Answer: The North Carolina Governor’s Office issued an Executive Order Saturday, March 14, 2020 banning gatherings of more than 100 people and directing the closure of K-12 public schools to limit the spread of COVID-19 (The “Order”)). https://files.nc.gov/governor/documents/files/EO117-COVID-19-Prohibiting-Mass-Gathering-and-K12-School-Closure.pdf. This Order will have an immediate impact on workforces across the State.
For the duration of the Order, North Carolina employers are not allowed to have more than 100 people, including employees and non-employees, in attendance in any confined space, other than for the ordinary operation of a medical facility, library, shopping mall, office environment, restaurant, factory, grocery store or other retail establishment. Impacted employers will need to furlough affected employees or implement work from home protocols to reduce attendance below 100 people at a time, for the duration of the Order, which remains in effect for 30 days or until rescinded or supersceded.
In addition, the Order closes public schools until March 30, 2020, unless extended beyond that date. This means that employees with school-aged children may find it difficult to work from home and some employees will be unable to work at all due to lack of childcare.
And, of course, this Order is one more indicium that COVID-19 may be rising to the level of a “recognized hazard . . . likely to cause death or serious injury or serious physical harm to employees,” triggering employer’s obligations under OSHA to take steps to remove the hazard. N.C. Gen. Stat. 95-129(1). Such steps may include those described in the advisory guidance OSHA published earlier this month, and any updates to it: https://www.osha.gov/Publications/OSHA3990.pdf.
Here are a few takeaways:
- The Executive Order does not impose on employers any different responsibilities in relation to providing childcare, allowing visitors (children or others) in the workplace, allowing remote work, or allowing employees to work while simultaneously supervising children, than already exist with respect to employees, whether working in an office environment or remotely. Companies may apply their normal policies and procedures to these situations, or may decide to temporarily relax them in light of the difficulty workers undoubtedly will experience.
- There are safety and work-time concerns in any remote work situation. When employees are working remotely, OSHA’s requirement that the employer provide a safe workplace and FLSA’s wage and hour requirements apply just as they do when employees are working at the Company’s facility. Best practices for any remote work policy include requirements that employees working remotely must do so in a safe and orderly workspace that is free of hazards; when working from home on a regular basis employees must prepare a regular work area set up to allow them to work efficiently and without unreasonable interruptions; during normal work hours (when not on an allowed break or time off) they must work in intervals similar to those that apply when working in the Company’s facility (with an appropriate number and length of breaks an other interruptions); if they are non-exempt they must record their start and stop times of work; and they must comply with all applicable company policies such as limiting personal telephone and computer interruptions.
- Employees with school-aged children may experience more distractions than normal while working remotely, and therefore employers should encourage remote working employees to take paid or unpaid take time off if working remotely will not allow them to work effectively due to distractions related to school closures or otherwise. If budgets allow, employers could provide a subsidy to help with the cost of childcare. And, under the circumstances, when practical, employers should be flexible in allowing paid or unpaid time off.
- Employers may require non-exempt employees to clock out and use PTO or take unpaid time off when they are supervising children or too distracted to work effectively. The company will have to pay exempt employees their usual salary for any work-week in which they perform any work, regardless of interruptions. Exempt employees may be required to use available PTO subject to FLSA requirements, but if an exempt employee does not have sufficient PTO available to cover disruptions, and works at all during the work week, the employer must pay the employee his or her regular salary for that week.
Because the COVID-19 pandemic is a fluid situation, and because risks can be presented in a myriad of ways, it is important to analyze each situation on a case by case basis, to determine the appropriate course of action, rather than trying to implement hard and fast rules in advance.
If you need help with your planning or working through scenarios that present themselves in your workplace, we are here to help. Please contact Morningstar Law Group Partner, Amie Flowers Carmack, for assistance: acarmack@morningstarlawgroup.com or 919.590.0394.
