Violation Of Mecklenburg County Stay At Home Order a Class 2 Misdemeanor

On Tuesday, March 24, 2020, Mecklenburg County issued a proclamation that requires all people living in the county to stay at home or their place of residence until April 16th. Mecklenburg County joins Madison County, Pitt County, and the Town of Beaufort in ordering residents to stay at home. The proclamation goes into effect at 8:00 a.m. Thursday, March 26, 2020 and requires and makes a violation of the proclamation a Class 2 misdemeanor.

Tuesday’s proclamation requires Mecklenburg County residents to literally remain in their homes for the next 21 days in an effort to slow the spread of COVID-19 but does provide some exceptions.

The proclamation allows people to leave home for “Essential Activities” – activities essential to health and safety, to obtain necessary supplies and services, for certain types of work, for outdoor activity in compliance with social distancing requirements, and to take care of others. Mecklenburg County residents may go to the grocery store, to take-out or drive-thru restaurants, to pick up medication, visit healthcare facilities, help family, friends, and neighbors get necessary supplies, and walk or seek veterinary care for pets.

Residents employed in non-essential industries should work from home if possible. Before sending employees home to work remotely, employers should consider putting together a solid remote work policy that sets forth work production expectations as well as requirements such as timekeeping and data security measures. Mecklenburg County is urging people to work from home unless they are providing “essential services.”

“Essential Services” include food production, distribution, and sale; healthcare providers; construction; airport operations; utilities operation and maintenance; cybersecurity operations; waste management; telecommunications systems; government functions including first responders, court personnel, law enforcement, child welfare and adult protection services, military, and housing services; homeless shelters; media; gas stations; auto repair shops and other transportation-related businesses; financial institutions; electrical, plumbing, and heating hardware/supply stores; critical trades such as HVAC, movers, electricians, plumbers, cleaning and janitorial services; mail, shipping, and delivery services; laundry services; carry-out and drive-through restaurants; childcare centers; manufacturing industries providing products and services in the waste management, agriculture, food and beverage, transportation, energy, mining, technology, healthcare, pharmaceutical and other essential industries; hotels and motels; and funeral services.

The proclamation also limits public and private gatherings to 10 or fewer people – far less than Governor Cooper’s March 23rd Order banning gatherings of more than 50 people.

What does this mean for employers?

Many businesses have already transitioned or begun transitioning staff to work remotely. However, some businesses will not be able to do so. In those cases, there are existing and newly enacted statutes that provide limited benefits for those who will not be working.

The Families First Coronavirus Response Act (“FFRCA”), passed and signed into law on March 18, 2020, provides for paid emergency sick leave due to certain absences related to COVID-19 and amends the Family Medical Leave Act to include paid leave for employees unable to work or telework due to the COVID-19-related unavailability of childcare.

Emergency Paid Sick Leave Act (“EPSLA”)

Beginning April 2, 2020, employers with fewer than 500 employees must provide full-time employees with 80 hours of paid sick leave at the employee’s regular rate of pay up to $511 per day/$5,110 total per employee. Eligible employees may take paid sick leave under the EPSLA because the employee is:

  1. Subject to a local, state, or federal COVID-19-related isolation or quarantine order;
  2. Advised by a healthcare provider to self-quarantine due to COVID-19;
  3. Experiencing COVID-19 symptoms and is seeking medical diagnosis;
  4. Caring for a person (doesn’t have to be a family member) subject to a local, state, or federal COVID-19-related isolation or quarantine order or advised by a healthcare provider to self-quarantine due to COVID-19;
  5. Caring for the employee’s child if the child’s school or daycare is closed or the child’s care provider is unavailable due to the COVID-19 public health emergency; or
  6. Experiencing any other substantially similar condition specified by the Secretary of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employees taking leave for qualifying reasons 4, 5, and 6 above are only eligible to be paid two-thirds of their regular pay rate up to $200 per day/$2,000 total to care for others. The EPSLA comes with a number of exceptions as to which employers are subject to its provisions. This paid sick leave benefit may be in addition to any paid time off or sick leave an employee is eligible to take. Employers should review their PTO/vacation/sick leave policies to make sure they are in compliance with those policies and promised benefits as well.

While the U.S. Department of Labor is posting “guidance” regarding this newly enacted provision, the DOL has not offered any clarity as to whether a federal, state, or local “stay in place” order or proclamation qualifies as a COVID-19-related isolation or quarantine order. Employers should assume this type of government-issued order or proclamation limiting non-essential movement does qualify under the EPSLA and comply accordingly.

Emergency Family and Medical Leave Expansion Act (“EFMLEA”)

The EFMLEA is a much narrower law that temporarily expands the Family Medical Leave Act to provide paid, protected leave for workers who cannot work or telework due to the COVID-19-related closure or unavailability of the worker’s traditional childcare provider. The Act applies to employers with fewer than 500 employees and potentially exempts small businesses. As with the EPSLA, healthcare providers and emergency responders are exempt as are small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.

Unemployment and Disability Insurance

Employers should also remember that the newly enacted FFCRA provisions don’t negate older statutes like Title VII, the ADA, and the ADEA, or an employer’s long-standing policies and benefits. Employees who aren’t able to work due to COVID-19 exposure or diagnosis may also be eligible to file state disability insurance claims under existing short-term and long-term disability policies. Likewise, employees whose hours are significantly reduced or who are laid off or terminated are eligible for state unemployment benefits under Governor Cooper’s March 17th Executive Order expanding the state’s unemployment eligibility statutes.

Many North Carolinians have already taken advantage of the temporarily revised unemployment laws. Officials say they received 113,002 unemployment claims last week alone and 87% of those claims were related to COVID-19. So far this week there have been 25,000 more claims filed. Expect that number to go up significantly with Mecklenburg County’s stay at home proclamation.

Do Employees Have to Come to Work?

Generally, employees may only refuse to come to work if they believe they are in imminent danger and that belief is objectively reasonable. Although Mecklenburg County’s proclamation doesn’t apply to certain employers providing essential services, the fact that the County has ordered residents to stay home could provide justification for even those employees deemed essential to refuse to come to work.

Also, if two or more employees jointly refuse to work, their refusal may constitute “protected concerted activity” under the National Labor Relations Act – something employers should carefully evaluate before acting too quickly.

Essential Businesses Remaining Open

If you are an employer likely to remain open under Mecklenburg County’s stay at home proclamation, you should prepare to be vigilant about maintaining a clean and safe workplace. That includes providing supplies for proper hygiene (soap, hand sanitizers, tissues, paper towels), routinely cleaning all surfaces with frequent office traffic, eliminating shared offices and crowded workspaces, prohibiting unnecessary business travel and in-person meetings, and encouraging employees to be open about their health and any health changes.

If an employee shows up to work sick, send them home to immediately self-quarantine or seek medical attention but first find out if they worked in close proximity to any co-workers during the previous 14 days. If so, identify those employees and send them home to self-quarantine for 14 days as well. Do not identify any infected or potentially infected employees by name in any written or verbal communications to your office. Finally, deep clean the office and workspaces of the infected employee and those he or she worked closely with prior to becoming ill.

This client alert provides an overview of a specific developing situation and is not intended to be, nor should be construed as legal advice for any particular fact situation. Lincoln Derr can help guide you through this unprecedented time.

Kathleen (Kathi) Lucchesi

Kathi Lucchesi regularly advises her clients in connection with all types of employment issues both in and out of the workplace. She works with employers in connection with the hiring, discipline and termination of employees, policy drafting and implementation, claims for wrongful discharge and discrimination, unemployment, FMLA and Wage & Hour violations, and EEOC, DOL, ESC, DOJ, and Title IX investigations.

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