Page 42 - IEC Insights May-Jun20

FEATURE

protocols for employees to remain safe
during a potential outbreak. Additionally,
COVID-19 may be considered a recordable
illness pursuant to 29 C.F.R. 1904 – Subpart
C. For example, an outbreak of an infectious
disease or similar illness occurring at
a medical facility may be considered a
recordable illness, under the Code of prior to making any unilateral changes to MASS LAYOFFS
Federal Regulations, if such an outbreak is their employment status or benefits. We
an illness resulting from events or exposures strongly advise that all union-employers
occurring in the work environment. Please familiarize themselves with their respective If your business is covered by the Worker
note, however, that the Bloodborne collective bargaining agreements prior to Adjustment and Retraining Notification
Pathogens standard found in 29 C.F.R. making any such changes. (WARN) Act, you are generally required to
1910.1030, which requires employers take provide affected employees at least 60-
certain measures during the outbreak of If your business is a covered employer days’ notice before a mass layoff or plant
a bloodborne pathogen, does not apply under the Family and Medical Leave Act closure as defined by the Act. However,
in the response to COVID-19. Please visit (FMLA), an employee who contracts the normal 60-days’ notice likely does not
OSHA’s website (https://www.osha.gov/ COVID-19 or needs to care for a spouse, apply if the mass layoff or closure is due
SLTC/covid- 19/standards.html), which has child, or parent who has contracted the to the effects of COVID-19, as this would
an employer’s guide to COVID-19, for more virus, may be eligible for up to 12 weeks likely fall under the “unforeseeable business
general guidelines and tips for maintaining of job-protected, unpaid leave and a circumstances” exception to the WARN Act.
a safe workforce during this outbreak. continuation of his or her health insurance However, even where the unforeseeable
benefits during the time that he or she business circumstances exception applies,
is unable to work because of the virus. a covered business is required to give its
Depending on the terms of your leave employees as much notice as is reasonably
EMPLOYEE PAY policy, the employee may choose to use practicable. Employers should also be
AND BENEFITS accrued paid leave during his or her FMLA mindful of potential state laws similar to
leave, or you may require the employee
the Federal WARN Act, and ensure that any
to do so. According to the DOL, the mass layoff or closure complies with any
FMLA does not apply to leave taken by
In the coming weeks, as more employees an employee merely for the purpose of such analogous state law.
either choose to work from home or are avoiding exposure to COVID-19 or to care
required to do so, employers will face for a healthy dependent whose school or The information contained in this article is
challenges regarding employee pay and daycare is closed because of COVID-19. for general educational purposes only. This
conditions of employment. Generally There is currently no federal law addressing information does not constitute legal advice,
speaking, unless otherwise stated in an private-sector employees who take off is not intended to constitute legal advice, nor
employee’s contract, employers are not from work to care for healthy dependents. should it be relied upon as legal advice for
required to provide paid leave or paid your specific factual pattern or situation.
time off to employees who are unable However, in response to COVID-19, the
to work due to an outbreak of COVID-19. United States House of Representatives Kate Strauss, Danielle Maya, and January
Additionally, employers may require recently passed a bill that, if enacted, Allen are partners in the Denver office of
employees forced to take time off during would expand the scope of FMLA Cotney Construction Law. Together they
an outbreak to use any accrued paid time job-protected leave and would require counsel and represent clients in all aspects
off (sick and/or vacation days) during employers to provide paid leave in of their construction businesses. Benjamin
such an outbreak. However, employees certain circumstances. It is important for Briggs is a partner at Cotney Construction
must be properly compensated for any employers to monitor this bill (H.R. 6201) Law who specializes in all aspects of
work they perform remotely or off- site. and respond accordingly if it passes. labor and employment law. He counsels
Minimum wage and overtime laws remain Further, employers should also be mindful and represents Cotney clients on issues
effective during a pandemic. that some states have previously enacted including discrimination, wage and hour, and
their own state family medical leave law, retaliation. With 14 offices across the United
If you employ union workers and are and employers must comply with those States, Cotney Construction Law fights
requiring such employees stay home from analogous state laws where applicable. for construction and design professionals
work, to the extent possible, you must nationwide. For more information,
bargain in good faith with such employees please go to www.cotneycl.com.

40 Insights Magazine | May/June 2020 | www.ieci.org