STAFFING FIRMS – RESPONSIBILITIES DURING THE COVID-19 PANDEMIC: FAQ

Staffing firms that are in the business of employing individuals for short-term, or long-term periods may have unique obligations to temporary workers and clients in light of the COVID-19 pandemic. This FAQ answers frequently asked questions that will serve as a guide to staffing firms that will inevitably be impacted by COVID-19. For a more detailed analysis of your staffing firm’s obligations, contact your legal counsel for consultation.

Occupational Safety and Health  

1. Does the staffing firm have an obligation to ensure that the client work site is hazard-free, and in compliance with OSHA requirements?

Yes. A staffing firm typically has an obligation to ensure that the work sites that it sends its temporary workers to, is a safe work environment where workers will not be injured or get sick. Staffing firms should inquire about clients’ protocol to prevent the spread of COVID-19, and confirm that protocols are in compliance, or exceed the expectations of the CDC.

2. Do OSHA requirements apply to independent contractors?

Yes. Even if a worker is an independent contractor rather than an employee, clients must comply with OSHA requirements. Failure to do so will result in liability on behalf of the client, and potentially the staffing firm.

3. Can a temporary employee refuse to work due to the perceived fear of contracting COVID-19 at the client work site?

Potentially. A temporary employee may be entitled to refuse to report to work if there is a reasonable apprehension of death or serious injury from COVID-19, and there is no less drastic measure than refusing to perform work. However, this is rare. As long as the client is in compliance with CDC and OSHA guidelines, employees will likely not have a retaliation claim under OSHA for refusing to work. If the employee is in the at-risk population and may be more susceptible to serious illness or death from COVID-10, ADA implications may also arise.

4. Can a staffing firm remove sick workers from the client work site? What are the legal implications?

Yes. The staffing company should remove sick workers from the client work site if they are experiencing COVID-19 symptoms or are known to have the virus. Failure to do so may result in liability under the general duty clause of OSHA, tort, or workers’ compensation liability. Staffing firms are required to ensure that the work site is safe and hazard-free. However, this does not necessarily mean removing all workers from the job site if a co-worker has tested positive for COVID-19. The staffing firm should work with the client to determine what employees worked closest with the infected worker and require only those individuals to self-quarantine.

5. If a temporary worker contracts COVID-19 at a client work site, is the illness reportable to OSHA?

Yes. Reports to OSHA are necessary if there is evidence that the temporary worker contracted COVID-19 from the work site. Typically, employee illnesses are not reportable unless they result in hospitalization or death. However, there are certain industries that may be more susceptible to COVID-19 exposure, namely industries that work closely with medical care of medical supplies. If a temporary employee works in a high-risk industry, and COVID-19 exposure stemmed from the work site, those illnesses should be reported to OSHA.

Obtaining Information from Temporary Employees, Candidates, and Clients

1. What can a staffing firm ask/request from job candidates in light of COVID-19?

Staffing firms May:

• Request Form I-9 employment verification documents via Zoom, Skype, FaceTime, or other remote methods
• Require prospective employees to fill out a questionnaire about recent travel, fevers, and other COVID-19 symptoms
• Request information relating to whether the prospective employee tested positive for the virus, or if he/she lives with anyone who tested positive or is quarantined
• Require prospective employees to sign an affidavit attesting to any answers given to the aforementioned questions
• Deny employment to any individual that refuses to provide information or answer questions relating to COVID-19
• Deny employment to any individual that has tested positive for the virus or lives with someone who has the virus           

2. What can a staffing firm ask/request from current temporary employees in light of COVID-19?

Staffing Firms May:

• Require a doctor’s note for employees that cannot report to work due to COVID-19 related issues. This includes care for an ill family member or personal contraction of the virus
• Require an employee demonstrating symptoms of COVID-19 to stay home from work for a 14-day quarantine
• Require an employee to stay home from work when they have traveled out of the country
• Require a doctor’s note or medical release for employees that wish to return to work after COVID-19 exposure
• Require information about a specific diagnosis of COVID-19
• Require employees to take their temperature before beginning work each day

Staffing Firms May NOT:

• Refuse to accept a worker that had the virus, but has since recovered
• Reveal the name of any individual that has contracted COVID-19. The staffing firm should inform other workers that have been in close contact with the infected worker, and require them to self-quarantine without naming the infected individual 

3. Is a staffing firm required to cover costs associated with COVID-19 testing?

No. However, testing costs may be covered under health insurance policies or the Families First Coronavirus Response Act.

Paid Leave and Job Protection 

1. Are staffing firms required to pay temporary workers that cannot work due to childcare obligations? 

Potentially. If a staffing firm is covered by the Families First Coronavirus Response Act (“FFCRA”), the firm may be required to provide paid leave for employees that cannot work because their children’s schools, daycares, or nurseries have closed. Pay must be in compliance with the FFRCA. Local or state paid leave laws may also apply. 

2. Are days in quarantine FMLA-qualifying for individuals that have COVID-19? 

Yes. COVID-19 qualifies for FMLA-leave when the worker or a close family member is infected with the virus. The worker is entitled to job reinstatement once recovered as well.

3. Are staffing firms required to pay temporary workers that have contracted COVID-19 and cannot work? 

Potentially. Applicable paid leave laws will be implicated, however in situations where no paid leave requirement applies, nonexempt workers need not be paid for hours not worked. Exempt workers will be paid their normal salary so long as at least some work is completed during the work week. 

4. Are staffing firms required to pay temporary workers that cannot work because they were exposed to COVID-19, but have not necessarily contracted COVID-19?

Potentially. If a worker has been exposed to COVID-19 and is required to self-quarantine, applicable paid sick leave laws may be implicated, however in situations where no paid leave requirement applies, nonexempt workers need not be paid for hours not worked. Exempt workers will be paid their normal salary so long as at least some work is completed during the work week. Therefore, the exempt worker will receive a full paycheck for every week the worker works, which may be made up of accrued vacation time, sick time, and regular wages. 

5. Are staffing firms required to pay temporary workers who feel unsafe working on the job site due to COVID-19 concerns? 

Generally, no. However, if the work is within a high-risk industry dealing with medical care or medical supplies, and a real threat of COVID-19 exists, staffing firms could be liable for retaliation claim under OSHA.

6. Are staffing firms required to provide paid leave to temporary workers who are exempt under the Fair Labor Standards Act (“FLSA”)? 

Exempt or nonexempt status under the FLSA generally does not determine paid leave obligations. Therefore, employees, whether exempt or nonexempt, are entitled to paid leave under the FFCRA and FMLA. 

7. Can an employer require workers to exhaust sick/vacation/PTO leave before using FMLA or other paid leave programs?

Generally, no. An employee can use his/her vacation/PTO at his/her discretion. If an employer is subject to the Families First Coronavirus Response Act, an employer cannot require an employee to exhaust accrued sick/vacation/PTO leave.

Unemployment Insurance, Workers’ Compensation, Remote Work Expenses

1. Can an individual be eligible for unemployment insurance if the worker refuses to work out of fear of contracting COVID-19? 

Potentially. Due to the rapid spread and severe impacts of the virus, state law is evolving rapidly regarding whether an employee is entitled to unemployment insurance when the worker has not actually contracted COVID-19, but merely fears it. Staffing firms should communicate with unemployment insurance providers regarding how changes to state laws may impact employee claims.

2. Could workers be eligible for workers’ compensation due to COVID-19? 

Potentially. Workers may be entitled to workers’ compensation if the worker is exposed to COVID-19 in the workplace. However, the employee must show that exposure to the virus arose directly out of employment. This can be quite difficult however it is more likely in cases where employees work closely with medical equipment or medical care.

3. Are staffing firms required to reimburse costs associated with internet or cell phone use for workers working remotely? 

Most likely, yes. Many states have laws that require staffing companies and employers to reimburse employees for tools and equipment that are “necessary” to perform their job duties. Check state and local legislation for more guidance on what reimbursements are deemed necessary.

Layoffs

1. What are the potential obligations of staffing firms when temporary workers that are laid off? 

• Unused Vacation: Many states require that staffing firms pay out unused or accrued vacation.
• Notice: Many states have requirements requiring notification of employee layoffs during a mass layoff or plant closing.
• Unemployment Insurance: Consider the availability of unemployment insurance benefits to employees following a layoff.

Other Questions?

Your attorneys at Rock Fusco & Connelly, LLC are here to help you navigate how best to utilize the portions of the CARES Act that can benefit your business and support your employees during these uncertain times. Please contact us so that we may assist you in structuring your payroll and loan application deliverables to maximize your loan amount. We can be reached via email at info@rfclaw.com, or phone at (312) 494-1000.