The last month has been interesting, dramatic, and stressful as the country has taken small and large measures to limit the spread of COVID-19. Employers nationwide are struggling with how to deal with these changes. Below are answers to some frequently asked questions as well as links to several resources that employers may find helpful.
COVID-19 Workplace FAQ's
What am I obligated to do, legally?
There aren’t any universal employer responsibilities that crop up as soon as something is declared a pandemic. That said, pay attention to federal, state, and local authorities to see if they are rolling out benefits or prohibitions that you need to be aware of. For instance, Colorado passed an emergency paid sick leave rule for certain employees, and Oregon has banned all gatherings larger than 250 people, both of which may affect employers directly.
What should we be doing to reduce risk?
These are fairly common-sense answers, but they bear repeating:
- Post signs about hand washing
- Provide hand sanitizers and disinfectant wipes around the office
- Assign someone (or yourself) to periodically wipe down frequently touched surfaces
- Cancel non-essential in-person gatherings
- Make meetings virtual, or if that’s not feasible, hold them in a larger space than generally necessary for the size of the group
- Stop or limit business travel
- Send sick employees home (check for state reporting time pay requirements)
- Encourage employees to stay home if they don’t feel well
- Bonus risk reduction: even if an employee doesn’t have accrued paid sick leave, provide it. An employee is much more likely to stay home when sick if they know they won’t lose income.
- Bonus risk reduction: encourage employees who have work that can be done remotely to work from home, even if they feel fine. Working from home was becoming significantly more common (and a requirement of some jobseekers) prior to COVID-19, and now is a perfect time to give it a test drive if you haven’t already.
Can we send employees home if they are symptomatic?
Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 (e.g., fever, cough, shortness of breath) should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute.
Note: Non-exempt employees may be entitled to a few extra hours of pay if you’re in a state with reporting time pay, but this cost will be well worth it to maintain the safety of the workplace. You can check for state law by searching for reporting time pay <your state> on the HR Support Center.
What if my employee discloses that their family member or roommate has COVID-19?
Our recommendation is to follow guidance from the Centers for Disease Control and Prevention (CDC). Employers should ask employees who live with someone confirmed to have COVID-19 to notify a designated HR representative or their supervisor as soon as possible. The employer and employee should then refer to CDC guidance to assess risk and determine next steps—see Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management. If the employee is able to work from home, you may require that they do so.
What if I have a fearful employee who refuses to come to work?
You should be prepared for employees who express anxiety about coming to work and evaluate any request on a case-by-case basis. Consider alternative arrangements such as working from home. It may be that they are most concerned about using public transit, in which case you may be able to find (and possibly pay for) an alternative. If their concern is a crowded workplace, perhaps you can change their hours.
If the nature of the employee’s job doesn’t allow for working from home, and there is no reason to believe that coming to work poses a real threat, reiterate the steps they can take to keep themselves safe from contracting the virus and explain the proactive steps you are taking to keep infection risk low in the workplace.
Employees who are immunocompromised or have other relevant disabilities may be entitled to a reasonable accommodation under the ADA, such as working from home or taking a leave if working from home is not possible.
How do I make a work from home policy?
Although some employers will be comfortable sending everyone home with their laptop and saying, go forth and be productive, most will want to be a little more specific. A good work from home policy will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses.
For instance, your policy might require that employees are available by phone and messaging app during their regular in-office hours, that they meet all deadlines and maintain client contacts per usual, and that they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.
You’ll also want to specify how expenses related to working from home will be dealt with. If you don’t expect there to be any additional expenses involved, communicate this. You don’t want employees thinking this is their chance to purchase a standing desk and fancy ergonomic chair on your dime. That said, you should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses, but it’s a good practice to cover such costs even if it’s not required by law.
If we choose to close temporarily, do we need to pay employees?
It depends on the employee’s classification.
Non-exempt employees only need to be paid for actual hours worked. For these employees, you may:
- Pay the employee for the time, even though they did not work;
- Require they take the time off unpaid;
- Require they use any available vacation time or PTO; or
- Allow employees to choose between taking an unpaid day or using vacation or PTO.
All four options are compliant with state and federal law. We generally recommend option 4—allowing but not requiring employees to use vacation time or PTO. If your office is required to close by health authorities and your state has a sick leave law, employees may be able to use accrued paid sick leave during the closure.
Exempt employees must be paid their regular salary unless the office is closed for an entire workweek and they do no work at all from home. You can, however, require them to use accrued vacation or PTO during a closure if you have a policy that indicates you will do so, or if this has been your past practice. When it comes to accrued vacation or PTO, it is safest to give employees advance notice if there are situations where you will use their accrued hours whether they like it or not.
If we close temporarily, will employees be able to file for unemployment insurance?
Depending on the length of the closure, employees may be able to file for unemployment insurance. Waiting periods range from 1-3 weeks and are determined by state law. Be prepared to respond to requests for verification or information from the state UI department if you close for longer than the mandatory waiting period.
We’ll keep monitoring the COVID-19 situation as it develops and update the FAQ as needed. Keep checking this blog for timely guidance over the coming weeks and months.
Federal & State Resources
The following is a list of guidance and information resources that may help employers maintain safety of their employees and prevent workplace exposures to acute respiratory illnesses, including COVID-19, in non-healthcare settings. The guidance also provides planning considerations if there are more widespread, community outbreaks of COVID-19.
Cal-OSHA Guidance on Protecting Workers [LINK]
Workplace safety and health regulations in California require employers to protect workers exposed to airborne infectious diseases such as the coronavirus. Cal/OSHA has posted guidance to help employers comply with these safety requirements and to provide workers information on how to protect themselves.
EEOC Pandemic Flu Guidance [LINK]
The Americans with Disabilities Act (ADA), which protects applicants and employees from disability discrimination, is relevant to pandemic preparation in at least three major ways. It identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning and provides information about Titles I and V of the ADA and pandemic planning in the workplace.
CA Department of Industrial Relations Coronavirus Wage & Hour Guidance [LINK]
The Department of Industrial Relations has provided answers to many frequently asked questions. Need to know if an employee can use California Paid Sick Leave due to COVID-19 illness? Wondering can an employer require a worker who is quarantined to exhaust paid sick leave? Seeking options for what to do if your child’s school or day care closes for reasons related to COVID-19?
Cal-OSHA Guidance for Healthcare Workers [LINK]
The Aerosol Transmissible Diseases (ATD) standard (California Code of Regulations, title 8, section 5199), contains requirements for protecting employees from diseases and pathogens transmitted by aerosols. COVID-19 is an airborne infectious disease covered by the ATD standard. This interim guidance provides employers and workers in health care settings with vital information for preventing exposure to the virus.
Family & Medical Leave Q&A [LINK]
Under the FMLA, covered employers must provide employees job-protected, unpaid leave for specified family and medical reasons, which may include the flu where complications arise. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same terms as existed before they took FMLA leave. Further explanation and other related questions are answered here.
California Department of Public Health
Center for Disease Control and Prevention (CDC)
CDC Resources for Businesses and Employers
California Department of Labor COVID 19 Resources
Employment Development Department COVID 19 Resources
Learning Resources for Children During School Closures [LINK]
