COVID-19 has taken the world by storm. The pandemic has caused utter chaos in the world of work, posing a number of questions that still remain unanswered. In an effort to ‘flatten the curve’ employers around the world are having to make certain business decisions to ensure the safety of their employees and uphold business continuity. However, most of them are confused about the legal implications of these actions.
This article intends to offer employers legal advice and opinion pertaining to their obligations around COVID-19. If you are an employer, the following questions and answers will help you understand your obligations during this pandemic situation. Use the information shared here as a guide and involve an expert legal team to make informed decisions in favor of your business.
- Can employers enquire about an employee’s wellbeing?
The panic caused by the pandemic is prompting several employers to ask questions about the health of their employees. This could violate the Americans with Disabilities Act (ADA). However, the U.S. Equal Employment Opportunity Commission (EEOC) states that employers should ask employees if they are experiencing symptoms like fever, chills, a cough, or sore throat as this does not amount to seeking information related to a disability.
The employer should not ask disability-related questions. For instance, they cannot ask whether the employee is suffering from a condition that compromises the immune system. Such questions can be asked only if there’s objective proof that COVID-19 symptoms will cause a direct threat to others.
The EEOC shares specific instructions related to pre-employment inquiries, medical questions, and examinations. Further, the employer should keep the employee responses and medical records confidential in compliance with ADA. - What amounts to discrimination in the workplace?
In order to prevent stigma and discrimination in the workplace, the Centers for Disease Control and Prevention (CDC) has shared strict guidelines for businesses and employers. The federal agency strongly encourages employers not to make determinations of the infection risk on the basis of age, medical condition, race, or country of origin
For instance, isolating a Chinese or Italian employee in whose countries the outbreak of COVID-19 is widespread can amount to a discrimination claim. Similarly, introducing a policy that requires employees over 50 years of age to stay at home as they may be susceptible to infection could amount to discrimination. - Can employers encourage employees to work remotely or telework?
Yes. Employers can encourage their staff to work remotely as an infection-control measure. According to the EEOC, working remotely is a form of social distancing and an effective method to control the pandemic. Further, employees with disabilities that put them at a high risk of contracting the infection may request telework as a reasonable accommodation.
Also, if an employee is displaying symptoms of COVID-19, the employer can send them home, as advised by the CDC. - Can employers terminate employees or announce a layoff?
The U.S. Department of Labor (DOL) encourages employers to comply with the federal WARN Act (Worker Adjustment and Retraining Notification) and the state mini-WARN requirements. The act requires employers (having a total of 100 or more full-time workers) to offer an advance written notice (at least 60 calendar days in advance) in cases of qualified plant closings or mass layoffs.
Dr. Nick Oberheiden, Founder and Attorney, Oberheiden P.C., shares, ‘The federal WARN Act applies to all employers. WARN and its counterpart mini-WARN acts are complex and technical. Before downsizing, employers should carefully consider whether employment terminations trigger notice obligations under this act and take effective measures to mitigate the risk of employment-related claims which could land them in a legal soup.’
Employers should ensure that the selection criteria for and employee termination or layoff decision is non-discriminatory. Also, it’s advisable that they comply with applicable state-law requirements regarding the contents of the termination letter and the time frame of the final settlement. - Does the Family and Medical Leave Act (FMLA) apply to this situation?
Yes. Employees applying for leave and meeting FMLA-eligibility requirements are protected by the act. The FMLA offers up to 12 weeks of unpaid leave for eligible employees for qualifying events like a serious health condition. However, employees staying at home to avoid getting sick are not entitled to take FMLA.
An employers’ FMLA obligation may be changed by the Families First Coronavirus Response Act (FFCRA). The Department of Labor’s Wages and Hour Division recently offered compliance assistance for employers related to the application of the benefits and leave entitlements authorized by the FFCRA. Get yourself familiar with this act and work with counsel to ensure legal compliance. - If an employee claims that they contracted the virus while on official duty, will it result in a valid workers’ compensation claim?
It depends on several factors, such as the nature of the job, the state law, and other facts related to the exposure. For instance, in the case of a health care worker or first responder, the answer to this question may be yes (depending on the respective state law).
For other types of employees, compensability for a workers’ compensation claim is decided on a case-to-case basis. The key consideration here is whether the employee contracted the virus while at work and whether the contraction of the disease was ‘peculiar’ to their employment. As an employer, you can challenge the allowance if there is another alternative exposure or if the employee’s medical evidence is unproven. Trust an experienced attorney to guide you in this matter. - Does an employer have to pay employees who are not at work due to self-isolation or quarantine?
Regardless of whether the employee is exempt or non-exempt, as a general rule, employees should be paid for the time they have worked. In fact, the California and Illinois state laws require employers to reimburse employees of any business-related expenses that may apply during teleworking.
A few other circumstances where the employees are not working remotely because of no work, sickness, or inability to perform a job remotely, should be evaluated based on certain legal and practical considerations.– If the employees are salaried exempt under the Fair Labor Standards Act, in all probability their compensation will not be affected by business closure or absence from work.
– In case of nonexempt employees, employers need to consider whether these employees, who are absent from work and not working from home, are entitled to compensation under the business’ sick, vacation, or other paid-time-off policy, short-term disability policy, or under applicable state/local paid sick leave laws.
– For employees who are not entitled to paid time off or have exhausted their paid time off allotments, many employers in the U.S. have decided to provide at least some level of compensation. This is to encourage people not to report to work if they are sick.
Employers planning to implement changes in their normal compensation or time-off policies should clearly describe them as limited to address the exigencies caused by the pandemic.
Every organization is unique and so is each employee. Consequently, there are several considerations employers should bear in mind when making any decision during this period. One wrong decision can prove to be costly to the organization’s reputation and business continuity.
Therefore, it’s wise to take the advice of an attorney to stay on course with federal compliance regulations and avoid any legal hassles. Additionally, you can refer to the complete set of questions and answers shared by the Department of Labor that addresses most of the employers’ concerns.
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