The rapid spread of the coronavirus, or COVID-19, has affected all employers, but especially small employers in the private sector, who are worried about the loss of customers and the ability to make payroll, in addition to how to treat employees’ leaves of absence.
On Wednesday, the Senate passed and President Trump signed an emergency COVID-19 Bill to address these very concerns.
The challenges faced by employers has become a new front in the battle over the coronavirus. Employers have dusted off emergency response plans, tested out work-from-home procedures, and have been ordering increasingly stringent safety measures to protect their workers, customers and the general population.
As one small business owner said, no one has a playbook for this.
Workplace practices may shift on a daily basis given new, ongoing developments. Nonetheless, here are some of the immediate cutting-edge legal issues involved:
What does a company do if an employee suddenly falls ill — who has been at work — or informs you that he or she may have come in contact with a COVID-19 infected person or, tested positive for COVID-19?
A company may want to consider any or all of these steps:
1. Instruct that employee to stay home for at least the recommended time of 14 days and encourage them to contact a qualified health professional.
2. Ask the employee when he or she first noticed symptoms.
3. Determine an approximate window before the first noticed symptoms identified in No. 2 — a 14- to 15-day window before the date the employee indicated any “first” symptoms.
4. Ask the employee to recall his or her movements at the company, from the date of the window in No. 3 to the date he or she was mandated to stay home by the company.
Those areas of the workplace should be sanitized.
ARTICLE CONTINUES BELOW ADVERTISEMENT
5. Ask the employee to recall employees and/or clients he or she may have come in contact with from the date the window in No. 3.
6. Contact the employees identified in response to No. 5 — without disclosing the affected employee’s name. Advise them of the situation and have them stay home for a 14-day self-quarantine as well as encourage them to reach out to a health care provider to be tested.
Also, to the extent possible and if not already considered, all employees who have capability to work from home should be working from home.
Employees who fail to show up for work and that don’t have sick leave that would cover the absence, generally can be terminated. But as of Wednesday’s new law, the Family and Medical Leave Expansion Act now provides some protection to employees.
It states that employers with 500 or fewer employees must provide two weeks of unpaid leave and then pay employees two-thirds of the employer’s usual pay for 10 weeks of FMLA leave if they are caring for a child whose school or day care has been shut due to the public health emergency.
FMLA usually is applicable only to employers of 50 or more employees, and is unpaid unless the employee has paid time off to run concurrently.
Also, the expanded Act applies to employees who have worked for the employer for 30 days, unlike the usual requirement of one year and/or 1,250 hours.
In addition, workers with family members affected by coronavirus and those whose children’s schools have closed would still receive up to two-thirds of their pay, though that benefit would now be limited to $200 a day.
Similarly, the Emergency Paid sick leave act for employers with fewer than 500 employees requires them to offer two weeks of paid leave for employees to quarantine/self isolate because of diagnosed coronavirus, to care for any family member with similar coronavirus related reasons, or to care for a child due to coronavirus.
ARTICLE CONTINUES BELOW ADVERTISEMENT
Under the new law, however, those sick leave payments would be capped at $511 a day — roughly what someone making $133,000 earns annually. (The original House measure called for workers to receive their full pay but limited federal reimbursement to employers to that amount.)
Given the time limits and caps, employers who are able to financially do so are advised to be more lenient and as flexible as possible while everyone navigates the coronavirus. The last thing most employers want is to encourage employees to come to work when they are sick.
In addition, the Occupational Safety and Health Administration’s general duty clause requires employers to provide a work environment free from recognized hazards that are causing or likely to cause death or serious physical harm.
OSHA recommends that employers use controls to prevent exposure including physical barriers to control the spread of the virus, such as social distancing, and appropriate personal protective equipment, hygiene and cleaning supplies.
OSHA has released its guidance on preparing workplaces for COVID-19 which can be found at osha.gov/Publications/OSHA3990.pdf.
Employer best practices
An employer’s human resources department along with frontline supervisors and managers should re-familiarize themselves with the policies and plans on leave or other relevant company benefits, but also how the new Families First Coronavirus Response Act affects employer’s plans and policies on leave.
Also, do you have an emergency plan or business continuity plan which addresses employees being absent from work in cases like this, which could include partial pay for time off beyond the new law?
Employers could consider relaxing parameters for how and when employees may use the existing company provided benefits.
For example, if your company policy for vacation time allows it to be used only for vacation and not sick time, perhaps the employer decides to make an allowance in this environment that any accrued leave can be used for sick leave.
ARTICLE CONTINUES BELOW ADVERTISEMENT
Also, employers may want to relax other leave requirements to persuade employees who may feel financial pressure to keep working to stay home.
These are just but two examples of how companies can incentivize employees and build morale, within its own company issued benefits to keep employees at home and its workplace healthier in this unprecedented time.
President Roosevelt said in his first inaugural address in 1933 that Americans should not “shrink from honestly facing conditions in our country today. This great nation will endure as it has endured, will revive and will prosper.
“So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”
Corporate leadership needs to calm employee anxiety. Employers should regularly communicate to employees that the employer has formed an internal task force to handle its response to the virus, provide information about the employer’s response and, most important, urge employees to have empathy and patience for one another and to make decisions based on data and science.
In the short term, remote work may be the rule and not the exception. Remember that remote work does not exempt employers and employees from the safety, wage and hour, and other employment requirements of the regular workplace, although the coronavirus may result in additional legislation addressing such issues.
• Next week’s “Law” column will address remote work’s legal best practices.
Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.