Employers are facing an unprecedented challenge navigating COVID-19. As the virus spreads, it is generating fear and uncertainty. Employers need clear answers they can trust. They want to know how they can protect their employees, what their obligations are under the law, and what steps they may need to take if the situation gets worse. We've put together this FAQ in the hope that it helps you manage this challenge and adapt to the circumstances ahead.
Can employees refuse to travel to areas considered safe?
You can require employees to travel as long as you meet your general duty under OSHA to provide a workplace (including any travel location) that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
To ensure that you are not subjecting an employee to excessive risk, check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country where the employee is traveling.
Perhaps more important than whether you can force an employee to travel is whether you should. Requiring a fearful employee to travel will erode trust and confidence and likely cause them significant anxiety. Consider video calls or videoconferencing as an (inexpensive!) alternative to traveling for the next few weeks or months.
Also keep in mind that employees who are immunocompromised or have other relevant disabilities may be entitled to an accommodation (such as not traveling, given current conditions) under the ADA.
Can we send employees home if they are symptomatic?
Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 (e.g., cough, shortness of breath) should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute.
Note: Non-exempt employees may be entitled to a few extra hours of pay if you’re in a state with reporting time pay, but this cost will be well worth it to maintain the safety of the workplace.
What if my employee discloses that their family member or roommate has COVID-19?
Our recommendation is to follow guidance from the Centers for Disease Control and Prevention (CDC). Employers should ask employees who live with someone confirmed to have COVID-19 to notify a designated HR representative or their supervisor as soon as possible. The employer and employee should then refer to CDC guidance to assess risk and determine next steps—see Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management.
Do any leaves apply?
Whether FMLA or a state family and medical leave or insurance program will apply to a particular case of COVID-19 will be fact-specific. Even if FMLA or state leaves do not apply, though, we would recommend that employers treat leaves related to this illness as job-protected, both for legal reasons and because it’s the right thing to do. If you’re in a state with a sick leave law, that will apply if the employee is sick, a family member is sick, or (in many states) when an employee is told to stay home by a public health authority.
If an employee is out of the office due to sickness, can we ask them about their symptoms?
Yes, but there’s a right way to do it and a wrong way to do it. In most circumstances, employers shouldn’t ask about an employee’s symptoms, as that could be construed as a disability-related inquiry. Under the circumstances, however—and in line with an employer’s responsibility to provide a safe workplace—we recommend asking specifically about the symptoms of COVID-19 and making it clear that this is the extent of the information you’re looking for.
Here’s a suggested communication: “Thank you for staying home while sick. In the interest of keeping all employees as safe as possible, we’d like to know if you are having any of the symptoms of COVID-19. Are you experiencing a fever, cough, and/or shortness of breath?”
Remember that medical information must be kept confidential as required by the ADA. If the employee does reveal that they have symptoms of COVID-19, or has a confirmed case, you should see the CDC’s Interim Guidance to determine next steps. Tables 1 and 2 will help you assess risk and determine what steps, if any, should be taken.
Can we require or allow certain groups of employees, but not others, to work from home?
Yes. Employers may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee. Employers should be able to support the business justification for allowing or requiring certain groups to telecommute.
If we choose to close temporarily, do we need to pay employees?
It depends on the employee’s classification.
Non-exempt employees only need to be paid only for actual hours worked. For these employees, you may:
Pay the employee for the time, even though they did not work;
Require they take the time off unpaid;
Require they use any available vacation time or PTO; or
Allow employees to choose between taking an unpaid day or using vacation or PTO.
All four options are compliant with state and federal law. We generally recommend option 4—allowing but not requiring employees to use vacation time or PTO. If your office is required to close by health authorities and your state has a sick leave law, employees may be able to use accrued paid sick leave during the closure.
Exempt employees must be paid their regular salary unless the office is closed for an entire workweek and they do no work at all from home. You can, however, require them to use accrued vacation or PTO during a closure if you have a policy that indicates you will do so, or if this has been your past practice. When it comes to accrued vacation or PTO, it is safest to give employees advance notice if there are situations where you will use their accrued hours whether they like it or not.
Legal Disclaimer: This article is intended for informational purposes only and does not constitute legal or medical advice.