March 26, 2020 – Please view our Guidance for Employers – Families First Coronavirus Response Act (FFCRA) news item for the most up-to-date information and FAQs.
FLB’s Employment Law & Labor Relations Practice Group attorneys are here to support businesses and nonprofit organizations as they face the challenges presented by the current COVID-19 (Coronavirus) outbreak by providing updated legal advice on work rules, leave, benefit and compensation policies. While each situation is unique, we have endeavored to answer some of the more common client questions we have received to date.
In preparing emergency response plans, we encourage you to consult with legal counsel experienced in labor and employment law matters. FLB’s team continues to monitor legal and public health developments related to COVID-19 and will update this information as necessary. In the meantime, here is some general guidance:
Question: If we close our facility or reduce its hours, are employees guaranteed their salary? Are we required to provide any notice to employees of hour or schedule changes?
Answer: In general, employers are free to set schedules and work hours per business needs, and no hourly employee has the right to work a certain number of hours or schedule, unless promised in a contract or agreement, or otherwise mandated by government officials. Still, employers should be careful not to discrimination against employees in protected classes (such as race, gender, age, national origin, and/or disability) in making their staffing decisions.
In addition, employers are not obligated to guarantee salary or compensation to employees who do not work, unless otherwise required by contract. However, a number of businesses have voluntarily elected to continue to pay employees, at least for a period of time, during these closures.
If a mass layoff or plant closure is planned, even if temporary, employers must comply with federal, state and local laws, including the WARN (Worker Adjustment and Retraining Notification) Act, by providing appropriate written notices to affected employees, union representatives and government officials.
Question: Can we require our employees who are absent to use their PTO/vacation/sick time and/or run FMLA leave if an employee cannot work? Can we offer additional paid leave?
Answer: While not legally required, some employers are arranging for employees to use their PTO/sick/vacation time if they want to be paid while they are away from work due to a plant or office closure. Similarly, some employers are offering employees’ paid administrative leave, in addition to the leave afforded under their regular policies, for absences due to illness or dependent care needs.
We recommend drafting and timely communicating new PTO/sick/vacation time use policies to employees.
Question: To determine if an employee is infected or contagious, can an employer check the temperature of all employees before work begins?
Answer: In general, employers should refrain from inquiring about any employee’s medical condition (including family history or personal risk factors), unless the inquiry is job related and consistent with business necessity, or if known circumstances could constitute a direct threat to the health or safety to others. Therefore, employers should not check employee temperatures, except in very limited circumstances where the nature of the work requires it, such as in certain healthcare environments. Employers should be mindful to maintain employee privacy regarding health medical information.
To protect employee health and safety, a less invasive approach would be to monitor employee respiratory symptoms, send home those who either report or exhibit symptoms, and tell employees to stay home if they are sick.
Question: Can we require or recommend that employees designated as “high risk” by the Center for Disease Control (CDC) (e.g., workers over 60 or with compromised immune systems) must remain home?
Answer: Employers should advise employees to remain home if they are in a high-risk category, according to guidelines published by the CDC. Employers should refrain from asking questions about or making decisions based on employee age, and limit questions and decisions based on medical conditions.
General Guidance:
Employers should consider preparing a written infectious disease response plan to address the possibility of an acute outbreak. The plan should address employee leave rules, absentee notifications, flexible work arrangements (telecommuting), alternate work hours (such as flextime or a staggered shifts), and time recording requirements.
If you have questions or concerns, FLB’s employment attorneys are available to assist you at any time by phone or email. We will work with you to find the appropriate balance and communicate any policy changes to employees. Please do not hesitate to contact us:
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