As the nation continues to grapple with the growing concern and impact of the outbreak of the Coronavirus (COVID-19) pandemic – amidst a national emergency, the unprecedented cancellation of major sporting events and seasons, closures of schools and universities, shutdowns of festivals and any other large gathering events – business owners and employers are scrambling to respond to frequently asked questions by employees.
The Taylor Porter Employment, Labor & Benefits Practice Team hopes this article will answer many questions for employers on how to plan, prepare, and respond, to these various situations. Below are some FAQs. Please keep in mind that these answers may change as federal edicts come down, or even state laws temporarily change, amidst the pandemic.
Can an employee refuse to come to work?
Employees cannot refuse to go to work unless they can prove they are in imminent danger, according to the Occupational Safety and Health Act. An employee diagnosed with COVID-19 would qualify as having a serious health condition under the FMLA (Family & Medical Leave Act) and would be allowed to take FMLA protected leave if the employee otherwise meets FMLA requirements.
Do we have to allow employees to work from home? Generally, no, but working remotely, also known as telecommuting, may reduce exposure of the virus. Employees with underlying conditions or disabilities may be at high risk for complications if they contract the virus, and allowing such an employee to work from home may be considered a reasonable accommodation under the ADA. (Pandemic Preparedness in the Workplace and the ADA)
Consider reviewing and/or revising your human resources policies to determine the feasibility of policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours. If you choose to deviate from any standard company policy for the duration of the COVID-19 outbreak, communicate to your employees that this is a temporary condition and circumstance. A sample message to convey temporary conditions and circumstances may parallel the following statement:
“Because of the extraordinary situation in the workplace caused by the Coronavirus, Covid19, you may be allowed or directed to work remotely for a temporary period. We understand that you might not be able to perform all of your job’s essential functions during this temporary period because you will be working remotely.”
Are you required to pay employees who work from home?
Nonexempt employees must be paid for all hours worked whether at your business location or at a remote location. Generally, exempt employees must be paid their full salaries for any week in which they perform work. However, exempt employees are not required to be paid their salary in any workweek in which they perform no work. Accordingly, employers would not be obligated to pay such employees in weeks in which the facility is closed unless the employee continues to work remotely during this period with the approval of the employer. If employees are not to work remotely during such period, they must be explicitly directed not to work, and this should be monitored by the employer to assure that work is not being performed. If the employer “suffers or permits” work to be performed, the employee(s) must be paid, as required by applicable law.
Are you required to pay employees who are at home and not working?
No, according to the Fair Labor Standards Act, employers are required to pay nonexempt, hourly employees only for hours they actually work. Nonexempt employees who do not have paid leave available are not required to be paid for such absences, unless there is a collective bargaining agreement indicating otherwise.
Typically, an exempt employee must be paid for partial-day absences but may have his or her salary reduced for full-day absences due to sickness if the employer offers a paid sick leave benefit and the employee has exhausted that leave or is not yet eligible for the leave. When considering whether or not to pay employees at home, keep in mind the public relations and morale aspects of such a decision for your company amidst a Coronavirus pandemic that is getting so much national media attention.
Can employers prohibit employees from traveling?
No, but an employer can discourage international travel to the CDC’s Level 3 - High Risk areas of Europe, China, Iran, South Korea or on a cruise ship to any location. The CDC’s travel advisories are in this link: https://wwwnc.cdc.gov/travel.
Do I have to allow an employee to wear protective gear, such as a facemask at work?
Generally, no. However, if an employee has an underlying condition or disability, protective gear might be a reasonable accommodation. The CDC advises against wearing protective gear unless an individual is sick with symptoms of the virus or is taking care of someone with the virus at home or in a health care setting.
Can you ask employees who show symptoms, i.e. coughing, sneezing, to go home and/or stay home?
The CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Employers can ask an employee how he or she is feeling in general but should not inquire about a specific illness as that could rise to the level of a disability related inquiry under the ADA. Employees are encouraged to notify their supervisor and stay home if they are sick, and also encouraged to self-report to supervisors and employers if they are or have been:
It is also advisable, (as a temporary measure if contrary to an employer’s current policy), to not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way during this pandemic.
What about employees who have family members that test positive for COVID-19?
Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Can I tell employees if a co-worker has tested positive for COVID-19 or other communicable disease?
No. The ADA privacy rules restrict employers from sharing personal health information of an employee. Employers should inform employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.
There are many resources and much information available to you, including:
If you have any further questions, please do not hesitate to contact any member of the Taylor Porter Employment, Labor & Benefits Practice.
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