Dear AJ: Some healthy employees want to work at home. Do I have to allow that?
AJ's Answer: The question posed, in my view, requires a larger look at our businesses and what we want to accomplish, how we want to do that, what we actually are able to do, and what makes sense for our business and employees. The answer also involves a recognition that this is a temporary problem. Finally, the answer also is less legal and more practical in nature.
First of all, of course, yes, we seem to have jumped into the abyss called COVID-19 ("CV-19") and its pandemic panic. The world is topsy turvy, and how we relate to each other and get stuff done in business seems to have changed—a lot. We, here in Houston, seemingly have less to be concerned about – at least based on numbers and reports and in relative comparison to other locations around the U.S. Nonetheless, the panic pandemic has gripped us, too – we hear stories and feel the fear about Seattle, California, cruise ships, an empty Venice, Italy, stock market deterioration, long lines at HEB, schools closing, the Rodeo ending early (!), etc. This is not our world! Um, yes, it is.
The world is strange for employers and employees. The old rules, in a sense, don't apply.
And, yet, we know, in our souls, that this is a flu, and it will have its way with us, get some sick, sadly fail some, and leave many others (we hope) as survivors or happily unscathed. The point: there will be an end to this. Sometime in the next four-to-eight weeks, probably the entire sickness will do its thing and largely be done. Then we will "clean" up our situation and get back to work, I think, as usual, hoping that our economy returns and blooms again. We have to assume some positivity.
So, a worker, panicked today, wants to work at home?
A beginning question: Is work at home even possible? Given our electronic society, for some jobs, this is not a problem. For others, it may not be possible. I think that employers have to look at their worksite and ask these questions:
- Can people work at home, given the nature of the work?
- What will we lose by people working at home?
- Are the people asking to work at home – are they sick or healthy?
- Do we know of anyone in the workplace being sick or being in contact with someone with CV-19?
- What are we doing in the workplace to reduce issues from developing?
- Is it possible that our workplace might be such that some could work at the office/worksite and others work at home?
Seems to me that, at least for the next couple of months, we should be telling anyone who is ill to "go home"—that's why we have sick days. I say this even if the sickness is just the "common cold." We don't need to ramp up panic with our employees, and, as employers, we have every right to tell personnel to stay home, if we choose (as long as we enforce the rules evenly with all).
Also, naturally, we cannot have employees come to work in an environment that may be dangerous, where perhaps there is a certain danger of CV-19 contagion. If that possibility happens, we may have to shut down our workplace and allow work to be done at home, at least for a week or two. We would likely not have a choice then.
Aside from a known danger, what do we tell people?
That answer may depend on where we are. In a location where there is a flu hotbed, it may be wise to allow at-home work. If not, then each employer should determine what works for its location. Generally, it is good to work around others, to have the interchange of ideas and comradery of colleagues. So, work in the office may be favored. I think, if that's the direction we go, we have to provide assurances to our workforces about the workplace, its cleanliness, and steps taken to make sure all is well. There may be additional steps in the office that we can use to limit possible problems and essentially distance people, perhaps (e.g., stop a lot of in-person meetings, which may be welcomed by many).
Does the law require that I permit work at home?
At this stage and in Houston, no. There is no legal mandate. That may change tomorrow if our Governor or Mayor order something different. Without governmental intervention or law, and without a known medical danger in our office or workplace, we as employers have the right to choose where the work will be done. So, there is no current legal obligation requiring work at home or forcing employers to allow employees to work at home.
What about the fact that schools are closing, putting pressure on workers?
That's a serious consideration. Children are a fact of life, a job at times, sweet and tender on some days, and, sometimes, as my Dad called me, "stinkers." Yet, we parents love our children, and we have to ensure their safety and wellbeing also. When they are out of school and if the parental unit(s) are working, what do we do with them and how does that personal imposition affect work? This is a typical problem when there are weather problems (snow or heat days, hurricanes, etc.). It is also a problem when there are school holidays that are not work holidays. Generally, parents can plan for these "ahead." Here, the situation is foisted suddenly on our employees. And, it may last 2-4 weeks, who knows? I think that, for retention purposes, employers should be considerate of employees and work with them as best as possible, either to work at home or allow for some time off, even if unpaid, to take care of children suddenly out of school. Likewise, employees need to be considerate of employers and find alternatives to work at home, if presence in the workplace is preferred.
If I have to shut our doors for a couple of weeks or longer, and we send our personnel home, what do I do with pay?
See my blog on March 11, 2010. Bottom line, we would be obligated, by current law, to pay our exempt, salaried personnel, but we are not legally required to pay our hourly workers unless they are able to work at home.
All work, whether at home or in the office, must be compensated. But, if a non-exempt, hourly worker cannot do his/her job at home, what then? That's the $64,000 question, as they say. By law, by the standards on which our traditional work view is founded, no work means no pay. But here, the situation may be different – this is a unique medical crisis, it seems. As employers, we have to be concerned about employee morale and retaining employees for the day that our doors will open again. Paying people, beyond sick and vacation days, for an extended period (e.g., a month's time) may be much more than a lot of employers can bear, however. My hope, as I write this, is that Congress and the President will get less political and more American-oriented to put in place some measures to help workers (and businesses) that may be caught in this predicament. We will see.
As events unfold and there are changes in Houston or elsewhere, these considerations may also change. It will be a day-by-day balancing of our legal and business requirements against these uncertain days and weeks in the next month or two.
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