Recent COVID-19 Developments for Employers

April 13, 2020

Late last week there were three developments regarding COVID-19 that are important for employers.

First, OSHA has clarified COVID-19 reporting requirements for employers in most industries.  An employer, of course, has to record a work-related injury or illness. With respect to COVID-19, the duty to record is triggered only when an employer has objective evidence that the virus was contracted in the workplace and this information was reasonably available to the employer. Note that employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions still have a duty to report if the work environment either caused or contributed to the diagnosis of COVID-19, or the work environment significantly aggravated the condition.

Second, the U.S. Department of Labor issued some technical corrections to its rule on the Families First Coronavirus Response Act (FFCRA).  Importantly, it cleared up a discrepancy between two of the regulations which appeared to give employers contradictory advice as to whether the FFCRA provided for 12 weeks of paid leave or potentially 14 weeks of such leave.  It deleted 29 CFR 826.70(f) which seemed to imply that an employee could receive as many as 14 weeks of paid leave.  Now it is clear that 12 weeks is the maximum amount of leave available to an employee under this act. 

Finally, the CDC issued a guidance as to how employers should handle critical infrastructure employees’ possible exposure to COVID-19.  The CDC defined potential exposure as follows: A potential exposure means being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19. The timeframe for having contact with an individual includes the period of time of 48 hours before the individual became symptomatic. Provided the employee remains asymptomatic, they are allowed to return to work, although the CDC recommends employers to, among other things, to measure these employees’ temperatures, to require them to wear masks, and also to require them to practice social distancing.  You can of course take more stringent measures, such as requiring your employee to stay home for 14 days before allowing them to return to work.  In that event, if they are not able to telework, they may be entitled to paid sick leave for this period of time. For more details, here is a link to the guidance:

Stay safe and keep the course.  And of course let us know if we can help.

Thanks, Jack, Elizabeth and Jim