There are many things businesses are obliged to consider during this current outbreak of the novel coronavirus, which causes the disease COVID-19. Some businesses have even shut down voluntarily or been shut down by government decree, while others remain open. For those businesses that remain open, there is a lot to keep apprised of, as the situation is changing from day to day. For example, there is legislative news from Washington, D.C., about paid sick leave expansion. There is also news from the states and cities as governors and mayors impose restrictions on which businesses are to remain open and which are to be shut down. The Centers for Disease Control (CDC) has recommended that there be no gatherings of more than fifty people. Concerts, festivals, theaters, and weddings are all affected, along with the businesses that support them. For those businesses that remain open, the CDC has some general guidelines. But there are several other general areas of concern that need to be addressed. They include travel for business as well as personal travel of employees, sick leave, the FMLA, working from home, and monitoring of employee health, such as by taking their temperature, and dealing with an employee’s positive test for the virus.
Currently, in Washington, D.C., there is legislation being hammered out that contains new paid sick leave provisions. Whether these provisions will be passed into law is questionable, given the opposition of Republican senators, but the bill should be on the radar of employers. According to Yahoo news, the bill’s current provision “requires companies with fewer than 500 employees provide paid sick leave.” The bill also has unemployment insurance provisions intended to provide relief to employees who are laid off. The bill has passed the House with some Republican support (thanks to the provision of business with fewer than 500 employees); it remains to be seen how it will fare in the Senate. The bill excludes large employers, who would not be required to provide paid sick leave. As it stands, the bill will affect only about 20 percent of workers.
According to the Bureau of Labor Statistics, “Paid sick leave was available to 71 percent of workers in private industry in March 2018. Paid sick leave was available to 31 percent of workers with an average wage in the lowest 10 percent and to 92 percent of workers with an average wage in the highest 10 percent.” This difference is notable in a virus outbreak, as many lower-paid workers, including in the restaurant and fast food industry go without paid sick leave and thus come to work sick. In some areas of the country, however, restaurants are being shut down or ordered to provide takeout or delivery service only.
In New York City, Los Angeles, and three states, there has been a shutdown of bars and restaurants. In the cities, restaurants are shut down except for takeouts. According to Yahoo News, “Ohio, Illinois, and Washington state imposed similar measures.” These states are not alone. Also according to Yahoo News, “New York Governor Andrew Cuomo announced Monday that New York, New Jersey and Connecticut have agreed to close all movie theaters, gyms, bars, restaurants, and casinos in the states starting at 8 p.m. on Monday, part of coordinated efforts to combat the spread of the coronavirus.” And in Pennsylvania, Governor Tom Wolf has ordered the shutdown of all non-essential businesses. The governor’s list of essential businesses includes supermarkets and grocery stores, pharmacies, minimarkets, non-specialized food stores, daycare centers, hardware stores, gas stations, banks, post offices, laundromats and dry cleaners, and veterinary clinics for domestic pets and pet stores. Other businesses are shutting down voluntarily, including H&M and several large hotels and casinos on the Las Vegas strip.
What Employers Can Do
For those employers who are not shutting down, some important questions to consider include travel for business as well as the personal travel of employees, sick leave, the FMLA, working from home, and monitoring of employee health, such as by taking their temperature, and dealing with an employee’s positive test for the virus.
Regarding travel for business, the CDC recommends restricting travel as much as possible. Employees may still be legally ordered to travel, but they may balk, for example, at traveling to a coronavirus hot spot such as Seattle. Managers may want to use discretion in mandating employee travel. On the other hand, employers can only recommend that employees not travel for personal reasons. Sick leave is another area in which discretion may be recommended. For example, the CDC recommends that employers not require doctor’s notes, as doctors may be too busy to write them. Employers should also consider making other sick leave policies more lenient. The FMLA is also implicated; employees may need time to take care of sick family members. Employers can face lawsuits if they do not allow or obstruct FMLA leave.
Working from home involves many complications, starting with whether it is possible. For those who can work from home, concerns for employers include payment of exempt and nonexempt employees, monitoring work, and IT security. Home workers may also need printers, laptops, and other equipment. Reasonable accommodations for disabilities also come into play in the home work environment; employers are responsible. Communication can be handled with apps such as Slack or Skype, as well as regular phone texts and calls. Employees should have a requirement to log in and log out while working at home, so that company information is not available to others in the home.
The monitoring of employee health is another tricky subject. Generally, employers cannot test employee health, but during an epidemic (and we are currently experiencing one), employers may take measures to monitor employee health, such as by taking temperatures. Consult with an attorney on this topic. Sick employees can and should be ordered home. Employers are required to warn employees if they have been exposed, but they cannot name the infected worker. Employees are not legally required to tell employers if they have tested positive for the virus.
What your business can do during this crisis depends on the type of business it is, where it is located, and how directly it is affected by social distancing mandates. Some businesses, such as grocery stores, are required to stay open, while others, such as bars, may be required to shut down. For offices, sick leave and working from home rules may be changing quite rapidly, bringing new challenges to managers.