Information about the coronavirus (COVID-19) changes daily. And within that uncertainty, you need to be good stewards of your Company, your employees and the society in which both operate. Most companies and schools are already implementing changes, including restricting travel, restricting social interaction and creating remote work scenarios. Conventions and trainings are being canceled. More meetings are being conducted by Skype. What are you going to do? More importantly, what can and should you do? Some of our thoughts are below.
Per the CDC, coronavirus symptoms appear between 2–14 days after exposure. Based on this, the high end of 14 days is a reliable wait period for people who recently traveled from an area with widespread or ongoing community spread of COVID-19. If challenged, you could direct employees to this CDC website as support.
Currently China, Iran, South Korea and Italy are level 3; Japan is lower at level 2; and Hong Kong is level 1. Requiring employees who have returned from other countries to stay at home does not seem justified so far. However, by the time the employee returns, additional or different countries might be on the CDC's list. At a minimum, you are allowed to: (1) Require employees to call/contact you before returning to work; and then (2) Ask "what countries did you visit, including layover flights?" You also are allowed to ask employees, before they leave, whether they plan to travel to a high-risk country.
For employees returning from high risk countries, having the employee provide a doctor's note to ensure safety is permissible. You similarly are allowed to request a doctor's note if the employee has been out on sick leave in excess of three (3) days. However, the CDC is now advising against requiring a doctor's note, even if the person is sick: "Do not require a health care provider's note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as health care provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way."
Instead, people traveling from a high-risk area should stay home for up to 14 days to see if they develop symptoms. Practically speaking, an employee who goes straight to a clinic might be told by the doctor to wait at home for that long anyway to see if symptoms arise. If symptoms do arise, the CDC currently recommends that people not come to work until they are free of fever and other symptoms, e.g. frequent and severe coughing, for at least 24 hours without the use of medicines (e.g., aspirin and cough suppressants).
Considering Other Practical Solutions
Determine if the employee can work remotely (this might not be practical for workers who are engaged in healthcare, retail, and related industries where their presence is required). Worth considering is whether this could create a precedent in the future for employees who request remote work as an accommodation, but this concern likely is overridden by the concerns created here and by the short term nature of this modification. Otherwise, instruct employees to take time off, and return to work only when they're symptom free.
Time off can be paid if sick, vacation or PTO hours are available (there is no legal obligation to provide compensation beyond this, but some employers are considering doing so), or taken unpaid. In California and perhaps other states, whether the employee will apply sick leave (or, in many cases, PTO, if your PTO policy is intended to satisfy the sick leave laws) is up to the employee, so do not require that they do so.
The state in which the employee works may offer a pay source. For example, employees might be able to apply through their state for unemployment benefits. See, e.g., California entitlements to "partial claims" for unemployment. Also in California, an employee may be eligible for State Disability insurance. Family Temporary Disability Insurance benefits (Paid Family Leave) may be available to care for loved ones who are sick or quarantined.
If a person reports to work sick and is sent home, be sure to follow the wage & hour laws. In California, for instance, if an hourly (non-exempt) employee reports to her regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least 2 hours or no more than 4 hours of "reporting time pay." There's an exception to this if operations are halted due to threats to employees or property, or when recommended by civil authorities, which hasn't kicked in for California (yet). For exempt employees, deductions from salary for absences of less than a full day for personal reasons or for sickness are not permitted, but sick time, vacation and PTO can be applied.
Do not retaliate against an employee for using paid sick time in states where that benefit is legally protected.
As an interesting side question on taking an employee's temperature at work to determine if they have a fever. This is generally acceptable (even if it is a medical exam), except for the practical issues (e.g. sick people coming to the worksite to be examined, and potential risk of exposure to the employee who takes the temperatures). And then there is the potential unreliability of this information for the bigger picture. If you do take temperatures: (1) make the temperature checks as least invasive as possible; and (2) maintain records in a confidential medical file.
Other Food for Thought:
- Stay Informed. Designate someone(s) to be in charge of checking local and state public health authority recommendations. The CDC links above are a good starting point.
- Educate Your Employees. Keep your employees up to date on any virus like this, and the implications to the work community. A clear policy seems like a must do. Let us know if we can assist in creating a notice and precautions letter to employees. California's Dept of Public Health published a poster that can be hung at work, and other states might have done the same. Don't try to recreate or summarize the symptoms, impacts or news; that can create confusion and potentially add to misinformation. Instead, arm your employees with links to websites with the latest and greatest information and advice.
- Craft a Communication Plan. Identify a team who will be part of communicating out to the work community the Company's plan and response to the situation. Identify a communication protocol that reinforces and upholds the Company's vision and mission while also being clear and transparent in terms of the rules and protocols during the crisis. For example, if your company is a nursing home whose vision involves health, care and healing, then the communication protocol should focus on those items as it addresses the crisis. If your company is a tech company whose vision is about client service and responsiveness, then the communication plan should focus on reflecting these values.
- Consider adopting a more flexible company culture in time of health crises. Every company has its own attitude in response to absenteeism. Most of us are concerned to varying degrees regarding absenteeism because we need the company to keep functioning and so discipline and termination might be expected responses to excessive unexcused absenteeism. A potential pandemic scenario may be one exception to this general rule - we may want to put aside the impulse to insist on employees appearing at work, or temporarily soften a work culture that requires employee presence.
- Temporary Shutdowns or Furlough. As an initial matter, companies should consider whether temporary shut downs are viable and if so, what factors would lead the company to do so. This could include tracking the number and location of outbreaks, tracking employee absenteeism, actively monitoring CDC directives and analyzing whether work from home is viable for all or part of your workforce. If it is viable for your Company, be sure to follow legal requirements associated with shutdowns, including notice requirements. And remember, you can reduce non-exempt employee compensation for a furlough on a partial-week basis, but exempt employees must be paid for an entire week if in that week they perform any work (unless they absent themselves), so furloughs should be in whole week increments.
- Remote Work Programs. Shutdowns will not be possible for many employers and for others they may not be desirable. Another option is to directing employees to work from home if doing so is technologically feasible in their role. Analyze employee roles to determine which roles are conducive to remote work. Analyze your IT systems and consider upgrading them to enable employees to be able to work from home if needed. Craft protocols for remote workers in terms of time-keeping, job duties being performed remotely, reporting, and accountability. Train managers on managing workers remotely. Remember that if any employee is required to work from home, the company needs to provide that employee with devices and materials to enable them to do their work; or to otherwise reimburse them for their use of personal devices and equipment. Keep in mind ergonomic and workers comp issues and ensure employees are directed in writing to report any ergonomic or work-related injuries they incur offsite while working. A good practice is to create a telecommuting policy and agreement; let us know if you need help crafting one.
- Staggering Schedules. Another option could be whether any part of the workforce could change their hours or schedules. This might be desirable if it would limit physical interaction during the crisis. Again, advance notice and impact on wages would need to be considered and communicated clearly. If any employees are union employee, the union would dneed to be involved to the degree required by applicable Collective Bargaining Agreements.
- Sick Leave; Benefits. Some companies might decide to go above and beyond current policies and laws to provide more generous paid sick leave benefits during the time of health epidemics. For example, during an epidemic, some companies that can afford doing so (and/or who do not want to risk the much more financially burdensome scenario where the entire workforce is out ill) might offer more generous paid time off for employees who are ill or who have children who are ill; or for employees whose children are home because their school is closed.
Concern about employees taking advantage of any new programs supporting staying at home are well-founded; those concerns will need to be managed and monitored appropriately. However, the larger picture of a workforce shut down due to illness is so devastating that it may be worth it to some companies to take the risk of having employees take advantage of generous and temporary policies during health epidemics.
- No-brainer items. In this category, we mean things that should be done now, in the current climate of risk, and during any other potential epidemic in the future. This includes things like:
- Sanitation and cleaning protocols, including deep cleaning and disinfecting regimens on a more regular basis.
- Regular reminders to employees about being diligent stewards of health and sanitation, including:
- Stay home if you are ill
- Wash hands thoroughly and regularly (at least 20 second with soap and water and don't forget the thumbs!)
- Use hand sanitizers regularly if comfortable doing so
- Use a Kleenex to cover your mouth if you cough or sneeze, and then toss the Kleenex; if no Kleenex is available, cough into your elbow
- Disinfect work stations, objects including computers and phones regularly (company to provide disinfectant to all employees)
- Avoid shaking hands (and hugging) during the stage when you are actively taking proactive sanitation measures
- Avoid touching your nose, mouth and eyes
Our hope is that companies will get ahead of this or other future crises by planning now what they can and should do if and when disaster strikes. For most, it might be a combination of the above.
All of these options carry corresponding legal considerations and you should consult with your legal counsel regarding your planning to ensure that your Company meets obligations to its employees regardless of which scenario is implemented. We are here for you, let us know if we can help!