On March 11, 2020, The WHO finally declared this thing a pandemic, claiming we won’t get fooled again. Although everything is changing rapidly, the information we brought you last week in The New March Madness remains relevant. And just remember which two employment lawyers implicitly predicted no NCAA tournament this year. A lot has happened since then. We will now try to answer your burning questions and give you as much insight and foresight as we can.
Many of our clients have asked us the following:
Can we stop our employees from traveling and if not, can we require them to stay home for 14 days when they return? While you cannot regulate what your employees do with their free time, and because paid vacation is a privilege not a right for at-will employees, if you want to suspend all vacations during the pandemic, you can do so. But if you want to have employees working for you when this is all over, you won’t. If your employees travel to any of the CDC identified danger zones, the 14-day quarantine is a given. If they travel anywhere else and have no known “close contact” with the virus, an employer’s requirement that they quarantine is not within CDC guidance and has no scientific basis. But we get it. So last week, we recommended that you pay employees to stay home under those circumstances.
While we still think that’s a good idea, this week the New Jersey Department of Labor offered some relief. If an employer requires an asymptomatic employee whose job cannot be done remotely to stay home (outside of CDC guidance) without compensation, the NJDOL says that employee will be considered [on] a temporary layoff, thus suspending the provision that the worker be able, available and actively seeking work, meaning they should apply for Unemployment benefits. If the “temporary layoff” lasts more than 8 weeks though, the DOL will require the employee to look for another job.
Can we ask employees to answer personal health-related questions? Under the ADA, an employer can require employees to report if they have any of the virus symptoms, been exposed to anyone who has symptoms and to identify where they have traveled and by what means. You can also require medical documentation clearing anyone who has had the virus before they can return to work.
Can we require our employees to work remotely? Employers can require some or all workers to work remotely. Keep in mind though that who is required to work from home must be based on legitimate, non-discriminatory reasons. So employers cannot require older workers or pregnant employees to work from home out of concern for them. That could be age, pregnancy or “perceived disability discrimination. “ So don’t be nice. You can get sued for that. But if an older worker, pregnant employee or anyone who is immune-compromised has a doctor’s note that says due to their condition it is not safe for them to be at work, allowing them to work remotely is likely an ADA reasonable accommodation. The CDC also has specific guidance on pregnant employees.
According to a Wall Street Journal survey this week, 37% of American workers say their jobs cannot be done at home. Employers can require those employees to come to work even if others are remote. So long as there is a legitimate business reason for the distinction, no problem. If you have some home and some at the workplace, because OSHA requires employers to protect employees from workplace hazards, we recommend, if feasible, creating as much physical distance between those who are in the workplace as possible. The CDC defines “close contact” as less than 6 feet. So if you can move work stations to create distance, do it. Some employers are using alternating work days to keep employees away from each other. So Bob from Accounting works on Monday and stays home on Tuesday, while Roberta from Accounting is home on Monday and comes in on Tuesday. Some employers have also physically separated employees and/or teams that do the same work so that if one group ends up quarantined, there is another that has avoided exposure and can keep the line moving. That might mean having employees at different physical locations or alternating weeks in and out of the office.
We think it’s counterintuitive for employers to be so uptight about lost productivity due to quarantines. Once you’ve got all your employees quarantined in the office, they won’t be around those petri dish kids of theirs or out and about catching viruses anywhere else. They’ll have nothing to do but work. Have pizzas left at the door, keep your bottom drawer with the booze locked and you’re in business.
What about compensation? Non-exempt employees must only be paid for the time they work (even if they are normally paid by salary). Exempt employees are entitled to their full salary if they perform any work in a workweek. So if business is slow and employers need to make tough decisions, there are only two ways to cut costs with Exempt employees: either shut them down in increments of a full week at a time (which could mean they work every other week) or reduce their salary, which requires notice before any workweek begins.
If an employee gets the virus, they will be eligible for job-protected FMLA leave and Temporary Disability Insurance. The NJDOL guidance also says that they might have a Workers’ Comp claim if they picked up the bug from a co-worker or through any other work-related means. That sounds like a causation nightmare. Good luck to all.
What can we do about employees who insist on working at home out of fear? The short answer is that you can require most employees to come to work, but this is getting complicated. If the employee is immune-compromised, it’s a reasonable accommodation under the ADA and that’s easy. If you have a confirmed case in the office, the CDC says keep everyone out for 24 hours, follow the CDC cleaning protocol and you’re good to go. So if an employee refuses to come to work after that, they have no “reasonable basis” to stay out and you’ve got to decide if you are willing to terminate them or let them have a temporary leave. One potential landmine in terminating is OSHA regs, which make it retaliation to fire an employee for refusing to put themselves in harm’s way if the danger is outside the scope of their duties. Oh boy!
What if we have to reduce staff due to lack of work? Employees can be terminated or laid off (which means subject to recall) based on business needs. We recommend you talk to us about potential discrimination claims based on how you choose those to be let go. If you have 100+ employees and will be closing a facility resulting in the separation of 50 or more employees or if letting go 50 or more from multiple sites if that constitutes one third or more of the workforce, you typically have to comply with the federal WARN Act and provide at least 60 days’ notice. There are WARN Act exceptions for unforeseeable business circumstances and natural disasters, and this is likely both. Many states have their own version of WARN, so check with us before any mass layoffs.
Legislative Update: We anticipate changes to various federal laws that may occur as soon as this weekend that will impact all of the above. Congress is considering a draft bill that will amend the FMLA. The proposed revisions will make anyone employed for a minimum of 30 days (as opposed to 12 months) eligible for job protected leave and the FMLA would apply to every employer not just those with 50 or more employees. A new category of leave would be created for any “qualifying need related to a public health emergency.” There’s more but that’s enough to swallow for now. Other proposed legislation would require employers to provide seven paid sick days immediately, and an additional 14 paid sick days for use during a public-health emergency, including the current one. We will keep you posted on these potential drastic changes.
In the meantime, stay calm. Call us if you need us. By the way, if you want advice on “social distancing,” we’ve been on the receiving end for years and would be glad to help. And for your own mental health:
DO NOT CHECK YOUR 401(k) UNTIL FURTHER NOTICE FROM US