By Linda Edwards

Law360 (July 10, 2020, 3:53 PM EDT )

Linda Edwards

Here in the U.S., we are no strangers to natural disasters that affect the workplace. Whether wildfires, hurricanes, tropical storms, floods, earthquakes or volcanoes, every region of the country has had its share.

National and state offices of emergency management have protocols that trigger certain actions when the disaster rises to a certain level of seriousness. But, what about your business? Are there protocols in place that trigger certain actions at certain times?

Business owners learned quite a bit from the COVID-19 pandemic and how to adapt when unforeseen circumstances interrupted their day-to-day operations. The lessons learned amid the pandemic will help them to prepare for what disruptions this hurricane season may bring.

Response to COVID-19

The governmental response to COVID-19 was a game changer in many ways because the onset eventually created a nationwide public health event like none seen in decades. Suddenly, businesses were designated as essential and/or nonessential and nonessential workers were sent home. While natural disasters have caused similar regional slowdowns, this time, even businesses that remained open were given government-mandated direction to run safely. 

The employer response to COVID-19 shutdown-related absences started with questions like, "Do I have to pay employees if the government requires me to shut down my business?" The U.S. Department of Labor provided clear direction that employers only must pay employees for hours worked.

Employers have the right to choose when and how they will pay employees. For example, employees may choose to leave the workplace upon a public announcement that an impending disaster has been declared and before the employer has decided what direction will be taken.

In case of voluntary departure, the employer may allow employees to take paid time off or leave without pay. Whatever the decision, the employer is under no obligation to pay employees when they are not working.

Employers may decide to pay employees who remain at the workplace until the employer makes the decision to close. In such an instance, the employer may choose to pay employees administrative leave or other leave pay. 

After employees left the workplace in response to shutdown orders, many employers allowed employees to use accrued PTO. Eventually the government stimulus checks arrived, and then the Families First Coronavirus Response Act, which took into consideration that millions of employees were not being paid.

The benefits of the FFCRA provided a cushion for employees as the economy began to reopen. The FFCRA was coupled with tax credits that allowed employers to pay employees when they did not work under a certain set of circumstances created by challenges associated with COVID-19, such as school and child care center closures.

This leave will not be available absent congressional extension beyond Dec. 31, although some revisions are already being considered, such as including summer camp in the definition of child care. Nothing in the FFCRA required employers to change their pay or leave policies.

In fact, one component of the emergency paid sick Leave prohibits employers from forcing employees to use employer-provided leave before receiving the emergency paid sick leave. Title 29 of the Code of Federal Regulations, Section 826.160(b)(2) states:

No Employer may require, coerce, or unduly influence any Employee to first use any other paid leave to which the Employee is entitled before the Employee uses Paid Sick Leave. Nor may an Employer require, coerce, or unduly influence an Employee to use any source or type of unpaid leave prior to taking Paid Sick Leave.

Employers Navigating the New Normal

During the COVID-19 shutdown, to operate in some limited fashion, employers began trying out remote working or teleworking. This decision brought about other employment decisions.

How do I keep track of hours worked if employees are working at home? What if an employee gets hurt while teleworking? These questions were also not new.

Employers must pay employees for hours worked and employees are expected to accurately record their time. Employees engaged in teleworking are not entitled to workers' compensation if they are hurt while working in their homes. Employers should draft or revise teleworking policies to ensure consistent application.

Another challenge for employers came with reopening workplaces and bringing employees back to work. The Occupational Safety and Health Administration published return-to-work guidelines as did the U.S. Equal Employment Opportunity Commission, the White House task force, state task forces, industry-specific task forces, and the Centers for Disease Control and Prevention.

Employee questions, as usual, did not fall into the precise slot provided by the reopening guidelines. However, nothing in any of the guidelines affected employers' authority to require employees to return to work.

But the requirement comes with considerations. For example, if the employee seeks an accommodation for a disability, the Americans with Disabilities Act requires the employer to engage in an individualized interactive process to determine a reasonable accommodation.

The employer should also follow industry and CDC guidelines to make the workplace as safe as possible. A fear of returning to work without a reason will probably not be given much consideration by the employer.

Employees should keep in mind that their preferred accommodation may not be a reasonable accommodation. The reasonable accommodation may be working in a separate room without others present. The EEOC guidelines have encouraged employees to be flexible regarding employees over age 65 and those in other vulnerable populations, but such flexibility cannot include a violation of the Age Discrimination in Employment Act.

According to the OSHA's guidance on preparing workplaces for COVID-19, employers should develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19. The OSHA guidelines also provide that

employers are obligated to provide their workers with [personal protective equipment] needed to keep them safe while performing their jobs. The types of PPE required during a COVID-19 outbreak will be based on the risk of being infected with SARS-CoV-2 while working and job tasks that may lead to exposure.

Having a return-to-work plan will help ease employee anxiety.

COVID-19 Lessons for Hurricane Season

As we are firmly in hurricane season, and may face shuttered workplaces again, employers should remember lessons learned during COVID-19. While nobody wants to go through shutdowns anymore, taking a quick flashback may yield helpful advice.

For example, employers should:

• Anticipate that there may be work stoppages. As such, don't forget that there is no obligation to pay employees when they do not work.
  
  
• Plan now for which functions can be performed remotely, because remote working is a possibility. The availability of remote working allows employers to consider whether additional functions can be performed away from the work site and also allows employers to have flexibility about deciding when to close the workplace and when to reopen with the least amount of disruption.
  
  
• Decide whether to amend current leave policies to allow for flexibility for employees to combine remote working and paid time off, although there were emergency laws passed during the COVID-19 crisis that created additional leave time for employees because of school and child care center closures.

Employers should keep a close eye on evolving workplace guidelines and keep in mind that consistent application of current laws and policies will help prevent liability in the future.

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Linda Bond Edwards is a partner at Rumberger Kirk & Caldwell PA.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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