COVID-19 FAQs for Employers

Brent R. Borg

Author: Brent R. Borg

POST DATE: 3.17.20
Ccha  Labor Employment

It’s on everyone’s minds and its impact is being felt worldwide. The World Health Organization (WHO) has declared coronavirus a global health emergency. Coronavirus has a firm grasp on our day-to-day, leaving many to wonder — what now? And, how do workplaces navigate this global health emergency?

Below are some legal issues and questions CCHA has identified that employers may face as they navigate the rapidly-changing developments regarding COVID-19.

Can a sick employee be sent home?

Yes. OSHA requires employers provide a safe work environment for its employees. OSHA guidance on health emergencies should be consulted. See this OSHA link for additional information.

When deciding whether to send an employee home, employers should be mindful of ADA obligations. Coronavirus may qualify as a disability under the ADA, though not in all circumstances given that people react differently to it. Still, employers should consider leave as a reasonable accommodation under the ADA. Further EEOC guidance on this issue is available at this link.

Do employers continue to pay employees who are sent home or if it closes the office/facility?

Perhaps. Under the Fair Labor Standards Act (“FLSA”), non-exempt employees must be paid for hours worked even when working from home, but do not need to be paid for hours they do not work (although they should be permitted to use available paid time off/sick leave in accordance with an employer’s regular policies). Exempt employees continue to be paid their salary during a full or partial work week, but need not be paid for any workweek in which zero work is performed. However, if an employer closes the office/facility for an entire week or more and the exempt employees are otherwise able and willing to work, then those employees must be paid their regular wage, though other internal employer policies may be applicable, such use of accrued vacation or sick leave. See this link from the United States Department of Labor for additional FAQs on these wage requirements.

When should an employer consider closing an office and/or requiring employees to work remotely?

If an employer becomes aware that an employee or an employee’s close contact may have contracted COVID-19, it is best to work with the local health department to determine the appropriateness of closing an office or directing employees to work from home. The decision to close an office may trigger advance notification obligations. When having employees work remotely, employers should also consider how employees will record their time and how employers will confirm the accuracy of those time records.

What about employees who refuse to come to work or travel?

The Occupational Safety and Health Act (“OSHA”) allows employees to refuse to come to work if they have a good-faith belief they will be exposed to a dangerous condition and there is an imminent danger of death or serious injury. Employers need to balance the need to keep sick employees away from work and prevent unauthorized absences. Although employers must be sympathetic toward employees who fear working in the office or travel could create risk, they should also be wary of employees who do not have legitimate concerns. Employers should ensure discipline and leave policies address employees who refuse to work or travel without good reason.

What and to whom should an employer report if an employee contracts COVID-19?

If an employee becomes infected with the virus while working, the employer should immediately report the matter to local health officials to protect colleagues and the public.

Under OSHA, COVID-19 is a recordable illness when a worker is infected on the job. If an employee is diagnosed with COVID-19, employers should require a return-to-work authorization from the employee’s doctor before the employee can return. In the event an employee is diagnosed with COVID-19, other employees should be educated about possible exposure risks without disclosing any infected employee’s identity.

Be sure to continually monitor updates from, and work closely with, local and state health departments for guidance. Employment matters are increasingly more complex. CCHA can provide proactive guidance and help identify risks before they develop into costly and time-consuming litigation. Contact our employment law attorneys to discuss your immediate needs — we’re your advocates and so much more.