As the number of Coronavirus cases in the U.S. continues to grow, employers should prepare for a variety of issues that might arise if the virus spreads significantly into the workplace.
As a business owner or employer, you may have questions about how to handle or prevent the spread of Coronavirus in the workplace. The number of Coronavirus (COVID-19) cases in the U.S. continues to rise, and while the Center for Disease Control (CDC) advises that ”most people in the United States will have little immediate risk of exposure,” it’s a smart idea for businesses to review and evaluate their current policies and practices just in case a major outbreak occurs.
Coronavirus in the workplace: considerations for employers
Employers should plan how best to decrease the spread (and impact) of Coronavirus in the workplace in the event of an outbreak. Objectives should include one or more of the following:
(1) reducing transmission among staff;
(2) protecting high-risk employees;
(3) maintaining business operations; and
(4) minimizing adverse effects on other entities in the employer’s supply chains.
To aid employers, federal agencies have responded by providing guidance. The CDC has posted a page entitled Interim Guidance for Businesses and Employers to Plan and Respond to Corona Virus Disease 2019 (COVID-10), Feb. 2020. The Occupational Safety and Health Administration (OSHA) has also provided some tips providing their worker safety perspective on Coronavirus. This includes hazard recognition, applicable OSHA standards for protecting workers, medical information about Coronavirus, and suggestions for prevention and control of the virus.
Most employers have a business continuity plan in place to provide for smooth business operations in the event of various emergency scenarios, generally incidents that would render a business location inaccessible, with perhaps all resources in the work area being lost (such as records and data files). Such a plan could be implemented if a business is struck particularly hard by Coronavirus.
The payroll department should be included as part of a business continuity plan. Any business continuity plan that includes remote work should detail precise work hours for nonexempt employees to avoid possible unwanted overtime. This would include discouraging nonexempt employees from checking and answering emails outside of appointed work hours. Additionally, for remote payroll operations, due to the sensitivity of the data involved, employers should consider how or if that data is stored at the employee level (an employee’s device) as well as how that data is transmitted for processing (such as the use of a VPN).
Coronavirus in the workplace: specific concerns for employers
Employers might have several other business concerns, besides employee safety and health, in an effort to reduce the possible effect of Coronavirus in the workplace.
FMLA leave and Coronavirus
Generally, FMLA (Family Medical Leave Act) leave is specifically for people with a serious health condition, or to take care of family members with a serious health condition.
The Family and Medical Leave Act (FMLA) requires employers with at least 50 employees to provide up to 12 weeks of unpaid leave per year to an employee for any of the following health-related events:
- birth of a son or daughter of the employee and in order to care for such son or daughter;
- placement of a son or daughter with the employee for adoption or foster care;
- care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition;
- a serious health condition involving the employee, the employee’s spouse, child or parent that makes the employee unable to perform the functions of the employee’s position.
Usually, the symptoms of Coronavirus are flu-like. However, it might be considered a qualifying “serious health condition” depending on the circumstances (for an elderly person or someone with a compromised immune system, it would very well be considered a serious health condition). Therefore, an employee with Coronavirus or an employee who is taking care of a qualifying family member with Coronavirus may be permitted to take FMLA leave depending on if the severity of the illness qualifies under the FMLA guidelines. However, employees with no illness who simply refuse to come to work out of fear of contracting Coronavirus would not qualify for FMLA leave. Check state FMLA, state and local paid sick leave requirements wherever applicable.
HIPAA Act employee privacy and Coronavirus
The U.S. Department of Health and Human Services has issued a bulletin regarding HIPAA concerns and Coronavirus. HIPAA protects the privacy of a patient’s health information, but also takes into account that there are appropriate uses of the information to treat a patient and protect the nation’s public health. The bulletin notes that HIPAA still applies during an emergency, but covered entities may disclose necessary protected health information without individual authorization to a public health authority, to persons at risk, and at the direction of a public health authority to a foreign government agency that is acting in collaboration with the public health authority.
Wage and hour issues
Under the Fair Labor Standards Act (FLSA), nonexempt employees who are not working do not need to be paid. The FLSA minimum wage and overtime rules are applicable to hours worked during a workweek, so employees who are not working are generally not entitled to wages. One exception may be FLSA “white collar” employees who are paid on a salary basis and not hourly. An employer might also be required to pay employees because of an employment contract, collective bargaining agreement or other contractual obligation. Note that the Equal Employment Opportunity Commission (EEOC) has stated that allowing employees to telecommute could be an effective way for employees to remain productive while avoiding infection.
WARN Act applicability
If an employer is covered by the Worker Adjustment and Retraining Notification (WARN) Act, the company may be required to give the workers notice if the company is suspending operations because of Coronavirus. The WARN Act requires covered employers (those with 100 or more full-time employees) to give notice of a “plant closing” or “mass layoff,” even when they are forced to do so for economic reasons. Generally, employers must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff. However, if employees are laid off for less than six months, they do not suffer an “employment loss” and notice may not be required. With an outbreak like Coronavirus, however, it’s obviously very difficult to estimate how long a company might be closed. Note that 15 states have their own mini-WARN acts that may apply to certain employers.
If you have additional questions about Coronavirus in the workplace and how it may affect your payroll, workflow or procedures, please contact us.