What Employers Need to Know

As the world navigates a public health emergency, employers must also navigate a rapidly changing business landscape which includes managing the fears and health of their employees. Employers must give thoughtful consideration to employment-related issues and avoid acting without contemplating the long-term repercussions. The guidance and recommendations offered below are likely to change as conditions worsen or improve.

Got Sick Employees?

Sick employees in the workplace are nothing new. Every employer has had an employee come to work who arguably looked or sounded like they should have stayed at home. However, with the declaration of a global pandemic on March 11, 2020, the days of allowing those workers to stay are over.

The CDC’s position as of March 12, 2020 is that employees with flu-like symptoms should be sent home or avoid the workplace altogether. The Americans with Disabilities Act generally limits the kinds of questions an employer can ask about an employee’s health or medical status.

However, in addressing employer responses to the pandemic, the EEOC urges employers to review the Commission’s 2009 guidance documents which allows employers to ask employees about symptoms consistent with the Coronavirus – fever, chills, cough, shortness of breath, and sore throat. If an employee comes to work exhibiting any of these symptoms, an employer may ask questions about those symptoms but should stop short of asking questions likely to prompt information about an employee’s disability.

Depending on an employee’s responses, an employer may send an employee home from work, ask them to seek medical attention, and prohibit them from coming to work. Even during a pandemic, an employer’s decision cannot be based on the employee’s membership in a protected class (ie, race, gender, national origin, disability, age, religion, etc…).

The question to ask is this – does the employee pose a direct threat to the health and safety of your workforce for which no reasonable accommodation will eliminate the threat?

What is a “direct threat”? According to EEOC guidance, once health authorities such as the CDC or state and local health agencies determine that the threat posed by pandemic influenza poses a significant risk of substantial harm, it is a direct threat. Based on the numerous federal, state, and local declarations and those from the World Health Organization, it’s safe to assume the Coronavirus or COVID-19 is a direct threat.

Employers should also remember that many states including South Carolina prohibit discrimination against or the termination or demotion of any employee complying with a quarantine or isolation order from a state or local health agency.

When a Positive is a Negative

As more and more cases are diagnosed, the chances of one of your employees reporting that he or she has just tested positive for COVID-19 are increasing exponentially. What do you do if you get that call?

First, identify anyone who worked closely (within 3 to 6 feet) with that employee in the two weeks before the positive test. Send those employees home for 14 days to decrease the risk to the remaining employees who did not have contact with the employee who tested positive.

Do not identify the infected employee but do consider a deep clean of any affected workspaces. The same is true if an employee reports a “suspected but unconfirmed” case of COVID-19 or if an employee reports they had contact with someone with a positive or presumptive positive for COVID-19.

One side note, healthcare providers are likely to be swamped and may not be able to provide proper or timely documentation should an employer require a doctor’s note. In fact, the CDC is recommending employers dispense with written documentation requirements during the pandemic.

Working Remotely

Telecommuting, or working remotely is a popular and effective strategy to comply with this public health emergency. If you don’t have a remote work policy, now is a great time to implement one.

The policy should include specifics regarding the employee’s at-home or remote workspace, equipment requirements, security requirements for sensitive company information, communication availability before, during, and after regular work hours, and hourly work or project-based work expectations.

It’s important to remember that hourly employees must continue to track and record all hours worked and must be paid overtime if applicable. A remote work policy should also set forth details about what fees, expenses, and services (ie, internet costs, monthly phone bills, travel expenses, maintenance or repairs to company-owned equipment) the employer will cover.

Review your technology platform to make sure that it will support remote work by your workforce from both a production standpoint. You should also make sure that your employees are able to securely access data and sensitive information.

Be sure to apply any remote work policy uniformly so as to avoid claims of discrimination in making telecommuting available to employees. Identify which jobs and what type of work can be performed remotely and if possible, allow all employees in those jobs or performing specific work to work remotely. Picking and choosing which employees are allowed to work remotely could result in discrimination claims.

Paid Leave

Currently, no federal or state law requires employers to pay employees who are absent from work due to a pandemic illness. Employers must continue to comply with state and federal wage and hour requirements.

Employers with PTO, sick, or other paid leave policies may require an employee to use paid time off to cover a COVID-19-related illness or a state or local quarantine order. If you are a “Covered Employer” under the Family Medical Leave Act, the infected employee may be eligible for unpaid leave if he or she meets the eligibility requirements for leave under the FMLA. Likewise, an employee may be eligible for FMLA leave to care for a family member diagnosed with COVID-19.

Downsizing during a Pandemic

Under the Fair Labor Standards Act and state wage and hour laws, employers are not required to pay hourly, non-exempt workers who don’t perform any work. Generally, salaried exempt workers must be paid if they work for any amount of time during a workweek. However, employers can require salaried exempt workers to take paid leave or ultimately terminate those employees not meeting work expectations.

Unfortunately, employers may need to downsize their workforce if business wanes or they’re forced to suspend operations altogether. Companies with 100 or more fulltime employees are subject to the Worker Adjustment and Retraining Notification or WARN Act. Those companies have certain notice requirements that must be met including providing 60-days’ written notice before a plant shutdown or mass layoff.

The WARN Act does contain an exception to this notice requirement for “unforeseeable business circumstances” which are the result of “sudden, dramatic and unexpected action or conditions outside the employer’s control. However, employers still must provide notice of a shutdown or layoff as soon as practical.

Employers with fewer than 100 employees are not covered by the WARN Act but do need to be aware that a reduction in hours could lead to their employees becoming eligible for unemployment benefits even while still employed and working.

Although North Carolina has the most restrictive unemployment insurance system in the country, the Coronavirus pandemic is likely to fuel a significant increase in unemployment claims. Just last week, the U.S. Department of Labor gave states the ability to amend their employment benefits laws to provide benefits for events related to the Coronavirus.

Specifically, the USDOL confirmed that employees whose hours are reduced or cut entirely should be eligible for benefits and said that employees quarantined with the expectation of returning to work after the quarantine should also be eligible for unemployment benefits. North Carolina has yet to act on this new DOL directive.

Employers also need to be aware that a reduction in hours may also affect their employees’ healthcare benefits eligibility and should contact their brokers or review their plan documents.

Stay Calm and Prepare Now

With the increasing scope of government-ordered travel bans and business shutdowns, and the everchanging restrictions on the number of people who can gather in the same place, employers need to prepare now for what will likely be a challenging period of time in our country’s history.

This client alert provides an overview of a specific developing situation and is not intended to be, nor should be construed as legal advice for any particular fact situation. Lincoln Derr can help guide you through this unprecedented time.

Kathleen (Kathi) Lucchesi

Kathi Lucchesi regularly advises her clients in connection with all types of employment issues both in and out of the workplace. She works with employers in connection with the hiring, discipline and termination of employees, policy drafting and implementation, claims for wrongful discharge and discrimination, unemployment, FMLA and Wage & Hour violations, and EEOC, DOL, ESC, DOJ, and Title IX investigations.

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