While response and preparedness efforts are in full swing throughout the country and globally, many employers are tackling how to handle a variety of employment issues in the face of the coronavirus pandemic. Most of our clients and other readers have likely already encouraged their employees to practice good hand washing and social distancing, and to stay home when they are sick, as the CDC has suggested through its Interim Guidance for Businesses and Employers. Beyond these recommendations, here are many more issues that are worth addressing.

Paid or Unpaid Leave

Employers are within their rights to require that employees refrain from coming to work when they are sick or when they are at heightened risk of carrying the illness, such as if they recently returned from travel at a Level-3 country. Indeed, as discussed in guidance from OSHA, employers are obligated to implement these and other good hygiene and infection control practices to guard against the spread of the virus in the workplace.

To accomplish this objective, employers must consider also how they will handle leave issues if an employee needs to miss work because of circumstances related to COVID-19, including if an employee actually contracts the illness, needs to care for a family member who has it, or is required to quarantine as a result of symptoms or exposure. And to be clear, not all of these scenarios may lead to the same result. Employers must determine whether employees will be required to use available accrued sick or vacation leave, be advanced or given additional sick leave if they do not have it, or be required to take unpaid leave. These decisions will vary from employer to employer, but ideally should be considered and applied evenly among a workforce.

Similarly, employers must consider how they will handle pay if they decide or are forced to close, or if they experience restrictions to an employee’s assigned work location (i.e., independent contractors and other on-site vendors). Particularly when employers are tenants in office space, the decision to close offices may be made for them by the building owner or via a government decree. It would not be required for employers to pay all employees for time they did not work, but many employers are nonetheless announcing decisions to do so in varying degrees to mitigate the financial hardship on their employees during this pandemic. In some instances, particularly if the decision to restrict work was outside of the control of the employee or company, the availability of business interruption insurance may play a role with how employers handle pay issues. Employees who are shut out of work or furloughed due to slowed businesses may also qualify for temporary unemployment insurance payments.

In an effort to ensure minimum levels of continued pay during this health pandemic, the U.S. House of Representatives passed a federal measure that would create several categories of emergency leave and wage replacement for the coronavirus pandemic. This measure has yet to pass the Senate or receive the President’s signature, so time will tell if these measures will become federal law. For a more in-depth discussion of this bill, please see our News Alert here.

Remote Work Issues

Especially as Maryland and more than 30 other states restrict public gatherings and even close all public schools, employers are experiencing severe limitations regarding whether their workforce can come in to work. As a result, many employers are weighing how they can still conduct business through the utilization of remote work. Several issues are worth considering when embarking on this solution, especially on a wide scale:

• Which employees will you permit to work from home? It is important to consider whether to limit the ability to work remotely to only essential employees and how a company will monitor whether employees are actually being productive versus turning the opportunity into an unplanned vacation. In the event remote work will not be offered to all employees, employers are encouraged to consider how they will substantiate that such decisions were made based on legitimate business reasons, especially in light of the fact that the alternative might include unpaid leave for a part of a company’s workforce.
• Can you ensure that your company (and client) data will be secure during this period? Employers should be sure to consider and plan for how data security and privacy concerns will be addressed when employees are working outside of a company’s regular workspace, and in some instances, on devices that the company does not maintain or control. In some instances, certain categories of employees may not be appropriate candidates for remote work if the information they handle is too sensitive to be accessed outside of the company’s controlled workplace or through less secure Internet networks.
• For hourly employees, how will you monitor the time that your employees work remotely? It is important that employers have planned for how they will track and document remote work hours to guard against allegations of unpaid work.

Discrimination and Harassment

Finally, employers should be aware that fear and misinformation regarding COVID-19 may manifest itself in the workplace in the form of xenophobia or other forms of discriminatory treatment towards colleagues. Such concerns should be addressed head-on to ensure that employees remain free from discrimination and harassment, especially as it relates to misinformed assumptions regarding persons more susceptible to the virus or mistreatment based on an employee’s perceived disabilities related to exposure to COVID-19.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties