The COVID-19 epidemic can create a minefield of issues for employers that range from travel restrictions to wage-and-hour concerns.
With no signs of slowing down, the coronavirus, or COVID-19, presents a potentially serious risk to the safety and welfare of employees and the financial health of companies. Employers must be prepared to address COVID-19 related issues in the workplace without violating employees' rights and without causing unnecessary confusion.
What Should Employers Do to Protect Their Workforce?
There is no known vaccine or treatment for COVID-19, and thus the best way to protect the workplace is to avoid exposure to the virus. Based on the Centers for Disease Control and Prevention's (CDC) recommendations, employers should:
- Encourage employees to cleanse their hands regularly and thoroughly with soap and water or with an alcohol-based rub, avoid touching their eyes, nose and mouth, and cover their coughs or sneezes with a tissue.
- Review cleaning operations to ensure frequently touched surfaces are disinfected regularly.
- Encourage employees to avoid contact with sick people and to stay home if they are sick.
Personal protective equipment is a must for healthcare workers, however, it is not likely necessary for employees who are well, according to the CDC. If an employer receives a request from an employee to wear masks or gloves, employers should consider the requests with three issues in mind: whether the employee (1) has traveled to or from an area where COVID-19 is prevalent; (2) is exhibiting symptoms of the virus or has an underlying health condition; or (3) has been in close contact with someone who has COVID-19. The employer may also consider directing such employee not to report to work for a period of at least 14 days or longer, based on current CDC advice.
Should Employers Regulate Employee Travel?
Yes, assuming the travel is business related. Employers should be proactive about travel decisions, particularly if employees are scheduled to visit areas affected by the virus. To ensure fair and reasonable business-related travel decisions are made during the epidemic, employers should:
- Designate an executive-level person to make all decisions regarding travel if an employee has a potential need to travel to an area in which "nonessential travel" is prohibited. Travel warnings have been issued by the CDC and the World Health Organization.
- Employers also should check travel advisories from governmental authorities. For example, travel to China currently is effectively prohibited by the U.S. State Department without an "essential" travel exception to China, as currently provided for by the CDC.
- Prohibit employees from booking business travel outside of the United States unless the designated executive for travel decisions has approved the travel and assessed its need and potential risk.
- Work with employees who request not to travel to affected areas to find other ways to achieve the tasks that would have been accomplished during the travel.
- Publish all policies related to overseas travel to employees, and update them as the situation changes. Employees should be aware that if they travel to an affected area, they may be quarantined upon their return and unable to return to work right away.
Keep in mind that the COVID-19 epidemic is still unfolding. As such, prohibitions on travel should not be limited to specific countries or locations within the United States because the list of high-risk areas may change faster than the policies can be updated.
Should Employers Prohibit Employees from Traveling for Personal Reasons?
Likely not. While employers should advise employees of the risks they assume by traveling to an affected area (including the risk of quarantine), many state laws protect an employee's right to engage in lawful off duty conduct (e.g., New York and California), which includes personal travel.
Must Employers Pay Employees Who Are Quarantined or Miss Work Due to COVID-19?
That depends on whether the employee is exempt, nonexempt, paid via the fluctuating workweek (FWW), has paid time off (PTO) or is covered by a labor contract or employment agreement.
Generally, exempt employees must be paid in full for any week in which they perform work. Employers may not deduct pay for exempt employees who miss work due to COVID-19 unless they offer a bona fide PTO plan to provide compensation for sickness or disability, and the employee does not yet qualify for or has exhausted all time thereunder―and then only if the deductions are made in accordance with the plan, policy or practice. Employers should consult with counsel to confirm whether their PTO plan qualifies. Given that not all employees in quarantine are actually "sick," it is not certain that this or one of the few other deduction options under the federal Fair Labor Standards Act will be available. Nonexempt employees, on the other hand, are only entitled to pay for time actually worked, whether a full or a partial day. Employers should consider offering nonexempt employees available PTO if they are sick or have been instructed to stay home. Employers can also implement alternative PTO policies, such as PTO loans, pools and advances.
Collective bargaining agreements, FWW employees and state or local laws may impose additional requirements on sick leave and paying employees who are instructed to leave work or stay home. Similarly, employees in the United States on H-1B visas may need to be paid established wages per certified labor condition applications in place.
Can Employers Require Infected or At-Risk Employees to Stay at Home?
Likely yes, assuming that the employer has a reasonable objective belief that the infected or at-risk employee poses a threat to workplace health and safety. Employers should consult with counsel about how and when these inquiries can be made. An employee's race, color, national origin and perceived or actual disability cannot be taken into account when assessing risk.
Employers should consider allowing employees to use PTO and/or providing employees who must stay home with reasonable alternatives, such as telecommuting. It is important to remember however, that while telecommuting may be a good option to avoid significant disruptions to the business, employers must take care in assessing whether telecommuting is appropriate for each position and circumstance. Allowing telecommuting for certain employees but not others may lead to claims of discrimination or preferential treatment, and may set a precedent for future requests for telecommuting. Employers will also need to establish a protocol for accurately tracking hours of any nonexempt employees who are allowed to work from home.
Can Employers Ask Employees to Submit to a Medical Exam or Force Employees to Disclose a COVID-19 Diagnosis?
Employers should not require employees to undergo medical exams and should avoid making unnecessary inquiries into an employee's medical status. The Americans with Disabilities Act (ADA), along with many state and local laws, restrict an employer's ability to ask questions about an employee's medical condition. Employers should consult with counsel to assess whether such inquiries are appropriate and permissible.
That being said, employers can request employees disclose whether they have been diagnosed with the virus, are experiencing symptoms (fever, cough, shortness of breath and breathing difficulties) or have been within close proximity of someone who has COVID-19. Employers must keep all information relating to the employee's or their family member's medical condition confidential and separate from other personnel files. Employers will also need to engage in the interactive process under the ADA with employees who have been affected by the virus.
Does Family Medical Leave Apply to Employees Impacted by COVID-19?
It might. The Family Medical Leave Act (FMLA) provides job-protected unpaid leave for employees and their family members who are suffering from a "serious health condition." If an employee or his/her immediate family member contracts COVID-19, the FMLA could be triggered, assuming the disease becomes a serious health condition.
The FMLA does not apply to asymptomatic employees who require a leave of absence as a result of government-mandated quarantine or employer-mandated quarantine due to a potential risk of COVID-19. Employers are encouraged to contact counsel to determine how to designate leave requests.
How Does COVID-19 Affect Foreign Workers or American Workers Abroad?
COVID-19 may make it difficult for foreign workers to return to the United States. Determinations as to remote work availability, PTO and sick time policies, time frames for return to the United States and benefits eligibility while abroad should be applied equally to all employees who are unable to return to the United States for COVID-19 related reasons. The U.S. immigration status of foreign national employees who are outside of the United States has no bearing on an employer's decision to suspend, terminate or allow them to work remotely.
Employers who allow foreign national employees to work remotely while they are abroad must consider the employment laws of the country where the employee will be performing the work and consult with corporate and tax counsel to confirm that this type of arrangement will not create a "tax presence" in the foreign country, thus subjecting the employer to unanticipated consequences in the future.
What Are the Immigration Consequences for Quarantined Foreign National Workers?
A short, unpaid leave due to mandated quarantine for H-1B, L-1 and TN workers will not raise any immigration implications, as long as the leave is approved and taken according to company policies. If the leave becomes extended or goes beyond allowable company policies such that termination was required, the foreign national worker would be in jeopardy of being considered out of legal immigration status and could become subject to removal from the United States.
Foreign national employees on F-1/OPT, F-1/STEM OPT, L-1 and TN status who are required to work remotely during a paid quarantine should not generally be impacted for short stints of working from home in the United States. H-1B regulations allow H-1B employees to work unlimited days in off-site locations that are within the normal commuting distance (one hour or less) from the work location listed on the employer's H-1B petition. H-1B workers who are working in remote locations that are outside of normal commuting distance would be limited to 60 days in the remote location before the employer would need to update the H-1B application with a new labor condition application and pay the wage associated with the remote location.
What This Means for Employers
The COVID-19 epidemic can create a minefield of issues for employers that range from travel restrictions to wage-and-hour concerns, to the immigration status of their employees. The circumstances surrounding COVID-19 will continue to evolve and employers will need to stay up to date on government-mandated restrictions and guidance. Employers that are faced with COVID-19 concerns should not hesitate to contact counsel for guidance during this uncertain time.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Jonathan A. Segal, Linda B. Hollinshead, Valentine A. Brown, Brooke B. Tabshouri, Danielle M. Dwyer, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.