employer require employees to use accrued paid time off or vacation time for absences related to COVID-19?
    • Yes, so long as it does not conflict with the company’s current vacation time, PTO, sick leave, and other applicable policies or state/local laws. Congress recently enacted the Families First Coronavirus Response Act that includes mandatory paid leave and expanded FMLA leave for some employees. Please visit http://www.kwwlaborlaw.com/congress-passes-new-coronavirus-law for more information about the new law.

 

  • Can an employer advance paid time off or vacation time to employees to cover absences related to COVID-19?
    • Yes, and if so, businesses should consider drafting or amending existing policies that require employees to repay advanced time off from newly earned paid leave.

 

  • May an employer dock an employee’s pay for time spent away from work due to COVID-19 if he or she has exhausted all vacation time/sick leave/PTO?
    • It depends on the employee’s classification. Employers may deduct pay for non-exempt employees without question, but deductions for exempt employees is appropriate only in certain circumstances depending on who initiated the absence.

 

  • What should an employer do if it is forced to temporarily lay off employees or significantly reduce their hours?
    • Advise employees to consider filing for unemployment benefits, even if they are only partially unemployed.

     

If you have more questions, please contact the author of this advice, Tom Green, at [email protected]