By Stella Skaljac
As the world continues to monitor and respond to the COVID-19 coronavirus pandemic, employers in Ohio must carefully strategize their next steps as matters become increasingly complicated each day. With Ohio Governor Mike DeWine’s recent announcements to close schools, restaurants and other establishments, there is no doubt these closings along with employer-specific decisions to immediately shut down or downsize has caused a ripple effect with drastic economic impact.
It’s a brutal state as this novel virus continues to wreak havoc on our economy and workforce. However, as an employer, there are actions you can take to maintain the health and safety of your employees and also mitigate against the devastating financial impact this will likely have. Here are several tips, best practices and legal considerations to keep in mind as you navigate these murky waters:
1. If possible, allow your employees to work from home. The Center for Disease Control (CDC) and the U.S. Chamber of Commerce are recommending that businesses allow employees to work remotely as much as possible and as soon as possible. If you don’t have one already, you will want to create a simple “work from home” policy that helps explain the parameters around this arrangement and holds employees accountable to tracking their time and work products. However, knowing that many employees may have children home from school or elderly parents to attend to, employers will want to be reasonable and fair with their expectations.
2. Businesses that are unable to support remote work arrangements will want to be more flexible than usual with sick leave policies and not penalize employees for taking off work if they are ill. Employers should also not require a doctor’s note as many healthcare providers may not be available as their focus is on carrying out necessary testing. Some employers are choosing to have employees returning to work after a sick leave complete a “medical questionnaire” with inquiries related to symptoms, travel and exposure to the virus. Under the Americans with Disabilities Act (ADA) this may seem somewhat problematic as the ADA generally only allows such inquiries if job-related. However, the ADA contains a “direct threat” provision that may be implicated, permitting employers to ask questions for the protection of other employees.
3. With regard to whether you would need to keep paying employees who are not working, under the Fair Labor Standards Act (FLSA), the answer is “no” (for the most part). For non-exempt, hourly employees, wages (including overtime) must only be paid for hours actually worked. For exempt employees who are generally paid on a salary basis, they must be paid their entire salary if they perform at least some work in the workweek. There are exceptions, however, such as in the case where an employer is open for business, but the employee decides to stay home for the day and performs no work. In addition to legal considerations, always important to consider employee morale and reputation when deciding to pay or not pay employees.
4. If you find out an employee has contracted COVID-19, employers should immediately inform fellow employees of this possible exposure in the workplace. Employers should not, however, disclose to co-workers the identity of the affected and quarantined employee as confidentiality requirements under the ADA and other federal and state laws may apply. Any information regarding an employee’s possible COVID-19 symptoms is considered a medical record and must be maintained in a separate, confidential medical file with limited access to those only with a business need to know.
5. It is recommended that you will not want to take employees’ temperatures at work as this is considered a violation of the ADA’s restrictions on conducting medical examinations (for now, at least). The Equal Employment Opportunity Commission’s (EEOC) guidance states that during a pandemic, employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat,” in which case temperature-taking may be allowed under narrow circumstances. However, from a practical matter, an employee may be infected without exhibiting recognized symptoms (such as a fever), so temperature checks may not be the most effective method for protecting your workforce.
6. While technically you are permitted as an employer to deny an employee’s request to wear a medical mask or respirator at work, with the high degree of concern among the general public, employers may want to consider allowing employees to wear masks if they feel more comfortable doing so. The Occupational Safety and Health Act’s (OSHA) respiratory protection standard makes it clear that when a respirator is not necessary to protect the health of an employee, it is within the discretion of the employer to allow employees to use a respirator or mask. However, once again, employers should be guided by common sense here and decide whether such use will help employees feel more comfortable as they work.
7. With regards to OSHA, the agency recently released guidance that COVID-19 is a recordable illness for purposes of the OSHA logs. Employers must record instances of workers contracting the virus if the employee contracted it while on the job. In addition, while not required to do so, OSHA is highly recommending that employers develop a written infectious disease preparedness and response plan. Reviewing OSHA’s Bloodborne Pathogens standard is suggested as it applies to occupational exposure to human blood and other potentially infectious materials.
8. If you decide to conduct a layoff or reduction-in-force (RIF) due to a mandated shutdown or business necessity having to do with the virus, communicate to employees that they can be eligible for unemployment benefits. There are several changes that the government recently announced regarding expediting unemployment compensation payments and waiving an employee’s obligation to seek other employment. As for whether you are obligated to maintain group health plan coverage for employees no longer working, this will be determined by the plan’s provisions and how long employees who are not actively working may remain covered by the plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice should be sent.
9. Employers should also keep in mind the federal Worker Adjustment and Retraining Notification (WARN) Act, which requires qualifying employers (generally those with 100 or more full-time employees) to provide 60 days of advance notice of a temporary or permanent plant closing or mass layoff. However, emergency exceptions may apply due to the pandemic and employers will need to make tough choices from a financial and health/safety standpoint as to the best course of action. As an alternative to a layoff or RIF, it may worth considering a “voluntary separation” program for certain employees, which essentially asks employees to voluntarily take a separation-from-employment package (severance payment in exchange for signing a release of claims). These voluntary separation agreements would need to be reviewed by legal counsel to ensure all requirements and disclosures are included in accordance with laws such as the federal Older Workers Benefit Protection Act (OWBPA).
10. Other questions that may arise include whether employees infected by COVID-19 can take time off under FMLA or ADA. Also, if an employee is deemed “vulnerable” or has a disability that would make them high-risk, can the employee seek an accommodation, such as requesting to telework? These will be matters that will need to be assessed on a case-by-case basis and within the realm of not only the legal frameworks but also the context and state of emergency we are in.
There is much to consider from a safety, legal, financial, and practical/common sense standpoint. These are truly unprecedented times, and we recognize there is no one-size-fits-all approach that applies to every employer. We will continue to closely monitor changes in the law and any new federal and state government initiatives so we can provide clients with sound analysis to their unique circumstances. If you have questions on how to best handle and manage specific employee situations and overall workforce challenges, please don’t hesitate to call us.