During this time of national public health emergency, it is important that employers are up-to-date on legal requirements and considerations in relation to responding to the unique challenges presented by this situation. Certainly, common-sense and pragmatic solutions will drive many of the tough business decisions many employers will need to make over the next several weeks or months, but a clear understanding of the various legal implications will help guide employers as we all learn as we go.
Here are some questions you may have as an employer. We urge you to take particular note of the new public health emergency leave and emergency paid sick leave requirements that will go into effect no later than April 2, 2020 (see below for details):
I can’t shut-down operations for financial or operational reasons. What things do I need to consider to keep my employees safe and my business operational as long as possible?
- Make sure you are frequently (daily or more often) cleaning your facilities. Check information provided by the CDC for effective cleaning products and guidelines: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html. Provide products for employees to use to continuously disinfect surfaces during the day, such as disposable wipes.
- Provide personal hygiene products such as hand-sanitizer and disinfecting soap.
- You can, and should, require all employees to practice infection-control practices including frequent proper hand-washing, avoiding physical contact/social-distancing, wiping down work stations and frequently used areas with disinfecting products, covering coughs and sneezes, proper tissue exposure, etc. You may discipline employees for not complying with these work place rules.
- Consider available flexible workplace practices such as telecommuting, flexible work hours/staggered shifts, etc. to accommodate social-distances.
- Emphasize to employees that they MUST stay home if they are or a household member is sick, especially with COVID-19 symptoms.
- Stop all non-essential travel.
- You can, and should, send home any employee that exhibit any COVID-19 symptoms (including fever, dry cough, breathing difficulties, or malaise).
- If an employee is absent from work, you may ask them why. If the employee is sick with COVID-19 symptoms, you may, and should, require the employee not to return to work until cleared by a doctor after an appropriate self-quarantine period. Be flexible, however, about “doctor’s notes” as many health care providers may be overwhelmed and not able to provide the same kinds of documentation that they may provide under normal circumstances.
- Do not make decisions based on stereotypes or based on an employee’s membership in a protected class (race, national origin, ancestry, religion, disability, age, etc.). Make sure to prohibit all employees from engaging in discrimination or retaliation and enforce all workplace policies regarding non-discrimination and retaliation.
- If you receive information that an employee has tested positive for Coronavirus/COVID-19 or is presumed positive, you may inform other employees, but MUST maintain confidentiality of the ill employee. Information on how to assess a risk assessment for potential exposure can be found here: https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html
- Develop a plan for continued operations, if possible, in the event that conditions become more severe and government ordered closures are expanded or in the event that employee absenteeism significantly increases.
- Review OSHA requirement for safe workplaces to ensure compliance with workplace safety laws: https://www.osha.gov/SLTC/covid-19/.
I have employees in high-risk categories. What can I do to keep them safe?
The Americans with Disabilities Act (ADA) and Indiana civil rights laws protect employees of businesses with 15 or more employees. These laws prohibit discrimination (different treatment or disparate impact) against people with a physical or mental condition that impacts their daily lives. It also requires an employer to accommodate a person with a disability so that the employee can perform his or her essential job functions. A short-term leave of absence (less than one month) is typically considered a reasonable accommodation.
Under the current circumstances, you may ask employees whether they are over age 60 or have a medical condition that places them at higher risk of serious complications from COVID-19. This is not normally permissible under applicable law, but is permitted in serious situations like what is happening now.
An employee may also voluntarily disclose that s/he is in a high-risk category.
If you learn that an employee is in a high-risk category due to an underlying medical condition that impacts his or her daily life (e.g. diabetes, asthma, high-blood pressure, COPD), you should ask the employee what kind of assistance or accommodation s/he thinks s/he needs – some options may include telecommuting, a leave of absence, a work space away from co-workers, etc. Employees at high-risk must be accommodated unless the accommodation would be an undue hardship on the employer (which is a high-bar to pass).
You should not categorically exclude certain protected groups of employees from the workplace including those with a disability and/or those over age-60 unless there is absolutely no loss or adverse impact to the terms and conditions of employment including pay, benefits, advancement opportunities or career prospects.
In any event, any information that you learn about an employee’s health condition MUST be kept confidential.
Some of my employees have childcare responsibilities now that schools are closed. Do I have to let them stay home? Do I have to pay them? What about my employees that are sick or caring for people that are sick? Do I have to pay them? Can I let them go for not complying with attendance requirements?
Under certain circumstances, you will need to pay employees that are sick, caring for someone that is sick, or at home with childcare responsibilities. You cannot fire an employee for failing to comply with attendance requirements if they are entitled to leave as specified below and you cannot require employees to come to work if they are protected by the leave benefits described below.
On March 19, 2020, the President signed into law the Families First Coronavirus Response Act. Among other things, this new law, which goes into effect no later than April 2, 2020, requires employers with UNDER 500 employees to offer PAID sick leave to employees for COVID-19 related reasons (referred to as public health emergency leave and emergency paid sick leave):
- Public health emergency leave—Applies when employee is unable to work (or telecommute) due to a need to care for his or her child under age-18 if the child’s school or daycare is closed or the paid child-care provider is unavailable due to the COVID-19 public health emergency:
- In order to be eligible, an employee must have worked for the employer for at least thirty (30) calendar days before s/he was impacted by Coronavirus.
- Leave must be granted for up to 12-weeks.
- The first 10-days of leave may be UNPAID, but the employee must be allowed to use accrued PTO (vacation, personal, or medical/sick leave) to cover these days.
- After the first 10-days, the leave must be PAID:
- Employee must be paid no less than two-thirds (2/3) his/her regular rate of pay for the number of hours s/he would otherwise normally be scheduled to work, up to $200/day or $10,000 total. If the employee’s work schedule is variable, then use the average number of hours that the employee was scheduled to work per day over the last 6-month period. If the employee has not been employed for 6-months, then use the reasonable expectation of the employee at the time of hiring of the average number of hours per week that the employee would be scheduled to work.
- The employee must provide the employer with notice of leave to the extent practicable.
- Upon return from leave, the employee must be restored to the same or equivalent position, with the same pay and benefits, as s/he held before leave.
- This does not apply to employers with less than 25 employees, IF the employee’s position is eliminated due to economic conditions or other changes in operating conditions that are caused by the Coronavirus public health emergency AND the employer makes reasonable efforts to restore the employee to an equivalent position. If a position is not immediately available, the employer must make a reasonable effort to notify the employee if an equivalent position becomes available within one year.
- Emergency paid sick leave—Applies when:
- Employee is subject to a quarantine or isolation, has been advised by a health care provider to self-quarantine, is experiencing COVID-19 symptoms and seeking medical diagnosis, OR is caring for a person under any of these categories. Also applies if employee is caring for his or her child if the child’s school or daycare is closed, or the child care provider is unavailable due to Coronavirus precautions. ALL employees are eligible, regardless of length of employment.
- Full time employees are entitled to 80 hours of PAID leave; Part-time employees are entitled to PAID leave equivalent to the number of hours that the employee works on average over a two-week period (if varying, use daily average over 6-month period or, if employed less than 6-months, reasonable hourly expectation upon hire). The employer cannot require that the employee use any other accrued PTO before using this emergency paid leave.
- For an employee that is subject to a quarantine or isolation, has been advised by a health care provider to self-quarantine, is experiencing COVID-19 symptoms and seeking medical diagnosis, pay shall be compensated at the employee’s regular rate of pay (but no less than minimum wage), but not more than $511/day or $5,110.00 total
- For an employee that is caring for a person subject to a quarantine or isolation, who has been advised by a health care provider to self-quarantine, who is experiencing COVID-19 symptoms and seeking medical diagnosis, or for a child when school or daycare is closed or a child-care provider is unavailable, pay shall be compensated at two-thirds (2/3) the employee’s regular rate of pay (but no less than minimum wage), but not be more than $200/day or $2,000.00 total.
- Paid leave ends on the next scheduled workshift immediately following the end of the need for leave.
- Cannot be conditioned on finding another employee to cover the affected employee’s shift.
- May require employees to follow reasonable notice procedures to continue to receive paid sick time.
- Employers must post a notice in a conspicuous place (where notices are typically posted) regarding these requirements. A model notice will be made available by the U.S. Department of Labor by March 24, 2020. Check U.S. DOL’s website for this notice.
- Employers may not discharge, discipline or discriminate against any employee who takes leave under this new law or who files a complaint or testifies in a proceeding about a complaint related to this new law.
- Failure to comply with this new law will be considered a violation of the Fair Labor Standards Act (FLSA) and will be subject to monetary penalties.
- Employers of health care providers and emergency responders may elect to exclude those employees from these requirements.
Note that the overlap in the provisions of the public health emergency leave and emergency paid sick leave effectively mean that all time off under the public health emergency leave provisions will be paid time off. The first 10-days of public health emergency leave are unpaid, but an employee may use PTO. Since the emergency paid sick leave provisions grant all employees two weeks of paid sick leave, that paid leave will cover the first 10-days of emergency leave. Employers must comply with both provisions.
A tax credit will be allowed for each quarter in an amount equal to 100% of the qualified sick leave wages and paid family leave paid by the employer during that quarter. We urge you to work with your accountant to determine what tax credits may be available to you under this provision.
This law expires December 31, 2020.
It is anticipated that additional guidance and regulations will be forthcoming from the U.S. Department of Labor. The anticipated regulations are expected to include an exemption for small businesses with fewer than 50 employees with the requirements would jeopardize the viability of the business as a going concern.
If you have an employee that does not fall into any of these protected categories, but wants to stay home, you should allow them to use accrued PTO to do so.
What about FMLA? Can my employees take FMLA leave for Coronavirus related issues?
The Family and Medical Leave Act (FMLA) applies to businesses with 50 or more employees. An employee may take leave for his or her own serious health condition or to care for a family member with a serious health condition. FMLA provides job-protection for employees that cannot work due to serious illness. The public health emergency leave requirements discussed above are a part of FMLA. However, the emergency paid sick leave is not. But, if you have an employee that is sick or caring for someone that is sick, s/he may be eligible for FMLA and take up to 12-weeks of leave (at least two weeks of which would be paid under the emergency paid sick leave law).
In order to qualify for FMLA leave for the employee’s own serious health condition, the illness needs to be of a particular severity including medical treatment or a hospital stay. Some COVID-19 cases will qualify as a serious health condition.
In order to qualify for FMLA leave to care for a family member with a serious illness, the family member must be a child under age 18, child over age 18 with a disability, a spouse, or a parent. The family member must have a serious illness and be unable to care for his or her own medical, safety, or transportation needs or in need of psychological comfort and reassurance.
If an employee requests FMLA leave or provides you with enough information that you reasonably believe that the employee may be entitled to FMLA, then you must provide certain forms. First, you need to give the employee a Notice of Eligibility and Rights & Responsibilities (WH-381). Second, give the employee a Certification form for his or her doctor or the family member’s doctor to fill out and return (WH-380-E or WH-380-F). Once the Certification is returned and you make a determination, you must give the employee a Designation Notice (WH-382). These forms can be found at: https://www.dol.gov/agencies/whd/fmla/forms
Facts sheets from the U.S. Department of Labor on the FMLA can be found here: https://www.dol.gov/agencies/whd/fmla/factsheets
If an employee exhausts his or her two-weeks of emergency paid sick leave and has other accrued PTO available, s/he may elect to use that PTO to continue to be paid during leave (until that PTO is exhausted). Otherwise the remainder of FMLA leave will be unpaid (except if it qualifies as public health emergency leave – see above).
Can I ask my employees if they have been exposed to Coronavirus? Traveled out of the country? Take their temperature?
The ADA prohibits certain kinds of medical inquiries and medical examinations of employees (disabled or non-disabled). However, during a serious public health situation like the one we are currently facing, because there is a “direct threat” to employee health and safety, you may make certain inquiries and examinations that would not otherwise be permissible.
You may ask employees if they have been directly exposed to a confirmed or presumed case of COVID-19.
You may ask if an employee has traveled out of the country in the past 14 days.
You may ask employees if they are experiencing COVID-19 symptoms (ever, dry cough, breathing difficulties, or malaise).
You may take an employee’s temperature to determine if they have a fever (but understand that fever alone may not be a symptom of COVID-19 and some people with COVID-19 may not have a fever).
ALL information received from an employee in response to any of these questions or examinations MUST be kept confidential and any related documentation must be kept in the employee confidential medical file that is separate from the general personnel file.
I can allow some or all of my employees to work from home. What things do I need to make sure I am doing to make that run as smooth as possible?
It is best practice to have a written telecommuting/work-from-home policy that is specifically tailored to this unique situation. The policy should include things like expectations about work time, job performance, communication, time-keeping, etc. It should specify what equipment and supplies the employer is and is not providing and who is responsible for each. Also, the policy should include information about workers compensation – workplace injuries that occur at an employee’s home may still be covered under workers compensation and need to be reported to the employer. Make it clear that internet use policies still apply at home, particularly during work time and/or on employer owned equipment. If you don’t already have an internet use policy, now is the time to create one.
If you have employees that are already receiving disability or religious accommodations, make sure that they continue to receive appropriate accommodations while working from home. This may require an additional conversation about modifications necessary to fully accommodate the employee.
The following are recommended resources to review that addresses these, and many other employment related concerns:
Other questions? Need a policy created? Although our offices are closed, our attorneys are all accessible via email and phone to answer your questions and help guide you as issues arise. Email Attorney Sara Blevins at firstname.lastname@example.org or leave a voicemail message for Sara by calling (317) 639-1210 and following the prompts to reach her voicemail. You can also visit the “Team” section of our website to find email addresses for other attorneys.
Disclaimer: This article is made available for educational purposes only and is not intended as legal advice.