The Coronavirus: FAQs for Employers

We’ve been here before. Remember the H1N1 outbreak of 2009? That little bug originated outside of Mexico City. As the virus spread, governments issued travel warnings and schools were on notice to be extra vigilant. There was even a quarantined cruise ship and a run on surgical masks. Sound familiar? The most important lesson from the H1N1 outbreak of 2009 is that while it was scary then, we hardly remember it now.

Just as in 2009, it makes sense to take some reasonable precautions in the event COVID-19 becomes more of a factor. We thought we would share some answers to questions we have been getting here at the office:

1. Do I have to excuse employees who need to take care of a sick family member? Yes. The Family and Medical Leave Act applies not just to eligible employees, but also parents, spouses, and children of the eligible employees. Also, even if they want to use their paid time off or sick leave, the 12 weeks of FMLA leave begins as soon as the leave begins. You as the employer may decide to continue the leave after the 12 weeks, but that period is not protected by the FMLA. (Note: FMLA would apply to larger employers with 50+ employees, but you must also consider applicable state leave laws. Check with your attorney to determine which, if any, come into play.)
2. Should I start asking around who might be more susceptible to complications from COVID-19? No. The Americans with Disabilities Act comes into play when employers start to consider groups as risk. For example, we know that COVID-19 seems to have a more severe impact on those with preexisting respiratory issues. An employer may be tempted to send someone with asthma or emphysema home before sending other people home. The ADA generally restricts the employer’s ability to make disability-related inquires unless they are job-related and consistent with business necessity based on objective evidence that the employee’s ability to perform is impaired OR they will pose a DIRECT THREAT due to a medical condition. In an outbreak, who gets to define a “direct threat”? In 2009, the EEOC issued guidance in the wake of the H1N1 outbreak:

Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

So bottom line, don’t go trying to anticipate who in your workplace will be worst affected unless you have specific guidance from the CDC or local authorities.

3. If COVID-19 hits my workplace, do I have an obligation to respond? Probably. The Occupational Safety & Health Administration (“OSHA”) imposes a “general duty” on employers to provide a workplace free of recognized hazards that are causing or likely to cause the death or serious physical harm to employees. The general duty could impose upon an employer the duty to take precautions to prevent the spread of the virus, should it become a “recognized hazard.” As of this writing, OSHA is advising that most workers remain at low risk of exposure, but watch this space: https://www.osha.gov/SLTC/covid-19/hazardrecognition.html#low_risk As with any cold and flu season, it is probably not a bad idea to wipe down door handles and elevator buttons once in a while.
4. If I send people home, but ask them to check in, do I need to pay them? Yes. If you send non-exempt employees home, be very clear about your expectations regarding checking into work. The US Department of Labor draws a bright line between employees waiting to work, and working to wait. Generally, if you expect someone to be instantly available, they must be paid for the time they are waiting. If they are allowed to go about their day and check in from time to time, you may only need to pay them for the time they spend checking in. Of course, any time you are making a decision about wage and hour issues, you want to consult with an attorney because the consequences of getting it wrong are huge.
5. We expect to run a smaller crew while people are out sick. Can we just give them comp time next week rather than pay overtime this week? No. Employment lawyers bristle at the term “comp time.” The exceptions to the overtime rule under the FLSA are few, narrow, and limited. Comp time may be allowed in certain public sector workplaces, but that time must be compensated in the same period and at 1.5 times the amount of overtime worked. Bottom line, unless you work for the government, banish the term “comp time” from your lexicon.

Outbreaks like H1N1 and COVID-19 are unusual, but they are not rare. They happen with some frequency. As in most cases, those who can avoid freaking out usually come out ahead. Now is not the time to make drastic irreversible changes to policy. Now is the time to be flexible with the employees that need it and patient to watch as events unfold and more guidance comes from the EEOC, OSHA, and the CDC. As always, if you have any questions, please give us a call.