Employer questions continue as federal and state restrictions increase
In recent days, the number of confirmed COVID-19 (coronavirus) cases has dramatically increased, as have government-imposed restrictions to contain its spread. Not surprisingly, the rapid changes have caused great concern among employers that are trying to keep their workers employed while also keeping them safe. We previously provided answers to some of the most-asked questions as well as a summary of reliable resources, but new questions continue to roll in. Below are some of the additional questions we’ve received, along with answers and useful resources. Please note that the answers are generalized in consideration of our multi-state coverage.
Question: Your prior Alert said not to take employee temperatures, but the Centers for Disease Control (CDC) Guidance for the Seattle area and Santa Clara recommends health checks of employees on arrival. Can we give employees their own thermometers and have them self-report daily temps?
Answer: Notably, the CDC Community Mitigation Plan for King, Pierce, and Snohomish counties in Washington and Santa Clara County in California recommend “regular health checks on arrival,” with temperature and respiratory screens as examples. Taking temperatures isn’t mandated, and we still don’t recommend it unless you’re in one of the communities identified by the CDC and only after you’ve developed a specific plan of action to conduct overall health screens (one part of which may be taking temperatures). To ensure that you aren’t unintentionally spreading the virus, you need to educate the individuals who will be in charge of the health screens and ensure that you have the necessary equipment to safely conduct the screens. Your supervisors should conduct visual screens of employees on arrival, using the CDC symptom information. If you decide to take the temperature of employees on arrival, our recommendation is to have disposable thermometers that either the supervisors can use during the health screens or employees can use to check their own temperature. According to the CDC’s definition of symptoms for reportable illnesses, a measured temperature of 100.4 °F means the person has a fever. If an employee has a fever, you’re allowed to send them home with instructions not to return to work until they’ve been symptom-free for at least 72 hours without the use of fever-reducing medication. If an employee refuses to take or report their own temperature, you have the option to send them home as well.
Question: We’re considering a two-week furlough of our employees. What pay can the employees receive?
Answer: First, if it’s possible to avoid a furlough, consider what accrued company-paid leave the employee is eligible to receive, whether voluntarily provided under company policy or required by law. You may elect to be more flexible in allowing use of this leave, but don’t force use of paid sick leave where prohibited by law. If you’re able to keep operating and individual workers are faced with defined personal circumstances causing them to need time off from work due to COVID-19, they may have leave rights under local, state, or federal law. As explained in our March 19, 2020 Alert, workers may be eligible beginning on April 2, 2020, for paid sick leave and/or paid family and medical leave under federal legislation signed late on March 18, 2020, by President Trump, the “Families First Coronavirus Response Act” (H.R. 6201). If you have to actually shut down and aren’t able to continue employees’ pay voluntarily, there are additional government benefits and resources in place right now to assist your employees, such as emergency unemployment benefits. Most states are allowing employees access to these benefits without looking for work, so long as they’re ready to return to work when the business re-opens. Links to state unemployment offices with specific COVID-19 information and resources are below.
California Employment Development Department
Idaho Department of Labor
Montana Department of Labor and Industry
Oregon Employment Department
Washington State Employment Security Department
Question: What are other employers doing to take care of employees who don’t have enough paid leave to cover their time off?
Answer: This is perhaps our most common question: What is everyone else doing? Not surprisingly, just as employers and regions are different, so are the responses. Most employers have been continuing with current paid leave allowances while waiting to see what the federal relief package, including federal paid leave, will entail. Employers are also considering:
- Relaxing the use of current policies in terms of duration, notice, and doctor’s note requirements (to the extent asking for such notes is permissible);
- Providing extra paid leave of two (or so) weeks;
- Allowing employees to have an advance on wages with reasonable repayment upon return;
- Allowing paid time off (PTO) balances to go into the negative (but not recouping any unearned balance upon separation should that occur); and
- Suspending no-fault attendance policies.
Question: We’re considering shutting a few of our locations for a month or more. Do we have to send WARN notices?
Answer: The federal Worker Adjustment and Retraining Notification Act (WARN Act) requires covered employers (those with 100 or more employees) to provide 60 days’ notice before a covered mass layoff or plant closure at a single site of employment. A one-month closure won’t be enough to trigger WARN obligations but if business conditions change and you’re closed for more than six months, you may be looking at a WARN Act issue. Employers that fail to comply with the WARN Act may be liable for up to 60 days of pay and benefits for affected employees, plus penalties. However, you may give fewer than 60 days’ notice if unforeseeable business circumstances or a natural disaster make it necessary to close quickly. Very likely, abrupt government restrictions in response to COVID-19 will be considered as one or both of these. We advise you to still provide the notice as soon as possible if the WARN Act applies. See our Legal Guide, At a Glance: WARN Act. As separately reported in this newsletter, California Governor Gavin Newsom temporarily suspended portions of the state’s mini-WARN Act effective March 17, 2020, but covered employers must still give notice as soon as possible and must include specific language about applying for unemployment insurance (Executive Order N-31-20). Members can consult with your Vigilant Law Group attorney if you’re contemplating any type of downsizing.
Question: Our handbook provides that upon termination, separated employees will be paid out the value of their accrued paid time off (PTO). Do we have to do so if we lay off most of our workforce?
Answer: It depends on the language of your particular policy and your state law. You should also be clear in your communications to your employees about the nature of the layoff because people have different understandings of that word, including whether it’s temporary (with an expectation of recall) or permanent. If you’re uncertain when you’ll be able to bring employees back, then for purposes of compliance with state final paycheck laws, it may be safest to treat the layoff as a termination. There’s no federal law that requires any company to pay out the value of accrued PTO upon termination. If your policy broadly provides that any termination (including a layoff) triggers your obligation to pay out PTO, then you need to do so, especially if you’ve done so for previous layoffs. You should also check state law. California and Montana prohibit “use it or lose it” vacation policies, so in those states you would need to pay out the PTO. In Oregon, you may have a “use it or lose it” vacation policy as long as you’ve communicated it in writing in advance. A layoff that will last less than 35 days isn’t considered a termination for final paycheck purposes in Oregon, so you should pay out PTO in accordance with your company policy unless you are certain that you will be able to recall employees within 35 days. In Idaho and Washington, you have flexibility in setting your policies and you aren’t required to pay out PTO although you should do so if your policy says you will. See our Legal Guide, State Law Requirements for Vacation Policies and check with your Vigilant Law Group attorney for further guidance.
Question: An employee’s wife has a co-worker who reported a confirmed COVID-19 result. Can we force him to stay home?
Answer: Unless your employee’s wife had “close contact” (e.g., being within six feet for a long time or being coughed on) with her co-worker, the CDC doesn’t consider the husband (your employee) at risk. The CDC risk assessment guidance doesn’t recommend “testing, symptom monitoring or special management” for people who were merely in the same indoor location but weren’t in close contact with someone who tested positive. This means your employee’s wife would be considered low risk and your employee no identifiable risk; as such, we wouldn’t recommend sending him home. However, if your employee’s wife was in close contact with her co-worker, and especially if the wife is exhibiting symptoms, then you should instruct the employee to stay home consistent with recommendations from the CDC and your state health department. In situations like this, don’t be paralyzed by liability concerns. This is a public health crisis in which you’re afforded more flexibility in your response. In the absence of absolute clarity, follow public health guidance issued by the CDC and your state health departments. Links to federal and state resources were provided in our March 16, 2020 Alert. Ultimately, do what’s in the best interest of your employees. They need to feel their safety and welfare is your number one priority.
Question: If an employee tests positive, should we shut down?
Answer: You may, but you aren’t required to do so. Consult with the infected employee to determine who they came in close contact with (within six feet) over the last 14 days, notify those employees they may have been exposed (but don’t release the name of the infected employee), and determine the need to send those employees home for 14 days. The CDC would consider the exposed co-workers, if they aren’t exhibiting symptoms, to be a “medium risk,” meaning they should limit public contact. Depending on the nature of your work and frequency of contact at work, it may be advisable to send all employees with close contact to the confirmed COVID-19 employee home for two weeks. However, you shouldn’t request a medical note upon their return unless they have a positive, lab-confirmed COVID-19 result as well. Also ensure that your facility is properly cleaned per the CDC guidance and your state health department directive.
Question: We have an employee who came to work and then left sick with “some” of the symptoms. How do we clean? Can we do it ourselves?
Answer: The CDC provides specific guidance on cleaning and disinfecting a workplace after a suspected or confirmed COVID-19 individual has been in your facility, including when to clean, how much to clean, and what personal protective equipment (PPE) and cleaning materials to use. Your local and state health departments will also have guidance on responding and cleaning. You may do the cleaning yourself, but it may be more effective and instill more confidence in your employees to have a trained company do so.
Question: Can an employee refuse to work because she’s afraid of being infected? If she does, do we have to pay?
Answer: If you aren’t subject to a “shelter in place” requirement, you can still expect an employee to report to the usual worksite and work during scheduled hours. However, applying a heavy-handed approach during a time of uncertainty could backfire. If the employee has a reasonable belief that she’s exposed to harm, you could have a retaliation claim or a negative impact on employee morale. Consider the reason the employee doesn’t want to work onsite, and consider adjusting the work to the extent possible for those who are high-risk or have reasonable concerns. If the employee has reduced hours just because she’s choosing to limit her work time (rather than because she’s sick, needs to quarantine, or needs to stay home to care for kids who can’t go to school or daycare), allow her to use PTO or accrued vacation.
Question: After an employee left with a fever, we sanitized the work station, but no one will work there and others want to go home. What do we do?
Answer: Similar to the answer above, you can require an employee to work so long as there isn’t a local, state, or federal prohibition from doing so. However, you need to be cautious about appearing insensitive or having disregard for reasonable safety concerns. Further, if the workers are complaining as a group, their complaints could be protected, concerted activity under the National Labor Relations Act (NLRA). First, consider whether it’s feasible not to use that station or work area for 72 hours (current reports suggest this is the length of time the virus can live on a surface). If not, review the CDC’s symptoms and risk categories with your employees, review your implementation of the CDC cleaning and disinfecting guidance, offer any PPE that makes them comfortable, and consider having management perform work at the station first.
Question: Can we reprimand an employee for coming to work sick after we’ve told them not to come if they have symptoms?
Answer: Yes, you can reprimand an employee for not following a business-related directive made in the best interests of your employees, but be thoughtful about why the employee chose to come to work anyway—are they concerned about not receiving a paycheck? If so, remind them of their ability to use paid sick leave or vacation for the time. (We don’t recommend requiring the employee to use paid sick leave in the current climate. Some states’ paid sick leave laws prohibit you from doing so anyway.) Also discuss the reasons behind requesting the employee to go home, review the public health guidance protocol regarding sending them home, and invite them to return after they’re symptom-free for 24 hours.
Tips: We realize the volume of information about COVID-19 and its impact on workers and businesses can seem overwhelming, as conditions and government directives change rapidly. When in doubt, follow the CDC guidelines for your area and comply with any special directives by state or local authorities, using the links to websites in our March 16, 2020 Alert. A new website that just came online from the state of Washington is Washington Coronavirus Response (COVID-19).