Employment Law and the CoronavirusAdded by John Ashby in Employment Law, News on March 19, 2020
Hawley Troxell’s partners and management team have been in constant communication to protect and serve our clients, attorneys, and staff. As the COVID-19 continues to evolve, employers face practical and legal employment challenges as they work to prevent the spread of infection within their workforces. During this time, Hawley Troxell attorneys are available to assist our clients in responding to force majeure events, telecommunicating policies, FLSA compliance, leave and furlough policies, as well as any concerns you may have caused by the COVID-19. Please contact one of our attorneys with any questions and/or concerns.
We caution that every situation is different, that application of the law to these unique circumstances is often unclear and that best practices are evolving. However, we offer the following guidance to commonly asked employment law questions:
What Guidance should Employers be Following?
As overarching guidance, employers should follow the current guidelines from the leading health authorities, including:
- Centers for Disease Control (CDC) Interim Guidance for Businesses and Employers;
- Pandemic Preparedness in the Workplace and the American with Disabilities Act;
- OSHA’s COVID-19 Guidance; and
- The World Health Organization’s Update on the COVID-19 Outbreak.
What Safety Measures Are Employers Implementing?
In addition to following the above guidance and mandates issued by state and local governments, many employers are adopting safety measures, including the following:
- Restricting travel, especially to areas known to be particularly affected by the coronavirus. Increasingly, many employers are restricting all non-essential travel and limiting attendance at large group events.
- Imposing self-quarantines – away from work – for those who have the coronavirus, who have traveled to an affected area, or who otherwise have been exposed to someone who has or even may have the coronavirus.
- Permitting leaves of absence from work and/or work from home.
- Educating employees about the coronavirus, its symptoms (fever, cough, difficulty breathing), how it spreads, and safety measures that can be taken to mitigate its spread.
How Do the FMLA and ADA Apply to the Coronavirus?
An employee infected by the coronavirus will generally be entitled leave under the FMLA (assuming they meet the other FMLA requirements such as 12 months of employment and working at a site with 50 or more employees within a 75 mile radius). Similarly, FMLA is available to employees whose family members (such as a spouse, child, or parent) are infected. Infected employees who are not otherwise eligible for FMLA leave may be entitled to reasonable accommodations such as working from home or leave under the ADA.
Employees who are merely suspected of having coronavirus due to recent travel to an affected area or due to potential exposure to an infected person cannot be “forced” to take FMLA leave because mere suspicion of being sick does not mean the employee actually has the requisite “serious health condition.” Employers should not count such days off against FMLA leave. Nevertheless, many employers are requiring such employees to work from home or otherwise take time off to avoid the risk of exposing others (more on that below).
How Can Employers Identify Coronavirus in the Workplace?
The ADA places restrictions on the inquiries that an employer can make into an employee’s medical status and generally prohibits employers from requiring employees to undergo medical examinations unless they are deemed “job-related” and “consistent with business necessity.” This includes situations where an employee would pose a direct threat to others due to a medical condition. The more the coronavirus spreads, the stronger the position becomes that employers may mandate employee examinations, including measures like employee temperature screenings. This is a grey area that is evolving.
Can Employers Require Employees to Stay Home or Leave Work if They Exhibit Symptoms of the Coronavirus or the Flu?
Yes, and employers absolutely should do so under the current circumstances. CDC guidance provides that employees who exhibit flu-like symptoms at work during a pandemic should leave the workplace. During the H1N1 outbreak, the Equal Employment Opportunity Commission (EEOC) confirmed that employers may send home employees who exhibit flu-like symptoms.
What Should Employers Do if an Employee Tests Positive for the Coronavirus?
Remove the employee from the workplace and contact the CDC for guidance, which will likely involve a period of quarantine and steps to identify other potentially affected employees. In general, employers should not identify infected employees by name due to confidentiality laws.
What Should Employers Do if an Employee has a Suspected but Unconfirmed Coronavirus Infection?
Take the same precautions as noted above.
Should Employers Institute a Temporary Remote Work Policy?
Some employers are mandating remote work for some or all employees. Whether a remote work policy is appropriate will depend on an organization’s circumstances, its location and its ability to support remote workers. Employers who mandate or permit remote work should be prepared to address issues such as equipment issues for remote work, workers’ compensation, and management training on managing remote workers.
Are Employers Required to Pay Employees Who Are Not Working Due to the Coronavirus?
Under the Fair Labor Standards Act (FLSA), the general answer is “no.” Hourly (non-exempt) employees are not legally entitled to pay other than for the hours they actually work. Exempt employees are generally entitled to their full salary for any week in which the employee performs work. There are some exceptions when the employer is open for business but the employee decides to stay home for the day and performs no work.
Many employees who are not working due to coronavirus concerns will receive pay under employer PTO, vacation or sick leave policies. Employers can require employees who are not working due to the coronavirus to use accrued PTO. However, in an attempt to encourage reporting of symptoms and possible risk of exposure, some employers are voluntarily paying employees for time missed due to the coronavirus, even though not legally required to do so.
Notably, some of this analysis may be changing as the House is considering legislation – the Families First Coronavirus Response Act – that may create certain paid leave rights to employees impacted by the coronavirus.
The above guidance really only scratches the surface of employment law issues arising out of the coronavirus. Please do not hesitate to reach out to attorneys John Ashby, Brad Miller or Carsten Peterson with any questions. We are here (even if some of us are teleworking).
This Client Alert has been prepared by Hawley Troxell Ennis & Hawley, LLP for informational purposes only and is not legal advice, a legal opinion or counsel. Readers receiving information through this Client Alert should not act on or rely on it without consulting professional legal counsel. Any such opinions, advice or counsel are dependent upon the application of the law to the particular facts and circumstances of any given situation, and should be given by a licensed attorney in the exercise of his or her professional judgment only after the establishment of an attorney-client relationship and based upon the exercise of the attorney’s professional judgment after consideration of such facts and circumstances. The furnishing of this Client Alert does not constitute or give rise to an attorney client relationship.
More Employment Law Blog Posts
- 03/27/20—Occupational Disease Claims in the COVID-19 Environment
- 03/19/20—The Families First Coronavirus Response Act
- 03/19/20—Employment Law and the Coronavirus
- 02/03/20—The Utilization of Background Checks by Employers
- 08/06/19—Compliance Assistance Guides Released by the OFCCP