Not easy being an employer in the COVID19 environment.

Make it Safe. Do your part.

1. One of our employees wants to take some time off for him or herself or for a family member who has become sick with COVID19.  What should we do?

The federal Family & Medical Leave Act (FMLA) allows a qualified employee to take up to 12 weeks of unpaid leave within a 12-month period if they or an immediate family member requires care for a “serious health condition.” The law also entitles a qualified employee to continued health insurance benefits and requires their employer to offer them the same or equivalent position when they return. Qualified employees are those who have worked for at least one year, over 1,250 hours in the prior year, and whose employer has at least 50 employees in a 75-mile radius.

The Family First Coronavirus Response Act (FFCRA) allows employees who work for employers of less than 500 employees to take up to 80 hours of emergency sick leave. An employee may take emergency sick leave under the FFCRA if they are:

1. subject to quarantine or isolation order or caring for someone who is subject to a quarantine or self-isolation order;
2. advised by a health care provider to self-quarantine due to coronavirus concerns or caring for someone who is advised to self-quarantine;
3. experiencing symptoms of coronavirus and are seeking a medical diagnosis;
4. caring for their child if, because of coronavirus protections, their school or daycare has been closed or their childcare provider is unavailable; or
5. experiencing similar conditions, as specified by the Secretary of Health and Human Services.

The rate of pay varies depending on the circumstances and more information is available through the Department of Labor. 

State and local laws may provide even greater protection for employees.

2. Can you lawfully take one or several employees off of work, without pay, because of the COVID19 crisis?

It depends.  If the company has a policy that provides paid leave for those who are forced to take time off in connection with an illness, then the terms of the policy will dictate the company’s obligations. Some states and cities have laws that provide employees with access to paid sick leave.

You should know that the FFCRA allows employees of companies with less than 500 employees to take up to 80 hours of emergency sick leave for qualified reasons, as follows:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a healthcare provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a healthcare provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

These payments are subject to limits on maximum benefits and more information is available through the Department of Labor.

3. One of our employees just contracted the coronavirus.  Can we fire him?  

No. The American with Disabilities Act (ADA) prohibits discrimination against individuals with a disability. In certain circumstances, an employee who has an underlying condition exacerbated by the coronavirus (for instance, asthma or a heart condition) may be considered disabled.

The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, history or record of such an impairment, or perception by others of such an impairment. Besides prohibiting discrimination against people with disabilities, the ADA requires employers to provide reasonable accommodations for such individuals. State and local laws sometimes extend additional protections for people with disabilities or serious health conditions.

4. Our employees do not feel comfortable coming to the workplace even if they are not sick.  Should we let them work from home? A lot of them have kids and with the schools and childcare being closed it seems that it is what we should do. What do you think?

Generally, there is no legal right to telecommuting, as an employer, you have the right to dictate the terms of employment. If an underlying disability places your employees at high risk for coronavirus, they should have the right to telecommute as an accommodation, depending on whether working from home is reasonable under the circumstances.

The FFCRA permits employees to take emergency sick leave to care for a child whose school or daycare has closed, or where childcare is otherwise unavailable because of coronavirus protections. In addition, employees may be entitled up to an additional 10 weeks of leave at two-thirds the employee’s regular rate of pay if an employee is unable to work due to bona fide child care needs related to COVID-19. 

5. Can we force an employee to work from home even if he or she does not want to? 

Employers have the right to set the terms and conditions of employment, which includes work location, so long as they comply with the law. That means that an employer can require employees to work from home due to a reason such as business need or health and safety.

However, an employer may not mandate that certain people work from home because of a perceived or actual disability if it would operate as an adverse action based on a disability. For example, if working from home was akin to a demotion or resulted in lower pay for only certain individuals, those individuals may be protected by federal, state, or local statutes that prohibit discrimination based on a disability. 

6. We’ve required that our employees work from home during the COVID19 crisis.  Should we compensate them for the time working from home? 

Yes! If you have exempt (salaried) employees and they work any portion of the week, they must be paid their regular weekly pay. Non-exempt (hourly) employees who work from home are entitled to be paid for all hours worked, including overtime hours.

7. We’ve had our employees work from home and had them paid for the costs of setting up a home office.  Is this lawful?

It depends on the state in which you work.  In California for example, it is not. California requires an employer to reimburse workers for things like internet access, computers, and cell phones used for work.  If the expenses your employees incur in setting up their home office causes their weekly pay to drop below the minimum wage, you may be at risk as they may have a claim under the federal Fair Labor Standards Act (FLSA) and some state wage and hour laws. 

8. As a result of COVID19, we had to lay off or cut hours for our employees.  Are we ok?

There are specific laws that protect employees from mass layoffs. The federal Worker Adjustment And Retraining Notification (WARN) Act, requires companies to give affected employees 60-days of advanced written notice of the mass layoff, worksite closing, or plant closing, but there are exceptions that may apply. 

Several states and cities require an employer to provide schedules in advance and must pay the workers when they take away or add shifts. Some laws also require extra pay when employers require workers to work split shifts, and if you are laid off or have your hours reduced, you may be entitled to unemployment benefits, which vary by jurisdiction.