Employee sitting at desk sneezing into tissue

Answers for employers about COVID-19

  1.       Provided State/Local Laws Allow, Can I Force My Healthy Employees to Come to Work?


Can you, is one question, should you, is another question. There are workers this country needs right now, who are heroes, and whole sectors of the economy on hold. As an employer you need to think of what the public relations issues there are, and the potential for litigation costs, whether that litigation is frivolous or not. The law is not entirely clear as to whether you can force an employee to come to work at the moment, and a lot depends on what is going on in your state and local area, and what restrictions have been put in place. Plainly put, it is poor policy to require your employees to come to work right now, if they are choosing to self-quarantine.

    There are new considerations for employers with less than 500 employees who are now required to offer paid leave for those with COVID-19 and those caring for a minor child, whose school, or daycare facility, has closed.

    In addition to the new paid leave regulations for employers of under 500 employees, the FMLA remains in effect for all employees who qualify. COVID-19 and/or caring for someone with COVID-19, are qualifying FMLA leave conditions.  


  1.      Can I Require Employees to Report if They Have Tested Positive for COVID 19, Or Have Symptoms?


Yes, you can require your employees to tell you if they have symptoms of, or have tested positive for, COVID 19. In fact, you should require your employees to tell you if they have symptoms or have tested positive for COVID 19.,If any employee has symptoms, you should insist that they stay home until at least 24 hours after the symptoms pass, and get a test for COVID 19. If any employee has COVID 19 you may require a doctor’s note clearing an employee to return to work, in the future, when they are cleared of the illness. You do have a responsibility to keep this information strictly confidential.


  1.      Can I Send an Employee Home Who I Think Has Symptoms?


Yes, you can send an employee home who you believe has symptoms. Remember if they are a salaried employee, or have PTO, you must pay them anyway. There are also new Federal Paid Leave Requirements that need to be complied with. You must keep any health information you find out about the employee confidential.


  1.       Can I Send Home Employees Who Are in High-Risk Groups?


No, you cannot send employees home because they are in a high-risk group, this is because it is discriminatory to send home only those employees who you decide are more likely to get the virus.  


  1.     Can I Take the Temperatures of My Employees?


Yes, you may take the temperatures of your employees, however, same may not be advisable. First you will have to keep the information confidential. Second, your employees can carry Coronavirus without having a fever.


  1.      What Do I Do If an Employee Recently Traveled?    


Employees who have recently reentered the country should self-quarantine for fourteen days. At the conclusion of fourteen days you may inquire into whether the employee has symptoms and make a decision as to whether they may return to work. However, the decision must be applied evenly to all employees. Meaning if you ask the employee if they have a temperature, and they answer they have, so you tell the employee not to report to work, then you must tell all employees with a fever not to return to work.


  1.    Can I Ban My Employees from Traveling During the COVID 19 Outbreak?    


The answer to this is not simple. Before the virus, there were courts that would support terminating an employee, and other courts that would hold you liable, if you terminated an employee who went to a travel zone with disease issues, after you, the employer, instructed them not to. It seems logical that a court would not hold an employer liable for terminating an employee in the extreme situation of travel during the COVID 19 Pandemic, especially in light of the State Department’s advisory that Americans not travel, but there are no guarantees. There are also public relations concerns, and employee moraleto consider. However, if someone has traveled to China or Western Europe, you may want to take the risk and terminate the employee if they traveled against your instructions.


  1.    Do I Need to Pay My Employees If I Close Due to COVID 19?


Generally, the answer is no, you do not need to pay your employees if they are not working. However, that is not the end of the inquiry. If you have salaried employees, you must pay them their full salary, for any week in which they do any work whatsoever. If a salaried employee does one hour of work for you in a week, you owe them their salary. There are exceptions, but you do not want to get involved in them without having an attorney implement a program paying your salaried employees differently. If you pay your employees by what is called the Fluctuating Work Week Method, a way of calculating salaried overtime, you must, keep paying your employees their full salary, whether they do any work or not.


 

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Joshua H. Sheskin,  Esq.

 jhs@lubellrosen.com
 (954) 880-9500
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