The outbreak of the novel coronavirus (COVID-19) implicates numerous legal obligations for employers, including leave, medical privacy, and discrimination. Employers should prepare to implement policies that strike a balance between ensuring safety and fostering productivity. Below we address several key issues and suggest legal and practical guidelines.
Encourage Sick Workers to Stay Home, Being Flexible With Sick Leave and Telecommuting Policies When Necessary
The Center for Disease Control and Prevention (CDC) has issued guidance for employers regarding coronavirus, which includes encouraging sick employees to stay home and ensuring that company sick leave policies are flexible. This is a good time for employers to review their existing sick leave policies to ensure baseline compliance with federal, state, and local laws, and re-distribute such policies to their employees. For example, California employees who work more than 30 days a year can be reminded that they have accrued (at minimum) one hour of paid sick leave for every 30 hours they have worked.
Employers may also consider adjusting their sick leave and telecommuting policies as necessary to actively encourage infected or at-risk employees to stay home. This could include, for instance, allowing employees to use additional categories of Paid Time Off (PTO) if they are experiencing illness symptoms, and/or offering telecommuting alternatives when practicable.
With regard to telework, the Equal Employment Opportunity Commission (EEOC) has opined that this is an “effective infection-control strategy,” having long cited telecommuting as a potential reasonable accommodation in appropriate circumstances. Employees may wish to consult with counsel to determine when and whether to offer remote work, including the implications for future comparators and requests.
Provide Guidance to Employees to Ensure a Successful Telecommuting Arrangement
Where telecommuting arrangements are deemed appropriate, companies should provide their employees with guidelines to foster productivity and to ensure continued compliance with applicable laws. This may include directing employees to:
- Implement a plan to minimize distractions;
- Utilize an ergonomic workspace at home;
- Effectively leverage available technology platforms (e.g., email, instant messaging, and audio/video conferences);
- Communicate regularly with their supervisors, particularly when going offline for significant periods; and
- If non-exempt, follow standard company policies with respect to meal and rest breaks and time reporting.
Remain Mindful of Medical Privacy
Though employers may wish to check-in on the well-being of their employees, they must be careful to respect their medical privacy, which may include adhering to the Americans with Disabilities Act (ADA), California Constitution, HIPAA, and/or relevant state and local laws. These laws restrict employers from inquiring about their employees’ medical history and specific medical conditions, and sharing an individual’s confidential medical information.
Fortunately, the EEOC maintains specialized guidelines for an influenza pandemic, advising employers to:
- Send employees home if they are exhibiting “influenza-like symptoms,” which is described as fever or chills and a cough or sore throat;
- Ask employees if they are experiencing influenza-like symptoms, though ensuring that any medical information obtained is treated as a confidential medical record, separate from their standard personnel file; and
- Ask employees about exposure to pandemic influenza if they are returning from travel to an area specified as at-risk by the CDC.
These guidelines permit employers to ask specialized questions, and encourage their workers to seek medical attention or go home if they are exhibiting signs of illness. However, employers must still be careful to handle all medical information consistent with the EEO, CDC, and HIPAA guidelines, including limiting the focus of inquiries and preserving confidential medical information to the extent possible.
Watch for Discrimination and Harassment
Employers must be careful to prevent stigma, discrimination, and harassment in the workplace. The coronavirus spread has been concurrent with increased reports of xenophobia and racism. Employers should remind their employees of their nondiscriminatory policies and take proactive steps to investigate and address any complaints of discrimination or harassment in the workplace.
Moreover, employers should ensure that any of the above medical inquiries are tied to actual symptoms or travel to impacted places. Any practices or policies enacted in response to the coronavirus should be applied as consistently as practical to ensure against potential claims of discrimination.
In the Case of an Emergency Shut-Down, Ensure Employees Are Compensated Correctly
If worksites close due to health concerns or other related emergencies, employers must still appropriately compensate their employees. With regard to exempt employees, this means continuing to compensate workers unless their work is ceased for an entire workweek.
Non-exempt hourly workers must only be paid for time worked except in one circumstance: employers must normally compensate any hourly employees who reported to work before being sent home, for at least half of their scheduled workday and not less than two hours of work. Reporting time pay rules do not apply when operations cannot commence or continue when recommended by civil authorities. This means that reporting time pay does not apply under a state of emergency if the state of emergency includes a recommendation to cease operations.
Navigating employment laws during this time may be challenging. Please contact an employment attorney if you require guidance on the implications of coronavirus on the workplace, or assistance in developing a proactive policy to address these challenges.
Holly L. Sutton is a partner and Jaya Bajaj is an associate with Farella Braun + Martel LLP in San Francisco. They can be reached at firstname.lastname@example.org and email@example.com, respectively, or via the firm’s website: http://www.fbm.com.