I can’t tell you how many calls and questions I’ve had the last few days from anxious employers looking for answers on how to handle interruption to their business because of COVID-19. Some of the hardest choices companies are facing are what to do with their employees. I’m talking restaurants where managers had to lay off their waitstaff, salons closing up their shops so their contractors can’t work. Chiropractor’s offices are closing and laying off administrative staff.

Also, there some industries where the work goes on, like delivery services, childcare, and healthcare. Those situations present their own challenges.

In speaking with my colleagues over the last few days, one thing is clear: the employment law landscape is changing daily during this pandemic. So, I present these resources with the caveat that this information can and probably will change. This post is for informational purposes only and is not legal advice. If you have specific questions about your situation, talk to us. If we can’t help you, then we will try to find someone who can.

First, we will address some scenarios that apply to employers where employees are still working.  

OPTIONS TO REDUCE RISK OF COVID-19 EXPOSURE TO EMPLOYEES STILL WORKING
The list below is not intended to be exhaustive and is also focused on managing employee exposure to the virus. Additional considerations may apply to customers, vendors, contractors, and others that you and your employees interact with during this time.  

Let Employees Work From Home: This may sound obvious, but let people work from home temporarily. I know there might be a concern that if you enable employees to work from home now, they will want to do it all the time (but this is the optimal way to reduce risk in the workplace). Make sure you communicate that this is only short-term and due to emergency purposes only. Also, be sure that you are implementing work from home policies fairly to avoid potential discrimination accusations.  

WORK FROM HOME CONSIDERATIONS: Working from home comes with its own pitfalls for risk for employment actions. It’s essential to keep these things in mind:

• Recording Working Hours:  When working from home, the line between time spent “working” and being home may become blurred for employees. The Fair Labor Standards Act (FLSA) requires that employers maintain records of hours worked by non-exempt employees. Employers should ensure that employees accurately record their time spent on work activities.
• Cybersecurity. It might be helpful to call your IT department on this one. Also, check your insurance policy to make sure you have coverage.
• Meal and Rest Period Compliance: Even when employees work remotely, employers should ensure that they comply with state laws regarding meal and rest periods. Here is a link to Colorado’s applicable law.

Good Hygiene: This one sounds like common sense.  Both OSHA and the CDC recommend that employers promote good hygiene and infection control policies and practices. Employers can promote handwashing by either providing a place for employees to wash their hands thoroughly with soap or, if running water is unavailable, provide alcohol-based hand rubs containing at least 60% alcohol. Both agencies encourage employers to ensure the availability of adequate tissues and trash receptacles (preferably the kind where you don’t have to touch the lid).

Restricting Travel: Many employers are restricting business travel, and the CDC is regularly updating its travel notices. This may vary by industry. You are allowed to limit business travel, but you will need to tread carefully when we’re talking about employee’s personal travel. Rather than restricting personal travel, you may elect to have employees self-report. If personal travel presents a risk, you may exclude employees from the workplace for the recommended period of time by the CDC.

Restricting or Screening Clients: You may also want to restrict or screen clients or other visitors before coming into contact in the workplace—limit person to person contact and use good hygiene practices (see above). Also, you may ask people to stay home if they have been exposed or are feeling ill. Make sure policies are stated clearly, visibly, and have these conversations before clients and visitors come in.

  TELLING EMPLOYEES NOT TO WORK:
If working from home is not an option, then employers may tell their employees to stay home and not come to work at all. If you do decide to shut your doors temporarily, then the next question becomes what to pay your employees. Make sure to consult whether the WARN Act applies. (Don’t worry if you’re a small business of less than 100, then it probably doesn’t). The WARN ACT requires 60 days’ advance notice of major lay-offs and closings. The WARN Act defines “employer” as any business that employs 100 or more. But, that number can sometimes include employees of affiliated companies and excludes part-time employees (i.e., those employed for an average of fewer than 20 hours per week or for fewer than six of the 12 months preceding the date on which notice is required). At the federal level, temporary lay-offs, hours reductions, or shut-downs will generally only trigger WARN if they last longer than six months.  

Next, consider who to ask to stay at home temporarily.

• Be Mindful of Discrimination: Please be mindful of protected statuses when deciding who to send home. For example, employers should not send home only older folks, nor should employers appear to discriminate against people who are from affected parts of the world. Any guidelines developed by the employer should be uniformly and equally applied.
• Screening body temperature: The Equal Employment Opportunity Commission (EEOC) has made clear that, under normal circumstances, measuring an employee’s body temperature constitutes an improper medical examination under the Americans with Disabilities Act (ADA). Pursuant to the EEOC pandemic preparedness guidance, however, employers may measure body temperature if symptoms become more severe or if the disease becomes widespread in the community as assessed by state or local health authorities or the CDC.
• Employees who have traveled and had other exposure to COVID-19: You may generally ask employees to disclose that they are returning from travel to affected areas or whether they have been exposed to COVID-19.
• Asking employees to disclose symptoms of COVID-19: Many employers may wish to ask employees whether they are experiencing a fever, a dry cough, or other symptoms of the virus. The EEOC advised that, at least as to “employees who report feeling ill at work or who call in sick,” employers may ask employees if they are experiencing symptoms of influenza.
• Discussing underlying conditions: While some people may be more vulnerable to the virus, now is not the time to ask whether the person is or isn’t. The EEOC advised previously that employers may not ask asymptomatic employees to disclose whether they have a medical condition that could make them more vulnerable to complications because of the virus.

 

LAYING OFF EMPLOYEES, SENDING THEM HOME, OR TELLING THEM TO STAY HOME IF THEY ARE SICK
Colorado has implemented paid sick leave requirements specifically in response to COVID-19; Colorado’s rules require four days of sick leave but only cover specific industries (leisure and hospitality; food services; child care; education; community living facilities; nursing homes; home health). In certain circumstances, state disability insurance or unemployment insurance may cover employee absences.

The Department of Labor has issued guidance permitting state unemployment insurance programs significant flexibility in responding to COVID-19. Colorado had an unprecedented number of employees file for unemployment. They are slowly implementing a work-sharing program where if an employer reduces an employee’s number of hours, then the employee can still file for “partial unemployment.” More details will hopefully be released soon.

• Compliance issues with pay advances: Any pay advance programs must be implemented in accordance with federal and state requirements. Notably, the employee’s agreement to the repayment of the funds should be provided in writing before the advance is made. Furthermore, if the funds are repaid from future earnings, employers need to ensure that the deductions do not decrease a workweek’s total pay below the minimum wage.

• Exceptions Make sure that you communicate that you are willing to make exceptions to standard policies only due to the extraordinary circumstance of the pandemic in writing. You may be thinking of electing to provide extra paid/unpaid leave, permit no-penalty absences, or allow employees to use PTO, vacation, or sick-pay outside of regular policies on a temporary basis.
• Also, make sure any exceptions to your normal policies are implemented fairly, equally, and consistently.

As I mentioned above, these laws are moving swiftly (which is unusual), so please make sure to consult with an employment attorney about your specific situation. We are always here to help.