As the 2019 novel coronavirus spreads, employers are faced with many dilemmas and are searching for clear answers to their many concerns. Employers want to know how they can protect their employees, what their obligations are under the law, and what steps need to be taken if the situation gets worse. We have put together a list of 10 of the most frequently asked questions. Hopefully these can help you manage this challenge and adapt to the circumstances ahead.
1. Some of our work requires traveling. Can employees refuse to travel to areas considered safe?
You can require employees to travel as long as you meet your general duty under OSHA to provide a workplace (including any travel location) that is free from recognized hazards.
We recommend you check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each location to which the employee needs to travel before making arrangements.
Perhaps what is more important than whether you can require an employee to travel is whether you should. Requiring a fearful employee to travel can affect trust and confidence and can likely cause them significant anxiety. Consider virtual meetings and video conferencing as a safe and cost-effective alternative to traveling during this time.
Also keep in mind employees who are immunocompromised or have other relevant disabilities may be entitled to an accommodation (such as not traveling, given current conditions) under the ADA.
2. Can we send an employee home if they are symptomatic?
Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms such as cough and shortness of breath should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively work remotely.
3. What can I do if an employee discloses that someone in their household tested positive for coronavirus?
Employers should ask employees to notify a designated HR representative or their supervisor as soon as possible. The employer and employee should then refer to CDC guidance to assess risk and determine the next steps—see Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management.
4. Do any particular leave policies apply?
Whether FMLA, a state family and medical leave, or an insurance program will apply to a particular case of COVID-19 will be fact-specific. Even if FMLA or state leave policies do not apply, we recommend employers treat illness related leaves as job-protected, for both legal and ethical reasons.
If you are in a state with a sick leave law, it will apply if the employee is sick, a family member is sick, or (in many states) when an employee is told to stay home by a public health authority.
5. If an employee is out of the office due to sickness, can we ask them about their symptoms?
Yes, but there’s a right way to do it. In most circumstances, employers shouldn’t ask about an employee’s symptoms, as that could be construed as a disability-related inquiry. Under the current circumstances, however—and in line with an employer’s responsibility to provide a safe workplace—we recommend asking specifically about the symptoms of COVID-19 and making it clear that this is the extent of the information you are requesting.
Keep in mind, medical information must be kept confidential as required by the ADA. If the employee does reveal they have symptoms of COVID-19, or has a confirmed case, you should see the CDC’s Interim Guidance to determine next steps. Tables 1 and 2 will help you assess risk and determine what steps, if any, should be taken.
6. What can I do if an employee is fearful and refuses to come to work?
Generally, employees do not have a right to refuse to work based only on a generalized fear of becoming ill. If their fear is not based on objective evidence of possible exposure, you can enforce your attendance policies.
You should be prepared for employees who express anxiety about coming to work and evaluate requests on a case-by-case basis. Consider alternative arrangements such as working remotely, if possible.
Employees who are immunocompromised or have other relevant disabilities may be entitled to a reasonable accommodation, such as working from home or taking a leave.
If the nature of the employee’s position does not allow working from home, and there is no legitimate threat, reiterate the steps they can take to keep themselves safe from contracting the virus and explain the proactive steps you are taking to keep infection risk low in the workplace.
7. Can we require or allow certain groups of employees, but not others, to work from home?
Yes. Employers may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee.
8. How do I make a work-from-home policy?
A good work-from-home policy will address productivity standards, work hours, how and when employees should be in contact with their manager or subordinates, and office expenses.
For instance, your policy might require employees to be available by phone and messaging app during their regular in-office hours, they meet all deadlines and maintain client contacts per usual, and they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.
You should also specify how work-related expenses will be handled. If you do not expect there to be any additional expenses involved, communicate this. You do not want employees to go on a shopping spree to revamp their home office and expect to be reimbursed for it. You should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses, but it is a good practice to cover such costs even if it is not required by law.
9. Do we have to pay employees if we choose to close temporarily?
It depends on the employee’s classification.
Non-exempt employees only need to be paid only for actual hours worked. For these employees, you may:
- Pay the employee for the time, even though they did not work;
- Require they take the time off unpaid;
- Require they use any available vacation time or PTO; or
- Allow employees to choose between taking an unpaid day or using vacation time or PTO.
All four options are compliant with state and federal law. If your office is required to close by health authorities and your state has a sick leave law, employees may be able to use accrued paid sick leave during the closure.
Exempt employees must be paid their regular salary unless the office is closed for an entire workweek and they do not work at all from home. You can, however, require them to use accrued vacation time or PTO during a closure if you have a policy which indicates you will do so, or if this has been your past practice. When it comes to accrued vacation time or PTO, it is safest to give employees advance notice if there are situations where you will use their accrued hours.
10. Will employees be able to file for unemployment if we close temporarily?
Depending on the length of the closure, employees may be able to file for unemployment insurance. Waiting periods range from one to three weeks and are determined by state law. Be prepared to respond to requests for verification or information from the state UI department if you close for longer than the mandatory waiting period.
Although this can be a very trying time for businesses, we hope some of these ideas might help you minimize the effects on your business. Click here to learn innovative ways to keep your business operating while maintaining social distance
This post is provided by the HR Pros at the HR Support Center and Corporate Payroll Services. It is for information purposes only and is not to be considered legal advice. When you need essential information on human resources issues, from benefits, hiring, and management, to culture, technology and regulations, HR Support Center is a resource on which you can rely. To learn more, visit www.corpay.com/hrsupport or contact us at 770-446-7289 x2102.