Employment Law in the Time of COVID-19

Many of you are receiving industry updates about the COVID-19 coronavirus. I personally have found many of them only moderately helpful (“wash your hands” and “have sanitizer available for your employees”) and not related to employment law in the time of COVID-19. I’m not going to take time giving you updates on hand-washing skills (besides stating 20 seconds is a long time but a good idea…) since I know you all are largely already implementing those important changes and educating your workforce.

Rather, I hope to address the key immediate concerns I am hearing from my clients regarding employment law and COVID-19.  We are truly in uncharted territory. 

First, let’s just acknowledge reality. Many salaried-exempt workers are “white collar” and are able to largely work remotely. Salaried-exempt employees (exempt from the Fair Labor Standard Act’s overtime requirements) must be paid their full salary if working any hours in a workweek. You will need to continue paying those folks if they are working for you (even if remotely). The guidance below is about hourly workers–the front-line workers in your organizations.

  1. Can we force employees to stay home if they are sick or have been exposed to the virus?

Yes. In fact, you have an obligation to protect your workplace under OSHA/MIOSHA if you have reason to believe someone has been exposed. Tell anyone with any symptoms of fever or cough to stay home. Tell your employees to be honest about exposure too. Loosen up your paid sick time (or PTO) policies if you can to encourage this (otherwise hourly employees will not stay home; they will come to work since they need the income).

I realize not every employer can cover paid sick days for every employee for an extended period. Just do what you can to encourage healthy decisions. Is there some degree of flexibility you can offer to encourage people to really stay home and be honest about self-reporting illness or exposure? Can you at least offer grocery gift cards to help your employees? You all are talented business leaders. Put your thinking caps on and consider what your employees stuck at home will need to survive (and stay committed to you as employees once this passes). You can absolutely make one-time changes for this unique circumstance and not be setting precedent.

  1. Do we have to pay employees who we tell to stay home due to illness or exposure?

No (unless salaried-exempt as noted above). But. Please think this one through. Will someone stay home if they need to earn wages to pay rent and buy groceries? Probably not. They may feel a tad under the weather, but my guess is they won’t go to the doctor and risk being told to quarantine (and not get paid). Nor will they tell you if a family member in their household is infected. They will risk it–and likely infect a lot of other workers. This virus is deadly precisely because so many people have very mild symptoms that can pass to someone who cannot fight the virus. Do you want someone with mild symptoms passing this to a co-worker whose child is already gravely ill with something else? If you assess attendance points for absences, suspend those policies. You really do want to incentivize people to stay home.

  1. Can we shut down to curtail the spread of the virus?

Yes. Most employers can always make this choice for any reason. Sadly, some of my clients will have to shut down or work with skeletal staff anyway due to supply chain problems or a drop in demand.

  1. If we shut down, reduce our workforce, or force employees to stay home due to illness or virus exposure, can they collect unemployment?

Yes for shutdown or layoff. No for individuals told to stay home.

Healthy workers who lose their jobs and are not receiving compensation (even if only due to a temporary shutdown or layoff) are eligible for unemployment benefits (the State determines eligibility based upon earnings and weeks worked). Thus, if you shut down to just ensure the virus does not spread, your workers are eligible for benefits. Likewise, if you have to lay off employees due to the virus’s impact on your business, your employees are eligible for unemployment benefits. Michigan’s unemployment law requires that employees must be available for work while collecting unemployment benefits. This means that anybody quarantined due to exposure or illness cannot collect benefits (as they are not available for work). To change this outcome, action would be needed in Lansing.

  1. Some employees have traveled from hot-spots for the virus. Can we ask them to stay home for two weeks?

Yes. Just be sure you are tying “staying home” to where someone traveled (which means anyone who traveled there should be subject to this requirement, not just someone who is actually from that country).

  1. Can we take temperatures of employees or ask about symptoms?

Yes as of today. The Americans with Disabilities Act (which covers employers with 15 or more employees) prohibits “medical examinations” for existing employees unless job-related or consistent with business necessity. The EEOC has taken the position that monitoring temperature is a “medical exam.” A compelling argument can be made right now that there is  “business necessity” to ensure the health of the workplace. Further, EEOC Guidance states that if there is a pandemic, employers can take temperatures of employees. Employers can also ask about symptoms. Two nights ago, Michigan’s Governor declared a State of Emergency and yesterday the World Health Organization stated that we have now reached pandemic levels for the virus. An employer cannot ask employees if they have underlying conditions that could make them more susceptible to the virus. All medical information is confidential and cannot be shared with others in the workplace under the ADA (with limited exceptions).

  1. Can employees collect workers’ compensation if infected by the virus at work?

Only front-line responders who contract the virus as part of their job duties (ie a nurse or EMT worker) are eligible for workers’ compensation benefits.

  1. Can employees collect short term disability if they have to stay home due to quarantine or illness?

Only if the employee is actually sick and meets the definition of “disabled” under the policy.

  1. Do I have to report an employee’s illness in our OSHA log?

Yes. An incident involving an employee contracting a serious illness at work is treated as a “reportable injury” and should be recorded in your OSHA 300 log. Normal seasonal flu and colds are not recordable. Of course, there will be instances where determining if the virus spread was “work-related” is obvious and cases where it will be impossible to know. Employers will just have to do the best they can in this case.

  1. Can employees use FMLA (employers with 50 or more employees) if off of work due to the virus?

The FMLA provides job-protected leave if an employee is off of work due to a “serious health condition” of the employee or a covered family member. If an eligible employee meets the definition of a “serious health condition” due to the illness, then FMLA protections are activated in the same fashion as any other illness. Employers can always be more generous with benefits offered to employees (even if an employee is not covered by the FMLA but needs time off).

For regular updates from the State: https://www.michigan.gov/coronavirus

Thanks to Elizabeth Welch for this great guest blog.

employment law attorney Elizabeth Welch who wrote about emplyers, employees and recreational cannabis in Michigan

Guest blogger and attorney Elizabeth Welch

 

http://welch-law.com/

The Welch Law Firm, PLC

elizabeth@welch-law.com

616.454.7618