What Employers Need To Know

North Carolina will soon become the 27th state to require residents to stay at home to limit the spread of COVID-19. Governor Cooper’s stay at home order goes into effect at 5:00 p.m. on Monday, March 30, 2020 and will be in place for at least 30 days.

The North Carolina stay at home order is nearly identical to the March 24, 2020 stay at home order issued by Mecklenburg County. Both limit public and private gatherings to fewer than 10 people. Just like the Mecklenburg County order, North Carolina residents must stay at home except to venture out for food, medication, medical assistance, outdoor exercise, or to help others.

Governor Cooper’s Executive Order also provides exceptions for “COVID-19 Essential Businesses and Operations.” Those include:

  • Businesses that meet social distancing requirements
  • Businesses operating in CISA identified sectors
  • Healthcare and public health operations
  • Human services operations
  • Essential infrastructure operations
  • Essential government operations
  • Stores that sell groceries and medicine
  • Food, beverage production and agriculture
  • Organizations that provide charitable and social services
  • Religious entities
  • Media
  • Gas stations and businesses needed for transportation
  • Financial and insurance institutions
  • Home improvement, hardware and supplies
  • Critical trades
  • Mail, post, shipping, logistics, delivery, and pick-up services
  • Educational institutions
  • Laundry services
  • Restaurants for consumption off-premises
  • Supplies for COVID-19 essential businesses and operations
  • Transportation
  • Home-based care and services
  • Residential facilities and shelters
  • Professional services
  • Manufacture, distribution, and supply chain for critical products and industries
  • Defense and military contractors
  • Hotels and motels

Even though the Order allows essential businesses to remain open and operating, it also encourages employees of essential businesses to work from home as much as possible and enforce a strong social distancing policy for those workers who remain on site.

The Governor’s Office also issued a FAQ sheet that provides some clarity regarding the scope of the Order. Don’t see your business above? Businesses excluded from the Essential Businesses and Operations list may apply online here for designation as an essential business.

What does this mean for North Carolina employers?

Employers should continue to follow established employment laws and get up to speed on employer obligations contained in newly enacted virus relief laws. To that end, the U.S. Department of Labor recently issued guidance for employers on a variety of COVID-19-related employment issues including paid sick leave and extended family and medical leave under the Families First Coronavirus Response Act (“FFCRA”). It is wise to consult with an employment attorney if you are unsure how these laws specifically apply to your business.

The DOL also posted guidance to help employers comply with current wage and hour laws and the FMLA.

The EEOC joins the COVID-19 Discussion

Not content to sit on the sidelines and let the DOL carry the laboring oar, the Equal Employment Opportunity Commission (“EEOC”) jumped in Friday and posted a webinar that is now available to the general public on YouTube.

The 42-minute webinar offers guidance on how employers can follow COVID-19 public health directives and still comply with federal EEOC laws. The EEOC solicited questions from the public in advance of Friday’s webinar and received more than 500 questions in response.

Important questions the EEOC answered include:

 

  • Can employers take the temperatures of employees? (They can. They can also ban employees refusing to have their temperature taken.)
  • Can employers ask employees coming into the workplace if family members have COVID-19 or are symptomatic for COVID-19? (They cannot. Employers should ask employees if they’ve had contact with anyone with COVID-19 or COVID-19 symptoms.)
  • Can supervisors and managers report employees who have symptoms or a diagnosis of COVID-19? (They can, so long as the identity of the infected employee is provided only to those who need to know. Otherwise, it’s only important to report to non-essential personnel that an employee has symptoms or a diagnosis.)
  • Can employees report symptomatic co-workers to their employers? (They can.)
  • Can employers notify public health authorities if an employee has COVID-19? (They can.)
  • Can employers exclude high-risk employees (those over 65, pregnant, or immunocompromised) from the workplace? (They cannot.)
  • Must employers grant requests to telework from high-risk employees? (Not necessarily but in the case of high-risk employees with health-related conditions making the request, employers should view the request as an accommodation under the Americans with Disabilities Act (“ADA”).)
  • Can employers single out employees based on national origin and exclude them from the workplace due to concerns about the transmission of COVID-19? (They cannot.)
  • Is COVID-19 considered a disability under the ADA? (Because the disease is so new, the EEOC says it is unclear as to whether it’s a disability under the ADA.)
  • Do employers have to provide teleworking employees the same ADA accommodations they provide employees in the workplace? (Maybe.)
  • Once stay at home restrictions are lifted, do employees have to allow teleworking employees – even those with a disability – to continue teleworking? (Not necessarily, but employers should review it as a request for accommodation under the ADA.

Of course, the EEOC’s responses to these questions were more nuanced. Employers act at their own peril if they don’t engage in a fact-specific analysis of any situation where Title VII and COVID-19 intersect before making decisions.

Still have questions about the legal implications your business is facing during the pandemic? Send us an email or give us a call. Lincoln Derr can help guide you through the challenges of 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.

Phoebe Coddington

Phoebe Coddington has litigated hundreds of cases and appeals all over the country. She has represented large and small clients from large banks and electric utilities to small companies and business owners. Ms. Coddington handles all types of cases, but business litigation comprises the majority of her work.

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