KMK Law Management Rights Blog

The spread of COVID-19 as well as the responses of federal, state and local governments continues to create unprecedented challenges for employers. The following is a non-comprehensive list of some of the most frequent questions we are fielding from employers.

What should we do to ensure employee safety and avoid spreading the disease?

Certain employers, e.g. bars, restaurants and gyms in Ohio, have been required to temporarily close.  For those that have the option of remaining open, guidance for workplace safety is available from several sources. For example, the CDC’s Interim Guidance for Businesses and Employers includes several recommendations that have been endorsed by the EEOC. More recently, OSHA has issued its Guidance on Preparing Workplaces for COVID-19, outlining steps employers can take to help protect their workplaces. The OSHA guidance divides workplaces into four risk zones, according to the likelihood of employees’ occupational exposure during a pandemic. The majority of U.S. workplaces likely fall within the “Lower Exposure Risk” classification. Finally, the EEOC has issued its own guidelines for Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which apply since both the WHO and CDC have declared COVID-19 a pandemic. However, employers should continue to exercise caution with respect to employee testing and should consult with employment counsel before acting.

Employers should review the above guidance with an eye toward determining what steps are feasible and effective for their workplaces.

If we shut down or send employees home because of the coronavirus threat, are they eligible for unemployment benefits?

Most states are taking steps to ease unemployment benefit requirements and allow workers displaced by COVID-19 to obtain benefits. We have previously posted about the modifications to Ohio’s unemployment benefits for employees impacted by the coronavirus. Detailed information for Ohio employers is located here, including forms to distribute to displaced employees. 

In addition, Kentucky has waived the waiting period for unemployment benefits and Indiana has specifically identified temporary layoffs due to COVID-19 as a basis for receiving benefits.

Can employees refuse to come to work?

Employees are only entitled to refuse to work if they believe they are in imminent danger. OSHA defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”  It seems unlikely that this standard is going to be met in most typical workplace scenarios but such an analysis should be conducted on a case by case basis. 

There is also the practical consideration of what action an employer might take in response to employee refusals to come to work. Finally, it is worth remembering that the NLRA protects employees (union and non-union) who engage in “protected concerted activity for mutual aid or protection.” This could touch on employee refusals to work or to perform certain tasks. It also covers employee complaints about working conditions and/or their employers’ responses to COVID-19, including complaints shared on social media. 

Do we have to pay employees who are not working?

On March 18, 2020, the federal government passed the Families First Coronavirus Response Act (“FFCRA”) in response to the challenges posed by the current COVID-19 outbreak. The legislation covers several areas, but critical for employers are two new sick leave benefits set to take effect no later than April 2, 2020.  Detailed information on the new law is available here.

Do we have to allow employees time off to care for children because schools and daycares are closed?

Federal law does not require employers to provide leave to employees to care for healthy children due to school or daycare closures. Some states, e.g, New York and California, do have laws that would require leave in such circumstances. Also, as noted above, the Families First Coronavirus Response Act, if passed, may require certain employers to provide such leave. For now, it is advisable for employers to try to work out solutions for employees who are impacted by school and daycare closures.

A related issue that has come up a few times is whether employers can provide temporary babysitting at work for employees. This is not advisable for a few reasons. It adds additional people to the workplace, increasing the risk of spreading the virus. Also, daycares have licensing requirements that may be violated by this kind of de facto arrangement and the employer could be exposed to liability for any injuries to children in its care. The better approach is to work with employees on their schedules or telework options.

Obviously there are many more questions that have come up in connection with employers’ responses to the coronavirus. Please feel free to contact any member of our Labor & Employment Group or the KMK Coronavirus (COVID-19) Response Team for further assistance.