Coronavirus Resources for Employers
The spread of the novel coronavirus (COVID-19) raises numerous concerns for employers, beyond the desire to protect employees and the obligation to provide a safe workplace. With limited medical information, employers are left with many questions, including questions about telecommuting for those employees who are able to do so and leave for those who are not, along with the wage and hour implications of either scenario. While there is a great deal of information being disseminated through the media, much of it is confusing. MEA is here to help provide clarity around the employment-related issues being faced by your business. In this Resource Center, we will provide information about the virus, proactive steps employers can take and answers to your FAQs.
With so much confusing and sometimes conflicting information in the news, MEA recommends using the Centers for Disease Control (CDC) as a first resource. In addition, MEA provides the following resources to its Member companies in addressing coronavirus concerns:
Guides & FAQs
What is coronavirus?
According to the Centers for Disease Control (CDC), coronavirus is a virus that causes respiratory illness in people and can spread from person to person. Reported illnesses have ranged from mild symptoms to severe illness and death. Symptoms can include fever, cough and shortness of breath. The CDC believes at this time that symptoms of coronavirus may appear in as few as 2 days or as long as 14 days after exposure.
CDC Recommended Strategies:
Due to this evolving situation, we encourage you to visit the Centers for Disease Control and Prevention (CDC) COVID-19 webpage for frequently updated information, guidance, and materials.
Encourage sick employees to stay home
Send sick employees home
Routinely clean workplace surfaces
Emphasize respiratory etiquette and hand hygiene
Advise employees before traveling
What are an employer’s safety obligations regarding coronavirus in the work environment?
Health and safety in the workplace is regulated by the federal Occupational Safety and Health Act (“OSH Act”), which imposes legal obligations through industry-specific safety standards and the general duty clause. The general duty clause requires all employers to maintain a workplace free of any recognized hazards that may cause death or serious injury to their employees. The Occupational Safety and Health Administration (“OSHA”) is providing the following information for employers at this time:View OSHA Guidance (PDF)
How should we address sick employees?
Review leave of absence, telecommuting and sick leave policies and adjust them, where necessary, to encourage employees to stay at home if they are experiencing symptoms that may be associated with coronavirus, just as employers should be doing with seasonal flu. When sick employees come to work, they run the risk of infecting the rest of the workforce. If, based upon an employee’s recent travel and/or the exhibition of signs and symptoms of coronavirus, an employer reasonably believes that an employee was exposed to the virus and/or an employee has a confirmed case of the virus, the employer should:
- Advise the employee to seek medical care right away and to avoid contact with others;
- Tell the employee not to come to work until the symptoms disappear. The CDC currently recommends employees remain at home until at least 24 hours after they are free of fever (100 degrees Fahrenheit) or signs of a fever without the use of fever-reducing medications. While some employers may be tempted to ask for medical clearance from a health care provider, doing so likely is no longer feasible, given current conditions. The employer should utilize established leave of absence policies and/or consider allowing the employee to telecommute during this time period;
- Contact the CDC and local health department immediately; and
- If an employee is diagnosed with the virus, inform other employees of possible exposure (without identifying the source of the possible exposure) and advise them to contact their healthcare providers for further guidance.
How do we address employee concerns about co-workers who appear sick and/or who may be from areas with known coronavirus cases?
Family and Medical Leave Act Issues and Obligations
NOTE: Since this was posted, Congress passed the Families First Coronavirus Response Act, which expanded FMLA on a temporary, emergency information. For more information, see Families First Coronavirus Response Act Set to Take Effect April 1, 2020.
Employers who are covered by the federal Family and Medical Leave Act (FMLA) must provide job-protected leave and other benefits to an eligible employee who misses work due to a serious health condition of the employee’s own or a close family member. An employee’s illness caused by coronavirus may or may not qualify as a serious health condition, depending on the circumstances.
Flu Is Not Typically a “Serious Health Condition”
The flu and common cold do not typically qualify as serious health conditions under the FMLA, unless complications arise. Likewise, an employee out sick with coronavirus may not have a serious health condition under the FMLA. In this case, employers should not count the absence against an employee’s 12 weeks of FMLA leave. Doing so could violate the FMLA. Employers in jurisdictions that mandate employer-provided sick leave must allow employees to use their accrued/available sick leave for absences due to coronavirus illness.
Coronavirus with Complications May Be a Serious Health Condition
Coronavirus can amount to a serious health condition if complications arise from the illness, leading to, for example, hospitalization or incapacitation.
Where an employee has complications arising from coronavirus or the flu, employers covered by the FMLA must provide the employee (if eligible) with certain job protections and reinstatement rights while the employee is out on leave. The employer should also keep track of the leave and deduct it from the employee’s 12 weeks of allotted FMLA leave.
Requiring Fitness-for-Duty Certification to Return to Work
Employers may require an employee who has been out on FMLA leave due to coronavirus to satisfy any of the following before returning to work:
- Provide a doctor’s note clearing the employee to return to the workplace.
- Submit to a medical examination.
- Remain symptom-free for a specific period of time before returning to work.
Employers should apply any policy or practice uniformly and treat employees in similar situations the same. For example, if an employer asks one employee who has been out sick to submit a doctor’s note, the employer should require the same of all employees who have been out sick with pandemic influenza before returning to work.
However, please note that the CDC has stated that employers may be advised to relax return-to-work doctor’s notes requirements, depending on the availability of health care professionals during the pandemic outbreak.
Absences Not Protected Under the FMLA
Some employee absences relating to coronavirus are not protected by the FMLA. For example:
- Missing work to care for a healthy child whose school is closed. An employee who takes time off from work to care for the employee’s child because the child’s school is closed as the result of the pandemic, but the child is otherwise unaffected by the pandemic and is healthy, is not entitled to FMLA-protected leave.
- Staying home to avoid exposure to pandemic virus. An employee who takes leave for the purpose of avoiding exposure to a pandemic virus in the workplace is not taking protected leave under the FMLA.
The employer still may decide to provide time off to these employees.
Employers covered by the Family and Medical Leave Act must also be mindful of requirements under the Americans with Disabilities Act (ADA).
Americans with Disabilities Act Issues and Obligations
The ADA protects qualified employees with a disability from discrimination in the workplace. Employers covered by the ADA must consider whether an employee who becomes ill with coronavirus has a disability within the meaning of the ADA, entitling the employee to certain protections and benefits. Employers should also check applicable state disability discrimination laws for different or additional legal requirements.
Employers must not violate the ADA’s privacy provisions while managing their workforces through a pandemic or in preparing for one. The ADA prohibits disability-related inquiries or medical examinations of current employees, except in limited circumstances, discussed below.
Coronavirus Can Be a Protected Disability
Generally, seasonal flu and other conditions of a short duration are not considered a disability under the ADA. However, complications arising from illness caused by coronavirus may lead to the condition becoming an ADA-covered disability.
The ADA also protects employees who are regarded as having a disability. Because seasonal flu and coronavirus typically cause only a transitory impairment, employees who become ill are not covered under the ADA’s prohibition against discriminating against employees who are regarded as having a disability. However, if an employee’s pandemic-related illness complicates or becomes associated with a different condition, such as an underlying health problem, that could give rise to a “regarded as” claim.
Duty to Make Reasonable Accommodation for Employee with Disability
Under the ADA, employers must make a reasonable accommodation for an employee with a disability, including providing leave or adjusting a disabled employee’s attendance requirements. An employer is not required to provide an accommodation to a qualified employee with a disability if the employee’s disability poses a direct threat; that is, a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Employer’s Ability to Make Disability-Related Inquiries and Medical Examinations
An employer may not make a disability-related inquiry or require a medical examination of a current employee, unless it is both: job-related and consistent with business necessity. An employer may make a disability-related inquiry or require a medical examination if, before making a medical inquiry, the employer reasonably and objectively believes that an employee’s medical condition either impairs the employee’s ability to perform essential job functions or poses a direct threat. The employer’s reasonable belief must be based on objective evidence that is known to the employer or reasonably available.
Whether a Pandemic Poses a Direct Threat to Safety in the Workplace Depends on Severity
Whether a pandemic such as coronavirus represents a direct threat to safety in the workplace depends on its severity. In determining the severity of a pandemic influenza, an employer should rely on the latest information from the CDC, other federal public health agencies, and state and local health departments.
While public health recommendations may change over the course of a pandemic, as well as across states, employers are expected to:
- Exercise their best efforts to obtain public health advice that is both current and appropriate for their location.
- Make reasonable assessments of their own workplace conditions.
The CDC’s or other public health agencies’ assessment of a pandemic would provide the objective evidence needed for a disability-related inquiry or medical examination.
Actions Employers Can and Cannot Take in Pandemic Preparedness and Response
In response to the 2009 H1N1 pandemic, the EEOC answered common questions ADA-covered employers may have about preparing for and responding to a pandemic. The questions and answers are instructive for other pandemics.
Wage & Hour Law
Must we keep paying employees who are not working?
Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working typically are not entitled to the wages the FLSA requires. In the case of nonexempt employees, employers need not pay employees who are not working.
This may not be the case for employees who are classified as exempt from overtime under the FLSA. These employees are paid on a salary basis, and, in most cases, if an exempt employee performs any work at all during the workweek, the employee must be paid their entire salary for that particular workweek. There can be exceptions to this general rule. Some of the key exceptions relevant to a pandemic are outlined here, and employers should consult with an employment attorney regarding such exceptions. If an employer makes an improper deduction from an exempt employee’s salary or refuses to pay an exempt employee for days not worked, it may lead to a loss of the FLSA exempt classification of the employee, entitling the employee to overtime pay.
Permissible Deductions from Exempt Employee’s Salary
If an exempt employee misses work during a pandemic, whether an employer can deduct the exempt employee’s salary depends on various factors, including:
- Who initiates the absence, the employee or employer.
- The employee’s reason for missing work.
- Whether the employer has a bona fide sick leave plan, policy, or practice of providing compensation for salary loss caused by sickness or disability.
When Employee Is Ill and Employer Has a Bona Fide Sick Leave Plan
If an exempt employee misses work because of illness or disability and the employer has a bona fide sick leave policy, plan, or practice of providing compensation for salary loss caused by illness or disability, the employer may deduct an exempt employee’s salary, but only in full-day increments. For example, if an employee misses two-and-a-half days due to illness, the employer may only deduct two days of pay from the exempt employee’s salary.
When Employee Misses Work for Personal Reasons
If an exempt employee misses work due to personal reasons, other than sickness or disability, the employer may deduct in full-day increments. For example, if the employee misses two days of work for personal reasons, the employer may deduct two days of pay. If the exempt employee is absent for one-and-a-half days, the employer may only deduct the equivalent of one day’s salary.
When Exempt Employee Takes FMLA Leave
An employer may make deductions from the salary of an exempt employee taking unpaid FMLA leave. The employer may pay employees their proportionate salary only for time actually worked. The employer may also make salary deductions for any hours taken as intermittent or reduced FMLA leave during the exempt employee’s workweek without affecting the exempt status of the employee.
Impermissible Deductions from Exempt Employee’s Salary
When Employee Is Ill and Employer Does Not Have a Bona Fide Sick Leave Policy
If an exempt employee misses work due to sickness or disability and the employer does not have a bona fide sick leave policy, the employer may not deduct an exempt employee’s pay for any time, unless the employee misses an entire workweek.
When Employer Initiates Absence of Exempt Employee
An employer may not deduct an exempt employee’s pay when the employee reports ready to work. For example, if the employer initiates an absence by insisting an employee with a sick relative stay away from the workplace during a pandemic, the employer may not deduct the exempt employee’s pay, unless the employee misses an entire workweek.
Use of Accrued Vacation or Paid Time Off
There is nothing in the FLSA that prohibits employers from requiring absent employees to use accrued paid time off, even in partial day increments, so long as the employer still pays exempt employees their full salary for a workweek. The FLSA views PTO and vacation as fringe benefits that the employer has the option of providing or not providing. Many states, however, have more restrictive views of vacation as a vested benefit, and employers must comply with wage and hour laws of the states in which they have employees.
Keep in mind, however, that for exempt and non-exempt employees, an employer might have a separate legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.
Even if there is not a legal obligation, employers should consider the employee relations aspect of not paying employees who may not be working if they have contracted coronavirus, are self-quarantining or are unable to work due to community disruptions, such as school closings. Consider the big picture perspective when making decisions regarding paying or not paying your employees. Some employers, for example, are adding extra time to employee leave banks, while others are allowing employees to go negative in their leave balances.
- MEA — Coronavirus Frequently Asked Questions PDF (Updated April 6, 2020)
- SBA — FAQ on Paycheck Protection Program (PPP)
- Kreischer Miller — CARES Act Provisions that Apply to Individuals
- MEA — 3-Month Limited Term MEA Membership Details
- Michael Trachtman — FAQs About Paycheck Protection Program Forgivable Loans
- MEA — Sample Notice of Furlough (MEA Member Tools)
- [Webinar] Coronavirus Update & FAQs for Employers — April 14, 2020
- Michael Trachtman — CARES Act Information
- Kreischer Miller — Summary Outline of Federal Stimulus Program for Small Mid-Size Entities under CARES Act
- MEA — Alert: DOL Provides Additional Information About the Families First Coronavirus Response Act
- MEA — Alert: US Department of Labor Releases FFCRA Poster
- MEA — Alert: US Department of Labor Publishes Information Regarding Families First Coronavirus Response Act
- PA Department of Community & Economic Development — COVID-19 Working Capital Access Program (CWCA)
- DOL — Families First Coronavirus Response Act: Employee Paid Leave Rights
- MEA — Alert: Families First Coronavirus Response Act Set to Take Effect April 1, 2020
- Corporate Cost Control — State by State Unemployment Updates
- MEA — Sample Communication to Employees about Coronavirus (Members Only)
- MEA — Notice of Workplace Exposure to a Communicable Disease (Members Only)
- Department of Homeland Security — Business Continuity Plan
- OSHA — Guidance on Preparing Workplaces for COVID-19
- CDC — Interim Guidance for Businesses and Employers
- Johns Hopkins — Coronavirus Global Cases Interactive Map
- CDC — Coronavirus Disease 2019 Information for Travel
- WHO — Coronavirus disease (COVID-19) outbreak
- U.S. Travel Association — Emergency Preparedness and Response: Coronavirus (COVID-19)
- Care Plus Solutions — Managing Fears and Anxiety around Coronavirus [PDF]
- PA Department of Health — COVID-19 Information for Businesses
- Care Plus Solutions — Stay Calm & Reduce Fear During the COVID-19 Pandemic
- PA Office of Unemployment Compensation — COVID-19 and Employer UC FAQs
- PA — Wolf Administration Orders Closure of Non-Life-Sustaining Businesses