On Wednesday, March 11, 2020, the World Health Organization (“WHO”) announced that the coronavirus (“COVID-19”) has become a pandemic. The virus has infected nearly 120,000 people in 114 countries. More than 4,000 have died. In Part 2 of our series, we continue to answer questions that employers have presented to us.
Question: We provide critical support to a healthcare system and we cannot discontinue operations during the public health emergency. Can I offer employees incentive pay to continue working?
Answer: Yes. Incentive pay is an appropriate inducement. There are some strings attached, however. The incentive pay will have to be factored into base compensation when calculating overtime for non-exempt, hourly employees. Employers can also provide incentive pay to salaried, exempt employees but incentive pay should not be tied to the amount of work performed by the salaried, exempt employee because doing so might risk the employee’s exempt status.
Question: We’re responding to the public health emergency and considering our telecommuting options. What types of things should we consider with telecommuting?
Answer: Consider the job functions that are performed by your employees because not every task can be performed by telecommuting. Draft a temporary telecommuting policy and be very clear about your expectations. Require employees to work set hours in a set location. Make sure employees provide you with current contact information. If the telecommuting employees are going to work on sensitive materials, make sure they have a secure work location. Consider how you’re going to handle expense reimbursement. Emphasize that the telecommuting arrangement may by modified or revoked as events and circumstances warrant. For employees who normally don’t telecommute, it’s likely that workflow patterns will be disrupted and productivity will decrease. You may find it necessary to modify duties and adjust hour requirements.
Question: We need to relieve an employee of duty and send them home because they are exhibiting signs of acute respiratory illness. The employee has already exhausted all paid time off. Do I have to maintain their pay?
Answer: Depends. Employees who are paid by the hour and are non-exempt from overtime requirements under the Fair Labor and Standards Act are not entitled to be paid for time not working. Salaried, exempt employees are entitled to their full week’s salary when they perform any work in a week; however, if a salaried, exempt employee misses a partial week due to an absence that is covered by the Family and Medical Leave Act, an employer may dock an exempt employee’s salary for those days that were not worked.
Question: We operate a healthcare clinic and we have some employees who are refusing to treat patients with acute respiratory illness because of COVID-19. We can manage without one or two employees, but what options do we have if 4 or 5 employees refuse to treat patients.
Answer: The Centers for Disease Control (“CDC”) issued updated guidance on March 10, 2020, with recommendations for infection prevention and control regarding COVID-19. The CDC has specific recommendations for Personal Protective Equipment (“PPE”). If you can follow CDC’s recommendations for PPE, then you should consider informing your employees of how you’re complying with proper protocols and how important it is for healthcare providers to treat those in need given the public health emergency. Messaging and tone are important. If necessary, you can consider disciplinary measures but be careful with this situation and consult legal counsel before doing so.
If you’re unable to comply with CDC guidance regarding infection prevention and control for COVID-19 (e.g., due to a shortage of masks), and you have employees who are refusing to treat patients because of this, then you should consider allowing those employees to use paid or unpaid leave until such time that you are able to comply with CDC guidance. Employees are only entitled to refuse to work if they believe they are in imminent danger. According to the Occupational Safety and Health Act, “imminent danger” means any condition or practice which can reasonably be expected to cause death or serious physical harm immediately. “Imminent danger” also involves a “reasonable expectation” that “other health hazards” are present, and exposure to them “will shorten life or cause substantial reduction in physical or mental efficiency.” If you’re unable to comply with CDC guidelines, then employees who refuse to work under those conditions may have a good faith basis to do so, and terminating their employment could lead to unwanted litigation. The safe course of action here may be to place those employees on an unpaid leave of absence until you can comply with CDC guidelines.
Question: I want to take employees’ temperatures to see if they have a fever. Is this a good idea?
Answer: On March 18, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance regarding the Americans with Disabilities Act (“ADA”). According to the EEOC, it is now permissible for employers to take employees’ body temperature during the COVID-19 pandemic. Both the EEOC and CDC note, however, that some people with COVID-19 do not have a fever, so body temperature is just one variable that employers should consider in evaluating whether an employee has symptoms of acute respiratory illness.
Question: Are there any changes to federal law that I need to be aware of?
Answer: Yes. On Saturday, March 14, 2020, the U.S. House of Representatives adopted H.R. 6201, otherwise known as the Families First Coronavirus Response Act. The measure passed overwhelmingly and the White House has signaled its intention to sign the bill into law, assuming the Senate concurs with the House measure.
H.R. 6201 is significant legislation that will fundamentally alter the landscape for employers and employees. For example, the bill expands the scope of the Family and Medical Leave Act (“FMLA) by requiring all employers (with less than 500 employees) to provide up to 12 weeks of job-protected leave for employees: (1) quarantined because of the coronavirus; (2) caring for a family member who is quarantined; or (3) caring for a child whose school or daycare has been closed because of coronavirus. Employees are eligible to take leave for these circumstances so long as they have been employed for 30 days. This is a significant departure from current FMLA eligibility standards that impose a service requirement of 1,250 hours within the preceding 12 months.
Additionally, the bill also provides employees with two types of paid leave benefits. First, the bill requires employers to provide up to 56 hours of accrued paid sick time per year. Paid sick time will accrue at the rate of 1 hour for every 30 hours worked, beginning at the commencement of their employment. This paid leave benefit may be used for a wide variety of absences, including illness, treatment, quarantine, and care of relatives. The paid leave benefit also is available to victims of domestic violence and sexual assault. Second, the bill provides an additional category of paid sick leave benefits for employees taking FMLA leave for one of the coronavirus-related events.
This legislation will present several compliance challenges for small employers, especially those businesses that are providing services during this public health emergency. FMLA and paid leave policies will have to be reviewed and revised if H.R. 6201 becomes law.