This unprecedented pandemic and governmental response to it poses a wide variety of questions for employers trying to be good corporate citizens, take care of their staff, keep their enterprises afloat and comply with a fast-changing array of legal obligations. Here I’ve tried to provide guidance on some of the questions that are arising frequently. Of course, each case is unique and this general guidance cannot substitute for the legal advice available in a consultation with an attorney.
1. Do I have to pay employees I send home temporarily because the COVID-19 pandemic has required me to shut down or reduce my business?
You should check any applicable collective bargaining or individual employment agreements for specific obligations. For most employees, however, the question is answered by the wage and hour laws. A non-exempt employee is paid for the time she actually works and not more. An exempt employee must be paid his full salary for any week in which he performs any work.
2. Can I discipline employees for alarming coworkers and customers by saying our COVID-19 precautions are inadequate?
That can be risky. If an employee is authorized to speak for her coworkers, the speech can be protected by the National Labor Relations Act, even if the workforce is not unionized, in the private sector, or the Municipal Employee Relations Act for local government employees. Even if the employee is speaking solely for herself, it might be protected by a State statute that prohibits disciplining employees for exercising their constitutional free speech rights. COVID-19 pandemic precautions are a matter of public concern so speech about them could qualify for this protection, even if it is incorrect. The best response to bad speech is good speech. Share with your workforce and customers the steps you are taking and the resources you are tapping to find out best practices.
3. Do I have to accept an employee’s demand for leave because his children’s school is closed due to COVID-19?
As of April 2, the answer might be yes. That is the day that two key provisions of a federal law called Families First Coronavirus Response Act take effect. Then employers with under 500 employees will have to provide up to 12 weeks of FMLA leave to any employee with at least 30 days’ service if the employee is unable to work or telework because his child’s school or care facility is closed, or child care provider is unavailable, due to COVID-19. The leave must be paid at 2/3 the regular rate (or 2/3 minimum wage if it is higher) up to a maximum of $200 per day. Payroll tax credits offset the cost and any shortfall of the credit will be paid by the US government to the employer.
4. Can I send home an employee who tells me her roommate tested positive for COVID-19?
5. Will I have to allow employees to work remotely after the COVID-19 pandemic is over now that I have let them do it to comply with the shut down order?
Generally, no, employers can choose how they wish to operate their businesses. However, if a person with a disability wants an accommodation of remote work, the fact that the business has done it during the COVID-19 pandemic could be evidence that it is reasonable and doesn’t unduly burden the business. If the remote work offered due to COVID-19 is really less than the full job, it might be helpful to document that not all the job’s essential functions are being performed.
6. Can my employees collect Unemployment Compensation benefits if I lay them off due to COVID-19?
Full time employees, who are ready, willing and able to work but have lost their current work, even temporarily, should be eligible for benefits. Waiting periods and work search requirements are being eliminated or relaxed during COVID-19. In normal times, laid off part-time workers generally do not qualify unless their failure to work full-time is medically required. However, there is some chance that rule may be relaxed as well. You should encourage your employees to apply and give them the necessary documents. An Unemployment Separation notice package can be found on the Connecticut Department of Labor’s website. www.ctdol.state.ct.us
7. Could I be liable to employees who contract COVID-19 at work?
Workers’ Compensation claims for COVID-19 can be expected to be eyed skeptically by carriers because of the difficulty of identifying the exact source of an infection and the widespread presence of the virus worldwide. Nevertheless, allow your employees to make reports if they wish. OSHA’s general duties clause requires employers to provide a safe workplace. Reasonable precautions, consistent with up-to-date CDC and other health authority guidelines should be carefully taken to help comply with this obligation.
8. Can I temperature check employees and send home anyone with a fever while the COVID-19 pandemic is going on?
9. Can I reduce my employees’ pay to respond to COVID-19 business reduction?
You need to comply with any bargaining obligations in a unionized workforce, and the provisions of any individual employment agreement. For the unrepresented general “at will” hire, the employer can reduce pay. The employee must be given written notice before the first work at the new rate is performed. The change cannot take place before an employee has the opportunity to decline to work at the reduced rate.
10. Do I have to give employees any COVID-19-related information?
The Families First Coronavirus Response Act requires employers to give workers notice of their rights to sick pay and expanded FMLA leave. The US Department of Labor will provide the model notice soon. Watch their website www.dol.gov.
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