Updated COVID-19 Guidance for Employers
With the situation surrounding COVID-19 constantly evolving, we wanted to provide some additional guidance to employers. For more information, please also see our client alert, or contact any employee at the firm.
Should Employers Restrict Travel? Advice on international travel is changing rapidly. Employers are encouraged to visit the CDC website for the current list of travel restrictions. Employers should consider eliminating or limiting non-essential business travel to countries on the warning list or requiring employees to clear business travel with a particular company point-person. Employers may also consider whether other options, such as video-conferencing, may be a viable alternative.
Can Employers Restrict Personal Travel? No. Employers cannot prevent employees from engaging in personal travel, either inside or outside the United States. However, employers should consider reminding employees of the travel restrictions promulgated by the CDC and may ask employees to report when they have traveled to countries that are on the CDC warning list so that the employer can determine whether certain other steps, such as remote work, time away from the worksite, or a medical return to work clearance, would be recommended upon the employee’s return.
Can we send an employee who is exhibiting symptoms of illness home? Yes. You may also request that the employee provide a doctor’s note clearing that employee to return to work.
Can we require an employee to work from home or remain outside of the workforce during the 14-day incubation period if they have traveled to an area on the CDC warning list or have a household member who has done so? Yes. Employers should be mindful, however, to issue such directives based on location of travel and not any other factors such as ethnicity, race, or national origin.
If we require someone to stay home, and they are not able to work remotely because their job does not support it, must we pay them for that time? There are several factors to consider in determining whether an employer must, or should, pay employees who they require to remain home. For example, exempt employees must be paid their full salary for a given workweek if they perform any work during that workweek (e.g., answering e-mail or a work-related call). Although non-exempt employees only need to be paid for hours worked, employers may want to consider and balance fairness and public relations factors in determining whether to pay these employees. Employers may want to consult with counsel in making these determinations to ensure they are not running afoul of applicable wage and hour laws.
If my employee becomes sick, or needs to care for a loved one who is sick, what are my obligations in terms of leave? Employees may be entitled to paid leave under relevant state or local sick time legislation for their own illness or to care for loved ones who are sick. In addition, the NYC Earned Sick and Safe Time Act and Westchester Earned Sick Leave Law permit employees to utilize sick leave in the event that the employee’s place of business or employee’s school or childcare facility is closed due to a public health emergency, even if the employee or the employee’s loved one is not sick. Westchester law also explicitly covers leave for the employee or family member when it has been determined by public health authorities that the employee’s or family member’s presence in the community may jeopardize the health of others because of exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease. Employees may also be entitled to NYS Paid Family Leave, FMLA leave or short-term disability, depending on the facts and circumstances. Employers in NYC may also have obligations to either grant certain requests for remote work or provide unpaid leave pursuant to NYC’s Temporary Schedule Change Law. Finally, employers subject to Collective Bargaining Agreements should review the relevant contract to ascertain whether they may have additional obligations.
If an employee becomes sick or is subject to quarantine, what are my obligations to other members of the workforce? If a member of the employer’s workforce becomes infected, the employer will need to work closely with the CDC and Department of Health on appropriate next steps. Employers should notify the relevant members of their workforce about their possible exposure to COVID-19, but must still protect the confidentiality of the infected individual. How broadly this notification will need to be issued should be a determination made in consultation with relevant DOH officials.
What if my employee refuses to travel or come to work because they are afraid of catching COVID-19? Such requests should be assessed carefully and on a case by case basis and employers should consult with counsel in making such determinations. Generally, fear of catching the virus is not a reason for a reasonable accommodation; however, certain members of the population may have underlying medical conditions that may make infection more likely. In those instances, remote work or other steps may be required as a reasonable accommodation. In certain instances, such refusals to work may also be considered protected concerted activity, so employers should consult with counsel before issuing discipline related to such actions.
What are other practices that employers may consider implementing?
Encouraging handwashing for at least 20 seconds and avoid face touching your face
Implementing extra and more frequent cleaning of work areas
Encouraging sick employees to stay home
Providing extra hand-sanitizers, with at least 60% alcohol content, or wipes in the office
Providing “no touch” waste baskets
Postponing non-essential conferences or large gatherings
Appointing a point-person at the organization to handle questions related to COVID-19 to ensure a consistent response that will not invoke unnecessary panic
Reminding managers and supervisors that they should not be asking employees medical questions. Employees with concerns should address them to HR
Encouraging employees to take a break from physical contact in the business setting (e.g., avoiding shaking hands)
Encouraging employees to contact HR if they believe they have symptoms of coronavirus or have been in close contact with someone who has tested positive
Drafting guidelines for what is expected from employees who work remotely
Implementing a remote work “test day” to determine how the business will continue to operate if there is a need for a more substantial quarantine
Reminding employees of EAP resources for assistance with any anxieties they may have regarding the virus. Certain companies also offer tele-doc services which may be available to answer non-emergent medical questions from employees. However, employees who are experiencing symptoms should be encouraged to seek medical support.
As the situation is rapidly evolving, employers should consult with counsel to address some of the more nuanced employment issues surrounding this virus.
DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.