COVID-19 Office Staff and HR FAQ’s
Guidance from SHRM (Society for Human Resources Management)
Does Family and Medical Leave Act (FMLA) leave apply for employees or immediate family members who may contract coronavirus?
Yes, assuming that the FMLA applies to the practice, coronavirus would qualify as a “serious health condition” under FMLA, allowing an employee to take FMLA leave if either the employee or an immediate family member contracts the disease. The employee would be entitled to job reinstatement as well. State law may provide additional leave benefits.
Would I need to pay workers’ compensation for employees who contract coronavirus?
Perhaps, if the employees contracted the disease in the course of their employment. Does the employees’ work require them to be exposed to persons who are infected? Typically, health care workers fall into this category. If an employee incidentally contracts the disease from a co-worker, there likely will be no workers’ compensation liability. If there is workers’ compensation liability, employers are responsible for covering the costs of reasonable and necessary medical care, temporary total disability benefits, and permanent disability (if any). Employers should engage a competent medical professional on infectious diseases for advice to determine whether the disease is work-related.
Would I need to pay my employees disability benefits if they contract the coronavirus?
Yes, if such payments are provided in a practices’ benefit plan. Practices should review the limits of coverage in the benefit plan to ensure they have competent medical resources to administer the program.
Would I need to pay employees who go on leave during a quarantine period or because they have contracted coronavirus?
Perhaps. In the absence of a contract, hourly employees work at-will and are not guaranteed wages or hours. In other words, these employees do not need to be paid. Exempt employees do not have to be paid if they are sent home for an entire workweek. However, if exempt workers work for part of the workweek, they would have to be paid for the entire week.
Is there an obligation to accommodate employees who do not want to work in public-facing positions due to risk of infection?
There may be an obligation to accommodate such employees if there is some objective evidence that they could potentially be exposed to individuals who may have returned from China—for example, airport employees who deal with travelers from China. Employees should not be disciplined for refusing to work if they believe that there is a risk of infection because making such a complaint may be a protected activity. If the employer can establish that there is no basis for any exposure to the disease, the employee does not have to be paid during the time period the employee refuses to work.
How to handle paid leave benefits is one of the biggest concern’s practices will struggle with during this pandemic. With certain legal exceptions, practices are free to establish their own paid leave benefits and administer those benefits according to the best interests of the practices. Before a pandemic strikes practices should review their existing paid leave policies to determine whether modifications should be made.
Questions to ask when reviewing paid leave policies include:
- How will the practice handle “excessive” absences related to employee illness?
- How does the practice’s current policy accommodate family illnesses?
- How will the practice apply its paid leave policy in the event of a school or childcare facility closing?
- In the midst of an epidemic, will the practice still require the same level of leave substantiation (e.g., doctor’s notes) that it normally requires?
- Is the implementation of flexible leave policies an option—even if temporary?
Because of the risk of complications with the COVID-19 virus or other epidemics, eligible employees may need to use Family and Medical Leave Act (FMLA) leave. Practices should prepare for an increase in FMLA leave requests as well as an increase in administration of FMLA leave during the pandemic. See The Flu: Coordinate Compliance Among FMLA, ADA, Paid Leave Laws.
Depending on the impact of the virus in a workplace or if employees are operating in a high-risk industry, quarantine is another option to curb a widespread pandemic in the workplace. Quarantine is the mandatory isolation of an individual in an effort to contain something dangerous. Employers can impose quarantine if they believe employee safety or the practice is at risk by requiring employees with symptoms or known exposure to stay home for a certain period of time.
Practices must decide whether to pay employees during health-related absences. If pay is provided, the next question to address is, at what point does the employer stop paying the employee when the employee is not performing work. This issue is addressed mainly through sick leave policies, FMLA policies and disability insurance. Resolution of this issue also requires examination of federal, state and local law.
The Fair Labor Standards Act (FLSA) is the cornerstone of wage and hour law in the United States. Employers should consider applicable provisions of this law, as well as applicable state laws, before deciding not to pay an employee for an absence. Generally, under the FLSA, hourly, nonexempt employees need only be paid for actual hours worked, unless there is a policy or practice that promises pay to employees for these types of absences. Nonexempt employees paid a salary may fall under different rules.
Under the FLSA, exempt employees must generally receive a guaranteed weekly salary regardless of the number of hours they work during the week. However, employers may deduct from pay for full-day absences due to sickness or disability when the employer offers a bona fide sick leave plan and the employee is not yet eligible for or has already exhausted the benefit. In the absence of such plans or practices, employers may not deduct for sickness absences of exempt or salaried employees. In addition, employers may not reduce an exempt employee’s salary for absences directed by the employer. If the employer tells the employee to stay home, the employer will likely be obligated to pay an exempt employee for that time. However, under the FLSA, no pay is required for any workweek in which an exempt employee performs no work, regardless of the reason. See When Disasters Strike: Pay, Leave and Related Issues.
Below are some state specific resources to help with understanding the pay rules in your state as they apply to this Pandemic:
U.S. Department of Labor Announces New Guidance on Unemployment Insurance Flexibilities during COVID-19 Outbreak:
Harvard Business Review on Layoffs during COVID-19 Outbreak:
Practices should also make decisions regarding the application of attendance policies. Practices with no-fault attendance policies may decide to temporarily forgo counting absences during the pandemic. They will need to decide how stringently to apply sick leave and unscheduled absence rules. The key is to be consistent with all employees.
Connecting With Your Staff Virtually
Just because you aren’t in the office doesn’t mean you can’t keep the workflow of your team going strong. Connect with your team and patients using these 5 video conference call service platforms, all of which have a free package options:
- Zoom – This easy, reliable cloud platform can be used for video and audio conferencing, chat and webinars. Host up to 100 participants, have unlimited 1-to-1 meetings and more.
- GoToMeeting – The GoToMeeting Free plan is a great way to get started with quick and easy online meetings. The free plan allows you and your coworkers or friends to collaborate with high-quality screen sharing, webcams, VoIP audio and chat messaging in one session – no download needed.
- UberConference – Chat with up to 10 participants on this rich interface that makes it easy to do things like mute a noisy caller, dial-in and share your screen, use voice intelligence to transcribe your meetings and employ custom hold music.
- Skype – Access easy video meetings with no sign ups or downloads. Generate your free unique link with one click, share it with participants and enjoy effortless meetings with Skype. Have a full set of features at your disposal. Free conference calls, no sign ups, no downloads required.
- Google Hangouts – Connect with your team from anywhere. With easy-to-join video calls, you can meet face-to-face without having to be in the office.
Staff Guidance from the CDC
Actively encourage sick employees to stay home:
- Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick.
- Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
- Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Practices should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
- Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
- If an employee is confirmed to have COVID-19, practices should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Guidelines for creating an Infectious Disease Outbreak Response Plan
All practices should be ready to implement strategies to protect their workforce from COVID-19 while ensuring continuity of operations. During a COVID-19 outbreak, all sick employees should stay home and away from the workplace, respiratory etiquette and hand hygiene should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly.
- Ensure the plan is flexible and involve your employees in developing and reviewing your plan.
- Conduct a focused discussion or exercise using your plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected.
- Share your plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.
- Share best practices with other businesses in your communities (especially those in your supply chain), chambers of commerce, and associations to improve community response efforts.
Recommendations for an Infectious Disease Outbreak Response Plan:
- Identify possible work-related exposure and health risks to your employees. OSHA has more information on how to protect workers from potential exposures to COVID-19.
- Review human resources policies to make sure that policies and practices are consistent with public health recommendations and are consistent with existing state and federal workplace laws (for more information on employer responsibilities, visit the Department of Labor’sand the Equal Employment Opportunity Commission’s websites).
- Plan to minimize exposure between employees and also between employees and the public, if public health officials call for social distancing.
- Establish a process to communicate information to employees and business partners on your infectious disease outbreak response plans and latest COVID-19 information. Anticipate employee fear, anxiety, rumors, and misinformation, and plan communications accordingly.
- In some communities, early childhood programs and K-12 schools may be dismissed, particularly if COVID-19 worsens. Determine how you will operate if absenteeism spikes from increases in sick employees, those who stay home to care for sick family members, and those who must stay home to watch their children if dismissed from school. Businesses and other employers should prepare to institute flexible workplace and leave policies for these employees.
- Local conditions will influence the decisions that public health officials make regarding community-level strategies; employers should take the time now to learn about plans in place in each community where they have a business.
- Engage state and local health departments to confirm channels of communication and methods for dissemination of local outbreak information. When working with your local health department check their available hours.