On March 11, 2020, the World Health Organization (WHO) officially declared the coronavirus outbreak (COVID-19) a “pandemic.” Employers should mobilize and prepare now to ensure that they are equipped to handle the inevitable disruptions in the workplace that this relatively unprecedented pandemic may cause. Here are some things you should be thinking about:
Tough Questions You Might Be Asking in Your Organization
A.Can you mandate vaccines?
No, and there is—at the time of writing—no vaccine for COVID-19. Employers can recommend employees get vaccinations but cannot require it. An employer can, however, strongly urge employees to get vaccinations and provide incentives to employees who do so such as:
- Paying for time off to get vaccinated.
- Providing the shot free to employees.
- Reimbursing employees for the cost of the shot.
- Hosting a vaccination clinic.
B. Can you send an employee home if you think they have COVID-19?
Yes. Employers may send employees home who become ill with pandemic influenza-like symptoms. Employees who are sick may be told to stay home and not come to work until at least 24 hours after their fever has resolved without the use of fever-reducing medicines. According to the EEOC, instructing sick employees to leave the workplace is not a disability-related action if the illness is similar to seasonal influenza or the 2009 H1N1 virus. The action would also be justified if the illness was serious enough to present a direct threat.
C. Can you ask an employee if they are sick?
Yes. During a pandemic, employers may ask employees if they have flu symptoms, such as fever or chills and a cough or sore throat. If the pandemic is akin to seasonal influenza or the 2009 H1N1, the inquiries are not disability-related. If the pandemic is more severe, as it appears COVID-19 is, disability-related inquiries are justified by a reasonable belief based on objective evidence that the more serious pandemic influenza poses a direct threat in the workplace.
Keep in mind: employers may not ask employees who show no symptoms to disclose whether they have a medical condition that would make them susceptible to a pandemic. An employer can make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications only if a pandemic becomes so severe that it poses a direct threat to anyone who contracts the pandemic influenza. Stay tuned.
D. Can you allow employees to telecommute?
Employers may encourage employees to work from home to control infection. These employees must be paid their regular wages since they are working, although remotely. Telecommuting may also be a type of reasonable accommodation provided to employees who are at risk of developing complications if they become infected with COVID-19.
Responding to a Pandemic without Violating Other Applicable Laws?
Having to wrap your head around a global pandemic and think about the alphabet soup (FMLA, ADA, FLSA, etc.) of other employment laws is no small task. The bottom line to remember, though, is to apply any policy or practice uniformly and treat employees in similar situations the same. If you ask one employee who has been out sick for a doctor’s note, you should require the same for all employees who have been out sick.
A. Family Medical Leave Act (FMLA) and Maine Family Medical Leave Act (MFML)
Employers who are covered by either of these laws must provide job-protected leave and other benefits to an eligible employee who misses work due to a serious health condition of the employee’s own or a close family member. An employee’s illness caused by a pandemic virus may or may not qualify as a serious health condition, depending on the circumstances. Generally, the flu and common cold do not qualify as serious health conditions under the FMLA, unless complications arise. Where an employee has complications arising from flu caused by a pandemic or seasonal flu virus, such as needing to go to the hospital or needing to be treated for more than three days with antibiotics or other continuing medication, that could qualify. The Department of Labor (DOL) has published great guidance on this topic, which you can access HERE.
In addition, the following employee absences relating to a pandemic would not be protected:
- Missing work to care for a healthy child whose school is closed; and
- Staying home – although healthy – to avoid exposure to the pandemic virus.
For more information on the FMLA, please check out The Employer’s Guide to The Family Medical Leave Act from the Department of Labor.
B. Americans with Disabilities Act (ADA) and Maine Human Rights Act (MHRA)
The ADA and MHRA protect qualified employees with a disability from discrimination in the workplace. Remember, these laws also protect employees who are regarded as having a disability. Employers must consider whether an employee who becomes ill with a pandemic virus has a disability within the meaning of the law. The ADA and MHRA prohibit disability-related inquiries or medical examinations of current employees, except in limited circumstances. Generally, seasonal flu and other conditions of a short duration are not considered a disability under these laws. However, as with the FMLA and MFML, complications arising from illness caused by a pandemic virus may lead to the condition becoming a covered disability if the illness affects one or more major life activities. If an employee’s pandemic-related illness complicates or becomes associated with a different condition, such as an underlying health problem, that’s when an employee would fall under ADA/MHRA protection.
The law requires that employers make a reasonable accommodation for an employee with a disability, including providing leave or adjusting a disabled employee’s attendance requirements. When exploring potential accommodations, employers should not elicit information about the disability or illness itself. For example, asking an employee about flu symptoms is not likely a disability-related inquiry, but asking if the employee has a compromised immune system would be. The EEOC has published great guidance and helpful Q&As about this issue, which you can access HERE.
Last, it’s important to remember that an employer is not required to provide an accommodation to a qualified employee with a disability if the employee’s disability poses a direct threat to the workplace, that is, a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” According to the latest EEOC guidance, whether a pandemic influenza rises to the level of direct threat depends on the severity of the illness. The assessment by the Centers for Disease Control (CDC) or public health authorities would provide the objective evidence needed to assess whether someone effected with COVID-19 poses a direct threat in the workplace.
C. Fair Labor Standards Act (FLSA)
Workplace absenteeism during a pandemic raises wage and hour issues. Employers who are considering not paying employees for time missed from work should make sure to must differentiate between pay practices of exempt and non-exempt employees.
Hourly non-exempt employees are generally only paid for hours worked. Therefore, during a pandemic, an employer would not need to compensate a non-exempt employee for missed work. An employer may send an employee home and treat the time off as unpaid. You can, however, choose to allow an employee to use their sick, vacation and/or PTO if they have miss work due to the flu.
Exempt employees paid on a salary basis are paid the same amount regardless of the number of hours worked (with limited exceptions). If an employer makes an improper deduction from an exempt employee’s salary or refuses to pay an exempt employee for days not worked, it may lead to a loss of the FLSA exempt classification of the employee, which would entitle the employee to overtime pay. If an exempt employee misses work during a pandemic, whether an employer can deduct the exempt employee’s salary depends on various factors, including:
- An employee is ill and the employer has bona fide sick leave plan: If an exempt employee misses work because of pandemic related illness and the employer has a bona fide sick leave policy, plan, or practice of providing compensation for salary loss caused by illness or disability, the employer may still deduct an exempt employee’s salary, but only in full-day increments. For example, if an employee misses one-and-a-half days due to illness, the employer may only deduct one day of pay from the exempt employee’s salary. For more information about whether your sick leave policy classifies as a “bona fide plan,” the DOL has published guidance ONLINE.
- An employee misses work for personal reasons: If an exempt employee misses work due to personal reasons, other than sickness or disability, the employer may deduct in full-day increments. For example, if the employee misses two days of work because their child is healthy but school is cancelled, you may deduct two days of pay. If the exempt employee is absent for one-and-a-half days, the employer may only deduct the equivalent of one day’s salary.
- The employer initiates the absence: An employer may not deduct an exempt employee’s pay when the employee reports ready to work and the employer sends them home. For example, if an employer tells an employee with a sick relative to stay away from the workplace during a pandemic, the employer may not deduct the exempt employee’s pay, unless the employee misses an entire workweek.
Finally, it’s important to remember that nothing in the FLSA prohibits employers from requiring absent employees to use their accrued vacation time or PTO, even in partial day increments, so long as the employer still pays exempt employees their full salary for a workweek. The FLSA views PTO and vacation as fringe benefits that the employer has the option of providing or not providing.
For more information on the FLSA and pandemics, you can check out: Pandemic Flu and the FLSA: Questions and Answers from the DOL.
D. Worker Adjustment and Retraining Notification Act (WARN)
If a pandemic is so severe that it forces a company to close a plant or conduct a mass layoff, the employer should consider whether the plant closing or mass layoff triggers notice requirements under WARN. WARN applies to employers with 100 or more full-time workers planning to lay off 50 or more workers. The law requires 60 days’ notice in advance of a layoffs.
Even if your company does not fall under the WARN law in terms of numbers, the law does encourage any employer thinking about layoffs to give sufficient notice, to the extent possible, so workers and their families are provided transition time to adjust to the prospective loss of employment, to seek and obtain other employment, and possibly work on skill training or retraining.
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy Dieterich, Jordan Payne Hay, and James F. Pross are employment and labor law attorneys; others at the firm handle business and other matters.
Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro. You can contact us at 207.784.3200, or by visiting www.sta-law.com