The novel coronavirus has reached Connecticut. Employers are facing decisions many have never faced before, such as implementing widespread telecommuting measures or even temporarily shutting down business. There are countless employment law questions that arise from this fluid public health emergency. Here are a few issues to keep in mind as you decide how to respond to these workplace challenges and protect your workforce.
- Keep workers safe when they are at work. The Occupational Safety and Health Act (“OSHA”) requires employers to furnish a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm. More specific standards, such as those related to bloodborne pathogens and personal protective equipment, apply in certain contexts and industries. Employers in the healthcare industry should be aware that more extensive obligations apply. Further guidance from OSHA is available at https://www.osha.gov/SLTC/covid-19/standards.html. You may choose to put up CDC posters available at https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html. Consult with local public health officials to determine what steps are appropriate for your business.
- Maintain employee privacy. Sharing medical information about employees may violate the Americans with Disabilities Act and other laws. If an employee or member of an employee’s family is infected, notify other employees that an employee or family member is infected, but do not identify the individual.
- Permit or require sick employees to stay home. Employers are permitted to require employees to take a sick day to prevent transmission of illness to others. Consider allowing the employee to telecommute so that a sick day is not used involuntarily. However, an employee can be required to use a sick day or even take the day off without pay if there is no paid time off remaining. Some companies are adjusting their paid time off policies because of the coronavirus to allow employees to take sick time with pay, even if the sick time has been exhausted. Note that for exempt employees (except for doctors, teachers, and lawyers), you can only dock the employee’s pay for partial-week absences if the deduction is made pursuant to a bona fide plan, policy, or practice of making deductions from an employee’s salary after sickness or disability leave has been exhausted which has been disclosed to the employee. If the exempt employee performs any work (even checking work email), he or she is entitled to full pay.
- Protect vulnerable employee populations. If you cannot allow all employees to stay home, consider allowing vulnerable populations to do so. The CDC has indicated that those over the age of 60 and those with serious long-term health conditions like diabetes, heart disease, or lung disease are at higher risk to develop serious outcomes should they become infected. If it is not practical to allow all employees to stay home, allowing these employees to stay home would be a reasonable option in light of the CDC’s guidance.
- Be aware of potential Workers’ Compensation implications. It is possible employees could receive Workers’ Compensation benefits if they can demonstrate that they became infected with the coronavirus through their work. This is especially likely in the case of health care workers who come into contact with infected patients but can apply in any setting where an employee can demonstrate that the infection was acquired through work.
- Consider requiring medical clearance before returning an employee to work. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the illness were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. The Equal Employment Opportunity Commission cautions that, “As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”
- Remember the FMLA. If you are a covered employer under the Family and Medical Leave Act, provide employees who take time off for their own illness or that of a covered family member with the notice of their rights under the FMLA and certification forms. It is not clear that every person infected with the coronavirus will meet criteria for having a “serious health condition,” but the certification forms should be provided so that the determination can be made. Leave taken for the purpose of avoiding exposure to a contagious illness is not covered under the FMLA.
- Consider implications of temporary shutdowns. In some settings, work-from-home arrangements simply will not be possible. In those cases, a shutdown may be the best business decision. You do not need to pay employees, even exempt employees, for weeks in which no work is performed. However, employees may be eligible for unemployment benefits during a shutdown. Employees can be required to use paid time off. However, in cases of temporary shutdowns, it is not permitted to dock an exempt employee’s salary (except for doctors, teachers, and lawyers), even if the employee has no paid time off available. Some large-scale temporary closures may trigger the federal Worker Adjustment Retraining Notification Act (WARN Act). Under this law, employers with 100 or more employees are required to provide 60 days’ advance notice of a temporary shutdown if the shutdown will (i) affect 50 or more employees at a single site of employment and (ii) result in at least a 50 percent reduction in hours of work of individual employees in a 30-day period. There are exceptions to the notice period for unforeseen circumstances, but in these situations, employers must still provide as much notice as possible.
- Avoid discrimination. Employers must be careful not to treat employees as more likely to be infected or contagious based on unfounded assumptions. For example, employers should not allow employees to shun Asian coworkers because the virus was first observed in China. One Chinese restaurant reported that it received a delivery order requesting that no Asian employees come into contact with the food. Indulging such requests could subject an employer to discrimination claims.
The coronavirus presents new and difficult challenges to everyone, including employers. While much of this is uncharted territory, the labor and employment attorneys at Berchem Moses PC are prepared to help you navigate these uncertain times.