By: Brett Schneider, Michael Kantor and Brooke Ehrlich (Labor & Employment Division)
As the Coronavirus (COVID-19) outbreak spreads across the Country, employers are faced with difficult questions regarding their workforces. Here are some of the frequently asked questions that we have been addressing of late:
What do we do if one of our employees tests positive for the virus? You should send that employee and all employees who worked closely with that employee home for a 14-day period of time, to ensure the infection does not spread. Before the employees depart, ask them to identify all individuals who worked in close proximity (up to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. You should also ask your cleaning company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.
One of our employees came into contact with someone who had a presumptive positive case of COVID-19. What should we do? Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee is asymptomatic for the virus but you are acting out of an abundance of caution.
One of our employees has been exposed to the virus and interacted with clients and customers. What should we do? Take the same precautions as noted above with respect to coworkers, treating the situation as if the exposed employee has a confirmed case of COVID-19 and sending home potentially infected employees that he came into contact with. As for third parties, you should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.
What should we do if an employee has recently traveled to an affected area or otherwise may have been exposed to the COVID-19 coronavirus? If the CDC or state or local public health officials recommend that people who visit specified locations remain at home after traveling, an employer may ask an employee what locations they have traveled to, even if the travel was for personal reasons. During a pandemic, an employer does not have to wait until an employee develops symptoms to ask questions about potential exposure to a pandemic during recent travel.
Can we impose mandatory quarantine periods on employees who return from a trip to an area with a known outbreak? Yes. We recommend 14 days.
Can we require a sick employee to stay home against their will? Yes. You may also ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.
Can an employee refuse to come to work because of fear of infection? Employees are only entitled to refuse to work if they believe they are in imminent danger. That generally means “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately.” Most work conditions in the United States do not meet the elements required for an employee to refuse to work, unless there has been an actual case of COVID-19 in the workplace.
Can we prohibit an employee from traveling to a non-restricted area on their personal time? You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. However, you may want to consider requiring employees to notify you of any overseas travel so that you can monitor the situations in those places.
We have an employee who has recently traveled overseas to a country that is not on any restricted list, but we’re worried about the risk of transmission. Should we institute a quarantine? No – there is likely no greater risk of this employee being infected with the COVID-19 coronavirus than any of your other employees.
Can employees refuse to travel as part of their job duties? Yes, but only if the travel is to a location where a realistic threat exists. However, employers should be sensitive to older, disabled or pregnant employees even if the travel is to a location deemed “safe.” If employees refuse to travel for business to any other country for fear of catching the COVID-19 coronavirus, try to work out an amicable resolution.
Should we institute a temporary remote work policy in light of the COVID-19 coronavirus outbreak? Whether you implement a remote work policy is entirely dependent on your organization’s circumstances and the area of the country where your workers reside. You may not want to introduce a new system in place if you have had not yet had time to test and develop your remote work capabilities. On the other hand, if you have established protocols in place, this could be a good opportunity to leverage them.
What infrastructure should we have in place for a remote work plan? You will want to identify the roles that are critical to your business operations and determine whether those individuals can carry out their jobs while working remotely. If you can proceed, the next critical component is assessing your technological capabilities. Is there support in place to assist with the inevitable questions and IT problems that will arise? Is there sufficient security and privacy protocols in place? Considering these questions will help you determine whether you can move forward with a remote work plan.
What can we do to prepare for a possible remote work scenario? Take an inventory of the types of equipment your workers would need to get their job done and ensure they have access to them. This could include laptops, desktop computers, monitors, phones, printers, chargers, office supplies, and similar materials. Employees may want to develop a “ready bag” that they take home with them at the end of each day that would allow them to begin working remotely at a moment’s notice. This would obviously include laptops, smartphones, and other related technology, but could also include physical items (such as binders, documents, and materials).
What are some concepts we should keep in mind to ensure our remote work time is productive and successful? You may want to agree on a single communications platform that all workers will be required to participate in. It could be email, text messaging, instant messaging, Slack, Skype, Zoom Conferencing, or some other designated tool. Keep an eye on the bigger picture and track overall productivity, not moment-by-moment activities. Another concern for workers not used to working remotely is that they may feel untethered and disconnected from the organization during this time period. Some tactics to prevent and overcome this problem include: Developing and distributing an agenda for all team get-togethers and meetings, as well as meeting minutes and task lists after they are completed, so that those unable to attend can feel part of the action; Schedule virtual team lunches and digital social time where workers can interact on a social level.
Must we keep paying employees who are not working? Generally no. Under the Fair Labor Standards Act, minimum wage and overtime requirements attach to hours worked, so employees who are not working are typically not entitled to the wages the FLSA requires. One possible difference relates to employees treated as exempt FLSA “white collar” employees whose exempt status requires that they be paid on a salary basis. Generally speaking, if such an employee performs at least some work in the employee’s designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. There can be exceptions, such as might be the case when the employer is open for business but the employee decides to stay home for the day and performs no work. Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law. Finally, we caution employers to consider the public relations aspect of not paying employees who may not be working if they have contracted or are avoiding the COVID-19 coronavirus. Given the publicity surrounding this outbreak, it is possible the media may make issue of that and/or damage your reputation and employee morale. Consider the big picture perspective when making decisions regarding paying or not paying your employees. Also, continue to monitor legal developments as the federal government may address this issue with new legislation.
Can we charge time missed to vacation and leave balances? Yes —The FLSA generally does not regulate the accumulation and use of vacation and leave. The salary requirements for exempt “white collar” employees can implicate time-off allotments under various circumstances. However, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.
Should we discontinue work-related social events? Possibly. Given the apparent ease of transmission of the coronavirus, it certainly makes sense to limit or postpone unnecessary social events for the time being. However, should an employer wish to hold social gatherings, we suggest that they be kept small (less than 50 people) and that any food or beverages offered be individually wrapped (i.e., no bowl of popcorn or keg of beer) to limit the potential spread of germs.
My workforce is unionized. Can my company make changes to unionized employees work schedules or duties in response to the COVID-19 coronavirus? Possibly. Employers generally have a duty to bargain in good faith over mandatory subjects of bargaining such as wages, hours, and terms and conditions of employment. Generally speaking, employers who make unilateral changes to these facets of employment may be subject to unfair labor practice charges that would apply even in emergency situations such as this one, unless your collective bargaining agreement provides otherwise. Many collective bargaining agreements contain provisions that allow for employer flexibility in determining work assignments, scheduling, and layoffs. The first authority for determining your rights and obligations is your own collective bargaining agreement. However, the general duty to bargain over changes in contractual terms may be suspended where compelling economic exigencies compel prompt action. The law views “compelling economic exigencies” as extraordinary, unforeseen events having a major economic effect that requires the employer to take immediate action and make a unilateral change. Certainly, coronavirus could qualify.
