Yesterday I went to my local Kroger to buy a chicken for dinner. When I got there, the lines at the checkout stretched to the back of the store. The toilet paper aisle was non-existent and the nonperishables were at a premium. I went in for a chicken and came out with a cart full of food to keep my family fed for at least the next week, which was nothing short of panic buying. Point being, directives and public opinion about COVID-19 are changing by the minute.
I have spoken with several clients over the past couple weeks that have proactively inquired about what to do regarding the outbreak of COVID-19. I will admit that my advice is likely changing as the situation changes for everyone. Small businesses that don’t have the bandwidth or technology to accommodate a robust work from home policy are in an extremely difficult position. And most of those, at least the ones I’ve spoken with, want to do what’s “right” for their employees.
So, what are some points employers need to keep in mind?
Have a plan but be flexible. It is important for a company to have a “disaster plan” in place, but understand that the situation is changing rapidly and that plan may need to change and adapt accordingly. Keep up to date on any directives from the state and federal government and make informed decisions using information from trusted scientific resources such as the CDC.
The laws still apply. No one has repealed the Family Medical Leave Act (FMLA) or other laws that provide job-related protections for employees experiencing disabling and/or serious health conditions. If an employee is sick with COVID-19 (or an immediate family member is ill) and you are an FMLA-covered employer, that employee will be eligible to take up to 12 weeks of leave (depending on their individual eligibility and availability of leave). Similarly, if an employee has a disabling condition and is in a high-risk population, they may need to request a reasonable accommodation to stay out of the workplace for a time. That request will need to be analyzed pursuant to appliable law.
OSHA Considerations. Most private employers are required to adhere to the Occupational Safety and Health Act (OSHA). OSHA requires employers to furnish a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm”1. This does not mean that an employer will violate their OSHA requirements because an employee contracts COVID-19, but it is worth mentioning that employers experiencing COVID-19 in their workplace should consider taking more drastic measures even if not ordered to by applicable government officials.
It takes a village. The next couple months are going to be difficult and companies, the government, and individuals are navigating the unknown right now. Some businesses, if not most, will suffer economically during this time. Some will suffer greatly. Allowing employees to work from home, particularly because their children are not in school, will likely decrease individual productivity. Not to mention the business’ productivity. Decisions should be made with an eye to the public good and workplace policies adopted in response to this outbreak will not be viewed as an employer creating new policies that will generally be available after the outbreak subsides. To clarify any confusion to that end, an employer should be clear that a deviation from existing policy (e.g., extending work from home privileges) is specifically in response to the outbreak and not to be construed as a general policy to be available after things return to “normal”.
What if the business closes for a time? Legally speaking, an employee who loses their employment through no fault of their own, is eligible for state unemployment benefits (assuming they otherwise qualify)2. Some employers may opt to provide additional PTO for a period of time if their own business must close temporarily for reasons related to the outbreak. An employer that needs to close for a time should also consider the impact to employment-related health benefits. It may mean that employees need to be offered COBRA coverage. Employers should contact their benefits vendors to discuss their specific requirements. Remember, federal and state wage and hour laws still apply, and if you have specific questions regarding compensation of your staff and an employer’s legal obligations, you should contact employment counsel to discuss the situation. In addition, employers that have 100 or more employees need to consider the notification requirements of a mass layoff pursuant to the WARN Act.
Have patience. This situation will require patience from everyone. It is truly precedent setting in our modern world. What is best for employees is often what is best for the company as well. If an employee whose children are suddenly out of school for three weeks can’t find childcare, perhaps this is simply grounds for short-term modification of attendance policies to provide for an excused absence? Each business will need to decide for itself the most appropriate method of meeting these challenges.
The next few months will be challenging. When in doubt, ask your employment counsel to provide guidance. We care for you and your business, please contact your Carlile Patchen & Murphy LLP business attorney if you have any specific questions.
1 29 U.S.C. § 654.
2 See http://jfs.ohio.gov/ouio/CoronavirusAndUI.stm