Many employers have questions regarding the impact of the COVID-19 Coronavirus pandemic. Stricter restrictions were recommended by President Trump which inevitably have an effect on employers’ workforce and business. Kemp Smith is providing guidance on how employers can navigate the rapid developing situation and will provide updates as necessary.

Remote Work Policies

Remote work policies come into play in one of two instances: when employers require/suggest it for their employees or when employees decide, on their own, to stop coming into work. With respect to the latter, employers need to begin strategizing what to do if employees stop reporting to work, as well as the impact COVID-19 coronavirus will have on its business. Employees are only entitled to refuse to work if they are in imminent danger under the Occupational Safety and Health Act. For that standard to apply, the threat to employees must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time. With three reported cases of COVID-19 coronavirus in the El Paso region and none in Southern New Mexico, requiring employees to report to work does not rise to the level of imminent danger at this moment. However, other reporting requirements may, such as requiring travel to Italy or to work with patients in a medical setting without personal protective equipment. If employers do require employees to report to work, they should ensure that employees have ample facilities to wash their hands, including sufficient supplies of soap, water, and hand sanitzier. It is also wise to have sufficient disinfecting supplies to ensure the workplace is disinfected daily based on your workforce’s needs.

For employers that decide to require or suggest employees work from home, employers are also encouraged to evaluate their remote work capabilities and policies. Teleconference communications are encouraged in lieu of in-person meetings to help prevent the spread of the virus. When in-person interactions are necessary, employers should encourage minimal contact including avoiding shaking hands and institute a policy of maintain a 6-foot distance between individuals (see what CDC says about this).

Working remotely is recommended for companies that had such policies in place prior to the pandemic. For those employers who do not have such a policy, implementing a new telecommuting or remote work policy that has not been tested or developed may create problems. but it is now time to consider implementing a remote work policy to address this novel virus. For workforces in which telecommuting is implausible, staggering employee start and departing times, as well as lunch and break periods, is an easy solution to minimizing overcrowding in common areas such as elevators or break rooms.

Although, the pandemic is limited in the El Paso region at the moment, employers should notify and encourage employees to prepare for immediate instruction to work from home. Employers should take inventory of the equipment needed for its workforce to complete their work remotely, including desktop or laptop computers to general office supplies. Employees should be encouraged to take inventory of equipment they own as well and notify their supervisor if they, for example, lack a computer to perform remote work. This will ensure that if immediate action is necessary, employers will be prepared to address the needs of their workforce. Employers are also encouraged to begin digitizing any relevant physical materials to allow access to the materials remotely.

It is recommended that employers designate a single point of contact for employees for all concerns arising from the health and safety of the workforce, as well as working remotely in the foreseeable future. The most important action to take is to develop or update your companies’ remote work policy now. Kemp Smith is committed to assisting your business with formulating a creative response to the COVID-19 coronavirus pandemic, which includes a creative and updated remote work policy.


Health & Safety

Employers are allowed to ask employees to seek medical attention and get tested for COVID-19 if they are showing symptoms. The CDC recommends that employees who exhibit symptoms of influenza-like illness at work leave the workplace. The most common symptoms of COVID-19 are fever and dry cough. The EEOC does not view advising workers to go home as disability-related if the symptoms present are similar to those of the seasonal influenza. An employer thus may require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the seasonal flu without violating federal law.

Employers may require that an employee who becomes ill with COVID-19 coronavirus symptoms notify their supervisor upon diagnosis. Employees suffering from COVID-19 coronavirus symptoms should be directed to remain at home until they no longer exhibit symptoms for at least 24 hours. There is currently no obligation for an employer to report a suspected or confirmed case of COVID-19 to the CDC.

Employers have also inquired whether they may check their employees’ temperatures as precautionary measures. Generally, the answer is no. The Americans with Disabilities Act (ADA) places restrictions on the inquiries an employer can make into an employee’s medical status. The EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam 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 the individual or others that cannot otherwise be eliminated or reduced by a reasonable accommodation.

The EEOC’s position during a pandemic is that employers should rely on the latest CDC, state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” This can be done by visiting https://www.osha.gov/Publicatio ns/influenza_pandemic.html#affect_workplaces. The assessment by the CDC as to the severity of COVID-19 provides the objective evidence needed for a medical examination. If COVID-19 coronavirus becomes widespread in the region, then employers may take an employee’s temperature at work, but at this time it is not widespread. Employers may visit this website to check if COVID-19 coronavirus is widespread in the region: https://www.cdc.gov/coronavirus/
2019-ncov/cases-updates/index.html. Because an employee may be infected with the COVID-19 coronavirus without exhibiting symptoms such as a fever, temperature checks are not the most effective method for protecting your workforce.

Wages

Employers should also consider the impact of the Fair Labor and Standards Act (FLS) during this difficult time. Under the FLSA, employers generally only pay employees for hours hours an employee actually works. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked. With respect to exempt, salaried employees, those employees generally must receive their full salary in any week which they perform work, subject to very limited exceptions. The FLSA does not require employer-provided vacation time. However, if employers offer paid time off or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on specific dates. Private employers may also direct exempt staff to take vacation or paid time off in case of an office closure.

The Department of Labor (DOL) is encouraging employers to accommodate and be flexible with workers that have been impacted by quarantines. Alternative work arrangements, such as remote work, and additional paid time off is encouraged by the DOL—but not required. Importantly, employers must not single out an employee in implementing its remote work policy or requiring employees to report to work because that may result in a potential lawsuit under Title VII. However, employers are encouraged to implement a remote work policy that applies to everyone of certain groups of employees to control or prevent the spread of COVID-19 coronavirus in its workforce.

Employers should begin implementing policies to monitor and control the hours which each non-exempt employees work remotely. If your company implements a remote work policy, the FLSA requires that employers pay their non-exempt employees for the hours they actually work. Employers will thus be required to continue paying their non-exempt employees at least minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. However, if remote work is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then employers must pay the same hourly rate or salary.


WARN Act & Closures

The Worker Adjustment and Retraining Notification (WARN) Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons.

Employers generally must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff. However, if employees are laid off for less than six months, then they do not suffer an employment loss and, depending on the particular circumstances, notice may not be required. Unfortunately, it is difficult to gauge how long the layoff may last due to the COVID-19 coronavirus pandemic, so providing notice is usually the best practice. But even in cases where its notice requirements would otherwise apply, the WARN Act provides an exception when layoffs occur due to unforeseeable business circumstances. This provision may likely apply to the COVID-19 coronavirus pandemic. This exception is, however, often litigated and requires a fact-specific analysis, so employers should consult with counsel prior to invoking this exception.

Pending Legislation

Congress and the White House are currently working on measures to respond to the COVID-19 coronavirus pandemic and providing an economic stimulus. On Friday March 13th, the House passed a bipartisan coronavirus bill. Keep in mind, this is only the House bill, which may undergo substantial changes when it goes to the Senate. But for now, the bill requires that private health plans provide coverage for diagnostic testing of COVID-19 coronavirus—this includes the cost of a provider, urgent care center, and emergency room visits in order to receive testing.

Moreover, the bill would require private sector employers with fewer than 500 employees and government employers to provided employees with 80 hours of paid sick leave. The emergency paid sick leave would be available to employees regardless of the employees’ duration of employment prior to leave. Paid sick leave would be available to employees 1) to care for a child whose school or daycare has closed due to coronavirus, 2) to care for a family member who is in quarantine due to the coronavirus, 3) for an employee who is exhibiting symptoms and needs to obtain medical care, or 4) for an employee who is comply with requirements or recommendation to quarantine.

The House bill also would amend and expand the Family and Medical Leave Act (FMLA) on a temporary basis. The threshold for FMLA coverage would be changed from 50 or more employers to employers with fewer than 500 employees. The eligibility requirement would also be lowered because an employee who has worked for the employer for at least 30 days prior to the designated leave is eligible to receive paid family and medical leave. Many employers not previously subject to the FMLA would have to provide job-protected leave to employees for a COVID-19-coronavirus-designated reason.

Additionally, the House bill authorizes an additional $1 billion for state unemployment benefits. This would be fully funded by the federal government in an effort to ease the burden on States experiencing a spike in unemployment. The provisions within the House bill will remain in effect until December 31, 2020, if passed by the Senate and signed by President Trump.

Although, the House bill does include refundable tax credits for employers who are required to comply with the Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave Act, the House bill would impose a burden on employers. In an effort to ease the burden, President Trump and Secretary of Treasury Steven Mnuchin announced they are considering, and making it a goal, to send checks directly to Americans in two weeks to help workers cope with the economic effects of the crisis. President Trump would not specify the amount proposed to be sent, but Republican Senators Tom Cotton and Mitt Romney have suggested $1,000 per adult.

Further, the White House and Senate Republicans are considering combining the House-passed coronavirus aid bill with President Trump’s request for $850 billion in stimulus spending. The $850 billion stimulus includes a proposal for payroll tax cuts, support for the airline industry, and $250 billion in loans for small businesses. As mentioned, however, all of these are subject to change as the bills work their way through the House and the Senate.

We are continuing to monitor the COVID-19 coronavirus pandemic and the effect it may have on our clients. With the stricter restrictions being implemented and pending legislations, employers are urged to assess its remote work capabilities and the effects the any government imposed temporary measures will have on its workforce and business.

If you have any questions about how to effectively respond to the COVID-19 coronavirus pandemic, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.

Clara (C.B.) Burns clara.burns@kempsmith.com
Michael D. McQueen michael.mcqueen@kempsmith.com
Charles High charles.high@kempsmith.com
Abe Gonzalez abe.gonzalez@kempsmith.com
Gilbert L. Sanchez gilbert.sanchez@kempsmith.com
Victoria del Campo victoria.delcampo@kempsmith.com