All employers, no matter how small, are required under NC and federal law to provide a safe working environment for their employees. To meet this legal obligation, employers should create a plan to prevent the spread of COVID-19 and to avoid exposing employees and customers to the virus. In an effort to control the outbreak and to ensure that employers are meeting all legal requirements related to this pandemic, we are advising all employers – no matter the size of the employer – to take the steps below.
Prepare a Plan.
The specifics of each employer’s plan will vary depending on the business’ services, internal set-up, workforce, customer demand, etc. At a minimum, however, all employers should institute guidelines for their employees per the CDC on basic preventative guidance as follows:
- Wash your hands frequently with soap and water for at least 20 seconds and/or use an alcohol-based hand sanitizer.
- Avoid touching your eyes, nose, and mouth with unwashed hands.
- Cover your mouth and nose with a tissue or sleeve when coughing or sneezing. Discard tissue immediately into a closed bin.
- Avoid close contact with people who are sick.
- Stay home when you are sick.
- Clean and disinfect frequently touched objects and surfaces.
The CDC has also provided employers with additional guidance on preparing a COVID-19 response plan, which is available HERE. Some of these additional suggestions include:
- Performing routine environmental cleaning of your office – especially frequently touched surfaces.
- Advising employees who are planning to travel to review guidance from the CDC for travelers, which is available HERE, and the US Department of State HERE.
- Start planning now for an increased number of employee absences by cross-training employees and being flexible with non-critical operations.
Also consider the following options as part of your plan (as recommended by the NC Department of Health and Human Services):
- Use teleworking technologies to the greatest extent possible.
- Stagger work schedules.
- Consider canceling non-essential travel.
- Hold larger meetings virtually, to the extent possible.
- Arrange the workspace to optimize distance between employees, ideally at least six (6) feet apart.
- Urge high risk employees to stay home and urge employees to stay home when they are sick.
- Maximize flexibility in sick leave benefits.
Finally, depending on your business, you may want to consider some additional steps such as:
- Providing additional personal protective equipment to employees, such as face masks and gloves.
- Instituting a travel policy explaining that if employees travel to Level 2 (or greater) countries and/or travel outside of NC to other states with widespread COVID-19 activity (as determined by the CDC, the US Department of State, or local NC government authorities) there may be a self-quarantine requirement upon their return.
- Contact your insurance broker to discuss your coverage (i.e. workers’ compensation, general liability).
- Contact your IT support vendor to assist with setting up remote working and how to protect data on equipment.
For community, churches and faith leaders, the CDC has provided specific guidance for you HERE.
For medical and healthcare facilities, OSHA has provided specific guidance for you HERE.
For restaurants and bars, the NC Department of Health and Human Services has provided specific guidance for you HERE.
For public-facing businesses, generally, the NC Department of Health and Human Services has provided specific guidance for you HERE.
IMPORTANTLY, MAKE SURE TO CLEARLY COMMUNICATE YOUR PLAN TO ALL EMPLOYEES AND TRAIN MANAGERS AND SUPERVISORS ON HOW TO IMPLEMENT THE PLAN EFFECTIVELY AND IN COMPLIANCE WITH ALL APPLICABLE LAWS.
Implement Your Plan Within Legal Parameters.
Although we are in a pandemic situation, employers must still continue to comply with relevant federal and state employment laws, such as the Americans with Disabilities Act, the Fair Labor Standards Act and Title VII of the Civil Rights Act, together with complementary NC employment laws.
- EEOC Guidance on Asking Employees About their Health. The Equal Employment Opportunity Commission has provided guidance regarding (among other things) what employers can ask an employee regarding the employee’s health condition, such as inquiring if an employee is suffering from flu-like symptoms. This guidance also provides employers with a suggested employee survey to help with employer planning purposes, as well as answers to questions regarding whether an employer can require medical examinations from employees who are returning to work after being out of the office during a pandemic. Generally, if you are an NC employer with 15 or more total employees on payroll (including part-time and full-time), then you are required to comply with the laws that are the basis of this EEOC guidance.
- DOL Guidance on Wage Payments. The Department of Labor has provided guidance on wage payment requirements for situations where employers send employees home due to a pandemic, among other matters, such as requiring employees to perform tasks outside of their regular job description. In summary, for NC employers, how you are required to pay employees will depend upon whether the employee is exempt from minimum wage and overtime under federal and NC wage and hour laws. Generally, if an employer closes the business due to a pandemic, exempt employees must be paid their regular salary for the workweek if they have performed any services during the week; non-exempt employees (who must be paid minimum wage and overtime), however, must only be paid for the hours that they work. If you have questions about whether an employee is exempt or non-exempt, please contact us to discuss. Remember, paying an employee a salary does not mean that they are exempt from overtime. For some general information on exemptions, please see our previous blog article HERE, which provides a link to the DOL fact sheets on common exemptions. Generally all employers with at least one (1) employee in NC must comply with NC wage and hour laws, which in many situations track the federal Fair Labor Standards Act.
- DOL Guidance on Family and Medical Leave Due to Coronavirus. The Department of Labor has also provided guidance on when COVID-19 could be deemed a “serious health condition” under the Family and Medical Leave Act. Generally, if you are an employer with 50 or more employees (over a 20-week period), you are required to comply with the FMLA and to provide up to 12 weeks of unpaid leave to a qualified employee who is eligible under the Act. Please contact us with any questions. Pursuant to this Opinion Letter, the DOL advises that if a flu-like illness causes an employee to be incapacitated for three or more consecutive days and the employee is also receiving continued treatment by a by a health care provider, which can include a course of prescription medication, then the illness can rise to the level of a “serious health condition” that would trigger FMLA protections.
Continue to Monitor Guidance and Update your Plan.
Information and guidance on the prevention and spread of COVID-19 is changing rapidly. Thus, your COVID-19 Plan needs to be a fluid process that you adjust based on the most current information. Please continue to monitor the links provided above and any other guidance available to you.
If you have any questions about your Prevention Plan or what employment laws apply to your business, please do not hesitate to contact us.