Observing Workplace Compliance During a Crisis

Photo: Jéssica Oliveira

Observing Workplace Compliance During a Crisis

News surrounding the coronavirus pandemic is developing at such a breakneck pace that by the time you read this article, the data in it will probably be outdated. As of this writing, there are more than 186,000 cases of COVID-19 worldwide. In the U.S., 49 states and the District of Columbia have reported more than 4,500 cases of coronavirus and 88 deaths. 

Managers and employees likely have worries about everything from job security to the risk of contracting the virus at work. Some private and public employers have begun shifting onsite employees whose jobs can be done remotely to working from home for the foreseeable future. But what if someone’s job can’t be done remotely? What happens when they exhaust all their sick time and other paid time off? Should an employer pay them even when they are furloughed?

It depends on whether they are an exempt (salaried) or non-exempt (hourly) worker. According to the U.S. Department of Labor’s Wage and Hour Division (WHD):

Under the federal Fair Labor Standards Act, employers aren’t required to pay hourly workers for time not worked, even if that is through no fault of the employee. If an hourly employee gets sent home, and their job can’t be done from home, their employer only has to pay them for their actual hours worked that week and subsequent weeks.

But the law requires salaried employees to receive their full salary for weeks in which they perform any work, with limited exceptions. This includes even minor work such as checking email and voicemail. A private employer may require exempt staff to take PTO in the case of an office closure, provided the employees receive pay equal to their guaranteed salary. 

So technically, an employer can stop paying an employee, whether hourly or salaried, if the employee is required to stay home for an extended period of time and his or her job can’t be done from home. Of course the ethics on that are a bit shakier. 

Further, some employers may have to comply with federal and state advance-notice requirements of up to 90 days for workers regarding furloughs and layoffs in certain circumstances (the WARN Act). But it isn’t yet clear if and how this applies to COVID-19-related layoffs.

WHD encourages employers to consider flexible leave policies for the sake of “community mitigation,” offer alternative work arrangements such as teleworking and additional paid time off, and consider strategies such as staggered work shifts to promote social distancing. 

Employees’ rights under the Family and Medical Leave Act

Employers covered by the Family and Medical Leave Act (FMLA) must provide employees up to 12 weeks of unpaid leave for their own personal illness or to care for children and other immediate family members who are ill. In addition to other criteria, employees must have worked for the employer for at least 12 months to be covered by FMLA. Your state also may have its own laws covering sick and family leave.

What if an employee’s child has been dismissed from school due to coronavirus fears and they have to stay home with them, even if the employee is not ill? While coronavirus so far seems to be bypassing the youngest of the population, there’s currently no federal law covering private sector employees who have to take off from work to care for children, and employers aren’t legally required to provide leave—paid or unpaid—to employees caring for dependents who have been dismissed from school or child care.  

The U.S. Centers for Disease Control says the virus appears capable of spreading “easily and sustainably” from person to person, but data shows that most people do not become seriously ill from it. Reports from China, where the virus originated, found that about 80% of cases were “mild” and led to full recovery. Of the 70,000 cases there, about 2% were in people younger than 19.  

“This seems to be a disease that affects adults, and most seriously older adults” from age 60 up, the CDC says. The highest risk of serious illness and death is in people older than 80 years of age and people with serious underlying health conditions. But given the potential for significant spread of illness in a pandemic, WHD urges employers “to review their leave policies to consider providing increased flexibility to employees and their families.” 

Furloughs and remote working

Some employers such as the hard-hit airlines have already begun asking workers to take voluntary furloughs. In the event of a mandatory quarantine or furlough, employees may choose to use sick leave, vacation or other PTO if their employer’s policies and applicable state law permits. If an employee is sent home, certain jurisdictions may require “reporting time” pay to compensate the employee for reporting to work even if work wasn’t performed or the employee didn’t work a full shift.  

If an employer requires staff to work remotely, the company is supposed to furnish employees with all the necessary tools for that, including laptop or PC, mobile phones, and other equipment, or reimburse employees for the cost.  

Employers also need to consider liability issues. Not having adequate policies in place to manage issues arising from communicable illness could expose them to significant legal risk, according to Harvard Business Review. If an employee becomes infected at work, employers may face OSHA penalties depending on the circumstances or be exposed to workers’ compensation, unfair labor practices, and other claims. Businesses such as restaurants also have to consider liability to third parties.

Staff with symptoms of infection should be sent home or instructed to stay home. If remote work is not feasible for their staff, employers could implement other measures to reduce close interpersonal contact, such as canceling in-person meetings and conferences, staggered or “shift” work as previously mentioned, and even changes to the office layout. Such measures could help protect workers from infection and the organization from liability. Companies should also consider extending or expanding benefits and protections for employees on leave who exceed their PTO allotment.

Regardless of their official leave policies, it behooves businesses to be more generous about paying furloughed or quarantined employees than the law requires them to be — not only for the sake of their business’s health and that of the community, but as part of being good corporate citizens. 

However, it seems that for now, all government can do is strongly appeal to employers to pay their furloughed or quarantined employees, but it can’t force them to. (Congress is reportedly considering some sort of paid-leave bill, but it is still in the works.) And in the meantime, employers are urged to do as much as they can to help their workers who must stay home. It’s not only beneficial to public health and the workforce’s own health, ultimately it will benefit the business as well.