Some general recommendations regarding Covid-19

• Take precautions with employees returning from Covid-19 “hotspots.” If an employee has traveled to such an area, consider making the employee stay home for the 14-day incubation period upon return. Make an individualized determination of whether the employee should work remotely or not, depending on responsibilities and business need.

• Require sick employees to stay home, and determine how to compensate them. As detailed above, you have an obligation to keep employees safe. Whether you should pay sick or quarantined employees (who are not working remotely) depends on their exempt or nonexempt status; previous use of sick leave; and your policies and benefit plans. You can bend the “normal” rules to show concern about employee health. For example, forcing employees to stay home for two weeks without pay or to use precious PTO could incentivize hiding symptoms or travel, which defeats the goal of preventing spread in the workplace. Also, be aware of the newly enacted Federal law regarding paid leave requirements.

• Do not treat some employees differently. For example, do not limit your requests for employees to stay home or self-quarantine to older or pregnant employees, or to employees of specific races or national origin. Develop an approach that treats all employees even-handedly and stick to it.

• Do not require employees to undergo medical testing. As of now, test kits for the virus are somewhat limited and can only be performed by a qualified healthcare provider. The CDC is instructing healthcare providers to be selective in how testing is administered. Screening all employees’ temperatures as they enter the workplace is likely to create more panic than benefit, and is not normally warranted. Such screening may violate the Americans with Disabilities Act (ADA), as does requiring employees undergo a medical test to confirm a Covid-19 diagnosis.

• Communicate expectations to employees. Right now, you should be communicating with your employees to (a) emphasize the need to stay home when sick, (b) remind them of respiratory etiquette and hand hygiene, and (c) advise them to monitor their health and those with whom they live.

• But do not ask, “Do you have coronavirus?” Such an inquiry could run afoul of the ADA. (Although it is not clear Covid-19 qualifies as a “disability,” employers generally need to know whether employees are fit to work and what limitations, if any, they have—not a specific diagnosis.) Generally, you can ask, “do you have any of the specific symptoms (listed on the CDC website)”?

• Do not disclose an employee’s health condition (generally). Such notification may violate diagnosed employees’ right of privacy. However, if you learn that an employee has been diagnosed with Covid-19, and you have not been contacted by local health authorities, contact the health agency to seek guidance on employee communication or other steps the agency wants you to take.

• Develop a communication plan in the case of an outbreak or pandemic. Ensure you have a way to reach all employees if they lose access to work email, regardless of where they are located. Management should also prepare for the plethora of questions employees will likely have; designate a point-person or official team to ensure consistent messaging.

• Start organizational contingency planning now. Your workplace might not have any employees with a confirmed case of Covid-19, so now is the time to prepare. You should develop contingency plans tailored to your industry, the size of your organization, and how you will operate if absenteeism rates go up or if you have to mandate closures. Relevant factors include how many of your employees have remote working devices, whether you can cross-train employees, whether you have alternative suppliers, and whether you want to prioritize certain customers or functions.

COVID-19 Recommendations related to Wage and Hour Laws

I strongly recommend review and revision of your sick and family leave policies and procedures). Please keep in mind this is an ever-changing situation. The recommendations and analysis provided below may become obsolete by the end of the week:

The new law, H.R. 6201, requires employers with less than 500 employees to provide paid family leave and paid sick leave. Employers with 50 employees or less may be eligible to apply for an exemption from the Department of Labor, if providing this coverage will jeopardize the organization (ex. financial harm, closure, and the like). There is a provision within that the Federal government will reimburse these costs to the organization within a short-period of time.

Here is a quick synopsis of the Paid Family Leave and Sick Leave Requirements:

• Paid Family Leave – paid leave must be provided when employees can’t work because their minor child’s school or childcare service is closed due to a public health emergency. Workers who have been on the payroll for at least 30 calendar days will be eligible for paid family leave benefits, which will be capped at $200 a day (or $10,000 total) and expire at the end of the year.
• Sick Leave – Under the bill, many employers will have to provide 80 hours of paid-sick-leave benefits for several reasons, including if the employee has been ordered by the government to quarantine or isolate or has been advised by a health care provider to self-quarantine because of COVID-19.This benefit will also expire at the end of 2020.

The Covid-19 outbreak implicates a range of employment laws, including the ADA, GINA, OSHA, Title VII, and ERISA. To deal with individualized legal issues, we recommend further discussion with either our firm or another attorney.

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Virginia (Ginny) Cronin is an attorney at the firm of Henningson & Snoxell, Ltd. located in Maple Grove, Minnesota, practicing exclusively in the area of nonprofit organizations.