As communities around the globe mobilize to slow the spread of the coronavirus (COVID-19) outbreak, it’s important for employers to be familiar with best practices for keeping your employees safe and your business protected. Here are answers to some common questions that employers may have in mind:
As an employer, how can I protect my company?
In addition to maintaining a clean work environment, now is a good time to evaluate your HR policies and ensure that they are well-documented in your Employee Handbook. When it comes to sick leave and other complex regulations, it’s always a good idea to ask a lawyer for help.
How can I prevent exposure for my team?
Limit in-person interactions. Use the phone, video conferencing, or email instead. This applies to employees, customers, and third-parties—such as vendors—alike. This would also include interviewing prospective employees. Do it remotely or postpone it all together, but beware: you might lose the candidate to another company.
What if my employees are unable to work remotely?
Even if you choose not to shut down operations temporarily, you may still be able to take certain steps to ensure the safety of everyone employed at your facilities, such as implementing a telecommuting policy or other scaled-down staffing plan.
If your employees must be present physically, provide them with the appropriate supplies for keeping the workplace clean and healthy. In addition to hand sanitizer, soap, and disinfectant wipes, this also includes toilet paper, towels, and other toiletries, as people may be hoarding them, even from office restrooms. If you have meetings, be sure to wipe down the meeting area before and after. Additional sanitization tips are available through the Center for Disease Control. While not legally required, taking the precaution to provide ample workplace hygiene products can help to keep your team healthy and your business up and running.
Can I restrict contractors, vendors, or visitors from entering our facilities?
While you likely have the right to insist that any person who has a fever or flu symptoms not visit your workplace, it is advisable to ensure that any such policy is applied uniformly across all demographic groups. In addition to any virtual communication, your policy should be posted physically and visible to anyone entering your facility. You may wish to consider a hand-held temperature screening device, provided the use of such a device is legal in your state. A local lawyer can help you understand what is legal and appropriate for your specific situation.
Can I restrict my employees from traveling?
At this point, there have been numerous locales around the world impacted by the COVID-19 outbreak. While employers can ban business travel or postpone company events, employees’ trips cannot be restricted—Although the federal government has already placed its restrictions on travel to and from certain destinations.
That said, as an employer, you may ask employees to notify you in advance of any overseas travel. You also have the right to restrict an employee’s ability to return to work if you follow all legal requirements for doing so. You cannot request that an employee provide a medical diagnosis. If you are unsure about your HR policies, talk to a lawyer.
Can I send a sick or potentially exposed employee home?
If someone is sick, send them home right away. Do not, however, ask about their healthcare history or request a medical diagnosis, as this might violate their rights protected by the Americans with Disabilities Act. Instead, advise the sick or exposed employee to go home and get medical attention, then after their departure, sanitize their workstation. Some reports are indicating that the virus can be spread through the plastic, fabric, or metal surfaces long after exposure, so if possible, wear gloves and provide gloves to your employees, as well.
Your state or municipality may have legal guidelines regarding payment when you cancel or change an employee’s shift on short notice, so it is important to talk to a local lawyer.
Under the Fair Labor Standards Act (FLSA), salaried, exempt employees must be paid for the full work week, unless the business is closed for the entire week and no work is performed by the employee during that time.
Can I require a doctor’s note for sick or potentially exposed employees?
While you are not able to ask for an employee’s health diagnosis, you may ask for a doctor’s note indicating whether or not the employee is medically eligible for leave benefits if they are ill or not in violation of quarantine or public safety guidelines, if they are recovering.
As long as your policy is applied in a nondiscriminatory way, you may ask employees to self-quarantine, even without a doctor’s note, but be sure to understand the implications around payment when doing so. A lawyer can help with this.
Can I require that employees be tested?
While you can send employees home if they are showing flu-like symptoms, you cannot require that they undergo testing or that they report their results back to you. Further, as the supply of COVID-19 test kits is limited, usually only a medical professional or public health official can determine whether a person even qualifies to be tested. Generally, only individuals who are severely ill or who have been exposed to a confirmed case are being prioritized for the available test kits.
If you are interested in securing testing for yourself or a family member, contact your doctor or local healthcare facility before visiting in person. In some parts of California, testing is also available through Project Baseline, though you will need to qualify via online screening.
Does FMLA apply to employees who need to take off due to coronavirus illness?
If the Family and Medical Leave Act of 1993 (FMLA) guidelines apply to your business, your employees may have certain benefits available to them. Keep in mind, FMLA may also apply if the employee requires time off to care for an immediate family member.
It’s also important to note that there may be state sick leave or quarantine laws that apply, especially for those companies that aren’t subject to FMLA. For example, several states—including Maine, Maryland, New Jersey, New Mexico, South Carolina, and Texas—have laws that protect the jobs of employees under quarantine.
As this crisis unfolds, there will likely continue to be changes to federal, state, and municipal employment law. An employment attorney can help explain which laws apply to your business.
How has FMLA/paid leave law changed as a result of the coronavirus outbreak?
As of March 18, 2020, The Families First Coronavirus Response Act was signed into law granting the following emergency protections:
- Public-health emergency FMLA leave for parents who are unable to go to work (or work remotely) when their minor child’s school is closed, or their care provider is unavailable due to a public health emergency.
- Emergency paid sick leave for those who are seeking a diagnosis or already diagnosed with coronavirus, or who are ordered by a doctor to quarantine due to exposure/showing symptoms.
To qualify for emergency FMLA leave, an employer must have fewer than 500 employees, and the employee must have been employed for more than 30 days. Also, health care workers and employees of small businesses with less than 50 employees may not be covered if this requirement jeopardizes the business. Unlike the FMLA leave, there is no minimum time of employment for emergency paid sick leave. These temporary measures begin on April 2, 2020, and expire on December 31, 2020.
Will employees using a work visa be impacted by federal travel restrictions?
Unless the employee is traveling to the United States from a restricted region, their ability to enter the country, remain, or work under the appropriate visa remains unimpacted as of this writing. Anyone, including U.S. citizens and legal permanent residents and their immediate families who are re-entering the country, has traveled to the restricted areas, are required to self-quarantine for 14 days.
How should I address worker productivity?
Be compassionate if your employees aren’t fully productive. They might be scared. Everyone is scared. We’re all charting into the unknown, and many of us don’t have answers yet as to how this pandemic is going to play out. Since everyone is preoccupied with this virus and concerned for themselves and their loved ones, work productivity might suffer as a result. We’re all in this together.