As employers work on strategic plans for handling employment-related issues involving Covid-19, such as possible facility closings, tele-commuting, and employee leave/compensations issues, employers should keep in mind these fast facts.
- The Equal Employment Opportunity Commission (EEOC) is expected to release new guidance on Covid-19, which will help employers navigate their compliance with the Americans With Disabilities Act in light of possible medical inquiries to be made of employees.
- The EEOC’s 2009 Guidance on pandemics remains relevant. This Guidance discusses permissible medical inquiries and accommodations during a pandemic. Click here to access.
- Employers should also follow instructions from the Center for Disease Control, which publishes up to date guidance for employers on dealing with the spread of the virus, workplace prevention, and how employers should manage employees suspected of having the virus or other illnesses. The CDC Guidance can be accessed by clicking here. The CDC Guidance will change in response to the spread of the virus.
- The Americans With Disabilities Act (ADA). If the employee has a mild case of the virus, the leave generally will not qualify as an accommodation under the ADA because the condition will not rise to the level of a disability (unless the employee has a pre-existing health condition made worse/could be made worse by the virus, or if the employee has more serious symptoms which rise to the level of a disability or pose a direct threat to others.) If the employee is quarantined/self-quarantined but does not yet have the virus, an employer will need to assess whether the employee has an underlying disability which could be made worse by exposure to the virus. Leave or telecommuting might be an accommodation under those circumstances under the ADA. Similar reasoning applies for compliance with the New Jersey Law Against Discrimination (LAD).
- The Family And Medical Leave Act (FMLA). Similar to the ADA analysis, if the employee has a mild case of the virus, which does not require continuing treatment or hospitalization, it is unlikely that the individual’s condition would rise to the level of a serious health condition triggering FMLA leave. However, if the employee is caring for a parent or child with a health condition made worse by the virus, such an event would probably trigger FMLA leave. Child-care leave due to school closures for healthy children would not trigger FMLA leave. But such leave may trigger an employee’s right to New Jersey paid sick leave.
- New Jersey paid sick leave laws. Paid Sick Leave (PSL) is most applicable. An employee can use their accrued PSL to care for themselves and a family member (or someone with a relationship like that of a family member), and also use the time for preventative care. If school, day care, and work closures are mandated by a public health authority or a public official due to an epidemic, the employee should be given the option to use PSL.
Practically, most time will fall under PSL. Employers will have to make case by case determinations if the ADA is triggered (most probably by an underlying disability which would be made worse by the virus, like asthma) or the FMLA (for more serious cases that require hospitalization or continuing treatment). The EEOC is already encouraging employers to adopt CDC Guidance. If at some point the CDC recommends or requires closures and an employee has exhausted their PSL, employers may have to revisit no-fault absence policies.
Telecommuting will be a viable option for many employers. The 2009 EEOC Guidance addresses telecommuting as follows:
“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 is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.”
Non-exempt: These employees are entitled to be paid only for hours actually worked. It does not matter why they are not at work – their child’s school is shut down and they have no coverage; a worksite is shut down and employees are told not to come to work; or self-quarantine – if they are not at work, non-exempt employees are not entitled to be paid (unless PSL is available).
Exempt: It gets trickier when dealing with salaried-exempt employees. In order to maintain their eligibility for an overtime exemption under the White Collar Exemptions, these employees must be paid a minimum salary for each workweek in which they perform some work, regardless of the amount of work they perform. So, if an employee does not come to work and performs no work at home for an entire workweek, then the employee is not entitled to his/her salary. But, if the employee provides some work during the workweek, then the amount of pay to which the employee is entitled depends on why the employee did not come to work. If the employee is ready and willing to come to work, then the employee cannot be docked for any absences – this would include a federal or state shutdown during which your business is closed or sending an employee home because he/she is or appears sick. Such employees would be entitled to their entire salary for the week because they are ready and willing to come to work.
However, if the employee does not come to work because of his/her reasons – e.g., their child’s school is closed and they have no coverage; the employee or his/her child are home sick; the employee self-quarantines – then follow your sick leave/PTO policy. If your policy allows exempt employees to be docked for time away from work due to their own personal reasons or sickness or disability, then the employee can be docked in full-day absences. The catch here is that the employee can be docked (1) only in full-day increments and (2) only for days during which the employee provided no work (including work from home).
A couple of examples:
- Employee goes home sick on Monday and then is out the rest of the week and performs no work from home. This employee is entitled to their full salary (because the employee provided some work on Monday before leaving early), unless the employer’s policy allows for docking after sick leave/PTO is exhausted. If so, this employee can be docked for Tuesday, Wednesday, Thursday and Friday (assuming the employee had no sick leave/PTO to cover these days), but not Monday.
- Employee’s child’s school closes and has to work from home the entire week. The employee has access to email and the company’s servers, but is only able to perform minimal work from home. This employee is entitled to his/her full salary because the employee provided some work each day. Unless the work is de minimis – an occasional email that requires just a yes or no answer or a five minute phone call – any work triggers an obligation to pay the employee for the entire day. To avoid paying employees for minimal work in this situation, employers must instruct these employees to perform no work without authorization and then monitor to make sure no work is performed.
We will continue to update these Facts in response to CDC and EEOC Guidance and as new practical considerations emerge.
To learn more about how to prepare your business for the potential impact of the Coronavirus, please contact Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group, at firstname.lastname@example.org or 973.533.0777, or Brigette N. Eagan, Esq., Counsel in the firm’s Human Resources Counseling & Compliance Practice Group at email@example.com or 973.533.0777.