Overview
For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
On March 11, 2020, the World Health Organization (WHO) declared the coronavirus (COVID-19) a worldwide pandemic. In the days following WHO's declaration, state and local governments and individual employers have issued guidelines or mandates for maximum limitations on public and private gatherings and quarantines to implement "social distancing" in an attempt to slow the spread of the virus and to protect vulnerable populations such as the elderly and those with chronic medical conditions.
Several states have issued "social distancing" guidelines, and at times mandates, ahead of the federal government's response. It is expected that more state and local governments will implement more restrictive measures that will have significant consequences for employers in the coming weeks. The following provides a summary of "social distancing" guidelines and mandates currently in place at the federal level and implemented by various states in the United States.[1]
Federal Guidelines
The White House issued guidelines for the next 15 days effective March 16, 2020 for US citizens/residents to "slow the spread" of COVID-19. Of importance to employers, these guidelines have suggested that individuals: (1) "work or engage in schooling from home whenever possible" and (2) "avoid social gatherings of more than ten (10) people," among other things. For now, these guidelines are advisory in nature, and as of March 15, the White House stated that its guidelines on limiting gatherings do not apply to businesses.
State Guidelines
California is the leading state in implementing guidelines and/or mandates at the state and local level in the wake of the COVID-19 pandemic. On March 16, 2020, six counties in California's Bay Area, San Francisco, Santa Clara, San Mateo, Marin, Contra Costa, and Alameda, became the first and only local governments thus far to issue "shelter-in-place" mandates. The mandates order "all individuals anywhere in the counties to shelter-in-place – that is, to stay at home – except for certain essential activities and work to provide essential business and government services or perform essential public infrastructure construction, including housing."[2] The order prohibits "all travel, including but not limited to, travel on foot, bicycle, scooter, motorcycle, automobile, or public service, except for Essential Travel and Essential Activities."[3] An example of "essential businesses" include, but are not limited to:
- Healthcare operations and essential infrastructure
- Grocery stores and similar markets
- Newspapers, television, radio, and other media services
- Gas stations and auto-supply, auto-repair, and related facilities
- Banks and related financial institutions
- Hardware stores
- Businesses providing mailing and shipping services
- Educational institutions for purposes of distance learning
- Restaurants or other facilities preparing and serving food for delivery purposes only
- Suppliers of products needed for people to work from home
- Home-based care and residential facilities for seniors
- Childcare facilities providing services for employees exempted from the Order[4]
On the same day, California Gov. Newsom "called for" seniors (those 65 and older) and people with chronic conditions to isolate themselves during the coronavirus pandemic. This call to self-isolation is advisory and not a state order. Still, Newsom made clear that he will sign an executive order making self-isolation mandatory if the directive is not followed.
To date, no other states have implemented similar measures. However, several other states have ordered the closure of schools. States also have required restaurants, bars, and public venues to close or restrict the number of individuals that may be gathered for social events – all of which may impact employers and business operations.
Considerations for Employers
California employers forced to close business locations due to the shelter-in-place mandates should remain mindful of applicable wage and hour law requirements and other employment law considerations with suspending employees during temporary business closures or government-mandated quarantines. Employers also may want to consider and be prepared to advise employees regarding federal and state benefits available to them in these instances. For example, employers required to shut down operations during a workweek will be obligated to pay all their exempt employees for the full workweek if the employee works any time during the workweek under the Fair Labor Standard Act (FLSA). Under the FLSA, employers are required to pay non-exempt employees only for time worked.[5] Employees who are unable to work during a temporary business closure due to COVID-19 also may be entitled to unemployment insurance benefits. According to California's Employment Development Department (EDD) website, California employees may file unemployment insurance claims if their employer has reduced hours or shut down operations due to COVID-19.[6]
Also, California employers impacted by Gov. Newsom's call for closures or quarantine of seniors or individuals with chronic conditions may want to consider paid time off options for affected employees. While EDD has provided guidance on state benefits available to workers who are unable to work due to COVID-19, the EDD does not address government-mandated quarantines of workers. The EDD website states that "sick or quarantined employees" may file disability insurance claims, but defines "sick or quarantined" as "unable to work due to having or being exposed to COVID-19."[7]
Last week, the US Department of Labor issued guidance to states regarding the implementation of unemployment benefits to employees impacted by COVID-19. The guidance recommends that unemployment benefits are extended to individuals quarantined by "a medical professional under government direction" or where the individual "leaves employment due to a reasonable risk of exposure or infection (i.e., self-quarantine)."[8] Notably, Maryland has adopted a similar approach and has stated on the Maryland Department of Labor website that an individual may be eligible for unemployment benefits if he/she is "following guidance issued by a medical professional or public health official to isolate or quarantine . . . as a result of exposure to COVID-19 and . . . [is] not receiving paid sick leave from [his/her] employer."[9] Other states may follow.
In sum, employers should monitor and prepare for the potential of additional federal, state, and local guidelines and mandates regarding maximum limitations for public and private gatherings, quarantines, and shelter-in-place orders in response to the COVID-19 pandemic and ensure that business responses comply with applicable employment laws. Employers may want to consider the implementation or expansion of alternative work arrangements, such as remote work, as well as employer- and government-funded paid leave options for affected employees.
In particular, employers should consult with counsel on employment law implications of mandated business closures and similar restrictions, as well as other employment law considerations with responding to COVID-19 in the workplace. Steptoe's cross-disciplinary team of lawyers can help with these employment law issues and the countless legal and policy issues that companies are now navigating.[10]
[1] This alert does not cover guidelines or mandates in place in every state.
[2] https://www.documentcloud.org/documents/6811216-San-Francisco-Bay-Area-coronavirus-shelter-in.html
[3] Id.
[4] A full list of exempted businesses is located in section 10 of the Order.
[5] https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf
[6] https://www.edd.ca.gov/about_edd/coronavirus-2019.htm
[7] Id.
[8] https://wdr.doleta.gov/directives/attach/UIPL/UIPL_10-20.pdf
[9] https://www.dllr.state.md.us/employment/uicovidfaqs.shtml
[10] https://www.steptoe.com/en/news-publications/coronavirus-covid-19-resource-center.html