By Douglas Stuart and Stephen Hofer, Aerlex Law Group
All of us have received numerous e-mails in recent days from companies and organizations describing the steps each is taking to try and prevent or slow the spread of the Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) and the disease it causes, Coronavirus Disease 2019 (COVID-19). By now, we all have a basic understanding of what the coronavirus is and are aware of the recommendations for limiting its spread.
But as companies with employees, we also have to figure out how to keep our businesses functioning while, at the same time, protecting the people who operate and manage them, our customers and patrons – and we have to do it while acting in a lawful manner. For that reason, Aerlex Law Group is offering guidance regarding the legal ramifications of COVID-19 and some information regarding the latest developments in this rapidly evolving area.
Coronavirus Emergency Bill Passed by House of Representatives
On Saturday, the U.S. House of Representatives passed the “Families First Corona Virus Response Act,” a legislative package negotiated by House Speaker Nancy Pelosi and Treasury Secretary Steven Minuchin which is intended to help soften the economic blow many Americans are expected to suffer as a result of the COVID-19 outbreak. The bill passed the House on a bipartisan 363-40 vote; all 40 votes against the legislative package were cast by Republicans, but President Trump tweeted his support of the resolution.
The emergency legislation covers a number of different areas, including free coronavirus testing and expanded funding for food security programs, state unemployment insurance programs and Medicaid, but the portion of the new law that this Aerlex report focuses on is called the Emergency Family and Medical Leave Expansion Act, which amends the Federal Family and Medical Leave Act of 1993 (FMLA).
Initial reports indicate that the new law will require companies with 500 or fewer employees to provide their employees with paid emergency leave, up to 12 weeks of paid family and medical leave, including 14 days of paid sick leave at full pay, with any additional weeks taken with no less than two-thirds of the employee’s usual pay up to $4,000.00 per month, to either quarantine or seek preventative care. These benefits are available if the employee has been diagnosed with COVID-19, or if they are caring for a family member who has it, or if they are caring for a child or another dependent due to a school or care facility closing. The benefits can be paid retroactively and will be available for those who had to leave work starting January 19th. Small businesses, which are defined as those having 50 employees or less, will receive subsidies, in the form of tax credits, to reimburse them for up to 100% of the wages they have to pay out to employees for medical and family leave. For businesses that already provide their employees with paid sick leave, the 14 days of sick pay are in addition to whatever the company presently provides. Self-employed individuals also will be entitled to tax credits equating to paid leave, but Persons working for companies with 500 or more employees will not be eligible to receive any of these benefits.
The final bill passed by the House represents a significant expansion of the federal government’s existing sick leave requirements, but expressly limits the new benefits to those affected by the current coronavirus outbreak and does not apply to future public health emergencies. It is expected, though not yet certain, that the Senate will vote to approve the bill this week and that the President will sign it into law.
Family and Medical Leave Act
Senate Majority Leader Mitch McConnell said over the weekend that the Republican majority in the Senate will have to take a careful look at the 110-page bill before it agrees to adopt it and send it on to the President. In the meantime, employers should remember that the Federal Family and Medical Leave Act of 1993 (FMLA) still remains in full force and effect. FMLA allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to care for a new child, care for a seriously ill family member, or recover from a serious illness. In order to be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months, have worked at least 1,250 hours over the past 12 months, and work for an employer with at least 50 employees.
Several states have passed laws providing additional family and medical leave protections for workers. For example, California’s Paid Family Leave (PFL) insurance program, which is also known as the Family Temporary Disability Insurance (FTDI) program, is a law enacted in 2002 that extends unemployment disability compensation to cover individuals who take time off work to care for a seriously ill family member or bond with a new minor child. Benefits equal approximately 70% of earnings and have a maximum per week, for a total of up to six weeks.
The California statute states that PFL must be taken concurrently with leave under the federal FMLA and the California Family Rights Act (CFRA), both of which provide for 12 weeks of unpaid leave in a 12-month period. In other words, the FMLA and CFRA offer job protection for up to 12 weeks of family leave whereas PFL offers compensation for up to eight weeks.
At this time, it does not appear that an employee will be eligible for these benefits unless they or a family member is actually ill. It is unlikely that they will be able to recover benefits simply if they do not want to work out of fear of being exposed to the coronavirus without having actually contracted it.
Leave for an employee to care for children who are out of school because of the crisis would not trigger coverage unless the child had a serious medical condition. Some states, like New York and California, requires unpaid leave for parents in the event of a school closure. California employees at worksites with 25 or more employees may also be provided up to 40 hours of leave per year for specific school-related emergencies, such as the coronavirus, because it was mandated by civil authorities. Whether that leave is paid or unpaid depends on the employer’s paid leave, vacation or other paid time off policies. Employers may require employees use their vacation or paid time off benefits before they are allowed to take unpaid leave, but cannot mandate that employees use paid sick leave. However, a parent may choose to use any available paid sick leave to be with their child as preventative care.
Do Workers Have to be Paid if Work is Cancelled Due to the Emergency Declaration?
The United States Equal Employment Opportunity Commission (EEOC) has previously expressed the view that telework is an effective infection-control strategy. The EEOC also has stated that employees with disabilities that put them at high risk of developing complications as a result of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. It seems reasonable, therefore, to assume the EEOC will take the same view when it comes to COVID-19.
If workers are able to “telework” and perform their job duties outside of the office, then they are considered “on the clock” and must be paid. However, if they hold a job that cannot be performed outside of their regular employment location, the following general rules apply:
(1) If the employees are nonexempt hourly workers, they must be paid only for the hours actually worked. If work is cancelled as a result of the emergency, the workers can take paid time off they have accrued or sick pay, depending on the employer’s company policy and local and state laws.
(2) If the employees are exempt and salaried, pursuant to federal law they must be paid unless the business is closed for at least a full workweek and the employee performs no work at all. If the employee works part of the week, they must be paid for the full week.
Employees Who Refuse to Work
There are several federal and state laws that may protect employees who refuse to work due to the fear of the virus. OSHA protects employees who refuse to perform “unsafe work” if the refusal is in good faith and reasonable. The ADA protects disabled employees who refuse to perform certain work as part of a reasonable accommodation request. In addition to these federal laws, several states have laws that protect employees from terminating employees in violation of public policy.
The key to this issue is whether the employee’s refusal to work is reasonable.
Workers’ Compensation Benefits
On March 6th, Stephen R. Hofer, President of Aerlex Law Group, was asked by the National Business Aviation Association (NBAA) to participate in a webinar along with Dr. Robert Haddon of the Mayo Clinic, regarding COVID-19 and its impact on business aviation. More than 600 people were in the online audience for the NBAA webinar and several listeners posed questions regarding the role workers’ compensation insurance might play in the event an employee contracts the novel coronavirus.
Workers’ compensation is designed to take care of employers who are injured or become sick as a direct result of work-related activities. Therefore, as a general rule, state workers’ compensation statutes usually will not cover workers who contract an illness such as the coronavirus. An exception to this general rule will be for workers who might contract the virus as a natural consequence of their jobs, for example, health care workers and first responders who are working directly with infected patients. The State of Washington already has taken action to expand the reach of its workers’ compensation program to cover such employees.
That being said, the more widespread COVID-19 becomes, the more difficult it may be for an employee to show that an infection is specifically a work-related condition rather than an ordinary disease contracted as part of daily life.
Based on these general propositions, we can foresee a situation where a flight or cabin crew member might argue that he or she was infected as a direct result of their job. Proving that would be difficult, however, as the employee would have to show that another crew member or a passenger was infected and the employee had sufficient contact with the infected person.
While a few states apply the test of whether a disease arises out of and in the course of employment to determine if benefits are available, several states exclude any disease that is not specifically listed in their workers’ compensation statute. Since COVID-19 is new, it will not be listed – at least not yet.
Some states limit “occupational diseases” to diseases specific to their occupation, such as lung diseases resulting from mining jobs. Yet other states exclude from workers’ compensation coverage any disease contracted by a worker which results from exposure to other employees or customers if it is a disease the worker could have contracted from the general public.
Based on all of these factors, we believe it is highly unlikely that an employee will be eligible for workers’ compensation benefits as a result of contracting the COVID-19 coronavirus. That could change if state governments take action to change their workers’ compensation laws.
Sending Potentially Contagious Employees Home
An employer may send an employee home who displays symptoms of contagious illnesses and such an action would not violate the restrictions on disability-related actions set forth in the Americans with Disabilities Act (ADA). The Centers for Disease Control and Prevention encourages employers to “actively encourage sick employees to stay home.” The CDC’s website provides helpful guidelines and can be found at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
Special Considerations for Aircraft Charter Operators Flying Under Part 135
Charter operators flying under Title 14 of the Code of Federal Regulations (14 CFR) Part 135 are required to follow many of the same rules and regulation as other air carriers. On March 12, 2020, the U.S. Department of Transportation and Federal Aviation Administration issued a Safety Alert for Operators (“SAFO”) entitled Interim Health Guidance for Air Carriers and Crews.
The purpose of the SAFO is to provide interim health guidance from the CDC and FAA regarding COVID-19 to protect crew members from exposure and reduce the risk of transmission of COVID-19 onboard aircraft or through air travel. Because of the rapidly evolving situation, the information otherwise provided by the CDC cannot be relied on to accurately judge the risk to crew members in any given location. Therefore, FAA and CDC recommend that air carriers and crew members take precautions to avoid exposure to COVID-19 and to ensure crew members do not work while symptomatic, regardless of crew members’ places of residence or flight itineraries.
Guidance for Flight and Cabin Crews on Passenger or Cargo Flights
The SAFO provides a great deal of information to pass along to crew members, including how to minimize the risk of contracting the virus and what to do if they do not feel well. A full copy of the guide can be found online and Aerlex will also be happy to provide clients with a copy upon request. In addition to the guidance, the CDC and FAA make the following recommendations to air carrier employers.
Guidance for U.S. Air Carriers
Regardless of residence or travel history, crew members who have known exposure to persons with COVID-19 should be assessed and managed on a case-by-case basis. Crew members with high-risk exposures may need to be excluded from work.
Housing flight and cabin crews on layovers (in the United States or internationally):
• Arrange to move crew members as a group between the airport and the hotel aboard private ground transport that has been sanitized in advance. Advise your crews to avoid public transport unless it is an emergency.
• Arrange to house flight crews in hotels that are in close proximity to the airport. Ensure that the hotel rooms are sanitized in advance of the crews’ arrival.
• Provide crew with at least a 60% alcohol-based hand sanitizer.
• Encourage crews to:
o Avoid contact with sick people
o Stay in their hotel rooms to the extent possible
o Minimize going out into the general population
o Use social distancing (maintain a distance of approximately 6 feet, if possible) whenever out in public
o Avoid crowds, stores, sporting or mass entertainment events, and other situations likely to attract large numbers of people
o Eat in their hotel rooms with either room service or delivery service. If in room dining options are not available, they should eat at a restaurant located in the hotel. If not available at the hotel, they should eat at a restaurant located close to the hotel.
• Crew members may commute to their residence when they return to their home bases.
Supervising self-monitoring of flight and cabin crews:
• Develop a plan in the event a crew member becomes symptomatic during an overnight layover.
o Know how to contact public health authorities in locations where crew remain overnight.
o Provide information to crew members regarding medical facilities in the vicinity of cities in which crew members remain overnight.
• Develop a plan in the event a crew member becomes symptomatic while in the crew member’s lodging or personal residence.
o Ensure crew members know how to contact their state or local health department.
o Advise crew members to notify their state or local health department if they become symptomatic, in addition to reporting to the employer’s occupational health program.
• Crew members may continue to work flight segments as long as they remain asymptomatic.
• Supervise crew members self-monitoring of their health condition through the air carrier’s occupational health program.
o Direct crew members to take their temperature twice daily during periods when they are working.
▪ Consider providing crew members with thermometers.
o Remind crew members to immediately report a fever, cough, or any difficulty breathing.
o Check in with crew members periodically to make sure they continue to self-monitor and are not symptomatic.
o Ensure crew members are asymptomatic before they board a flight.
• Crew members who are symptomatic with fever, cough or difficulty breathing should not work subsequent flight segments until they have been cleared by occupational health and public health officials.
o Notify the state or local health department where the crew member is located at the time (if the crew member is located in the United States). If the crew member is in an international location, notify the public health authority for that location.
o Immediately report to CDC any crew member who has a fever, cough, difficulty breathing, or other flu-like symptoms or is diagnosed with COVID-19 if the crew member worked one or more flight segments while symptomatic. Additionally, consult with CDC if a crew member is identified to have a high-risk exposure to COVID-19, such as a sick household member with a confirmed or suspected case of COVID-19.
▪ Contact CDC by calling the CDC quarantine station with jurisdiction for the airport where the crew member is located or by calling the CDC Emergency Operations Center at 770-488-7100.
The spread of COVID-19 is a rapidly evolving situation and it is important for employers to protect their employees and do so in a lawful manner. This article presents general guidelines and is not intended to be, and should not be construed as, or relied upon as, legal advice for any particular fact situation. If you have specific questions, please email either Douglas Stuart, Aerlex’s employment counsel, directly at firstname.lastname@example.org, or Aerlex’s President, Stephen Hofer, at email@example.com.