Coronavirus in the Workplace – U.S. Legal and Regulatory Concerns
By Carrie Cherveny, Esq. and Mingee Kim
COVID-19 (Coronavirus) is having a significant impact on the way we conduct business and even vacation in the U.S. The hospitality industry is feeling the impact and employers are left wondering how to respond. In the attached article we cover many of the applicable employment laws employers must consider when making decisions on employees’ employment arrangements.
One of the threshold considerations for employers is the Occupational Health and Safety Act (OSHA) General Duty Clause. The OSHA General Duty clause imposes a general requirement on an employer to keep its workplace free of any recognized hazards that are likely to cause death or serious physical harm to its employees. The clause is a catchall provision that can be cited in instances when there is no specific OSHA safety standard applicable to the alleged hazard.
An employer violates the general duty clause if:
The employer failed to keep the workplace free of a hazard to which employees were exposed.
The hazard was recognized.
The hazard was likely to cause death or serious physical harm.
There was a feasible and economically viable way to correct the hazard
The General Duty Clause sets the stage for an employer’s obligation to consider a number of measures to keep their employees safe. More specifically, in a restaurant and hospitality environment an employer must consider the risk of infection by both co-workers and customers. Additionally, while not a safety concern, the decline in patronage may likewise have a significant impact on restaurant employees’ schedules and work hours. Some of the measures an employer can take may include sending employees home, reducing work schedules, or donning safety equipment. There are a number of laws that employers must consider as they make operational changes and decisions.
For example, the Fair Labor Standards Act (FLSA) governs how employers pay employees and imposes specific rules regarding exempt and non-exempt employees. Employers may not make deductions from an exempt employee’s pay based on hours worked and are required to pay non-exempt employees for all actual hours worked. When a restaurant has to make the difficult decision to reduce work schedules, it must consider the different rules regarding exempt and non-exempt employees. When reducing an exempt employee’s schedule, the employer may still be on the hook for the entire week of pay. However, when reducing a non-exempt employee’s schedule, the employer will be on the hook only for actual hours worked by the employee.
Restaurant employers also face some special challenges under the Affordable Care Act. Generally, the majority of employees in the restaurant industry are “variable hour” employees which means that there are certain rules for ongoing health insurance coverage. Generally, variable hour employees who qualify for health insurance and enroll must keep their coverage through the entire plan year (i.e. stability period) regardless of the hours worked.
The white paper provides employers with more specific guidance and information regarding the possible impact of the Coronavirus on the workplace and the various rules that employer must consider.
About the authors:
Carrie B. Cherveny, Esq., is SVP, Strategic Client Solutions for global insurance brokerage Hub International’s Risk Services Division.
Mingee Kim, MHSA, CPDM, CLMS, is Vice President of Workforce Productivity for Hub International.