Michael P. Maslanka, assistant professor of law, UNT Dallas College of Law.

In life, there is the before, and then there is the after. The world in certain situations suddenly becomes sharply cleaved. And when future historians (and yes, there will be future historians) write of COVID-19, they will write of the cleavage.

First, though, some science. Scientists use the R0, or sometimes called the R ought curve. The number for this virus is likely a 3. This means that for every person with the virus, that person will pass it on to three other people. These three people, in turn, will pass it on to three people each. It's called exponential growth.

The goal with this virus is to drive the factor below a 1 (read more about this type of growth in "Why Outbreaks Like Coronavirus Spread Exponentially, And How to Flatten the Curve," by Harry Stevens in the March 15 edition of the Washington Post). Even though the nature of work is evolving in light of the COVID-19 outbreak, employment law issues will still continue to pop up within this framework.

Here are some thoughts:

1. Employers Have a Duty to Provide a Safe Workplace: The Occupational Safety and Health Act has a general duty clause that broadly requires all employers to provide a safe work environment. So an assembly line worker with the virus needs to be taken off the line, and her co-workers told of potential exposure but not told of the worker's identity because to do that would violate the Americans with Disabilities Act.
2. Employers Can Require an Employee to Work From Home, However… : Employers can send an employee home but are not required to accede to an employee's wishes to work at home, with one exception: if an employee has an ADA-covered disability, and a factual basis to believe that the virus might make the disability worse, then an employer is required to engage in a reasonable accommodation dialogue with that employee on her work at home request. By the way, employers who allow work at home need to check with their workers' comp insurance carrier to make sure that coverage is extended to an employee's home in case he is injured while performing his job at home like a tumble down the stairs.
3. Workers' Comp Plays a Role: For instance, if an employee merely gets the virus while at work, there is no workers' comp coverage. But, if an employer tasks the employee with certain jobs that will more likely expose the employee to the virus, then workers' comp is triggered. Here's a primer on workers' comp: Injuries suffered while carrying out a job task are covered by workers' compensation and thus costs for lost wages and medical care are paid for by workers' comp. Those benefits are guaranteed. In exchange for the guarantee, the employee gives up their right to sue the employer for negligence. A nurse who works in an intensive care unit that treats virus patients would get workers' comp if she, too, becomes ill. But there is one exception: If an employer demonstrates gross negligence in assigning jobs (example: "You need to go to Wuhan province and service a customer there face to face,") then the workers' comp shield against a lawsuit is lost and the employer can be sued for negligence.
4. Employers Only Need to Pay Employees What They are Contractually Bound to Pay: An employee handbook generally sets out what an employee is entitled to in terms of paid sick leave, or accrued vacation benefits, or unpaid leave benefits. (The Family and Medical Act likely does not apply because the like conditions are temporary, but the FMLA could if the employee becomes totally incapacitated more than three days, and sees a doctor for treatment a certain number of times within a 30-day period, or has an overnight stay in a hospital. The inquiry is factually intensive and requires a careful combing of the facts (don't presume, don't assume). As of this writing, the House of Representatives has enacted legislation that provides for paid sick leave for two weeks to some employees and for up to three months of paid family and medical leave equal to no less than two-thirds of their pay. But these benefits apply only to employees of businesses of less than 500 employees, or the government, who are infected by the virus, quarantined, have a sick family member or are affected by school closings. The money will be offset by tax credits to the employer. Some employers such as Walmart are providing for two weeks of paid leave, and our own Mark Cuban and the Dallas Mavericks state they will continue to pay for their employees and will ask them to do volunteer work in order to receive their pay ("Here's What's in Congress's Emergency Coronavirus Bill" by Emily Cochrane and Jim Tankersley, The New York Times, Match 15).
5. Employees Have a Right to Speak Out: If an employee believes an employer is not providing for a safe workplace then the employee is empowered to report that belief to the Department of Labor that administers the OSHA. They then have whistleblower protection and an employer may not retaliate against them for doing so. If an employee is retaliated against, they must report the retaliation to the Department of Labor within 30 days of an adverse employment action that is imposed upon them. Additionally, the National Labor Relations Act allows all employees, whether represented or not by a union, to engage in protected concerted activity. So an employee who tells the employer, "I have spoken to Joe, and Joe and I will not to be going to Wuhan province  because of the danger it poses to us," are protected from retaliation. The limitations period if an adverse employment action is imposed by the employer is six months from imposition and a charge must be filed with the National Labor Relations Board.
6. Remember the Secular Holy Trinity: Judgment, Initiative and Compassion: This is a crisis. While rules are important, do not slavishly adhere to them. Use your judgment: What is a proportionate response to the issue you are facing? Use your initiative: You may not get a chance to run your issue by corporate or a committee. Ask for forgiveness later, not permission now. Use your compassion: While the virus is terrible, it may have a saving grace if it reminds us to once again acknowledge our shared humanity in the workplace.

Michael P. Maslanka is an assistant professor of law at UNT Dallas College of Law. His e-mail is [email protected].