As COVID 19 (aka coronavirus) continues to spread, employers should develop a plan in the event it is needed to protect employees and customers.
Communication with Employees
It’s important to show leadership to your employees by effectively communicating with them. Done well, this instills confidence in you and prevents panic among employees. You can begin disseminating information to employees in a clear and effective way to show you are prepared to address the employees’ needs and protect them.
Employment And Wage Laws
Your obligations to follow applicable employment laws have not changed. Most importantly, you must still pay nonexempt employees for hours worked (even at home) and exempt employees for the full workweek if they have worked at all during that week (subject to some exceptions).
We recommend reviewing your paid time off policies as you prepare for the coming weeks.
There have been some legislative efforts to ease the financial burden on business and we will update this article once we have taken a deep dive into those options.
Your Clients and Cancellations
Depending on your business, you may find yourself canceling events or work on a project that has either been paid or a deposit paid. It’s important to handle those situations appropriately. We are here to help with understanding your force majeure clauses and otherwise how to handle these situations.
Preparations and Best Practices
- Teleworking. Prepare for and encourage remote working. Identify the positions that can work remotely and begin preparing in advance to accommodate. You may need to utilize new software or technology that allows employees to stay home.
- Cross-Train Employees. Some employees may be cross-trained to help with other tasks in the event employees need to stay home. This would allow your bookkeeper, for example, to help keep marketing deadlines met.
- Sick Employees Stay Home. Strongly encourage employees to stay home. This is a leadership narrative to make employees feel comfortable staying home if they are showing signs of sickness.
- Reduce Confined Work Spaces When Possible. Consider possibilities to reduce small space interactions of employees such as working outside or working in other areas of your office building.
- Cleaning and Sanitizing. Regular cleaning of your office space. Be sure all employees follow recommendations such as washing for a full 20 seconds (eg sing the happy birthday song). Minimize handshaking for the time being.
- Review Policies. Review your PTO and/or vacation/sick policies to ensure you are following them correctly.
- Scams. We have seen a lot of scams recently and during previous times of need as scammers view it as an opportune time to strike. Remind your employees not to click on any suspicious links as it could compromise your database.
- Does an employer have to keep paying employees who are not working? Under the FLSA, the answer is no for nonexempt employees. Exempt employees may have to be paid for a full workweek if they worked at all during the week. Also, working from home still requires payment.
- Can an employer require time missed to be vacation or PTO? This largely depends on your employment policies in your employment handbook. This is not regulated by FLSA.
- Does FMLA apply to this situation? It’s not clear as generally FMLA would not be triggered to avoid getting sick. However, this is a novel situation and this will be left to interpretation on a case by case basis. Also, even though you may not be required to extend leave, you are allowed to extend it as your own internal policy.
- Can an employer ask an employee to stay home or leave work if they exhibit symptoms of COVID-19 or the flu? Yes. Further, it is recommended by the CDC to do so.
- Can an employee refuse to come to work out of fear of infection? This may change but right now they may not unless there is an imminent danger at your workplace. This does not mean an employer should not consider allowing it. It should be determined on a case by case basis with each business.
- Do we have to complete I-9s in person for new hires? Yes, for now.
- Can an employer encourage employees to telework as an infection-control strategy? Yes, and this may be advisable if your business can do this. There are lots of tools available to assist. We recommend putting together a policy for teleworking so it remains clear what the expectations are.
- Does a “force majeure” clause cover this outbreak? This will depend on your exact clause. A force majeure clause typically relieves a party’s obligations under the contract if specific circumstances beyond their control arise.
We will continue to monitor all legislation to ensure that you have the most up to date information. Here are some helpful resources to help you understand your options.
- Financial Assistance, SBA. https://www.sba.gov/page/guidance-businesses-employers-plan-respond-coronavirus-disease-2019-covid-19?fbclid=IwAR3aEWHHuyfyMr0Bkh6YNbF8MDtM22YU6kWHazm2JmPC8zUDwiEpb-1s_CY&utm_campaign=later-linkinbio-legalzoom&utm_content=later-5900892&utm_medium=social&utm_source=instagram
- Business Guidance, CDC https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
- OSHA https://www.osha.gov/SLTC/covid-19/index.html
- Free Virtual Care Visit by MUSC https://campaigns.muschealth.org/virtual-care/index.html
Contact Wesley Henderson at Henderson and Henderson with help making preparations and drafting policies or other employment needs. firstname.lastname@example.org