The unprecedented coronavirus (COVID-19) pandemic presents a confusing and stressful situation for employers. Here, Ashley Kaplan, Esq., ComplyRight’s Senior Employment Law Attorney, offers assistance to businesses uncertain how to handle resulting employee management issues.
Q: What should we communicate to employees about the COVID-19 virus?
A: It depends on your company, and this is changing day by day. In general, you should communicate the measures you are taking internally to help limit the spread of disease, changes to scheduling or hours of operation, whether remote work will be permitted (and the rules around working remotely), and any travel restrictions. You also need to discourage employees from coming to work if they have been exposed to the virus or exhibit any symptoms of the virus, and address how the company will handle absences relating to the pandemic crisis. This includes absences to care for others, and childcare obligations due to school closings. Finally, you should address whether absences will be paid or unpaid, and whether employees must use their accrued PTO for such absences. Federal, state and local laws may dictate whether the time off is paid or unpaid and whether leave is job-protected.
Q: Can I make an employee go home if they feel sick or are coughing?
A: Absolutely. You can require employees who feel sick — or appear to be sick — to leave your workplace. The Centers for Disease Control and Prevention (CDC) states that employees who exhibit influenza-like symptoms at work during a pandemic should leave the workplace. You may also require employees exhibiting symptoms to get medical clearance before returning to work.
Q: Can I tell other employees if an employee has tested positive for the virus?
A: Without revealing the employee’s name, you should notify affected employees (anyone who has worked closely with the employee) immediately if there is potential exposure.
Q: Do I have to pay employees if I send them home?
A: This depends on several factors, including state and local laws. Also, a new federal law (the Families First Coronavirus Response Act) was signed on March 18 that requires certain employers to provide emergency paid leave and other benefits for qualifying absences related to the pandemic. Otherwise, the usual FLSA guidelines still apply, and it would depend on the employee’s status as exempt or non-exempt. Generally speaking, under federal law you would not be permitted to reduce the weekly salary amount for an exempt employee in this scenario, but you could require employees to use existing PTO banks to avoid unpaid leave.
Q: Does the FMLA apply?
A: Yes, it could apply if your business is covered by the Family and Medical Leave Act and the employee meets FMLA eligibility requirements. In general, if the eligible employee — or the employee’s child, spouse or parent — is infected, the worker would be entitled to FMLA leave. Additionally, the newly enacted Families First Coronavirus Response Act expands FMLA protections, covers childcare obligations due to school closings, and provides other benefits on a temporary basis through December 31, 2020.
Q: Does the ADA apply?
A: Generally, no. The virus is not considered a permanent disability. However, an argument may be made that the ADA is implicated where the virus substantially limits a major life activity, such as breathing. Also, ADA coverage could be triggered if an employer “regards” an employee with COVID-19 as being disabled, even if the condition itself does not meet the law’s definition of a disability.
Q: Does disability insurance apply?
A: Yes, if an employee has the virus, he or she could seek short-term disability insurance benefits as a result. Employees with existing health conditions or compromised immune systems who cannot work because of fear of contracting the virus could also seek disability insurance.
Q: Can we restrict employee travel?
A: Yes. You can modify your travel policy as you see fit. This is a good time to institute a policy requiring conference or video calls for all meetings involving travel — even those for local customers.
Q: What do we do if an employee refuses to come to work?
A: It depends on the reason, the nature of the job, and other risk factors. Various federal, state and local laws protect employee absences in certain instances. OSHA protects workers from coming to work if they fear they are in imminent danger, but that is subject to interpretation and specific risk factors. There may also be implications under the National Labor Relations Act, even in non-union settings. Even though the law may not specifically protect workers who refuse to work, employers should be very cautious about taking any disciplinary action for unexcused absences based on fear of exposure, especially for individuals who may be at high risk.
Q: What should I do if I must establish a temporary remote work situation?
A: The most important thing is to develop a remote work policy. Your policy should set clear expectations for your employees. For example, can every employee work from home or are there personnel who must continue to report to the workplace? Do teleworkers always have to be available during working hours? How will meetings occur, and will all remote employees have access to the necessary technology? Also, for non-exempt employees, it’s important to establish rules for tracking hours of work and managing overtime. Finally, it’s important to establish a mechanism for communicating regular status updates to all workers, including those working from home.
Not sure how to stay compliant with labor law posting requirements during this time when many employees are working from home? Check out the Intranet Licensing Service available on PosterGuard.com Using this service, employees simply click a secure link on your corporate intranet or employee web portal to view applicable federal, state, city and county postings. This ensures that employees have access to important government-mandated postings relating to emergency paid leave laws, earned sick time, disability and unemployment insurance, and other rights and obligations.
DISCLAIMER: While we make every effort to provide the most accurate, up-to-date information at the time of publication, employment laws are constantly changing, and this material is subject to change.
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