COVID-19 AND EMPLOYMENT – EMPLOYMENT LAWS

March 18, 2020

Although protecting the health of employees and customers is important, once those concerns are addressed, employers need to consider their obligations under the various employment laws.  Some things to consider during these uncertain times are laws related to pay, laws related to leave, and laws related to medical examinations.

Laws related to pay. Many offices are closed due to a state of emergency.  Employers may require their employees to use available paid time off (such as general PTO or vacation days) during an office closure.  If you choose not to require the use of paid time off or if paid time off is not available, keep the following information in mind:

  1.  Fair Labor Standards Act. If non-exempt employees cannot perform their jobs from home, they are not entitled to pay.  That is, non-exempt employees are entitled to be paid only for hours worked.  If non-exempt employees are able to work from home, they are to be paid for all hours worked, including overtime if they work more than 40 hours in a work week.  Be sure to provide instruction to employees on keeping accurate time records if they are working from home.If exempt employees cannot work because the office closes, they must be paid their regular salary if they performed any work during the work week.  For example, if the employee worked on Monday, but beginning on Tuesday the office closed for the remainder of the week, the exempt employee must be paid for the entire week.  If your office is closed for an entire work week and the exempt employee performs no work in that week, the exempt employee need not be paid for that week.  Exempt employees working from home must be paid their salary even if they cannot perform all of the tasks they would normally perform when working in the office.If exempt employees are too sick to work or are taking care of sick family members, the situation becomes more complicated.  If the exempt employee becomes ill and cannot work, “an employer can make deductions from an employee’s salary for absences of one or more full days because of sickness or disability” only if the employee has no sick leave available.   See https://www.dol.gov/whd/opinion/FLSA/2005/2005_01_07_7_FLSA_PaidTimeOff.htm (emphasis added).  If, however, the exempt employee takes one or more full days to care for a family member who is ill, the employee’s salary can be docked for such time because that time is personal time, not sick time for the exempt employee.
  1.  Unemployment Compensation. Employees who are able and available to work but cannot work because their employers are closed or because they are part of a mandated quarantine to mitigate the spread of disease may be eligible for unemployment benefits.  Also, if an employee is working reduced hours due to a change in available hours from the employer, the employee may be eligible for partial unemployment benefits.  Pennsylvania has temporarily suspended the one week waiting period and the work search requirements for benefits eligibility.

Laws related to leave.  As of March 17, Congress had not passed emergency measures to provide for paid sick leave during the COVID-19 crisis.  Until such time, consider the following types of leave/time off:

  1. Paid Time Off (PTO), Sick Days, Vacation – There is no requirement that businesses provide time off for illness.[1] That being said, if your business provides time off, consider allowing employees to use that time if your business is closed and working from home is not available.  For example, if your paid vacation policy requires that employees provide advance notice, consider waiving that requirement and allow employees to use vacation time.  If employees are home sick, consider waiving the requirement that they produce a doctor’s excuse for absences of several days’ duration.  If your sick leave is available only for an employee’s illness, consider allowing the employee to use the sick days to care for a relative who is sick.
  2. Family and Medical Leave Act (FMLA) – For employers with 50 or more employees, FMLA leave may be appropriate for employees who are sick or who are caring for a family member who is sick. Although some cases of COVID-19 may be mild, there may be circumstances in which the disease is a serious health condition for an employee or an employee’s family member.  Even if the disease does not rise to the level of “serious health condition,” the US Department of Labor (DOL) is enco uraging employers to be flexible with employees who are sick, who may have been exposed and are quarantined, or who are caring for family members who are sick.  (Remember: Most FMLA leave is unpaid.)  Also, although not covered by FMLA, the DOL is urging employers to be flexible with employees who may need to be home with children whose schools are closed.
  3. Americans with Disabilities Act (ADA) – Reasonable accommodation. COVID-19 is a transitory disease, and the CDC expects that many people who contract COVID-19 will fully recover.  Therefore, status as a COVID-19 patient alone will not qualify an employee as a disabled person.  For employees with underlying disabling health conditions (e.g., asthma, COPD), including compromised immune systems (e.g., cancer patients undergoing chemotherapy), however, contracting COVID-19 may result in the need for reasonable accommodation.  Such accommodations may include an extended period of working from home or additional unpaid time off.

Laws related to medical examinations.  With so much uncertainty regarding who may be contagious, it is tempting to ask employees for medical information.  Although there is a public health emergency, be careful when inquiring about an employee’s health.  You can send employees home if they appear to have symptoms and pose a direct threat of spreading the disease, but you must do so on a non-discriminatory basis.  You must also have objective reasons for taking such action.  For example, your subjective concerns that the employee traveled to Seattle and now looks a little pale aren’t enough.  Symptoms of COVID-19 are fever (100º F or above), cough, and trouble breathing.  Please keep in mind that seasonal allergies can cause coughs and sneezing.  Don’t assume that because an employee sneezes you should send her home.

If your employees are out due to contracting COVID-19 or coming in contact with COVID-19, you may request a fitness for duty note or exam, but you must tell the employee in advance that such information will be required before returning to work.  As with excuses for extended sick leave, keep in mind that the healthcare systems may be overwhelmed.  Fitness for duty notes will not be a priority. As of March 17, the CDC is discouraging mandatory return to work medical clearances.  Consider alternatives such as CDC guidelines on returning to work after a respiratory illness: [F]ree of fever (100.4° F … or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g., cough suppressants).  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.

These matters are complicated, and they will continue to change.  I’ll do my best to keep you up-to-date, but if you have questions, I’ll be available by email at jnovak@smgglaw.com or phone at 412-281-5423.

[1] For businesses with employees working in the City of Pittsburgh, the Paid Sick Days Act went into effect on March 15, 2020.  Remember, however, that the law requires (generally) employees earn one (1) hour of paid sick leave for every 35 hours worked.  The law does not require paid sick leave be available immediately.