As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.
There are three overriding rules that all employers should remember:
- Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
- Think about how you can keep your business going. Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
- Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.
Below are some general answers to questions our clients have been asking. However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.
When should I require employees to stay home?
Use your judgment, but the following employees should be asked to remain at home:
- those who are ill or feel flu-like symptoms;
- those who have traveled to countries where there is a large exposure (China, Iran, South Korea, Italy, Japan, Hong Kong); and
- those who have been exposed to the virus, through family, a friend or some other meeting or contact.
The key should be – if one employee presents a threat to other employees, employers can legally request and require the sick employee to stay home for the COVID-19’s incubation period (14 days).
In fact, for other employees who are entitled to a safe workplace, requiring those who are at risk of infection to remain out is the prudent thing to do.
When asking employees to stay home, employers should be aware of the FMLA and ADA, and should take steps to ensure confidentiality of all employee health information.
Consider whether an employee can work at home, and thus get paid. This may depend on whether they are home ill, or well and just quarantined.
Finally, don’t ask any questions or take any actions on the basis of race, ethnicity or national origin. Put the duty on the employee to come forward.
What if an employee comes to work with physical signs of COVID-19?
First, remember Rule 1 and think safety first. If an employee has questionable symptoms, send them home and encourage them to see a doctor and/or get tested.
Second, consider whether those who had contact with the sick employee also need to be sent home. This may wait until the first employee is tested.
Employers should be careful when questioning an employee regarding symptoms. While it is unclear whether COVID-19 will qualify as a disability under the ADA, employees may have other conditions, which do constitute as disabilities. Furthermore, if an employer regards an employee as disabled, state and federal laws may be implicated.
If you haven’t already, now is the time to train and retrain supervisors on how to deal with employees who arrive to work with symptoms. The employer’s primary goals should be ensuring workplace safety, maintaining employee confidentiality, and reducing panic among the workforce.
Note, most employers should not conduct medical testing.
What about employees who worked with ill or “infected” employees?
Employers should send home all employees who worked closely (between 3 to 6 feet) with an infected or ill employee for the 14-day quarantine period to ensure that infection does not spread.
In addition, employers should facilitate environmental cleanup of the affected employee’s workspace and any potentially contaminated areas.
Employers should make best efforts to not identify the infected employee by name. To respond to employee concerns, employers should inform workers of the steps taken to mitigate exposure, such as environmental cleanup.
What should employers do about employees who face increased risk of infection?
Consider flexible work arrangements and make plans for them. Government agencies and now many companies are encouraging work from home arrangements. This is an effective strategy for infection control.
Employers should also implement and enforce personal hygiene protocols, including handwashing and use of hand sanitizers, asking symptomatic employees to seek medical attention and allowing work from home.
Can employees refuse to come to work?
Maybe. But, you do not always have to pay them.
Employers should address employee refusal to come to work on a case-by-case basis. Employers should understand the basis of the employee’s refusal and what the employee is asking for before requiring an employee to come to work.
- Is the employee pregnant or elderly or immuno-suppressed?
- Was there a possible exposure in your workplace?
In those cases, employees may have a good reason to be concerned.
Employers should not undermine their employee’s legitimate fears. Why? Because employees could conceivably be protected under the FMLA, and/or state leave laws, and could have other interacting conditions that qualify them as disabled under federal and state laws.
However, if there is no ‘legitimate’ reason and the employee cannot work from home, you are not required to give paid time off.
Employers should under no circumstances rubberstamp employee refusal to work which is based on discriminatory reasons.
Can I prohibit an employee from traveling to a non-restricted area in their personal time?
Maybe. Employers can (and many are) asking employees to refrain from nonessential or personal travel. But, this request may be difficult to enforce.
As an alternative, employers should educate their employees regarding travel and the potential risk of exposure and consider asking employees to “self-quarantine” following their travel, rather than returning to the workplace.
In the event an employee does travel for personal reasons and the employer does not require a period of self-quarantine, employers should monitor their employees upon return for symptoms. Keep in mind employees do not necessarily need to be paid during a period of self-quarantine after personal travel.
How do I minimize workplace issues of harassment and discrimination?
Be vigilant. Continue to monitor anti-harassment and anti-bullying policies. Employees may, either consciously or unconsciously, exhibit bias toward their colleagues because of COVID-19. Do not let unfounded employee fears permeate the workplace regarding sick colleagues. Employers should take steps to immediately investigate and remedy signs of race or ethnicity discrimination and harassment in the workplace.
Should employers allow telecommuting?
Yes. In this situation, employers should consider flexible work arrangements as a possibility for all employees and, in particular, immunocompromised employees. In the event of a worsening outbreak, employers should contemplate flexible work hours for employees who commute (e.g., delayed start times).
Employers must be aware that they will need to pay nonexempt employees for all hours worked, including overtime. Accordingly, employers should have a system in place to verify hours worked.
If employers fail to establish methods for streamlining business operations now, they may be faced with business interruptions. Consider not only a method for tracking time, but for employee check-ins, approvals for overtime, and fielding technical questions and logistics pertaining to remote work.
Do I have to pay an employee who is quarantined or ill?
The answer depends on certain factors, including, employee classification, whether the employee is sick or “well,” and whether or not they are working remotely while out.
Sick vs. “Well”
- Sick employees may qualify for paid sick time or disability leave if the illness lingers. A sick employee may also work from home, if they are able.
- If the employee is well but just quarantined, they may not qualify for sick leave, but may work remotely.
Exempt vs. Non-Exempt
If an employee is quarantined and working remotely, the answer varies depending on the employee’s classification.
- Exempt employees – under state and federal law, employers must always pay exempt employees’ full salary if they work any day, or in certain cases for part of the workweek. If the exempt employee is working at home, and doing their job, they should be paid for the days they are working.
- Non-exempt employees – are by law required to be paid only for hours actually worked. If the nonexempt employee is at home and cannot work remotely, you do not have to pay them.
For non-exempt employees, consider letting them stay on payroll, if possible. After all, you do not want to lose your workers just because of this (hopefully short) absence.
First, check whether they qualify for sick pay or PTO, if through no fault of their own, are forced to be out of work due to quarantine or school closures. Some state and local laws (like the New York City’s paid sick leave law) require paid sick leave when a school or day care is closed, or they need time off to care for a family member.
Second, an employer could decide to loosen its sick pay policies for this unique situation, and offer pay to non-exempt workers who are forced off the job.
If you cannot pay them, look into whether they qualify for unemployment benefits or for sick pay.
Employers should additionally be aware of expanding state legislation in response to the crisis, which may provide broader protections for workers.
This is a complicated and ever-changing issue. As questions arise, please do not hesitate to contact the Kelley Drye Labor and Employment group.