Common Employment Issues with COVID-19

Erick J. Becker

Erick J. Becker

The following guidelines are for information purposes only and should not be considered legal advice, as each employment situation poses different considerations that must be taken into account when rendering a legal opinion. If you have specific scenarios or additional questions please contact or email your counsel at Cummins and White, or our employment specialist Erick Becker at ebecker@cwlawyers.com.

What should we communicate to our employees?

 The most important message is to reiterate the CDC guidelines for proper hygiene and social distancing practices in the workplace:
 Wash your hands thoroughly and frequently upon arriving and leaving work and throughout the work day
 Use hand sanitizer frequently (if hand sanitizer is being provided by the company, communicate where it is located)
 Do not cough or sneeze into your hands or elbow, instead cough into a tissue or other paper product and dispose it immediately
 Do not shake hands, hug, touch someone’s face, or otherwise come into close body contact with other employees. Use a wave, nod, or some other greeting.
 Wipe all common use surfaces with disinfecting substances whenever possible after use.
 Most importantly: Don’t come to work if you or a close family member is sick, particularly with symptoms similar to COVID-19 (dry cough, fever, body aches, shortness of breath)

Can we prohibit employees from coming to work if they are exhibiting symptoms of illness?

 Generally, employees cannot be subjected to an adverse employment action for a disability or perceived disability
 It is unclear at this time whether COVID-19 would be considered a disability, but the definition of “disability” is very broad
 However, if an employee’s condition poses a health and safety risk to others, such as COVID-19, the employer would be allowed to prevent an employee from coming to work with symptoms, even without paying the employee during the quarantine period
 Allowing the employee to work from home or placing the employee on paid leave for a quarantine period would be permissible as the employee would not suffer an adverse employment action
 Employees who are sick, quarantined or caring for family members due to COVID-19 may apply for disability benefits from the state EDD. There are special considerations in place to make such benefits more readily available. More information can be found at EDD COVID-19

Can we prohibit employees from coming to work if they have recently returned from an overseas trip?
 It might be considered discrimination based on perceived disability if an employee without symptoms and not under any official quarantine order is prohibited from working
 If you allow the employee to work from home or place the employee on paid leave for a quarantine period, that would be permissible as the employee would not suffer an adverse employment action
 If the employee is returning from an area where the epidemic is highly active (China, Iran, Italy) you may be permitted to require an unpaid quarantine period due to the health and safety risk to others

Can we require employees to work at home?
 Yes, you can assign employees to work at home either because they are experiencing illness, or as a preventative measure
 If you assign non-exempt (hourly) employees to work from home, you should have a telecommuting policy or agreement in place that specifies the conditions for home work, such as timekeeping, breaks, safe workplace, reimbursement          for incurring expenses, etc.
 If you wish to obtain a telecommuting agreement please contact our office

Do we have to allow employees to work at home if they refuse to come to work?
 Employers do not have an obligation to allow employees to work from home, particularly if their job duties are not conducive to telecommuting
 If an employee refuses to come to work solely due to concern over COVID-19 and demands to be allowed to work from home, and that is not a feasible option, here are some possible responses:

1. You can require the employee to use their vacation for the time off
2. Employees can take sick leave, but you cannot require them to use their sick leave according to the DLSE
3. If the employee does not have paid time off available, you can allow the employee to take unpaid leave
4. You can require the employee to report to work, and if they refuse, it would be insubordination that could result in discipline up to including termination
 Before disciplining or terminating an employee for refusing to report to work please consult with counsel

Can we take employees’ temperature before allowing them into the workplace?
 There is no guidance that specifically prohibits taking a temperature
 However, if you prohibit an employee from working and force them to take unpaid leave, there is the potential for a perceived disability claim, as a temperature does not necessarily mean the employee has the virus

Do we have to supply employees with masks or other protective gear?
 While employers must supply protective gear under OSHA safety standards, there is no definitive safety risk from COVID-19 in every workplace, since there is no way of determining whether the virus is present
 OSHA has stated that workers in certain industries such as healthcare must be supplied with appropriate safety equipment such as masks
 In a regular work environment the employer is not required to supply or pay for masks
 Employees may choose to bring and wear their own masks, so long as it does not interfere with operations or their ability to perform their job

What if we need to layoff employees or reduce hours due to the economic impact of COVID-19?
 The impact of the virus likely would be considered an unforeseen event that excuses employers from the sixty day notice requirements of the WARN Act prior to a layoff. You should check with counsel if you anticipate a layoff affecting 50 or more employees
 Employees who are temporarily laid off or have their hours reduced can apply for unemployment benefits, and the state has waived the regular 7 day waiting period for benefits. More information can be found at EDD COVID-19
 There are no legal prohibitions on reducing the hours of non-exempt (hourly) employees. There is no minimum number of hours that must be paid in a work day unless you do not notify the employee ahead of the work day and they are given less than their regular work hours, with certain exceptions (reporting time pay)
 You can reduce the salary of exempt employees based on requiring furlough days or reduced hours (for example, only requiring exempt employees to work four days a week and reducing the salary by 20%). However, if the salary reduction would cut the salary below the minimum exempt salary for California ($54,080 if 26 or more employees and $49,920 if 25 or less employees), the employee no longer qualifies as exempt and should be converted, at least on a temporary basis, to non-exempt hourly status
 If exempt employees are temporarily converted to non-exempt hourly, proper written communication should be given regarding their rights to overtime, meal and rest periods, etc.

 

These guidelines only cover a few of the issues raised by the COVID-19 pandemic. If you have additional questions or wish further guidance, please contact us. We will be providing more guidance and updates as further issues arise.