March 27, 2020 Q&A: Most Common Employment Concerns/Questions During the COVID-19 Pandemic
KEEPING YOU INFORMED…
All workplaces have been affected by the COVID-19 pandemic. Even with your so-called “non-essential” in-person workforce reduced, we are receiving a myriad of questions from those of you both continuing in-person operation and those struggling in light of the restrictions placed on your ability to continue operations.
Below are some of the most common questions (and answers) that we have heard and provided about your workforces. As always, keep in mind that what follows may not be applicable to your specific circumstance, especially if you have a collective bargaining agreement or contrary other relevant agreements or policies. Also keep in mind that there are, on nearly a daily basis, changes to the relevant laws, executive orders and guidance documents, so the below information is subject to change. As a result, you should regularly check with us if these or other related questions arise so that we can confirm that the information provided below is still current.
Q: May an employer ask an employee whether he/she is experiencing any COVID-19 symptoms?
A: Generally no, unless the employee is displaying symptoms of the virus or has reported feeling sick while at work or when calling in sick to work. In the event that the employee affirmatively states that he/she is feeling sick, the employer may inquire about the symptoms that the employee is experiencing. Similarly, if an employer observes an employee displaying symptoms of COVID-19 (fever, chills, cough, shortness of breath or sore throat), then the employer is permitted to inquire.
Q: May an employer take an employee’s temperature?
A: Yes, an employer is generally permitted during the COVID-19 pandemic to take the temperature of its employees to determine whether they have a fever, which is a symptom of the virus. Employers should be advised that not everyone infected has a fever and a fever may indicate the presence of a different health condition. Employers should use the least intrusive method for doing so; e.g., a thermal scan.
Q: At what point may an employer send an employee home from work?
A: An employer may send an employee home if that employee displays symptoms of COVID-19 (or, for that matter, any illness). If the employee has tested positive for COVID-19, regardless of whether the employee displays symptoms of the virus, he/she must immediately be sent home.
Q: What do I do if an employee tests positive?
A: If an employer becomes aware that an employee has tested positive for COVID-19, that employee should, assuming he/she is in the workplace, be immediately sent home. If that is not possible, the employee should be immediately isolated from all other employees, customers or visitors to the employer’s place of business. The employer may, but is not required to, notify the local department of health and implement its recommendations regarding response efforts.
Once the infected employee is removed or isolated from the workplace, the employer should then advise all other potentially affected employees of their possible exposure to COVID-19. Employers must remember that they are required to maintain the confidentiality of the infected employee’s medical information consistent with the Americans with Disabilities Act (“the ADA”). This means that employers cannot share information about the identity of infected individuals. Employers should only share that an exposure has occurred and enough information about the exposure to permit employees to make an informed decision about whether to, among other things, be tested.
Employers should also ensure that the workplace is thoroughly cleaned once the infected employee is no longer in the workplace, particularly where the worksite remains open.
You should also notify your workforce, in whole or in part depending on the situation, about a positive test result. We can prepare or review the communications to potentially exposed co-workers, and guide you through the steps to take in addressing everything that follows your learning of an actually (or potentially) infected employee.
Q: If an employee has been sick with COVID-19, when must I allow the employee to return to work?
A: Several government agencies have opined that employers should not require a medical clearance certification from individuals who have tested positive for COVID-19 before allowing that individual to return to work due to the potential inability of medical professionals to timely provide those certifications. An employer can still, however, legally require the employee to provide one before returning to work. An employer may also, at its discretion, permit the medical certification to come from the employee’s treating physician or other medical professional (such as a local clinic or urgent care facility). We recommend that you speak with us if an employee is unable to provide a requested certification so that it can be determined, based on the particular facts and circumstances, how you should proceed.
Q: May I direct an actually or potentially infected employee to quarantine or isolate him/herself?
A: An employer must, if an employee presents symptoms of COVID-19, or indicates that he/she has the virus, isolate that employee until it is possible to have the employee leave your premises. An employer does not, though, have any legal right to direct an employee’s off-duty conduct in this situation, which is why you may wish to immediately notify your local department of health.
On a related note, the employer can and should direct its employees, while in the workforce, to undertake infection-control practices, including practicing “social distancing,” regular hand washing, and engaging in coughing and sneezing etiquette and proper tissue usage and disposal.
Q: Do I have to pay employees who are not working due to closures caused by the virus?
A: Private employers are not, unless they have agreements or policies that provide otherwise, required to pay employees while the employee is not working due to an absence or office closure occasioned by the virus, unless that employee is placed in quarantine as a result of contracting the virus, consistent with the provisions of recently adopted New York State and federal laws (for details about paid leave requirements, please see our March 25, 2020 memo entitled “Overview of State and Federal Legislation Regarding COVID-19 Related Sick Leave”).
If employees are working remotely or telecommuting, the Fair Labor Standards Act requires employers to pay exempt employees for each week worked and non-exempt employees for actual time worked. There may be additional payment obligations pursuant to any applicable collective bargaining agreement, employer policy, contract, or for public employees, pursuant to Executive Order.
Q: If an employer must close or lay off employees due to the virus, are there any notice or other obligations that the employer must meet?
A: Normally, if a private New York employer with more than 50 full-time employees closes its business or a work location, or engages in a mass layoff of at least 33% of its workforce (if this affects at least 25 full-time employees) or 250 employees from a single worksite, New York’s Worker Adjustment and Retraining Notification Act (“NY WARN Act”) requires the employer to provide as much advance notice as possible, and at least 90 days’ in advance, to all affected employees, affected unions, the New York Department of Labor (“DOL”) and the Local Workforce Investment Board. However, the law contains an exception for “unexpected circumstances,” including a closure caused by circumstances beyond the employer’s control. The DOL has indicated that COVID-19 related closures or layoffs would fall within that exception. Thus, as much notice as possible is to be provided, and the notice should include as much information about the reason for the closure as possible.
The Federal Worker Adjustment and Retraining Notification Act (“WARN”) requires that private employers with 100 or more full-time employees provide 60 calendar days’ notice of a business or site closure or mass layoff involving 50 or more full-time employees. WARN only applies, however, to layoffs that are anticipated to last more than six months. If an employer anticipates now that a COVID-19 related layoff will last longer than six months, it should provide notice pursuant to WARN. If the anticipated layoff will be shorter than six months, no notice is required pursuant to WARN until such time as the employer can reasonably anticipate that the prior layoff will go beyond six months. Notice is then required pursuant to WARN at the time that the circumstance changed.
Employers should keep in mind that the NY WARN Act and WARN may both apply in a given situation, meaning that some employers may have to satisfy both notice requirements in order to avoid back pay awards to affected employees along with relevant statutory penalties. It is also possible that the NY WARN Act may require notice at a time when WARN does not. We can assist you with determining when notice is required pursuant to one or both statutes.
Please contact Rich Zuckerman, Sharon Berlin, Alyson Mathews, Matthew Mehnert, Adam Ross or Alyssa Zuckerman at their direct dial number or (631) 694-2300 if you have any personnel-related questions relating to the COVID-19 pandemic.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2020