The novel coronavirus (COVID-19) outbreak has created significant workplace concerns for U.S. employers. Companies are balancing the need to continue their operations against the desire to keep their employees safe. The Frequently Asked Questions below, and those answered by Courtney Blanchard on opens in a new windowthis news broadcast, address some of the more difficult employment law-related issues that have arisen as employers confront the coronavirus threat.
Can we shut down an entire facility without violating employment laws?
Likely yes, but it’s worth checking some boxes. First, consider whether your state has predictive scheduling laws, which require advanced notice before changing an employee’s schedule. Many of these laws provide exceptions that may apply here, but making specific reference to them may be important.
From a wage-and-hour standpoint, consider the salary impact on your exempt staff. An isolated reduction in salary due to a slowdown, or even treating the time off as an unpaid furlough, generally does not run afoul of federal wage laws, but the Department of Labor is suspicious of multiple salary changes as workload fluctuates. For your non-exempt staff, employers must only pay for hours worked, so there is no federal wage law risk with suspending compensation during a shutdown.
Turning to the WARN Act, the 60-day notice requirement generally won’t be triggered unless a furlough lasts six months. But be sure to consider state mini-WARN laws. For example, a 2017 California decision ruled that a four-week furlough triggered the state WARN law. Again though, exceptions may apply in the context of a legitimate public health concern.
Finally, note that employees who do not receive pay may be able to seek unemployment benefits due to a reduced schedule, even if temporary and without a termination of employment. For example, in Minnesota, reducing a full-time employee below 32 hours/week will support an unemployment claim.
Our facility is union. Can we implement a temporary shutdown?
A temporary shutdown impacts the terms and conditions of employment, so you will want to identify a basis for unilateral action. The collective bargaining agreement may provide justification, such as a force-majeure clause, or possibly even a broad management-rights clause. But even if the general duty-to-bargain is present, the economic-exigency exception may apply. Alternatively, you may be able to establish that the duty to bargain is limited to the effects of the shutdown; not the decision to close itself. In this way, you can shut down immediately, and address the significance of that decision later.
If we shut down any part of our operations temporarily, what is the impact on employee pay?
Non-exempt employees get paid only for hours actually worked, so an employer need not pay non-exempt employees if it is forced to shut down the business temporarily.
Exempt employees who do not work any part of a week need not be paid for that week. Employees who work some part of a week must be paid the full salary for that whole week. However, an employer could require the employee to take vacation time to cover the days that are not worked during the closure. If the employee doesn’t have enough vacation days or any days at all, an employer would have to pay the whole week’s salary without any deductions.
Finally, for California exempt employees, employers may be able to reduce pay for partial-week shutdowns if they can announce it in advance (so it does not appear to be a “deduction” from salary). But this is an area in which employers must tread carefully, and they should consult with a lawyer well-versed in California employment law before doing so.
Must I keep employed someone who has been put into a lengthy quarantine?
Many states, including Minnesota, prohibit employers from terminating employees who are unable to report to work due to a quarantine or isolation order related to a communicable disease. Generally, extended time off related to a quarantine order is unpaid, but state and local paid sick and safe leave laws may apply in this situation.
Following the outbreak of severe acute respiratory syndrome (SARS) in 2005, Minnesota adopted legislation protecting employees complying with isolation or quarantine restrictions, whether by order of public health officials, a state or federal court, or a written recommendation by the Minnesota Department of Health. The law also applies to employees who are responsible for caring for a minor or adult family member in quarantine or isolation. Employers are prohibited from discharging, threatening, or taking adverse employment actions against qualifying employees related to absences extending up to 21 days consecutive working days. Following 21 days, the law’s protections no longer apply, but employees may be eligible for unemployment benefits.
Are there specific OSHA standards or recordkeeping requirements that apply to COVID-19?
OSHA does not have a specific standard covering COVID-19. However, OSHA’s General Duty Clause requires employers to provide a safe and healthy workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA’s Personal Protective Equipment standards and Respiratory Protection standard may also apply to ensure employers are taking necessary steps to protect workers who may have exposure risk. Employers should provide worker training on infection controls and modify the work environment and/or change work practices to protect workers, visitors, and others at a worksite. For example, OSHA encourages employers to implement good hygiene practices for all individuals at a worksite, including the following basic infection prevention measures:
- Promote frequent and thorough hand washing by posting signs throughout the worksite and either providing places for workers and visitors to wash hands with soap and water or, if soap and running water are unavailable, providing alcohol-based hand sanitizers containing at least 60% alcohol;
- Encourage respiratory etiquette, including covering coughs and sneezes, and provide easy access to tissues and no-touch trash bins;
- Discourage use of other workers’ phones, desks, offices, or other work tools and equipment;
- Establish routine cleaning and disinfecting of surfaces, equipment, and other areas of the work environment; and
- Encourage workers to stay home if they are sick.
If OSHA determines that employees are reasonably likely to be exposed to COVID-19 or other contagious illness exposure, then the employer should develop a response plan outlining the steps to protect employees. Furthermore, COVID-19 is a recordable illness, and OSHA mandates covered employers record any cases of employees infected on the job.
How should employers approach requests from customer-facing employees to wear masks at work?
Employers may receive requests from employees who wish to wear a medical mask or respirator to prevent contracting COVID-19. In certain settings, such as retail or restaurants, these requests might cause increased anxiety and panic among other employees or customers. Under OSHA’s respiratory protection standard, which covers the use of safety masks in the workplace, an employer may prohibit an employee from wearing a safety mask or respirator if there is no known safety or health hazard. Based on current CDC guidance (March 10, 2020), face masks are only necessary for individuals who are showing symptoms of COVID-19 or who are treating or caring for an infected person (and they are not able to wear a face mask). Therefore, and consistent with OSHA guidelines, an employer may prohibit healthy employees from wearing a medical mask or respirator, if the employee’s sole purpose is to avoid contracting COVID-19. Please note that this analysis may be different for employees with a disability or physical condition, or in occupations where employees work directly with individuals impacted by a contagious illness.
Can I send independent contractors home and prevent them from coming to the workplace?
If you are concerned that a contractor presents a Coronavirus risk to the workplace, you should consult your independent contractor agreement for the process to suspend or terminate services. For example, a force majeure clause may apply or notice-of-termination rights may be limited and easy to meet without undue delay. While early termination of the contract based on general workplace policy and safety concerns could be a factor marginally in favor of employee (rather than contractor) classification, this risk is almost certainly outweighed by the risk of spread. Moreover, this risk is mitigated by reference to, and substantial compliance with, the termination provisions of the contract.
Must we reimburse the home internet bills of employees who are forced to work at home?
Six jurisdictions have statutes or regulations that may warrant concerns: California, Illinois, Iowa, Minnesota, New Hampshire, and the District of Columbia. Other states either don’t mandate employee expense reimbursement, or they restrict reimbursement requirements to uniforms or mileage. The listed states other than Minnesota generally require reimbursement for all necessary expenses incurred as a consequence of employment, so it’s likely that home internet costs would need to be reimbursed for employees forced to work at home. In Minnesota, employers must reimburse the cost of employment supplies, but not for equipment that can be used outside the employment. Because home internet can be used for work and non-work, those costs likely need not be reimbursed.
How do we protect our confidential information if employees are working at home?
Your existing confidentiality policies play an integral role in protecting your data with remote workers. If you do not already have a remote work policy that addresses confidentiality—i.e., requiring internet safety and requiring that physical copies of corporate documents are protected in the home environment—now is the time to put such a policy in place. Remind your employees of these policies early and often. Additionally, if you provide laptops to your employees, consider blocking the USB ports so that information can’t be transferred via an external storage device. Another option is to block access to public email networks and cloud storage sites.
Do I still have to worry about HIPAA when I’m worried about keeping my employees and customers safe?
Employers may ask employees if they are experiencing symptoms of acute respiratory illness (i.e., cough, shortness of breath) upon arrival to work, become sick during the day, or if they call in sick to work. The CDC is recommending that sick employees be separated from other employees and sent home immediately. During a pandemic, employers may also ask employees returning from specified locations to remain at home, even if the travel is for personal reasons, so long as the CDC or state or local public health officials have made such a recommendation. At this time, the CDC has guidance on how employees (even healthy employees), may conduct a risk assessment of their potential exposure.
Information about employee illness must be kept confidential as required by law. Employers who are covered entities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or have access to protected health information (PHI) must continue to comply with the HIPAA privacy and security rules. However, in the event of a public health emergency, covered entities may disclose the minimum amount of PHI necessary to public health officials.