Restrictions placed on businesses, though necessary to encourage social distancing and curb the spread of the coronavirus, are impacting both employers and employees alike. Some businesses have been forced to close. Other business owners are voluntarily closing or scaling back operations and onsite work. Employees may find they have no job. They may be afraid to go to work or cannot go to work because they are sick or have loved ones to care for that are vulnerable to the virus. For those businesses still in operation, employers must make changes to adapt to the current climate and protect employees.
The government is working to implement new laws and executive orders to deal with coronavirus. Employers should note the following:
Family First Coronavirus Response Act (the “Family First Act”)
On March 18, 2020, President Trump signed into law the Family First Act. The Family First Act is set to be in effect from April 2, 2020, until December 31, 2020. Currently, it only applies to private employers with fewer than 500 employees and has three components:
- The Emergency Family and Medical Leave Expansion Act will temporarily amend the federal Family Medical Leave Act (FMLA) to enable eligible employees to (i) take up to 12 weeks of FMLA leave for a qualifying need related to the coronavirus, and (ii) receive pay for their FMLA leave after the first 14 days, at a reduced rate not less than two-thirds of an employee’s regular rate of pay. Employees may go unpaid for the first 14 days, but they may elect to use other paid benefits to cover the time.
- The Emergency Paid Sick Leave Act will require private employers with fewer than 500 employees to provide qualified full-time employees with up to 80 hours of paid leave and part-time employees with the equivalent number of hours that such employee works over a 2-week period. Again, the employee must have a qualifying need related to the coronavirus. This may mean that the employee has or may have the coronavirus; the employee must care for or assist a family member who has or may have coronavirus, or the employee must care for a child because of school closures or unavailability of childcare due to the coronavirus.
- Tax Credits for Paid Sick and Paid Family and Medical Leave will provide covered employers with a refundable tax credit for 100% of the qualified sick leave wages paid to their employees under the sick leave and family medical leave programs described above. Please contact a qualified tax attorney to learn more about this.
Existing Federal Laws
Several existing federal laws affect employers’ obligations regarding coronavirus. These include:
- Americans with Disabilities Act (ADA). Employers must take care not to ask about an employee’s medical status. However, they may ask about an employee’s exposure to the coronavirus. Such information must be kept confidential.
- Family Medical Leave Act. Generally, the FMLA does not cover an employee who wants a leave of absence from work to avoid getting sick but would cover those who are ill or are caring for a sick family member. The Family First Act, when passed, would amend the FMLA.
- Wage and hour laws. With regard to compensating employees for time off due to illness or business disruption, employers must be mindful when distinguishing between exempt and nonexempt employees. While exempt employees generally must be paid for any week in which they perform work, non-exempt employees do not need to be paid if they did not work. In addition, if employees will be working from home, it is important to accurately track the hours worked.
Mitigating Risks in the Workplace
Best practices for employers to protect their employees and their bBest practices for employers to protect their employees and their business operations include the following:
- Communicate. Employers should implement and share with employees CDC and other health information and recommendations for workplaces. In addition, if the workplace or staffing changes are necessary to reduce risks in the workplace, be honest with employees and keep them informed.
- Implement flexible schedules. Allow employees to work from home as much as possible. For those that must come in, stagger work hours to minimize the number of people on-site at a given time. Eliminate nonessential travel and group meetings.
- Tell sick employees to stay home. Employers should consider paying employees to stay home, regardless of the nature of their illness. Even if employers are not obligated to pay, it would serve as an incentive for employees to stay home and avoid spreading germs of any kind.
- Develop contingency plans. Consider various scenarios regarding your business and how you can prepare and adjust. Review existing employment policies and union, vendor and other contracts to ensure your plans will comply with them. Assess your offsite technology needs and electronic communications and cybersecurity policies.
There will no doubt be additional changes in the legal landscape as the world navigates through this pandemic. It is important for employers to consult an attorney regarding their obligations to ensure they comply with and take advantage of rules designed to help them get through the business challenges of the coronavirus.
