Although the risk of exposure to the Coronavirus (or “Covid-19”) within most U.S. workplaces is uncertain, employers should nonetheless evaluate their emergency preparedness plans in response to the potential threat. While we have discussed some Coronavirus issues to be aware of in a previous post, now is the time for employers to further evaluate emergency procedures and consider employment-related obligations that may arise in the event that a worker becomes ill.
Specifically, employers should ask themselves:
- Do we need to implement travel restrictions? Quarantine policies? The CDC provides Travel Notices that identify areas where the risk of exposure to Covid-19 is the highest. Many employers are now restricting non-essential travel to areas that have been identified as “high-risk.” Employers should also consider requiring employees who return from a high-risk location to remain quarantined—i.e., work remotely or be put on temporary furlough—for the period of incubation for Covid-19. If an employee presents a direct threat to themselves or others by virtue of coming to work, then an employer can require that employee to stay home. Of course, employees displaying symptoms of Covid-19 should stay out of the workplace, so self-reporting should also be encouraged. Supervisors should be prepared to determine how affected employees’ responsibilities will be reallocated, or whether the employees will be able to perform work from home, in the event they are required to stay away from the office.
- Is a quarantine paid leave? The CDC recommends implementing non-punitive leave policies that encourage employees to take leave in order to care for themselves or sick family members. To that end, employers should consider whether Covid-19-related leave may qualify as relating to a leave due to a “serious health condition,” and thus qualify as FMLA leave. In addition, supervisors and HR teams should remind themselves of their company leave policies, including guidelines regarding when PTO can be required and when advances on PTO can be taken.
- What will our pay practices be during a quarantine? Keep in mind that wage laws continue to apply, even if employees aren’t performing their work from the office. Under federal law, deductions from salaried employees’ pay may be made in only limited circumstances, including for absences of one or more full days occasioned by sickness if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by that sickness. Before making any salary deduction, employers need to proceed carefully and be comfortable that one of the few exceptions allowing for the deduction applies. In addition, employers should be asking whether supervisors have a reliable means to track non-exempt employees’ remote working time in order to ensure that they are paid for all hours worked.
- Do employment discrimination laws limit the actions we can take? Anti-discrimination and anti-retaliation laws continue to apply, so employers need to be careful not to take adverse actions because of employees’ national origin or other protected characteristics. However, as the EEOC reminds us in a bulletin posted this week, disability laws “continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the Coronavirus.” The EEOC also referred back to its guidelines, issued in 2009, which address pandemic planning in the workplace, outline the medical-related questions an employer can ask and the examinations they can require, and ADA-compliance practices for pandemic preparedness.
- Do we have an effective communications system in place? The need for rapid and accurate company-wide communications could be more important than ever as the virus spreads. Employers should audit their communication capabilities, including their ability to disseminate messages to remote employees. In addition, companies should remind supervisors and HR professionals of the need to preserve the confidentiality of individual employees’ medical-related information.
- What will our return-to-work requirements be? Employers often require a health care provider’s certification clearing an employee to return to work after certain medical leaves. Notably, the CDC currently recommends against requiring such certifications due to the potential burden on health care providers. However, as the situation evolves, employers should carefully consider (after taking into account CDC guidance and any other public health advisories) whether they will require return-to-work certifications.
Again, while the chance of a particular workplace being affected may seem remote, all employers would be well advised to have answers to these questions before they become necessary.