Employers of all sizes are facing unprecedented human resource challenges in the face
of the COVID-19 pandemic. We know that many employers are already developing
responses, and there is no one-size-fits-all approach. Here are ten employment law
considerations to keep in mind when planning for the impact of the virus on the
Regularly Monitor Government Guidance for Employers. The CDC, OSHA, DOL and
state and local governmental authorities have issued guidance for employers. Links to
this guidance can be found here among our links to External Resources. Governmental
guidance is rapidly evolving, and it is critical for employers to stay current on
developments that could impact their worksites.
Prioritize Health and Safety. Take all reasonable steps necessary to ensure employee
health and safety consistent with governmental guidance. Actively encourage sick and
exposed employees to stay home. Promptly send sick employees home and require
symptomatic or exposed employees to stay home for at least 14 days or until healthy.
Where feasible, consider allowing remote work arrangements, limiting visitors and
restricting business travel. Maintain environmental sanitary practices at worksites.
Make ADA-Compliant Medical Inquiries. While disability-related inquiries and
medical examinations are usually prohibited under the Americans with Disabilities Act,
COVID-19 poses a “direct threat” that has shifted the compliance requirements during
the pandemic. Management can ask employees to disclose why they are absent from
work and whether they have virus symptoms. However, do not mandate that an
employee seek or obtain medical care.
Protect Employee Privacy. If an employee becomes ill or exposed to COVID-19, there
will be good reasons to want to share that information, but it is also important to
maintain the confidentiality of employees’ medical data as required by law, including
the medical status and identities of diagnosed employees or family members of
Evaluate Sick Leave Policies. Ensure that sick leave policies are consistent with current
governmental guidance and that employees are reminded of these policies. Consider
whether it is feasible to modify current sick leave policies to afford greater flexibility
and additional paid time off to employees.
Comply with Federal and State Leave Laws. Assess whether an employee’s leave
qualifies for job-protected leave under the federal Family Medical Leave Act (the
“FMLA”), state law, local sick leave laws or company policy. Eligible employees who are
covered by the FMLA are entitled to up to 12 weeks of job-protected unpaid leave
during a 12-month period due to a serious health condition or to care for a spouse,
daughter, son or parent who has a serious health condition. An asymptomatic
quarantine is not a serious health condition that would trigger FMLA protections.
Be Mindful of Discrimination Risks. As always, employer policies and decisions
concerning the terms and conditions of employment must comply with anti-discrimination
laws. Treat all employees equally—and without regard to any legally
protected characteristics—under any employer policy or practice, including with respect
to medical inquires, modification of work hours, telecommuting and the availability of
leave or other benefits. Protect employees from discrimination and retaliation by other
employees if they are known or suspected to have COVID-19.
Don’t Run Afoul of Wage and Hour Laws. Any pay reductions must comply with
applicable laws, including state wage theft laws, and any contractual or collective
bargaining requirements. Exempt employees generally must receive their full salary for
any week in which any work is performed to maintain the employee’s exempt status. A
salary reduction may also create overtime obligations if an exempt employee’s salary
drops below the applicable threshold under the Fair Labor Standards Act or similar state
laws. Non-exempt employees must only be paid for the time they actually spend
working. While hours may be more difficult for managers to monitor for remote
workers, employers should continue to require non-exempt employees to record and be
paid for all work time.
Don’t Forget “WARN.” Consider any potential notification requirements under the
Federal WARN Act or state “mini-WARN” acts. Decisions to close facilities permanently
or to furlough employees for periods longer than six months may trigger federal WARN
Act requirements, which require advance notification of 60 or 90-days depending on the
jurisdiction. Temporary layoffs or furloughs less than six months may trigger mini
WARN Act requirements.
Communication is Key. Effective employee communications can often mitigate legal
risks. Take steps to effectively communicate with employees, whether through regular
email updates, an intranet site or memos to employees distributed at the worksite.
Establish clear points of contact for employees to direct questions and concerns.