Questions and Answers – Employers & COVID-19
This general guidance is based on U.S. federal employment law and the current medical assessment of COVID-19, as of March 18, 2020. State and local laws may apply, and medical assessments may change, resulting in different conclusions. If employers have specific questions that reach beyond this general guidance or they wish to obtain a sample policy, we recommend they contact us at 423-764-4127 or sescomgt@sescomgt.com
Much of what an employer can and can’t do will be guided by guidance and directives issued by the Centers for Disease Control and Prevention (CDC). We recommend employers review the following link:
https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
EMPLOYER RIGHTS
Question: What options are available to employers to continue operations?
Answer: An employer may utilize a variety of options to continue operations. Such options include offering voluntary layoffs, paid or unpaid leave of absence, telework, reduction in hours/workweek or rate of pay, and furlough. As these decisions are considered, employers are advised to be aware of state law possibly requiring written notice to employees of change in pay or separation of employment. Unless specifically prohibited by law or regulation, employers have free reign to operate their business as they see fit.
Question: When can an employer require an employee not come to work?
Answer: An employer can do so in three situations. First, if an employee has returned from a “Level III” country as designated by the CDC; currently those countries are China, Iran, Italy, and South Korea. Second, if an employee is exhibiting symptoms of COVID-19 such as a fever (100.4 F or higher) and shortness of breath/difficulty breathing. Third, if an employee has had direct contact with someone who has a confirmed diagnosis of COVID-19. In these situations an employer is not required to pay an employee for the time out and we recommend requiring employee being away from work for a 14-day period or providing a fitness for duty release before they return to work.
Question: Does the CDC’s guidance to prohibit “gatherings” of 50 or more people for 8 weeks apply to employers?
Answer: No, not as it relates to the employer-employee relationship. The White House has issued separate guidance that recommends social gatherings (which could include funerals, conferences, etc.) be limited to 10 people – but this would not apply to the employer-employee relationship.
WAGE-HOUR
Question: Must we keep paying employees who are not working?
Answer: The answer is straightforward for nonexempt employees (i.e. employees subject to overtime pay). Nonexempt employees are paid for the actual time worked. An employer may choose to allow these employees to use vacation or other paid time off to cover the lost wages.
The answer is a little more complicated for exempt employees (i.e. employees not subject to overtime pay). An employer that remains open may lawfully deduct one full-day’s absence from the salary of an exempt employee who does not report for work for the day. The Department of Labor considers this an absence due to personal reasons; therefore, a deduction of a full-day’s pay will not violate the salary basis rule or otherwise affect the employee’s exempt status. An employer may, as an option, require an exempt employee who fails to report for work in this situation take vacation or other paid leave to cover the full-day’s absence. Deductions from an exempt employee's salary for less than a full-day’s absence are not permitted. But an employee will not be considered paid "on a salary basis" where deductions from the predetermined compensation are made for absences occasioned by office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work, however.
Employers may always change how an employee is paid, the workweek for an employee, etc.. If an employer chooses to treat a currently salaried, exempt employee as non-exempt, they just have to make sure employee is receivng at least minimum wage for hours worked and no overtime is worked.
Question: Can an employer prorate the final paycheck if they close?
Answer: For non-exempt employees, always – just pay for hours worked. For exempt employees that are terminated, laid off, or resign, employer can prorate (just pay through last day); if exempt employee remains employed (leave of absence, furlough, etc.) and worked at all in the week, full weekly salary must be paid.
Vacation, Paid Time Off, and Paid Sick Leave
Question: May an employer require employees with COVID-19 or employees that have had direct contact with individuals with COVID-19 to use available paid leave?
Answer: Yes, subject to the provisions of the employer’s current paid leave policies, and any state laws.
Question: Does the federal government require paid sick leave or paid Family and Medical Leave related to leave for COVID-19?
Answer: While the U.S. House of Representatives has passed legislation requiring such for employers with less than 500 employees, such is not law as of yet because the Senate and the President have not acted on such legislation. The White House is also considering taking executive action if Congress fails to act, but again no such action has taken place. If the federal government requires any leave, such will be in addition to any state laws requring paid sick leave.
WORKPLACE SAFETY ISSUES
Question: Can an employee refuse to come to work because of fear of infection?
Answer: Generally, no. Employees are only entitled to refuse to work if they believe they are in imminent danger. The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time.
TRAVEL ISSUES
Question: Can we prohibit an employee from traveling on their personal time?
Answer: No, you generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. This includes pregnant employees or those with medical conditions. However, you should educate your employees before they engage in travel to risky environments, and you can – and should – monitor those employees returning from such travel for signs of illness.
Question: What should I do if an employee has recently traveled to an affected area or otherwise may have been exposed to the COVID-19 coronavirus?
Answer: The Americans with Disabilities Act Amendments Act (ADAAA) places restrictions on the inquiries that an employer can make into an employee’s medical status. The ADAAA prohibits employers from making disability-related inquiries and requiring medical examinations, unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) where the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. The EEOC instructs employers that the assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination.
EMPLOYEE LEAVE
Question: Does the Family and Medical Leave Act (FMLA) apply?
Answer: Employees requesting leave could conceivably be protected by the FMLA to the extent they otherwise meet FMLA-eligibility requirements. Generally, employees are not entitled to take FMLA leave to stay at home to avoid getting sick. Even in the absence of state or federal protection, an employer’s internal policies may extend protection to such individuals. Of course, there is nothing to prevent you from voluntarily extending an employee’s leave, even in the absence of any legal obligation.
Question: Does contraction of COVID-19 coronavirus implicate the ADAAA?
Answer: Generally, no, because in most cases COVID-19 is a transitory condition. However, some employees could make an argument that the ADAAA is implicated if the virus substantially limited a major life activity, such as breathing. Moreover, if an employer “regards” an employee with COVID-19 as being disabled, that could trigger ADAAA coverage.
Question: May an employer encourage employees to telework as an infection-control strategy?
Answer: Yes. The EEOC has opined that telework is an effective infection-control strategy. The EEOC has also stated that employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
CONFIDENTIALITY
Question: Is an employer’s knowledge that an employee has COVID-19 subject to the privacy restrictions of the Health Insurance Portability and Accountability Act (HIPAA)?
Answer: Not usually, unless the employer acquired the information in its role as the administrator of the health insurance plan. Because most employers will learn of a COVID-19 diagnosis from the employee or his or her family, HIPAA usually will not be implicated.
Question: May an employer disclose an employee’s COVID-19 diagnosis to others?
Answer: Yes, according to the CDC, employers should inform fellow employees of their potential workplace exposure, but only to the extent necessary to adequately inform them of their potential workplace exposure, while maintaining confidentiality under the ADAAA (i.e., without revealing the infected individual’s name unless otherwise directed by the CDC or applicable public health authority). Employers may communicate to non-exposed employees generally that there has been a potential COVID-19 exposure, without sharing additional identifying information. Employers also may be able to communicate to appropriate non-employees (e.g., customers, vendors, and others with whom the employee may have come in contact while working) that there was a potential COVID-19 exposure, again without sharing identifying information. In all cases, time and circumstances permitting, employers may find it helpful to coordinate with state or local health authorities for guidance and direction regarding the scope and content of disclosures.
WORKERS’ COMPENSATION AND UNEMPLOYMENT BENEFITS
Question: Can COVID-19 be covered by workers’ compensation?
Answer: Workers’ compensation claims and procedures are based on state laws and carrier-specific requirements. Generally, however, state workers’ compensation laws require an employee to prove that he or she contracted the illness in the course and scope of employment and that the illness is caused by a hazard recognized as peculiar to a particular employment. Some states specifically exclude from coverage contagious diseases resulting from exposure to fellow employees or from a hazard to which the ill employee would have been equally exposed outside of his or her employment.
Question: When may an employee become eligible for unemployment during a furlough or unpaid leave of absence?
Answer: Eligibility for unemployment benefits is based on state laws and agency-specific requirements. While working 15 hours or less generally results in potential eligibility, the benefit determination will be based primarily on compensation and hours worked.