Employers are facing an unprecedented challenge navigating the Coronavirus pandemic. As the virus spreads, it is generating fear and uncertainty. Employers need clear answers they can trust. They want to know how to protect employees, what their obligations are under the law, and what to do if the situation gets worse. To answer these questions, we’ve created this FAQ in the hope that it helps you manage this challenge and adapt to the circumstances ahead.
1. 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 that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. And this includes any travel locations!
Top Tip: You can learn more about our tips for a healthy work environment here!
To ensure you are not subjecting an employee to excessive risk, check the CDC’s Traveler’s Health Notices for the latest guidance for each country where the employee is traveling.
Additionally, perhaps more important than whether you can force an employee to travel is whether you should. Requiring a fearful employee to travel will erode trust and likely cause them significant anxiety. Instead, consider video calls or videoconferencing as an (inexpensive!) alternative for the next few weeks or months.
Also, keep in mind that employees who are immunocompromised or have other relevant disabilities may be entitled to an accommodation under the ADA. (For example, not traveling, given current conditions.)
Top Tip: At this time, the CDC recommends avoiding all nonessential international travel. However, if you must travel, follow the recommendations in the Global COVID-19 Pandemic Notice. Additionally, review any travel health recommendations provided on the webpage for your destination.
2. Can we send employees home if they are symptomatic?
Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute.
Top Tip: Non-exempt employees may be entitled to a few extra hours of pay if you’re in a state with reporting time pay. However, this cost will be well worth it to maintain the safety of the workplace.
3. What if my employee discloses that their family member or roommate has COVID-19?
Under CDC guidance, employers should ask employees who live with someone confirmed to have the Coronavirus 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.
For more information, refer to Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management.
4. Do any leaves apply?
Whether FMLA or a state family and medical leave or insurance program will apply to a particular case of COVID-19 will be fact-specific. However, even if FMLA or state leaves do not apply, we recommend that employers treat Coronavirus-related leaves as job-protected. (Both for legal reasons and because it’s the right thing to do.)
If you’re in a state with sick leave law, this could apply if:
- The employee is sick,
- A family member is sick, or
- If 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 and a wrong way to do it. Generally, employers shouldn’t ask about an employee’s symptoms as that could be construed as a disability-related inquiry. However, under the circumstances (and in line with an employer’s responsibility to provide a safe workplace), we recommend employers ask specifically about the symptoms of the Coronavirus and make it clear that this is the extent of the information they’re looking for.
Here’s a suggested communication: “Thank you for staying home while sick. In the interest of keeping all employees as safe as possible, we’d like to know if you are having any of the symptoms of COVID-19. Are you experiencing a fever, cough, and/or shortness of breath?”
Remember that medical information must be kept confidential as required by the ADA. If the employee does reveal that they have symptoms of COVID-19 or has a confirmed case, you should see the CDC’s Interim Guidance for next steps.
6. What if I have a fearful employee who refuses to come to work?
Generally, employees do not have a right to refuse to work based on a generalized fear of becoming ill. Therefore, if their fear is not based on objective evidence of possible exposure, you can enforce your attendance policies.
Still, employers should be prepared for employees who express anxiety about coming to work due to Coronavirus. We recommend employers evaluate any request on a case-by-case basis. Further, consider alternative arrangements such as telecommuting if possible. For example, employees who are immunocompromised or have other relevant disabilities may be entitled to reasonable accommodation such as working from home or taking leave.
If the nature of the employee’s position does not allow telecommuting and there is no legitimate threat, employers should reiterate the steps they can take to keep themselves safe from contracting the Coronavirus and explain the proactive steps being taken 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.
Remember, you should be able to support the business justification for allowing or requiring certain groups to telecommute.
8. How do I make a telecommuting policy?
Although some employers will be comfortable sending everyone home with their laptop and saying, go forth and be productive, most will want to be a little more specific. A good telecommuting policy will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses.
For instance, your policy might require that employees:
- Are available by phone and messaging app during their regular in-office hours,
- Meet all deadlines and maintain client contacts per usual, and
- Check in with their manager at the close of each workday to report what they have accomplished.
Additionally, be sure to let employees know whom to contact if they run into technical difficulties at home.
Finally, you’ll also want to specify how expenses related to working from home will be dealt with. If you don’t expect there to be any additional expenses involved, communicate this. You don’t want employees thinking this is their chance to purchase a standing desk and fancy ergonomic chair on your dime.
That said, you should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses. However, it’s a good practice to cover such costs even if it’s not required by law.
Top Tip: You can find a sample telecommuting policy as well as other Coronavirus-related communications in the “Policies and Letters” section of our COVID-19 Business Resources Hub!
9. If we choose to close temporarily, do we need to pay employees?
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 or PTO.
All four options are compliant with state and federal law. We generally recommend option 4—allowing but not requiring employees to use vacation time or PTO. If your office is required to close and your state has a sick leave law, employees may be able to use accrued paid sick leave during the closure.
Conversely, exempt employees must be paid their regular salary unless the office is closed for an entire work week and they do no work at all from home. You can require them to use accrued vacation or PTO during a closure if you have a policy that indicates you will do so, or if this has been your past practice. However, it is safest to give employees advance notice if you plan to do this.
10. If we close temporarily, will employees be able to file for unemployment insurance?
Depending on the length of the closure, employees may be able to file for unemployment insurance. Waiting periods range from 1-3 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.
Top Tip: You can learn more about changes to unemployment benefits under the CARES Act here!
We know that the weeks to come will bring unexpected challenges for the business community due to the Coronavirus. However, we are prepared to respond to these challenges as they arise. Additionally, we will continue to provide ongoing communications as more details unfold.
Finally, if you have any questions or concerns, please feel free to contact us at (866) 946.2032 or by emailing our support team. And don’t forget to follow us out on Facebook, Twitter, and LinkedIn for even more Coronavirus and business updates!