COVID-19 Updates: Employment Law Q&A

March 23, 2020

Q&A: Employment Issues During the COVID-19 Pandemic

As a business owner, you have many considerations that affect your employees and the safety of your operations during the COVID-19 pandemic. We anticipated some of the issues that may be of particular importance to you right now, and hope to offer value in answering them, given the facts we know at this moment. Here are a few issues that may be concerning you:

Question:  Am I permitted to terminate my employees if I voluntarily choose to temporarily close my business to reduce the risk of infection, or if my business volume has been drastically reduced?

Answer:  Generally, if your employees are at will, then yes, you may terminate employees for lack of work.  You must do so without regard to any protected classification (gender, race, age, etc.).  Termination on the basis of weakest performance or reverse seniority (last ones in, first ones out) have been used.  If you are a laying off more than 50 employees at a time, you may be subject to the advance notice provisions of the federal WARN act.  However, the WARN act includes various exceptions that likely apply to the unexpected shutdowns. 

Question:  If I am required by law to close my business, do I still have to pay my employees if I do not terminate employment?

Answer:  It depends on whether the employee is an hourly worker or an exempt, salaried worker.  For hourly workers, the employer is only required to pay for hours worked.  If your business is closed and the hourly employee is not required to work, then you do not need to pay that employee.

For salaried workers, an employer is required to pay the full salary for each work week (which is not always the same as a payroll period) during which the salaried employee performs any work.  You are not required to pay the employee if they perform no work during the entire work week.  For example, if the workweek is Monday through Sunday, and the employee spends 30 minutes checking emails at home on Tuesday, or 20 minutes on each of Monday and Wednesday, then you are required to pay that worker their full salary for the week.  If you intend not to pay salaried employees while the business is closed, then you should make it clear, in writing, that they should not perform any work, including checking emails or making calls to clients. 

Question:  I want to help my employees.  Is it better for my employees to lay them off or cut hours in order to keep people employed?

Answer:  Although this decision is based largely on your business needs, you may want to consider the following:

  1. If you provide health benefits, terminating an employee may trigger termination of their health insurance.
  2. An employee who is laid off may apply for unemployment benefits. 
  3. If you reduce an hourly employee’s hours, the employee may apply for partial unemployment benefits.  How much they will receive, if anything, will depend on the number of hours reduced, along with the other factors the Division of Unemployment Insurance considers.
  4. You cannot reduce the hours of salaried employees with the goal of paying them proportionally less.  As referenced above, for exempt employees paid on a salaried basis, you must pay their full salary for the work week regardless of the numbers of hours worked, as long as they are able and ready to work.  You may negotiate a new, lower salary commensurate with the reduced hours of work, but keep in mind that the salary must be at least $684 per work week in order for most employees to remain exempt from overtime requirements.

Question:  Does FMLA cover an employee has a pre-existing condition that makes them susceptible to infection by COVID-19?

Answer:  Generally, no.  According to DOL guidance, the FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition.  Leave taken by an employee for the purpose of avoiding exposure would not be protected under the FMLA.  

Question:  May l send employees home if they show symptoms of COVID-19? May I prevent them from coming to work?

Answer:  Yes, you may do both.  As the CDC has recommended that all persons showing symptoms of COVID-19 should not be in the workplace, you may send them home.  You may prevent them from coming to work for the same reason.

However, you should prepare a plan of action or policy specifically addressing what you intend to do, including the circumstances in which an employee will be sent home or prohibited from coming to work, so that everyone is aware of the ground rules and there is no confusion or misunderstanding as to your employment decisions.  Make sure that your policy complies with the laws prohibiting discrimination in the workplace.   

Question:  How much information may I ask an employee who calls in sick?

Answer:  In order to protect the rest of its workforce during the COVID-19 pandemic, you may ask an employee if they are experiencing symptoms of COVID-19, including whether they have symptoms such as fever, chills, cough, shortness of breath, or sore throat.  Keep in mind that you must maintain all information about employee illness as confidential.

Question:  During the COVID-19 pandemic, may I require employees to adopt infection-control practices, such as regular hand washing, at the workplace, or to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce transmission?

Answer:  Yes, you may require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, and you may require employees to wear personal protective equipment such as masks and gloves.

Question:  If I need an employee immediately, may I withdraw an employment offer if the person has symptoms of COVID-19?  Or may I delay the start date of employment if the person exhibits symptoms of the virus?

Answer:  Yes, if the person is not able to enter the workplace due to symptoms of COVID-19, and the need is immediate, the offer may be withdrawn.  Likewise, the start date may be delayed.

We know you may be making many business decisions relating to the pandemic.  RMG is here to help advise your business as you navigate these uncertain times.  For questions on this article, please contact info@rosenbergmartin.com. 

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