Ask us what to know now and how to prepare for the Workplace in the COVID-19 Era

COVID-19 will have lasting effects on the workplace as #wfh becomes the new normal.  The House passed sweeping legislation to provide assistance to the most vulnerable employees and the Senate is expected to act swiftly this week on its own version for ultimate signature by the President.  Below are answers to some of the questions we anticipate many of our clients and colleagues are asking along with what we anticipate will be needed to prepare for life in the new workplace.  Our Employment and Cyber Groups are available to guide you through this fluid environment so please reach out with any questions.  We have employment and cyber capabilities in all our 9 offices and 3 US time zones available to help.


What will Federal and State Statutes require of employers in cases of affected employees who are caring for sick or ill family members, and caring for children during school closures.

While not yet law, recent legislation passed by the House of Representatives on March 14, 2020 states that employers with 500 or fewer employees provide up to 12 weeks of job-protected leave for employees who are sick, caring for a family member who is sick or caring for children whose school or place of care has been closed.   The bill proposes that the first 14 days of such leave can be unpaid and that employees receive not less than two-thirds of their regular rate of pay thereafter.  Employees would be able to use accrued paid sick or leave time during the first 14 days.  Exemptions may be possible for employers with less than 50 employees.  We are following this closely and will provide updates.


Must employers provide paid leave in the event of a temporary shutdown of operations?

Currently, it depends on what states and municipalities require in terms of paid leave.  At present there are 13 states that have laws requiring paid sick leave.  Each State Statute varies in the amount of employees required to be a covered employer, the amount of paid leave that must be provided and the circumstances surrounding the permitted use of sick leave.  For example, New Jersey requires paid sick leave due to the closure of an employee’s workplace or of a school/childcare of an employee’s child because of a public official’s order relating to a public health emergency.  There are also various municipalities requiring paid sick leave.  New York City requires paid sick leave cover full-time, part-time, temporary, per diem, transitional jobs program, and undocumented workers. The law specifically provides for paid sick leave due to closure of employee’s workplace due to a public health emergency.


How does an employer establish work-from-home polices both temporary and long-term?

Currently, employers are busy determining which employees may work remotely whether on company issued or personal equipment.  For those businesses who were already transitioning to working from home COVID–19 should provide little interruption.  For others, planning will be required and proper cyber protocols should be in place.  We are already seeing phishing incidents with hackers mimicking the CDC alerts using #covid, #coronavirus and others.  Training employees in how to avoid falling prey is critically important, and we are equipped to assist in this regard as well as in guiding you on developing work from home policies.


What are wage and hour requirements regarding pay for affected employees and those who do not work for any period of time due to COVID-19?  Is there a difference between exempt and non-exempt employees?

Generally speaking, exempt employees are paid if they perform work any time during a work week.  At this time, non-exempt employees are only paid for those hours they work.  This may change with current legislation passed by the House of Representatives on March 14, 2020.


Will Federal and State Statutes provide protection for employees from discrimination and harassment related to COVID-19?

Yes.  Employees continue to be protected from discrimination and harassment.  Thus, employers should not engage in disparate treatment, harassment or retaliation based on protected classifications including, but not limited to:  race, religion, national origin, ethnicity or disability/medical condition.


What can employers do to ensure a safe environment for employees?  What can they ask of their employees regarding their health status?

Employees should suggest that employees remain cognizant of their own health and encourage employees who have symptoms to remain home.  All HIPAA privacy protections remain in effect.  Employers should be careful not to fire an employee who refuses, in good faith, to expose themselves to a dangerous job condition due to COVID-19.  The employee’s fear must be objectively reasonable, not simply the potential of unsafe working conditions.  Furthermore, employers cannot require employees to be vaccinated for COVID-19 if a vaccination becomes available.  Employers can educate employees about a vaccine, consider making it available at no cost to employees and offer employees leave to obtain the vaccination.


What accommodations should be provided to High Risk Employees?

The CDC and WHO have identified certain factors that make an individual a high risk for serious complications from COVID–19.  Employers should engage in the interactive process if an employee is a high – risk candidate and requests an accommodation to avoid running afoul with the ADA/ADEA or their state equivalents.


Will employees be able to make disability and/or workers’ compensation claims related to COVID-19?

Yes.  Employees infected with COVID-19, who are unable to work, can file for temporary disability benefits.  Under fact-specific circumstances, employees who contract COVID-19 while at work could have a compensable workers’ compensation claim.


Can an employer remain open but refuse non-exempt employees the opportunity to work without confirmation the employee is ill?

Possibly.  Employers must be mindful of wage and hour requirements and their own policies regarding furloughs and leave.  We have already seen businesses changing hours of employees and staggering work schedules to assist in preventing the spread of COVID-19.

Please reach out to our Employment or Cyber Group for any help you may require.  Your friends at Winget, Spadafora & Schwartzberg, LLP are here for you.