The severity and lasting impacts and effects of the spread of COVID-19 remain unknown. Each day federal, state, and local governments deploy new measures in an effort to curtail the spread of the virus, and such measures will impact the workforce and implicate legal obligations of employers. For example, some jurisdictions have closed, or are considering closing, schools, which may require parents without access to childcare to remain home. Additionally, individuals who tested positive or were exposed to someone who tested positive to COVID-19 may be required or advised to quarantine for several weeks.
In the most recent move, the CDC and President Trump issued new guidance on March 16, 2020, recommending the avoidance of gatherings larger than ten (10) people. In light of these developments, employers should consider their options on how best to decrease the spread of the virus in light of their obligations under applicable employment laws, such as the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), and related state and local laws. Additionally, to the extent an employer is considering implementing temporary layoffs or furloughs, employers should be aware of their obligations under the Worker Adjustment and Retraining Notification (“WARN”) Act, and related state laws.
Based on the information we have to date regarding the virus and the Department of Labor’s existing guidance, we developed the following practice guide for employers.
Recommendations to Frequently Asked Questions
The following recommendations are based on the unique and extraordinary circumstances presented by the coronavirus (COVID-19), the declaration of a pandemic, and guidance public health officials, including the Centers for Disease Control (“CDC”), and federal and local governments as of the date of this publication.
- Maintaining a safe and healthy workplace:
Q: An employee is displaying symptoms of COVID-19, can an employer require the employee to go home?
A:Yes.During a pandemic, an employer is allowed under the ADA to require an employee to leave the workplace, particularly if the employee is exhibiting symptoms that would pose a threat to the remaining workforce.
Q: Can an employer measure an employee’s temperature during the coronavirus pandemic?
A:Generally, under the ADA measuring an employee’s temperature is a “medical examination” that must meet specific requirements to be permissible.However, during a widespread pandemic, an employer is allowed to measure an employee’s temperature to determine whether the employee would pose a threat to the remainder of the workforce.
Q: Can an employer ask an employee whether the employee has symptoms of COVID-19 (e.g., fever, shortness of breath, etc.)?
A: Yes, an employer can ask if an employee is experiencing symptoms of COVID-19.However, any information received from the employee must be treated as confidential medical information.Therefore, as with any other employee medical information, such information must be stored in a confidential file, separate from the employee’s personnel file.Additionally, employers should not disclose the identity of an employee diagnosed with COVID-19 or experiencing symptoms of COVID-19.
Q: Can an employer require employees to disclose an underlying health condition that potentially makes the employee more susceptible to complications of the coronavirus?
A:No.An employer cannot require employees to disclose medical conditions unrelated to the coronavirus, even if such conditions make the employee more susceptible to complications of contracting coronavirus.However, if an employee voluntarily discloses such a condition, the employer must treat this information as confidential medical information.Additionally, the employer should work with the employee to determine if the employee requires a reasonable accommodation that would allow the employee to perform the essential job functions while mitigating any health risk to the employee (such as, allowing the employee to telework, placing the employee in a separate office, etc.).
Q: If an employee recently returns from a trip from an area designated as a “hot spot” by the CDC or other government officials, can the employer ask the employee to remain at home?
A:Yes, an employer can require an employee returning from a recent trip to remain at home.The employer should advise the employee to “self-isolate” in accordance with guidelines from the CDC and local public health officials.
- Continuing business operations:
Q: Can an employer require employees to work from home during a pandemic?
A:Yes, an employer can require its employees to telework or work from home during a pandemic.However, the employer must provide the employee with the tools and equipment necessary to allow the employee to work from home, such as laptops, phones, printers, etc.Under the FLSA, employers cannot require employees to reimburse the costs of providing laptops, phones, etc., if doing so would cause the employee’s earnings to fall below the required minimum wage.Under the ADA, employers cannot require employees working from home as a reasonable accommodation to reimburse the employer for the costs of providing laptops, phones, etc.
Q: Is an employer required to allow employees to work from home?
A:No, unless (i) an employee with a disability requests telework as a reasonable accommodation and doing so does not impose an undue burden on the employer; and/or (ii) the federal, state, or local government orders the closure of businesses.
Q: Does an employer have to compensate non-exempt employees who are unable to work due to the effects of the coronavirus?
A:Under the Fair Labor Standards Act, employers are only required to pay non-exempt employees for hours actually worked.However, if an employer offers paid time off, the employer should follow its normal policies and procedures relating to paid time off.
On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”), which among other things, amends the Family and Medical Leave Act (“FMLA”) and enacts a separate Emergency Paid Sick Leave Act. For more information regarding the FFRCRA, please click here.
Q: In order to maintain business operations, an employer requires some employees to report to work, while other employees can work from home or are deemed “non-essential.” How does an employer determine which employees need to report to work?
A:The decision to allow some employees, while not others, to work from home must be based on legitimate business reasons in light of the nature of the job functions.Employers cannot select employees to report to work based on protected categories, such as race, national origin, gender, age, religion, disability status, or veteran status.Additionally, employers should consider which job functions can be performed remotely and whether some job functions are not necessary due to a reduction in the Company’s operations.
- Addressing a reduction in business operations:
Q: Due to a decrease and disruption to the company’s operations, the company is considering temporarily laying off employees on furloughs. What obligations (if any) does the company have to provide notice under WARN?
A:If an employer is considering permanently or temporarily laying off workers, it should consider its obligations under the federal Worker Adjustment and Retraining (“WARN”) Act.The WARN Act requires covered employers to provide employees 60 or 90 days’ notice of any “plant closing” or “mass layoff.”The federal WARN Act applies to employers with 100 or more employees (excluding part-time employees working less than 20 hours per week, employees who have worked less than 6 months).
The WARN Act does not apply if: (i) fewer than 50 people lose their jobs as a result of a mass layoff or plant closing; (ii) the planned layoff is less than 6 months; (iii) for employers with 50–499 employees, the layoff results in less than 33% of the total active workforce at a single worksite; or (iv) the work hours are not reduced 50% in each month for any 6-month period.
Further, the WARN Act does provide certain exceptions to the 60 or 90-day notice requirement for unforeseeable business circumstances or natural disasters. The unprecedented effects of COVID-19 may qualify as “unforeseeable circumstances” exempting an employer to provide the full 60 or 90 day advance notice.However, employers covered by WARN may still be required to provide employees notice of a mass layoff or plant closing as soon as practicable.The applicability of the federal WARN Act is very fact-intensive and specific advice requires understanding of the specific facts at issue.
Q: Due to a decrease and disruption to the company’s operations, the company is considering temporarily laying off employees. Can employees collect unemployment benefits due to a temporary layoff?
A:Yes.In Texas, employees affected by a temporary layoff may qualify for unemployment benefits, subject to the eligibility requirements.If an employer is considering a mass layoff (in addition to evaluating its obligations under the WARN Act), the employer should consider whether it should file a mass claim of unemployment benefits on behalf of the terminated employees.Filing a mass claim for unemployment benefits offers a means to simplify the process and ease the burden on employers and employees relating to the unemployment benefit claim process.
Q: Prior to the widespread effects of COVID-19, the Company extended an offer of employment to an individual. However, given the current circumstances, the Company can no longer employ the individual. Can the Company revoke its offer of employment?
A:Depends.Generally, employees in Texas are considered “at will,” meaning the employer or employee can terminate the employment relationship for any reason or no reason at all.However, if the employment relationship is governed by an employment agreement or other contract, the employer must review the terms of the employment agreement to determine its obligations.
Other Considerations
- Continuously monitor guidance from the CDC and state or local public health officials. The federal government, states, and municipalities have declared states of emergencies, recommended small gatherings, ordered the closure of bars and restaurants, and issued “shelter in place” orders.
- Maintain ongoing and open communications with employees. As the guidance from the CDC and federal and local governments evolve each day, it is important for the Company to provide periodic updates to its workforce regarding the impact of the guidance on the Company’s operations, policies, and procedures.
- Critically evaluate whether telework is appropriate and necessary to continue the Company’s business operations. Telework may be an effective temporary solution for some workers, however, it may not make sense for all workers. For example, the nature of some positions require in-person attendance, such as store clerks, IT professionals who need physical access to the Company’s IT infrastructure, etc. Additionally, telework may not be a long-term solution. Many employers are adopting telework procedures as a “last resort” to protect the health and safety of its employees while continuing the Company’s operations. However, telework may not be ideal, create inefficiencies, or cause business disruptions. Therefore, employers should notify its telework employees that these measures are directly related to the extraordinary nature of the coronavirus and guidance from public health officials, and that these policies are subject to change based on new guidance from health officials and the elimination of the need for social distancing.
- To the extent an employer decides to temporarily or permanently lay off employees, an employer should internally document and maintain records relating to: (i) the business reason for conducting layoffs (e.g., unexpected and/or dramatic reduction in business operations due to the impact of the coronavirus—be as specific as possible); (ii) the criteria the employer used to identify the employees who would be impacted by the layoffs; and (iii) communications to employees regarding the layoffs.