Coronavirus and the Workplace — Compliance Issues for Employers
As the number of reported cases of the novel coronavirus (COVID-19) continues to rise, employers are increasingly confronted with the possibility of an outbreak in the workplace.
Employers are obligated to maintain a safe and healthy work environment for their employees, but are also subject to a number of legal requirements protecting workers. For example, employers must comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) in their approach to dealing with COVID-19.
There are a number of steps that employers can take to address the impact of COVID-19 in the workplace. In addition to reviewing the compliance concerns outlined herein, employers should:
- Closely monitor the Centers for Disease Control and Prevention (CDC), World Health Organization (WHO) and state and local public health department websites for information on the status of the coronavirus;
- Proactively educate their employees on what is known about the virus, including its transmission and prevention;
- Establish a written communicable illness policy and response plan that covers communicable diseases readily transmitted in the workplace; and
- Consider measures that can help prevent the spread of illness, such as allowing employees flexible work options like working from home.
Additionally, most of the major insurance carriers are providing free COVID-19 testing and additional resources. Please check your particular carrier’s website for additional information.
U.S. Supreme Court Will Hear Challenge to the ACA
On March 2, 2020, the United States Supreme Court agreed to hear a legal challenge to the Affordable Care Act (ACA). The case involved is Texas v. Azar, a lawsuit challenging the constitutionality of the ACA’s individual mandate.
Texas v. Azar was filed in 2018 by 18 states after the individual mandate penalty was eliminated. In December 2019, a federal appeals court ruled in the case that the individual mandate is unconstitutional and directed the lower court to determine whether the rest of the ACA can remain in place.
The Supreme Court had previously denied a request from the U.S. House of Representatives and several Democratic-controlled states to review the case on an expedited basis. The Supreme Court has now agreed to hear the case on its regular schedule, based on the argument that the lower court rulings create uncertainty about the ACA’s future. It's expected that the Court will hear arguments in the fall, and a decision will be issued in the spring or summer of 2021.
This is the third time the Supreme Court has reviewed the ACA’s constitutionality. In 2012, the Supreme Court upheld the ACA on the basis that the individual mandate is a valid tax. In 2015, the Supreme Court upheld the constitutionality of the ACA’s health insurance Exchange subsidies.
While this legal challenge is pending, all existing ACA provisions will continue to be applicable and enforced. This challenge doesn't impact Exchange enrollment, the ACA’s employer shared responsibility (pay or play) penalties and related reporting requirements, or any other applicable ACA requirement.
NLRB Issues New Joint Employer Final Rule
On Feb. 25, 2020, the National Labor Relations Board (NLRB) announced a new joint employer final rule, which becomes effective Apr. 27, 2020 and applies to labor issues related to the National Labor Relations Act.
The NLRB is changing the standard it uses to determine whether employers are considered joint employers. Specifically, the NLRB is abandoning its decision in Browning-Ferris Industries of California, Inc. to return to the previous standard of “substantial direct and immediate control” over essential terms and conditions of employment of another employer’s employees.
The NLRB’s new standard follows the U.S. Department of Labor’s (DOL) new FLSA joint employment determination test. Both tests focus on the amount of control an employer exerts over the employment relationship.
Joint employment situations can happen when two or more employers share personnel hiring, supervision and management practices. Whether joint employment is by design or unintentional, joint employers are equally:
- Required to bargain with the union that represents jointly employed workers;
- Liable for unfair labor practices committed by other joint employers; and
- Subject to union picketing or other economic pressure if there is a labor dispute.
Employers should review the final rule and determine whether they're in joint employment relationships based on the updated standard. Employers in these relationships should also determine whether the other joint employers in the relationship are in compliance with labor and employment laws.
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