April 03, 2020
Several government agencies expanded on their responses to the coronavirus pandemic, with the National Labor Relations Board, the Equal Employment Opportunity Commission, and the U.S. Department of Labor all making special efforts to clarify enforcement actions taken in these extraordinary circumstances.
The NLRB’s General Counsel provided guidance on when an employer is relieved of its duty to bargain with a union when emergency situations, such as the current COVID-19 outbreak, compel prompt actions changing employees' “terms and conditions of employment.”
While noting it is “unclear” whether COVID-19 is a “disability” under the Americans with Disabilities Act (ADA), the EEOC conducted a webinar to provide employers further guidance on how it will enforce the ADA and other anti-discrimination laws. However, the EEOC did clarify that "regardless of whether COVID-19 is or could be a disability, an employer may bar an employee with the disease from entering the workplace" pursuant to the "direct threat" exception under the ADA.
DOL guidance: As noted in a previous story, the U.S. Department of Labor has released guidance on the unemployment insurance provisions of the Coronavirus Aid, Relief, and Economic Securities (CARES) Act. Additionally, the Department issued a final temporary rule clarifying how it will implement the paid leave requirements under the Families First Coronavirus Response Act.
Outlook: Employers should expect federal labor and employment agencies such as the NLRB and the EEOC to continue releasing COVID-19 related guidance in the coming weeks.