COVID-19: Employment Law Frequently Asked Questions

March 19, 2020

Faith A. Alejandro and Brian G. Muse

Sands Anderson PC

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Richmond, Virginia

LEGAL ALERT: On March 24, 2020, Governor Ralph Northam issued Executive Order 53, which temporarily orders non-essential retail businesses to close to the public. For more information, please visit the Office of the Governor of Virginia.

Do I have to pay my employees time they are taking sick leave because of COVID-19?
Generally no, unless your existing policies and procedures require you to do so. At the moment, Virginia does not have any state laws requiring employers to pay for sick leave.

Does the Family and Medical Leave Act (FMLA) apply to me?
Generally, the FMLA applies to employers with 50 or more employees within 75 miles of one office belonging to the employer. However, new federal legislation now extends the FMLA to apply to employers with less than 500 employees for the limited purpose of providing childcare for a minor son or daughter whose school or childcare is closed or unavailable. See the below Legal Alert on the Families First Coronavirus Act for more information.

The FMLA applies to me. Does an employee sick with COVID-19 qualify for FMLA leave?
Although illnesses like the flu are not typically a “serious health condition” to qualify for FMLA leave, it is quite possible for COVID-19 (which presents with flu-like symptoms) to trigger FMLA leave, particularly when the symptoms are complicated or severe. Don’t forget that FMLA leave can also be taken by employees who need to take care of family members with a serious health condition. Notably, new federal legislation extends the FMLA for employees for one additional reason specifically related to COVID-19. See the below Legal Alert on the Families First Coronavirus Act for more information.

LEGAL ALERT: President Trump signed into law new legislation passed by Congress on March 18, 2020 known as the Families First Coronavirus Act (H.R. 6201) (FFCA). This legislation establishes two new laws that will go into effect by April 2, 2020: the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). These new laws will be effective through December 31, 2020.

The Department of Labor has published a summary of employer obligations under the FFCA here.

Under the EFMLEA, generally:

– FMLA benefits extend to employees who need leave only for employees who cannot work or telework because they need to take care of a minor son or daughter whose school is closed or whose childcare provider is closed or unavailable because of COVID-19.

– Applies to all employers with fewer than 500 employees.

– Employers are required to provide 12 weeks of job-protected leave to eligible employees.

– Employees eligible for leave under the EFMLEA are those who have been on payroll (full-time and part-time) in the preceding 30 calendar days.

– The first two weeks (10 days) of this extended FMLA leave can be unpaid. Employees can use accrued, unused leave for this time period. Practically, it is expected most employees will utilize paid sick leave under the EPSLA.

– Afterwards, for any remaining weeks of leave, the employee must be paid at 2/3 of the employee’s regular rate, not to exceed $200 per day.

– There are no certification requirements, but employees must provide reasonable notice to the employer where the need is reasonably foreseeable.

– Leave under the EFMLEA cannot be applied retroactively.

– Job restoration requirements may be less stringent for employers with fewer than 25 employees under certain conditions.

Under the EPSLA, generally:

– Applies to public employers and private employers with fewer than 500 employees

– Employers subject to the EPSLA must pay eligible employees with paid leave if they can’t work (or telework) because of COVID-19. Paid leave is payable to:

   —> Full-time workers up to 2 weeks (80 hours)

   —> Part-time workers, up to the average amount of hours they work over a 2-week period

– The reasons for which employers must provide paid sick leave under the EPSLA include when:

   1. The employee is under quarantine or isolation as required by federal, state, or local order;

   2. The employee is under self-quarantine as advised by a medical provider;

   3. The employee has COVID-19 symptoms and is seeking a medical diagnosis;

   4. The employee is caring for someone who is quarantined;

   5. The employee is caring for a minor child whose school or childcare provider is closed or unavailable because of COVID-19; or

   6. The employee has any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

– If the employee requires sick leave for reasons 1-3 above, then they receive pay at their regular rate, up to $511 per day

– If the employee requires sick leave for reasons 4-6 above, then the pay rate is reduced to 2/3 of the employee’s regular rate, which is capped up to $200 per day

– There are no certification requirements, but employers can require employees to abide by their reasonable notice procedures in order to use leave under EPSLA

– Employers cannot require employees to first exhaust their accrued, unused paid leave benefits before approving leave under EPSLA

Tax credits will be provided to assist employers offset the cost of providing paid leave. Employers are to receive 100% reimbursement for paid leave required under the FFCA, which will include health insurance costs. This includes permitting employers to retain funds from a portion of the payroll taxes they would normally pay each quarter to the IRS in order to cover the cost of paid leave required under the FFCA. The IRS will also ensure no payroll tax liability for this immediate dollar-for-dollar tax offset.  Employers can apply for an expedited advance from the IRS if the amounts retained from payroll taxes are insufficient to cover the costs of paid leave. The IRS is expected to release further guidance and streamlined claim forms within a week.

The Department of Labor is working on regulations to enable employers with less than 50 employees to apply for an exemption from the Department of Labor if compliance would “jeopardize the viability” of their business. Currently, only healthcare and emergency responder employers are exempt.

The FFCA requires covered employers to post notices to employees, and model notices are expected to be published by March 25, 2020.

Sands Anderson’s employment attorneys will continue to follow this new legislation as federal agencies publish further regulations and guidance, and provide updates to this webpage on a weekly basis.

Can I ask employees to check their temperature?
Possibly, yes, but it may not help you identify COVID-19 in your workplace. Under the Americans with Disabilities Act (ADA), employers cannot require medical exams (including taking an employee’s temperature) or ask questions about an employee’s disability except when (1) the exam or inquiry is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of themselves or others (i.e., your other workers) and the threat cannot be eliminated or reduced by a reasonable accommodation. So far, the Equal Employment Opportunity Commission (EEOC) has stated that during a pandemic, employers should follow the guidance of the Centers for Disease Control and Prevention (CDC), and state and local public health directives to figure out if the pandemic counts as a “direct threat.” However, because a person can have COVID-19 without having a fever, it is likely better for employers to refrain from temperature checks.

Update on March 20, 2020: According to newly published guidance by the EEOC, even though taking an employee’s temperature is a medical examination under the ADA, the EEOC has given employers the green light to check employee temperatures based on information from the CDC regarding community spread of COVID-19.  They caution, as we have above, that individuals with COVID-19 don’t always present with a fever.  Employers should require that employees stay 6 feet apart while waiting for such checks and take measures to ensure the privacy of each employee’s health information, which includes the result of the temperature checks. Employee time spent waiting is also likely compensable under the Fair Labor Standards Act.

Additional Resources:

• EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA
• CDC Interim Guidance for Businesses and Employers

Can I send employees home to self-quarantine or telework/work remotely?
The EEOC confirmed that employers can send employees home when they present with symptoms of COVID-19 to reduce the risk of exposing others, which would not count as a disability-related action because COVID-19 is a pandemic. Also, employers can ask an employee if they are experiencing symptoms of COVID-19 now that it has been classified as a pandemic. In addition, if the employee’s condition is serious enough to pose a “direct threat” to the health and safety of others, sending the employee home would be permitted and requirements to telework may be viewed as a reasonable accommodation if they can perform their job from home.

Note: Employees who are permitted to and able to telework may not be eligible for benefits under the new Families First Coronavirus Act, discussed above.

Must I grant requests from employees to telework as a reasonable accommodation for their disability?
Possibly yes, if the employee with a disability (which may include a COVID-19, as discussed above) can perform the essential functions of their job with the accommodation to work from home. The EEOC recognizes, however, that some jobs cannot be performed at home, such as food servers, cashiers, and truck drivers. Aside from in-person interaction, employers might find that other job duties can’t be performed at home, such as requiring employees to have immediate access to documents or information located only in the workplace. However, employers should not unreasonably turn down telework requests just because an employee has to meet or coordinate information with others. After all, technology like the phone, email, and Zoom can enable employee meetings.

Note: Employees who are permitted to and able to telework may not be eligible for benefits under the new Families First Coronavirus Act, discussed above.

Additional Resources:

• EEOC Pandemic Preparedness in the Workplace and the ADA
• DOL Job Accommodation Network: Telework, Work from Home, Working Remotely

What should I do if an employee tests positive for COVID-19?
We recommend that you:

1. Ask them to identify other workers who may have been exposed to the sick employee.
2. Keep their identity and the identities of any other employees you may ask to self-quarantine confidential.
3. Provide a deep-clean of the affected employee’s work space.
4. Notify building management.

How frequently do I need to pay my employees?
Employees must continue to be paid regularly. Exempt (salaried) employees must be paid at least monthly while non-exempt (hourly) employees must be paid every two weeks.

How do I monitor and manage the hours of my hourly employees who are teleworking?
The best step is proactive communication with your employees. Remind employees that their work schedules still apply (e.g. 9 a.m. to 5 p.m.) unless they are altered by a supervisor or management. Employees should continue to seek advance approval to work overtime.

Note: Employees who are permitted to and able to telework may not be eligible for benefits under the new Families First Coronavirus Act, discussed above.

If I require employees to take mandatory leave, or reduced hours, how will that impact wage payment requirements?
Employers must pay hourly employees for hours worked. Employers do not need to pay hourly employees for periods where they do not work. Salaried employees must generally receive their full salary for any week in which in which they perform at least some work.

NOTE: Emergency provisions concerning paid leave may also apply and are discussed elsewhere in this FAQ.

Can I reduce the hourly wages or salaries I pay to my existing employees?
You may reduce an employee’s salary or rate of pay for future work. Hourly employees must receive at least the minimum wage ($7.25 federal and Virginia, but higher in other states). You must also be careful to ensure that the minimum salary for exempt employees of $35,568.00 is satisfied. An employer may not retroactively reduce an employee’s salary or wages for time already worked.

If I lay off or terminate employees, how soon do I need to provide them with their final paycheck?
In Virginia, a terminated employee (or one who resigns) must receive their final paycheck on or before the employer’s next regularly scheduled pay period.

Can I modify employee duties without changing their pay or exempt status?
An employer does not have to modify employee salaries if it changes their duties. Hourly employees must be paid at least the minimum wage and salaried employees must receive at least the minimum exempt salary ($35,568.00). When modifying duties, it is also important to keep in mind the employee’s primary duties. Assigning temporary or emergency non-exempt duties to an exempt employee (e.g. having a manager also process mail during this pandemic) will not defeat the salary exemption so long as the employee’s primary duties remain exempt. It is a good idea to make clear when assigning any such “all hands-on deck” emergency duties that they are temporary and do not modify the employee’s primary duties.

Do I have to reimburse my employees for supplies like paper, home printers, and Internet access when the telecommute?
Employers may not require employees to pay for or reimburse an employee for business expenses if doing so would reduce the employee’s earning below the minimum wage or overtime compensation. Generally, expenses that an employee would bear regardless of work from home, such as Internet access, telephone lines, and electricity, are not considered “expenses” requiring reimbursement. Employers should be mindful, however, when requiring an employee to purchase specific items, including printer paper, or electronic devices when working from home. This is particularly true with respect to employees making at or near minimum wage, or close to the salary floor for exempt status.

Does workers’ compensation insurance cover workplace accidents that occur in the home while teleworking?
Yes, if the injury arises out of and occurs in the course of employment. This is true regardless of the location of the injury, including during teleworking or offsite projects. An employee would still bear the burden of proving that the injury occurred while he or she was acting in the interest of the employer.

What kind of notice do I need to provide if I decide to shut down all or part of my business during the pandemic?
Most employers with 100 or more employees are required to provide at least 60 days’ notice to employees and the government prior to a mass layoff or the closure of a business unit under the Federal WARN Act. Certain exemptions and modifications apply for emergency situations where 60 days’ notice is not possible. Although Virginia does not have a state WARN Act, many states do and impose more comprehensive requirements on employers.

Will my employees qualify for unemployment if I reduce their hours?
Possibly. A Virginia employer must provide an employee with a “Statement of Partial Unemployment” if it reduces an employee’s hours or move an employee from full time to part time. In many cases, that employee would qualify for partial benefits. Note: An employee is ineligible for benefits if he or she does not work hours offered by the employer. This would include circumstances where the employer offers hours from home (teleworking), or the employer offers altered duties.

Emergency Rules: Virginia has eliminated the one-week waiting period for individuals to receive unemployment and enhanced eligibility (such as eligibility for employees who are ordered to self-quarantine) for benefits. Deadlines for work search requirements have also been relaxed during this crisis.

Can I send employees home who are over 60 years old because they are in a higher risk for COVID-19? What if they appear to have a condition that puts them at risk, such as asthma?
Likely not, if the only reason you are sending employees home is because of their age or perceived disability and the employee is showing no signs of symptoms of COVID-19. Doing so, without a legitimate business reason, might lead to claims under the Age Discrimination in Employment Act, as well as the Americans with Disability Act, particularly if the employee is not seeking the reasonable accommodation of leave to perform the essential functions of their job. Human resources can make sure that the workforce is fully informed of your leave policies, but making someone go home who has no symptoms of COVID-19 may not be prudent and have the inadvertent effect of inviting a claim of discrimination. If possible, employers should consider offering teleworking options to the workforce, and public policy could change in the near future to require further analysis.

Note: Employees who are permitted to and able to telework may not be eligible for benefits under the new Families First Coronavirus Act, discussed above.

The information contained on this site is offered for informational purposes only and is not legal advice. You should not act upon the information without seeking professional counsel. The Sands Anderson Employment team would be happy to assist.