10 Things Employers Should Know About Handling the Workplace in Response to Coronavirus (COVID-19)
As the world faces the possibility of a coronavirus pandemic, employers are looking to lawyers for help in addressing tricky workplace situations. The World Health Organization as of today has confirmed over 170,000 cases worldwide of COVID-19. As more cases have come to light in the United States, the urgency for employers to take measures to avoid infections in the workplace has become significantly greater. Top U.S. companies, such as Microsoft, have urged employees to work from home if feasible for at least the next three weeks. For those who must physically come to work, employers are enhancing cleaning and sanitizing procedures and urging workers to avoid clustering and cancelling nonessential travel for work. Here are ten potential scenarios that employers might face as the dangers posed by the coronavirus become more serious.
Public health officials declare an emergency and work is canceled as a result. Do workers have to be paid? It depends. If workers are able to telecommute or otherwise work at home, they are on the clock and must be paid the same as if they were physically in the office. However, things become more complicated if workers are stuck at home and are unable to perform any work. If employees are nonexempt hourly workers, they generally must only be paid for time worked. However, if work is canceled because of a health scare, employers can allow them to take accrued paid time off or be paid in accordance with any state or local paid sick time law.
When it comes to salaried, exempt employees, state and federal law require that they be paid unless the business is closed for at least a full workweek and the person performs no work at all. Therefore, if an exempt salaried employee works on Monday and work is canceled for the rest of the week with no viable option to telecommute, employers must still pay that exempt employee for the full week.
If telecommuting is a viable option, how can employers keep track of what employees are doing? Require employees to document their time and work performed.
For the employer that does not typically allow telecommuting, it must make very clear that an it is absolute requirement that an employee working remotely must keep accurate track of their time and what tasks have been worked on or completed during that time.
Employees ask for masks and hand sanitizer at the workplace. Is an employer legally obligated to provide them? No, but it might be a good idea to do so. Masks, in particular, have become a controversial issue, as people have increasingly started wearing them in public areas. For healthcare workers, masks can be an important safety device, and the Centers for Disease Control (CDC) is recommending that healthcare workers use them. But the CDC has not issued a similar recommendation for the general public and is insisting that only that those who show symptoms of COVID-19 need to wear them. Employers should still take measures to make workers feel more at ease by informing them of steps they are taking to ensure the workplace is clean and safe. It is also just good general health practice for employers to provide tissues and hand sanitizer and simply advise that good hand washing is by far the best precaution to take.
A worker in the office has a bad cough; his manager is concerned. What should she do?
Employers need to be very careful to not cross the line and ask those questions that could be construed as disability-based discrimination.
Managers can certainly ask someone how they are feeling, but, while the manager may mean well, he or she may inadvertently run afoul of the federal Americans with Disabilities Act (ADA) or California Fair Employment and Housing Act (FEHA) if the inquiry delves into the worker's medical history. Managers may suggest that the worker seek medical attention or go home for the day and can educate employees by communicating exactly what coronavirus symptoms look like. Employers should provide guidance to employees that if they are beginning to exhibit symptoms of the coronavirus, then it's time to go see a physician immediately. Employers should also sanitize workstations of potentially sick employees, as they have an obligation to protect other employees against the threat of reasonable harm to those surrounded by the sick employee.
An employer customarily has lunch catered or puts on events where employees help themselves to food. Is that still OK? Probably not.
This is a practice that, in most cases, should be temporarily suspended. Employers might want to reconsider situations where food is left out for employee consumption, whether it is a catered lunch or workplace event where food is served, even if it means switching to box lunches.
An employee demands to be removed from sitting next to an Asian colleague over Coronavirus fear. Does an employer oblige? Not if the separation is based solely on a person's national origin. Because the coronavirus originated in China, employers must be careful to listen for and immediately put a stop to ethnicity or nationality-based discrimination and harassment in the workplace. Employers can properly ask workers about the details of any recent trips to coronavirus hotspots on a non-discriminatory, case-by-case basis. But in the case where a certain employee does not want to sit next to another employee, who happens to be of Asian descent, employers certainly cannot base any decision solely on that basis without engaging in unlawful discrimination.
Can an employee use leave under the federal Family and Medical Leave Act (FMLA) or state California Family Rights Act (CFRA), because he's concerned about coronavirus spread? Possibly, but it depends on the details. Under the FMLA/CFRA, which applies to employers with 50 or more employees, employees are entitled to job-protected leave for up to 12 weeks per year. In order to initiate the leave, employees must provide advance notice and a qualifying reason, such as themselves or an immediate family member suffering from a “serious health condition.”
A worker has recently traveled overseas to a country that is NOT a high-risk coronavirus location. Can the employer ask them to stay home upon their return? Yes. In instances where employees travel internationally to a country other than China, Iran, Italy or South Korea, which have had the worst of the outbreaks so far, employers are dealing with whether an asymptomatic person can be asked to stay home for a time. As long as employers do so in a nondiscriminatory way, employers can tell employees they can work from home if that's possible, but it is not required or necessary unless employees have been in a place that the CDC identified as a huge risk factor to be there.
An employee is asked to go on a business trip but doesn't want to go. Do employers send them anyway? Employers should tread carefully.
Even if it's not to a coronavirus hot zone, since there may be a risk of contracting the coronavirus in airports, employers should respect the health and welfare of their employees. Many employers are cancelling nonessential travel.
An employee is sick but wants to show up for work anyway. Do you let them? No. Employers should not have sick workers coming to work in an effort to tough it out. Communication to workers of an employer’s preparedness plans is key in keeping the workplace safe, including encouraging workers to stay home or self-quarantine if they feel ill or have recently traveled to a coronavirus hotbed.
The employment law attorneys at Thakur Law Firm, APC are knowledgeable in the latest employment law compliance issues, and they can assist your business in ensuring you do not run afoul of the ever-changing contours of California employment law.