Employer Considerations during the Coronavirus Pandemic
Many of our clients have reached out to our firm for guidance in these precarious times. COVID-19 raises serious concerns for employers within all industries. Preparedness and prevention is crucial. Like many of you, we are figuring things out as they develop, both factually and legislatively. Nevertheless, here are answers to the questions more frequently asked by our clients.
1. Should we take additional precautions? If so, what?
Yes. The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to . . . employees.” Although the Occupational Safety and Health Administration has not put forth specific standards covering coronavirus (COVID-19), employers could face a risk under the General Duty Clause if they do not take affirmative steps to protect their workplace and ensure that potentially affected individuals are not exposed to the workplace.
In addition, in certain healthcare professions and other workplaces where employees are subject to bloodborne pathogens, federal workplace safety law further requires the employer to make an immediate confidential medical evaluation and follow-up available for employees that have had an exposure incident.
Of course, there are more than legal considerations. Employee morale can be greatly effected by an understanding of what, if anything, the employer is doing to keep their employees safe. It is essential to communicate with employees to reiterate existing rules, and deliver any additional temporary rules. Consider preparing a written communication outlining these expectations to keep employees healthy and safe during the Coronavirus outbreak.
At this time, employers may wish to implement proactive, temporary policies with respect to business travel. For example, employers may suspend all non-essential business travel, and require employees to submit an application to demonstrate need before traveling for business. Employers should also consider temporarily suspending business events that involve large groups of employees (such as work conferences). Employers may also elect to limit in-person meetings, using alternatives such as telephonic or video conferences. Our own firm, for instance, has temporarily suspended client and team meetings and is implementing video conferences in their stead.
In-office protections can be utilized to prevent transmission of illness and assuage fears of transmission, such as providing hand sanitizing stations and increasing environmental cleaning and sanitation procedures. Coordination with cleaning crews is advised.
In the event concerns escalate (for example, if your workplace is in an affected area or if one of your employees is affected with the virus), then in-office attendance can be limited to essential personnel and additional measures put in place to limit direct interaction among employees. While not legally mandatory, if remote work is possibly, it may be advised.
2. One of our employees is experiencing mild illness symptoms, such as a fever or cough, but wants to keep working. Should we let them?
No. Employees who are ill should not come to the workplace. If an employee reports to the workplace exhibiting symptoms, the employee should be sent home immediately.
If an employee is not too ill to work:
For exempt employees, to the extent possible, employers should encourage flexible or remote working capabilities. Employers should work closely with exempt employees to determine if their position enables temporary remote working during the period of illness and what, if any, additional tools or technologies can assist in remote working to avoid or limit any business disruptions.
For non-exempt employees, employers should review whether remote work is feasible, with particular attention to the employer’s ability to ensure continued compliance with wage-hour laws during remote work times. For employers who elect to permit certain non-exempt employee positions to work remotely, additional check-in procedures and oversight should be utilized to ensure productivity and compliance with timekeeping, breaks, and other federal, state and local wage-hour considerations. Review and implement parameters regarding tracking of employee time: monitoring proper and timely meal and rest periods (if applicable); overseeing, approving and tracking overtime; and facilitating supervisor management of employees to continue to meet business needs.
If an employee is too ill to work:
Depending on the state of employment and the employer’s policies, the employee may be entitled to utilize accrued, unused vacation/paid time off (PTO) and/or paid sick leave during their time out of the business.
To further incentivize employees not to come to the workplace when they are ill, employers may want to consider advancing additional PTO or sick leave to employees who do not have any accrued, unused PTO or paid sick leave to use at this time. Employers who do not provide paid sick leave to employees may consider issuing additional paid sick leave time to employees for 2020 in response to Coronavirus. In certain states, paid sick leave can be issued without any additional obligation to pay out the additional time upon termination. We recommend contacting counsel to design a state law-compliant policy.
Employee time out of the business may also be protected and governed by federal, state and local law.
3. Can we require documentation from a doctor for employees who are out sick? Should we?
Federal law generally permits an employer to require reasonable documentation from healthcare providers to support the existence of an illness requiring time out of the business, or to certify the employee’s fitness to return to the workplace.
The Americans with Disabilities Act (ADA) allows employers to ask for employees to provide documentation from their healthcare provider to evaluate the extent of an impairment where an employee has requested an accommodation or the employer has an objective basis to believe the employee is unable to perform the essential functions of their job because of an impairment.
In some jurisdictions, state or local law may further address whether an employer may require medical documentation for an employee who requires a short-term absence for their own illness or the illness of a family member. In some cases, documentation should not be required, particularly where the employee is utilizing paid sick leave.
At this time, the CDC recommends that employers not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, since healthcare provider offices and medical facilities may be overburdened and unable to timely provide such documentation.
We suggest that, in response to Coronavirus, employers that typically do require medical documentation consider temporarily relaxing the requirement of documentation from employees who are sick due to the difficulty they may have obtaining access to medical providers under the present circumstances, and to encourage ill employees to remain out of the business until they are healthy.
Regardless of whether you decide to temporarily discontinue requests for documentation or continue following existing policies (as permitted by applicable laws), employers should maintain consistent policies and enforce those policies consistently (i.e., avoid disparate treatment of employees with similar symptoms). Employers are advised to consult employment counsel to address these situations.
4. If our employees are working remotely, do we have to provide the equipment, or can we have them use their own?
Employers may generally require their employees to use their own personal devices for work-related matters. Depending on the jurisdiction, employers may be required to reimburse employees for costs associated with the use of their personal devices for work purposes.
Employers that permit employees to use their personal devices to conduct company business should consider whether this may affect the company’s ability to protect the security of company data. For instance, employers may consider implementing security measures on those personal devices to protect company data and confidentiality.
Employers should also ensure that they have written policies in place that define and communicate an employee’s expectation of privacy on their personal devices (or lack thereof), if used for work purposes.
If non-exempt employees are given remote access to perform work (e.g., access to work email on cell phone), employers should set forth the expectation that work will only be performed during working hours and on-the-clock.
5. If an employee is staying home due to coronavirus concerns, but does not have any PTO or sick leave, do we have to compensate them for the time away from work?
First, if an employee who is at home feels well enough to work, the employer can allow them to do so, and should compensate them as if they are performing work from the office.
If the employee cannot work remotely, but has exhausted their paid leave options (e.g., PTO, paid sick leave), the employer is not legally obligated to compensate that employee unless company policy dictates otherwise. (Employers should continue to follow their current pay practices regarding time out of work due to illness.)
Legal considerations, our advice: while you may not be obligated to provide compensation to employees during their time out of work, you might consider implementing temporary policies to ensure you encourage employees to remain home while ill. Such temporary policies might be front-loading additional PTO or paid sick leave time.
6. Our business is struggling with the Coronavirus pandemic, specifically with its impact on supply chains, customer demand and employee availability. Can we implement salary reductions for exempt employees to adjust for this downturn?
Yes, employers generally may prospectively reduce salaries for at-will, exempt employees during a business or economic slowdown, so long as the reduction is done for bona fide, long-term business reasons and not done on a day-to-day or week-to-week basis. For employees who are under contract, the employer must review the terms of the agreement before modifying the employee’s compensation or other employment terms.
Many state and federal exemptions require employers to compensate employees on a salary basis, and require such employees to earn at least a threshold minimum salary. The threshold may vary depending on the state of employment. Employers should be cognizant of these requirements if considering to reduce salaried, exempt employee salaries, to ensure that otherwise-exempt employees remain exempt and continue to meet the minimum salary threshold applicable.
Any reduction in employee pay should be implemented in a non-discriminatory, even-handed way. Any substantial reduction in an employee’s compensation may be interpreted as constructive termination if the employee resigns as a result, and therefore employers should understand that such terminations may be interpreted as an involuntary employer-initiated termination for employment law purposes.
7. Our employees are required to travel for work as part of their normal job duties. Can we continue to require them to travel?
OSHA allows employees to refuse to travel if there is a known or realistic threat of danger to their health or safety, but general travel on airplanes and public transit to densely populated areas should not constitute such a danger. Employers can require employees to engage in ordinary business travel unless there is a known danger in sending the employees to specific locations. Employers should consult the CDC travel advisories to determine if this will be an issue. As of March 1st, 2020, the CDC Warning Level 3 list (avoid all nonessential travel) includes South Korea, Italy, Iran and China. Its Alert Level 2 locations (enhanced precautions should be practiced) include Japan.
Please note, if employees come together to protest or refuse to engage in travel—or even if only one employee comes forward on behalf of their colleagues—their concerted efforts could be protected under the National Labor Relations Act. We recommend consulting with counsel in this event.
Again, our advice notwithstanding the law: employers may be permitted to require employees to travel under pertinent law, the human element and employee morale should be weighed. Business as usual may not be dangerous, but can still make employees uncomfortable. Take input from your team to accommodate these concerns, while still striving to maintain productivity. There are no hard-and-fast rules here other than reducing risk and discomfort. Permitting employees to conduct certain business by videoconference or other remote method rather than requiring travel may be a temporary and effective compromise to permit employees to refrain from travel, while allowing most business to continue.
8. Can we prevent our employees from traveling outside of the country, or to affected areas?
No. As a general rule, employers cannot control an employee’s lawful, off-duty conduct, including elective travel. However, given the current circumstances, it would be reasonable to introduce a policy requiring employees to disclose what their travel plans are.
Many people book travel a long time in advance. If an employee has already booked travel to a known affected area and still intends to travel, remind the employee of the risks involved and your obligation to protect the health and safety of your employees. Ask the employee to keep the appropriate company contact (e.g., Human Resources) informed of any health concerns.
Ensure employees understand the policy in relation to pay if they do have to go into quarantine on their return from travel, and whether remote work is available for the employee.
9. An employee (Employee A) has asked us to move them to a desk further away from another employee, who is of Iranian descent (Employee B), citing concerns that Employee A’s family may visit from Iran and carry Coronavirus with them. Should we agree to move the employee?
Employers should be aware of possible biases and stereotypes that may arise in the midst of the coronavirus outbreak. As conflict may arise, employees should be reminded of the company’s anti-discrimination policies, and the company should enforce the policy consistently. The employer should not agree to move Employee A if the only basis for the request is that Employee B is Iranian.
If Employee A’s concerns are founded on a legitimate concern of exposure (e.g., Employee B’s family recently visited from Iran), then additional steps should be taken to assess the situation and handle any actual, potential exposure accordingly. If there is a realistic concern about the spread of coronavirus in your workplace, you may ask the potentially exposed employee(s) to stay home until the incubation period (according to the CDC) has passed.
10. Do we have a duty to report potential coronavirus cases?
Absent additional state legislation, existing state reporting requirements for infectious diseases apply to healthcare providers only and not to employers.
State health agencies and media outlets may seek voluntary information from larger employers about the number of employees infected. With the exception of employer-sponsored self-insured health benefit plans, the regulations of the Health Insurance Portability and Accountability Act (HIPAA) that protect individually identifiable health information do not apply to employers. However, employers should still exercise diligence in sharing information about specific employee cases, both internally and externally. For affected employers that wish to disclose information, such employers may consider providing aggregate counts in response to requests from state agencies or media outlets (e.g., 8 of our employees have been infected by coronavirus).
11. What can we do if an employee does not have any symptoms, and our workplace has been symptom-free, but the employee is refusing to come to work because of concerns related to coronavirus and being in large groups generally?
Employers should listen to employee concerns and, if they are genuine, explore alternatives. Our advice is, to the extent possible, employers should encourage flexible or remote work options, particularly for exempt employees. If remote work is not an option, employees can be given the option to utilize their PTO or take unpaid non-medical leave from the workplace.
In the event the employee refuses to work or to use these alternative options, and has no signs of illness, employers will have to consider the proper response. Generally speaking, the employee can be told to report to work.
Employers should strive to establish policies for the office, rather than just an individual employee.
12. We want to insist an employee work from home. Can we?
Yes. Employers are within their rights to ask employees to work remotely, as long as the policy is not being applied in discriminatory fashion. For example, it’s OK to ask workers who recently traveled to China, Italy, Iran or another country especially hard hit by the outbreak to work from home for a given period. But it’s not right to ask workers over the age of 70 to work from home — even if the intention is well-meaning — because age is a protected class under federal law.
13. If an employee ends up catching Coronavirus at work, are we liable?
Unlikely, because it’s usually hard to prove. It would be tough to determine exactly where someone contracted the virus, making it difficult to hold an employer responsible for costs. Generally, it must be proven that the disease was caused by “conditions peculiar to the work” and there were no other opportunities for exposure. However, as we often tell our clients, there is a big difference between not being liable, and not being sued. You may be sued and end up prevailing, but nevertheless undergo high costs in defending such a suit. As such, diligence is advised.