(This is the first in a periodic series on the short term and long term impacts of the coronavirus on employment and the workplace. Below, we start with the immediate decisions facing employers today).
In the middle of last week, Twitter asked its 5000 employees to work remotely, and soon thereafter LinkedIn Square, and Lyft did the same. Microsoft, SAP, JPMorgan Chase, and hundreds of other major employers have imposed sharp restrictions on travel, domestic as well as international. Facebook, Stanford University, and Google have canceled long-planned business conferences and events.
Workplace practices are shifting on a daily basis. So too are employment patterns: Doordash, Instacart, Amazon Prime, and other delivery services report increases in demand for workers, while restaurants and entertainment venues are reducing hours and laying off workers. As this is written, United Airlines announces significant reductions to routes, and unpaid leaves of absence and/or reduced schedules for employees.
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The other public health emergencies of the recent past—SARS in 2005, The H1N1 flu virus in 2009, and Ebola in 2014—brought only temporary workforce shifts. It’s too soon to say if the coronavirus will bring longer-term workforce impacts, and how employers might respond. Employers though now are faced with responding to immediate workforce challenges.
To address these immediate challenges we can bring in Ms. Eve Klein, the head of the 75 attorney Employment Labor Benefits and Immigration (ELBI) Practice Group at Duane Morris LLP. There aren’t many labor and employment issues that Klein hasn’t addressed in the more than 30 years she’s been in practice. She has counseled employers through the previous public health emergencies, as well as other economic disruptions.
Over the past week, she and other attorneys in the ELBI Group have received hundreds of inquiries from companies asking about their options and responsibilities in light of the numerous labor and employment laws on the local, state and federal levels (laws governing worker safety, worker privacy, wage and hour requirements, and protections for workers with disabilities to name a few). Coronavirus workplace management today, as might be expected, is the overwhelming employment concern of companies, large and small.
Klein and other EBLI attorneys have drafted a lengthy memo (updated regularly) summarizing the wide range of inquiries, and setting out very general guidelines. Here are five of the topic areas and guideline summaries—indicating the current main concerns, as well as the complexities in balancing business continuity with worker safety and preferences, and the legal edifice.
1. Travel restrictions: Businesses should be proactive in managing business travel, as many have been in the past two weeks, and closely coordinating ongoing decisions with the travel prohibitions set out by the Centers for Disease Control and Prevention (CDC) and World Health Organization. To ensure consistent treatment of employees, designating an executive-level person to oversee all decisions regarding travel is a sound approach, as is publishing all policies related to travel, and updating them in close connection with travel advisories from governmental authorities.
Regarding personal travel employers should advise employees of the risks they assume by traveling to an affected area (including the risk of quarantine). But many state laws protect an employee’s right to engage in lawful off duty conduct, and employees traveling to affected areas may be traveling for reasons covered by state and federal leave laws, such as care for an ill family member pursuant to the federal Family and Medical Leave Act.
2. Requiring infected or at-risk employees to stay home: Employers can require that an infected or at-risk employee stay home from work if the employer has a reasonable objective belief that the employee poses a direct threat to the workforce. Employers should consult with counsel about how and when these inquires can be made. An employee’s race, color, national origin, or perceived or actual disability cannot be taken into account when assessing risk.
Employers should consider allowing employees to use paid time off (PTO) and/or providing employees who must stay home with reasonable alternatives, such as telecommuting. However, while telecommuting may be an option in some cases, employers must consider whether allowing telecommuting for certain employees but not others may lead to claims of discrimination or preferential treatment and may set a precedent for future requests for telecommuting.
3. Asking employees to submit to a medical exam or requiring disclosure of symptoms: Employers should not require employees to undergo medical exams and should avoid making unnecessary inquiries into an employee’s medical status. The Americans with Disabilities Act (ADA), along with state and local laws, restrict an employer’s ability to ask questions about an employee’s medical condition. Employers should consult with counsel to assess whether such inquiries are appropriate and permissible.
That being said, employers can request employees to disclose whether they have been diagnosed with the virus, and are experiencing symptoms or have been within close proximity of someone who has the coronavirus. Employers must keep all information relating to the employee’s or their family member’s medical condition confidential and separate from other personnel files. Employers will also need to engage in the interactive process under the ADA with employees who have been affected by the virus.
4. Payment of workers who are quarantined or miss work due to the coronavirus: Payment obligations to workers depends on whether the employee is exempt, nonexempt, paid via the fluctuating workweek (FWW) has PTO or is covered by a labor contract or employment agreement.
Generally, exempt employees must be paid in full for any week in which they perform work. Employers may not deduct pay for exempt employees who miss work due to coronavirus unless they offer a bona fide PTO plan to provide compensation for sickness or disability, and the employee does not yet qualify for or has exhausted all time thereunder. Employers should consult with counsel to confirm whether their PTO plan qualifies. Nonexempt employees are only entitled to pay for time actually worked, whether a full or a partial day. Employers should consider offering nonexempt employees available PTO if they are sick or have been instructed to stay home. Employers can also implement alternative PTO policies, such as PTO loans, pools, and advances. Such actions may serve to encourage sick employees to stay home while demonstrating the employer’s commitment to its employees’ health and well-being.
Collective bargaining agreements, FWW employees and state or local laws may impose additional requirements on sick leave and paying employees who are instructed to leave work or stay home, or who may need to stay home to care for sick family members or children whose schools have been closed as a result of the virus.
5. The application of the Family Medical Leave Act to employees impacted by the coronavirus: The FMLA provides job-protected unpaid leave for employees and their family members who are suffering from a “serious health condition”. If an employee or his/her immediate family member contracts the coronavirus, the FMLA could be triggered, assuming the disease becomes a serious health condition.
The FMLA does not apply to asymptomatic employees who require a leave of absence as a result of government-mandated quarantine or employer-mandated quarantine due to a potential risk of coronavirus. Employers are encouraged to contact counsel to determine how to designate leave requests.
Klein emphasizes that these general guidelines are only meant as starting points. Decisions in individual cases will be highly fact-specific. Further, employers will want to consider employee relations and morale, along with legal rights, in making decisions.
The United States workplace has proved remarkably resistant to natural disasters and other economic dislocations. Already, though, the coronavirus has brought workplace and social disruptions beyond those of the previous public health emergencies.
What we are seeing now that we haven’t seen in earlier public health emergencies is a rush to action—sending workers home, canceling events, including artistic events and sports events, closing public facilities, moving university classes from in-person to online. These in turn are having their own negative economic and social impacts. The main challenges in the next few weeks in workplace management are to become informed on legal options, keep up with health guidelines, and exercise a certain deliberation and common sense.