The current coronavirus outbreak (COVID-19) has caused a litany of novel issues for business owners in the Triangle and around the world. It is never too early for employers to consider how the outbreak will affect your employees, your output, and your bottom line. Dysart Willis Houchin & Hubbard represents employers across North Carolina and is prepared to help businesses prepare and handle an array of employment issues that you may encounter.
This is the second in a series of articles in which our attorneys address questions for small businesses in North Carolina about the coronavirus outbreak. The U.S. Center for Disease Control and Prevention (CDC) recently released guidance tailored to businesses, providing recommendations and best practices for protecting your workforce. Read more about this guidance in our recent blog post. Now let’s get started on how small businesses can best prepare for employment-related issues arising out of COVID-19.
How should my business handle travel restrictions?
Travel restrictions are regularly evolving. The United States Department of State advises U.S. persons to reconsider traveling abroad at this time. Entry into the United States is currently barred or restricted (which frequently includes being subject to a fourteen-day quarantine) to foreign nationals who have traveled to China, Iran, and certain European countries or who have been aboard certain cruise ships. Employers and workers should frequently monitor the State Department’s guidance related to foreign and domestic travel. Important to Know:
- Employers may inquire about employee returning from travel’s exposure to the coronavirus even before the employee develops symptoms. But employers must keep medical-related information confidential in compliance with the ADA.
- Employers may require employees who have traveled to affected areas or otherwise experienced potential exposure to stay home for a period of time. However, employers considering implementing such measures should consult with counsel in order to avoid potential anti-discrimination, wage and hour, and leave policy issues.
What if an Employee Is Diagnosed with coronavirus?
Any employee who tests positive should not come into work until he/she is asymptomatic and cleared for return by his/her physician. The CDC recommends that employers notify employees of any potential workplace exposure. Precautions should be taken immediately to prevent further exposure and transmission, including cleaning and disinfecting the workplace and potential quarantine of workers. Business owners and managers should consult an attorney in delivering this notice, in order to ensure compliance with ADA and other medical health and confidentiality laws.
What if an employee has been exposed to coronavirus?
Treat the employee as if he/she has the virus and send the employee home. The same should apply if the employee is complaining of or demonstrating symptoms of the coronavirus or other contagious disease The EEOC has confirmed that, under a direct threat analysis, employers are permitted to send an employee home when he or she exhibits symptoms of contagious disease. However, employers should be careful not to use discriminatory or other unlawful practices in sending employees home. If this is not already in your employee policy handbook, you should consider including this and ensuring employees are aware of this policy.
Should my company allow remote working/telecommuting?
Be flexible as your company’s resources allow. This will obviously also depend on whether your employees can perform their job functions remotely. The CDC and state and federal authorities are encouraging social distancing at this time. This means that whenever possible, employees should be encouraged to work from home or away from the workplace. While this can be difficult based on the type of work that you do or your particular preference, we do live in a very digital world, and there are likely resources that can make telework possible and manageable.
How do I monitor employee performance remotely?
While you do not want employees sick at work and spreading contagious illness among your workforce, you also do want to ensure that deadlines are being met and productivity does not slow down. A balance is achievable between maintaining the health of your workforce and your business’s bottom line. Set specific deadlines for individuals or for teams of people working remotely, then set up daily or weekly calls to ensure that everyone stays on track and focused on completing tasks. Or set up a task tracker – particularly one with a group chat feature, such as monday.com task management software – where employees can communicate and feel a sense of accomplishment as they work through their goals.
Do I have to pay employees that are not able to work?
It depends. For most non-exempt employees, the answer is generally no even though the work stoppage is not their fault. However, benefits like paid vacation, sick leave or PTO might be available to employees depending on company policy.
For salaried, exempt employees the question is more complicated. Under the FLSA exempt employees typically must be paid the full week’s salary for any week in which they perform any work at all.
Can I terminate employees during the coronavirus pandemic?
Obviously no employer wants to lose good employees, but the practical economic consequences may force an employer to have to consider terminations. So long as an employee is not contracted or your employment contracts permit hiring and firing at will, there is typically not any bar to laying off employees. However, legislation is changing quickly in the COVID-19 era, so employers should stay up to date on forthcoming changes. At present, FMLA and ADA law may protect some COVID-affected employees from layoff, but likely only for confirmed positives. Be sure to check with your attorney before terminating employees due to COVID-19.
How should I handle paid and unpaid sick leave?
An employee may be entitled to paid or unpaid sick leave if the employee or a family member is experiencing a serious health condition under the FMLA, and ADA reasonable accommodation, or state law. Employees typically are not entitled to sick leave to avoid getting sick unless they have a preexisting medical condition. Employers should discuss leave on a case-by-case basis with legal counsel and should consult with counsel to ensure that their leave policies are compliant with state and federal laws.
Is coronavirus covered under OSHA reporting requirements? – Yes. While no specific standards have been issued to date, OSHA has issued a general notice and guidance on workplace preparedness. Key components include:
- General Duty Clause – Employers are required to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to . . . employees.” To comply, employers should provide hand washing areas equipped with hot water and soap, hand sanitizer, ensure regular disinfectant of office spaces, provide necessary protective equipment, and encourage employees to work away from the office whenever possible.
- Recordkeeping and Reporting – Be sure to log any work-related illnesses or injuries on OSHA form 300 log. OSHA has deemed COVID-19 a reportable illness when an employee is infected on the job.
If you have questions as an employer about appropriate workplace response to the coronavirus infections, our firm is here to help. Our attorneys are available over the phone or through video conferencing to discuss any legal problems your company is facing and identify potential solutions.