As this country prepares for the impact of pandemic COVID-19 and potential workplace shutdowns, the guidance and protocol appear to change minute-to-minute. The U.S. Department of Labor, EEOC, OSHA and CDC have issued recent guidance on workplace matters. We thought it prudent to streamline some guidance and provide answers to additional questions that may arise as you plan to take necessary measures.
- In the event of a workplace shutdown, must employers pay their employees?
Non-Exempt Employees: Employees who are non-exempt from minimum wage and overtime requirements are not required to be paid for hours that they do not work, even in the event of a workplace shutdown. If they are subject to a collective bargaining agreement, policy or employment contract that provides otherwise, employers must compensate them accordingly. Assuming that they are not subject to any contractual obligations, employers do not have to pay non-exempt employees for time that they are not working. If non-exempt employees perform work from home, they must be paid for time that they performed such work and employers are required to keep accurate time records.
Exempt Employees: Employees who are exempt from minimum wage and overtime requirements (they must meet the duties test and salary basis test) must be paid their regular salary for weeks in which they perform some work. Employers may require employees to use their paid time off for days in which they do not work; however, in the event they exhaust their paid time off, they must be paid their full salary for weeks in which they perform some work for the employer (even if the work is performed remotely).
- If we require employees to remain at home, but be “on call” for certain emergency matters, is that time compensable?
Non-Exempt Employees: An on-call employee who is not required to remain on the employer's premises, but only required to notify the employer where he or she may be reached is not working while on call and therefore is not entitled to compensation. This is true so long as the employee is free to engage in personal activities when he or she is on call. These principles also apply when an employee must carry a cell phone and report to work within a specific, reasonable time period. The on-call time is compensable, however, when the on-call conditions are so restrictive or the calls so frequent that the employee cannot effectively use that time for personal purposes. Courts examine a variety of factors when determining whether an employee can use on-call time effectively for personal purposes, such as whether there are excessive geographical limitations on an employee's movements, whether the frequency of calls received or a fixed time limit for response is unduly restrictive, whether the employee could easily trade on-call responsibilities, whether use of a pager or cell phone could ease restrictions, and whether the on-call policy is based on an agreement between the parties. In the event collective bargaining agreements, policies or employment agreements require that employees are paid beyond what the law requires, employers must adhere to those requirements.
Exempt Employees: Employees who are exempt from minimum wage and overtime requirements (they must meet the duties test and salary basis test) must be paid their regular salary for weeks in which they perform some work. In the event collective bargaining agreements, policies or employment agreements require that employees are paid beyond what the law requires, employers must adhere to those requirements.
- If employees are laid off as a result, when do employees need to be paid their final paychecks?
Under Connecticut law, employees must be paid their final paycheck within 24 hours of their termination.
- Can employers require employees to perform work outside of their job description or allow supervisors to perform work of their subordinate employees?
In a non-union setting, employers are permitted to require employees to perform work outside of their job description (so long as child labor laws are followed) and there is no law prohibiting employers from performing work typically performed by subordinates. In the unionized setting, employers should review applicable collective bargaining agreements to ensure that they are being followed. If they cannot be followed due to urgency (i.e. employers are short-staffed), employers should consider entering into temporary memoranda of understanding with unions to avert the crisis.
- Are individual volunteers to a public agency entitled to compensation?
Individuals who volunteer their services to a public agency (such as a state, parish, city or county government) in an emergency capacity are not considered employees due compensation under the FLSA if they:
- Perform such services for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation. The volunteer performing such service may, however, be paid expenses, reasonable benefits or a nominal fee to perform such services; and,
- Offer their services freely and without coercion, direct or implied; and,
- Are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.
- Are individuals who volunteer to a private, not-for-profit organization entitled to compensation?
Individuals who volunteer their services in an emergency relief capacity to private not-for-profit organizations for civic, religious or humanitarian objectives, without contemplation or receipt of compensation, are not considered employees due compensation under the FLSA. However, employees of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform.
Where employers are requested to furnish their services, including their employees, in emergency circumstances under Federal, state or local general police powers, the employer's employees will be considered employees of the government while rendering such services. No hours spent on the disaster relief services are counted as hours worked for the employer under the FLSA.
- May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy?
Yes. An employer may encourage or require employees to telework as an infection-control or prevention strategy, including based on timely information from public health authorities about pandemics, public health emergencies, or other similar conditions. Telework also may be a reasonable accommodation under the Americans With Disabilities Act.
Of course, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the EEO laws. For example, employers may not require employees with Italian or Chinese ancestry to work from home, when they have not recently traveled to those countries.
Employees who work from home are entitled to pay as if they are working at the employer's worksite, including overtime for non-exempt employees who work more than 40 hours in a workweek.
- How is the Americans With Disabilities Act Relevant to Pandemic Issues?
The ADA regulates employers' disability-related inquiries and medical examinations for employees (and applicants), including those who do not have ADA disabilities. The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation based upon medical opinion). The ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic. The average flu season would not suffice; however, the assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.
- Before a pandemic occurs, may an employer ask an employee to disclose if he or she has a compromised immune system or chronic health condition that the CDC says could make him or her more susceptible to complications of illness?
No. This inquiry is a disability related question because it discloses the existence of the individual's disability.
- Are there ADA-compliant ways for employers to identify which employees are more likely to be unavailable for work in the event of a pandemic?
Yes. Employers may make inquiries that are not related to an individual's disability. These types of inquiries are not designed to identify non-medical reasons for an employee's absence. Accordingly, the following inquiry would be permissible: Answer only yes or no to the following question: In the event of a pandemic, would you be unable to come to work because of any one of the following reasons: “If schools or day care centers were closed, you would need to care for a child; if other services were unavailable, you would need to care for other dependents; if public transport were sporadic or unavailable to travel to work; and/or if you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic COVID-19, you would be advised by public health authorities not to come to work.”
- May an employer send employees home if they display pandemic COVID-19 symptoms during the pandemic?
Yes. Under the CDC recommendations, employees who are ill with certain symptoms at work during a pandemic should leave work.
- During a pandemic, how much information may an employer request from employees who report feeling ill at work or who call in sick?
Employers covered by the ADA may ask employees if they are experiencing pandemic COVID-19 symptoms, and employers should maintain all information relating to employee's illnesses as confidential medical records.
- When an employee returns from travel during a pandemic, must an employer wait until the employee develops symptoms to ask questions about exposure to pandemic COVID-19 during the trip?
No. These are not considered to be disability related questions. Follow CDC, state or local public official's guidelines.
- During a pandemic, may an employer ask employees who do not have COVID-19 symptomsto disclose whether they have a medical condition that the CDC says could make them especially vulnerable to health complications?
If the employee discloses that he has a disability that puts him at an increased risk of complications and requests a reasonable accommodation, a reasonable accommodation should be considered unless doing so would result in an undue hardship as defined by the ADA. Additionally, this information must keep it confidential.
- May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?
Yes. Telework provides an effective strategy to control infection.
- During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. This includes regular handwashing, coughing and sneezing etiquette, and proper usage and tissue disposal not implicating the ADA.
- During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. The employer should also provide employees with disability needs a reasonable accommodation under the ADA, absent undue hardship as defined by the ADA.
- During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship as defined by the ADA?
Yes. The employer's responsibilities under the ADA continues during the pandemic, and the employer can only lawfully exclude the employee from employment if it can show that the person with the disability poses a threat.
- During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
Yes. This is not a disability related inquiry and an employer is entitled to know why an employee did not show up to work.
- May an employer require employees who have been away from the workplace during a pandemic to provide a doctor's note certifying fitness to return to work?
- May an employer require employees who have been exposed to pandemic COVID-19 to self-quarantine for the incubation period proscribed by the CDC.
Yes; under a direct threat analysis as recommended by the CDC.
- May an employer require employees to self-quarantine for the incubation period proscribed by the CDC after travel to certain regions that have more cases of COVID-19?
Yes; under the direct threat analysis as recommended by the CDC.
- Does the ADA require employers to have telework programs?
No. Although the ADA does not require an employer to offer a telework program to all employees, it must allow employees with disabilities an equal opportunity to participate in such a program, if telework is provided.
- May permitting an employee to work at home be a reasonable accommodation, even if the employer has no telework program?
Yes. If an employer needs an accommodation due to a disability, including a complication from COVID-19 or has a medical condition that can lead to a life threatening complication from COVID-19, an employer must consider teleworking as an option unless doing so would constitute an undue burden under the ADA. The employer is not obligated to adopt the accommodation that the employee requested or preferred type of accommodation if another accommodation would enable the employee to perform the essential functions of his/her position. The accommodation should be determined through a fluid, informal, interactive process between the individual and the employer.
- Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)?
Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee's earnings below the required minimum wage or overtime compensation. Employers may not require employees to pay or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans With Disabilities Act.
- Do OSHA's regulations and standards apply to the home office?
OSHA does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees' home offices, will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA's policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee. Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.
- In the event an employer brings on temporary employees from a staffing agency to supplement its workforce due to staffing shortages, is the employer liable if the temporary employees are not paid in accordance with the wage requirements of the FLSA?
Under the FLSA, an employee may be employed by one or more individuals or entities. If one or more of these employers are deemed joint employers, they may both be responsible—and jointly and severally liable—for the employee's required minimum wage and overtime pay. The U.S. Department of Labor recently updated and revised its regulations providing guidance regarding joint employer status under the FLSA. The final rule (effective March 16, 2020) provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity.
- May an employee use state-mandated earned sick leave for pandemic related illnesses.
- How does FMLA apply to employees during a pandemic, such as COVID-19?
Under the federal FMLA a covered employer (50 or more employees within a 75-mile radius) must provide its eligible employees with 12 weeks of job-protected, unpaid leave and benefit continuation in a 12-month period for certain qualifying reasons, including serious health condition of the employee and certain immediate family members (child, parent, spouse). Employees or immediate family members who are diagnosed COVID-19 would be sufficient to invoke FMLA leave and protections. However, an employee is not covered under the FMLA if leave is taken to avoid exposure to the pandemic illness. Notwithstanding, employers should encourage any employee exposed to COVID-19 to stay home. The employer should also consider a flexible leave policy for employees in these situations. In terms of the requirement for completed FMLA paperwork, employers should consider modifying such requirements and should keep in in mind that it may be difficult for employees to get appointments with their doctors during this time and healthcare resources may be overwhelmed. Employers may require a period of time to be symptom free before allowing the employee to return to work. Connecticut law allows for 16 weeks in a 24-month period and applies to employers with 75 employees.
- Can an employer require employees from countries where COVID-19 is widespread to remain home from work who have not traveled to these countries since the virus began?
No. This would constitute unlawful discrimination based upon national origin.
- Does OSHA apply to COVID-19?
Yes. Existing OSHA standards apply to protecting workers from COVID-19. OSHA has recently promulgated guidance on how to address issues of disease control to limit spread of the virus. That information can be found here: https://www.osha.gov/Publications/OSHA3990.pdfOSHA provides an on-site consultation program at no cost, in addition to confidential advice to small and medium sized businesses.For more information, visit www.osha.gov or call OSHA at 1-800-321-OSHA (6742), TTY 1-877-889-5627.