At JVC, we are working to provide you with resources you can use as you navigate these uncertain times due to COVID-19 (the novel coronavirus). Below, please find some updates you can use regarding employment law and how some new legislation recently enacted can help you and your employees moving forward. This information is not intended to be legal advice. As always, we are here to help – please don’t hesitate to reach out with questions!
Actions regarding the coronavirus that employers can and cannot require:
- Employers likely cannot prohibit domestic travel by employees, but employers can require employees to disclose whether they have traveled domestically and to where.
- Employers can require employees to disclose whether they have tested positive for the coronavirus, and also whether a family member or close contact has tested positive.
- Employers can send home sick employees and set reasonable requirements on when sick employees are permitted return to work (such as “symptom-free for 48 hours”).
- It is likely that employers can require daily temperature checks for employees as a condition of coming to or staying at work. However, choosing to do this raises a lot of health privacy concerns: you must do this in a private area and in a non-invasive way (likely using a laser thermometer). You must also keep the results private and confidential.
Pay considerations when shifting to remote work:
- For hourly, non-exempt employees: these employees get paid for work performed. If an employee worked Monday and Tuesday, but then the business closed Wednesday for the remainder of the week and they cannot perform work at home, they are paid for the work performed but not for the days on which they performed no work. (Of course, as a business owner, you can choose to continue to pay your hourly employees as scheduled.)
- For salaried exempt employees, these employees are paid their fully weekly salary if they have performed ANY work during the week. So in the same scenario above, assuming an employee works Monday and Tuesday, but then the business is closed Wednesday for the remainder of the week and the employee cannot perform remote work, the salaried exempt employee is still paid their fully weekly salary.
- If hourly employees are able to work remotely, businesses will need to determine accurate ways to report hours so that they can get paid correctly.
On March 18, 2020, the President signed into law the “Families First Coronavirus Response Act (FFCRA)” that was passed by Congress. Key portions of the bill include:
- Expanded FMLA leave for employers with fewer than 500 employees and for all public sector employees. This is a new type of FMLA leave for those who need to care for a minor child if the child’s school or place of care has closed, or if the child’s care provider is unavailable due to an emergency declared by a federal, state, or local authority related to COVID-19. Employees are eligible for this leave after only 30 days of service. The coronavirus FMLA leave is two (2) weeks of unpaid leave, followed by up to ten (10) subsequent weeks of leave paid at 2/3 of the employee’s regular rate of pay (capped at $200/day). During the unpaid portion of the leave, employees may substitute available paid vacation, personal, medical, or sick leave for the unpaid leave. Employers will be given tax credits to cover the cost of this leave.
- Emergency sick leave for employers with fewer than 500 employees and all public employees: this a new type of required sick leave for when an employee is unable to work or telework due to: 1) the employee is subject to government-ordered quarantine or isolation, 2) has been advised by a healthcare provider to self-isolate due to COVID-19 exposure, 3) is experiencing symptoms of COVID-19 and seeking a diagnosis, 4) is caring for someone who is experiencing any of the formerly listed reasons, or 5) is caring for a child whose place of care has been closed due to COVID-19 precautions. Employees are eligible for this leave immediately upon hire. Full-time employees are entitled to 80 hours of paid sick time. Part-time employees are entitled to paid sick time in an amount equal to the average number of hours they work in a two-week period. Under the new law, the amount that the employee must be paid varies depending on the reason for the leave:
- Reason 1-3: Paid 100% of their regular rate of pay times the number of hours of paid sick leave, capped at $511 per day and $5,110 in total
- Reason 4-5: Paid 2/3 of their regular rate of pay times the number of hours of paid sick leave, capped at $200 per day and $2,000 in total
- Both the FMLA amendment and the new paid sick leave will take place 15 days after the enactment of the law. The provisions are temporary and expire at the end of 2020.