In the face of the COVID-19 pandemic, employers are faced with figuring out how to protect their businesses while minimizing the harm to their employees. The challenges employers are facing include making sure they are complying with applicable health and safety regulations, navigating laws regarding disability discrimination and family medical leave, and ensuring employee privacy is maintained, all while minimizing the negative effect on employee morale.
The Occupational Health and Safety Act (OSHA)
The Occupational Health and Safety Act (OSHA) requires employers to provide a safe workplace for their employees. Employers who do not provide a safe workplace for workers in violation of OSHA are subject to civil penalties, and in some cases, criminal penalties. OSHA provides workplace safety guidelines and the Centers for Disease Control and Prevention (CDC) is providing rapidly changing guidance as to safety precautions for this current pandemic. It would be prudent for employers, at a minimum, to follow these guidelines.
But even employers that follow the OSHA and CDC guidelines may still have employees who contract COVID-19 at work. What then? If the employer carries it, the injury might be covered by workers’ compensation insurance, but not necessarily. Coverage will depend on the terms of the policy and the specific circumstances.
Beyond the OSHA and CDC Guidelines for COVID-19
Beyond the OSHA and CDC guidelines, employers may want to take additional steps to minimize the threat of spreading COVID-19 in the workplace and its potentially devastating effect on the employees and the business. But employers should be mindful that some steps, while taken with the best intentions, could cross the line into territory that is protected by the Americans with Disabilities Act and could invade an employee’s privacy.
Time Off for COVID-19 Illness or Care
Employers may also be faced with how to deal with time off for employees who are sick or who are caring for someone who is sick with COVID-19 or who has been quarantined. Currently in Texas, not all employers are required to give paid or unpaid time off to such employees. But employers should consider whether failing to give time off will disincentivize employees from staying home when they are sick and negatively affect employee morale.
Some employers may consider making temporary or permanent staffing cuts or pay cuts. Before making any such cuts, employers should understand how the layoffs may affect the employer’s unemployment tax rate and that cuts in pay for certain employees could open the employer up to claims under wage and hour laws. While these kinds of cuts may be necessary and, in some cases, may be the best way to minimize the negative impact on employees, employers should first consider seeking legal advice on how to make these cuts, legally.