Employment Law Blog

Coronavirus and Employers: Critical Compliance Information

As the novel coronavirus, or COVID-19, has reached global pandemic status, it is critical for employers to understand how to administer their workforce in the face of the new illness, especially in light of state and federal employment laws. Luckily for employers, there is fresh guidance from several agencies on how to put team health first while protecting businesses and complying with relevant workforce laws and regulations. We have distilled that information into key points set out below.

• How much information may an employer request from an employee who calls in sick?

Employers may ask sick employees if they are experiencing coronavirus-like symptoms. Any information they receive about an employee illness must be kept as a confidential medical record to comply with HIPAA.

The Americans with Disabilities Act (ADA) requires that employers do not discriminate on the basis of disability, except in the instance that the disability would pose a significant risk of substantial harm to the health or safety of others. Employers understand that the ADA forbids certain actions, such as making disability-related inquiries or requiring medical examinations, etc., so this may create confusion as to how employers respond to sick employees. 

The Equal Employment Opportunity Commission released guidance that clarifies several key points, noting that the ADA will largely NOT apply to coronavirus for two reasons: first, it is akin to a seasonal illness like the flu, which most likely will not rise to the level of a disability for purposes of the law, and second, should the illness become sufficiently serious as to meet the level of disability eligible for ADA coverage, employers may still take actions to prevent harm to other employees. Now, should an employer regard an employee as disabled because of coronavirus, that could trigger ADA protection.

• Can an employer require employees to stay home if they’re sick?

YES. Any employee with coronavirus symptoms should leave the workplace and advising the employee to go home is not disability-related under the ADA if the illness is akin to a seasonal illness like the flu. And again, if the threat of the virus is serious enough, the action would still be permitted by the ADA to prevent harm to others.

• Must an employer pay employees who are sent home sick?

It depends. Under the Fair Labor Standards Act (FLSA), salaried employees must be paid in any week in which they work. Hourly employees are not paid for hours they do not work, even if they were scheduled and canceled by the employer. Also, employers may have contractual obligations to pay employees that are beyond the requirements of the FLSA.

The question confronting employers right now, however, is whether not paying employees who must stay home due to illness is a good policy in light of the pandemic. Workers that depend on hourly wages are more likely to come into work sick, which could infect other members of the workforce. Employers should reconsider policies of paid sick leave in light of the unique challenges of coronavirus.

• Can an employer make an employee use up vacation and other leave balances for time missed?

YES. Employers may require employees who are sick to use paid time off before taking other leave, as the FLSA doesn’t generally regulate the accumulation of paid time off.

• Can an employer terminate sick employees?

It depends. For qualified employees, the Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave with job protection, which means if they take sick leave under FMLA, their employment is protected. There are certain qualifications that must be met as to the size of the employer and the length of time the employee has been employed, however, so not all employees are covered. Additionally, if an employer must lay off workers due to the effect of coronavirus on their business, the employer is not legally obligated to retain an employee who would otherwise be subject to the layoff simply because he/she is out sick.

• May an employer force an employee to come to work during the coronavirus pandemic? May an employer fire an employee who refuses to work?

It depends. This is a sticky situation – on one hand, Kentucky is an at-will employment state, and refusing to come to work is a non-discriminatory justification for termination (employers under collective bargaining agreements and contracts may have other duties, however). On the other hand, there is a precedent that the National Labor Relations Act may protect employees who express concerns over the safety of the work environment. In a 2013 case, several workers were fired from a jobsite after complaining that they didn’t want to work in a thunderstorm around exposed electrical cables. The NLRB regional director found that the employer had interfered with the NLRA right of employees to engage in concerted activity to help each other on the job, and the employer offered to reinstate all the discharged employees and paid them back wages.  If your employee refuses to come into work, we recommend you contact your employment/labor attorney and request guidance in light of the specific facts of the case.

• If an employee returns from a trip from somewhere affected by coronavirus, can the employer ask him or her about exposure to coronavirus, or does the employee have to show symptoms first?

The employer is free to ask the employee questions about her or his travel, since these are not disability-related.  

Answering the Threat

The real threat of COVID-19 will be not just in illness, but in disruption to businesses and the workplace in the long term. We’ve only scratched the surface of how this pandemic will affect employers, and there are more issues that will come to the forefront, such as how to handle layoffs, how to create long-term leave policies, how exposure will affect workers’ compensation, how businesses will handle contract disputes and more. If you have concerns and questions about managing your business during coronavirus – leave policies, wage issues, contract problems, etc. – call the trusted team of attorneys at McBrayer. We will help you get through this.

Need quick help on your COVID-19 policies? Contact Jaron Blandford, Cindy Effinger, Stephen Amato,  Claire Vujanovic, or Jason Hollon at McBrayer for responsive answers to your questions.

Jaron Blandford is a member of McBrayer and is located in the firm’s Lexington office. Mr. Blandford focuses his practice on civil litigation with an emphasis in all areas of labor and employment law. He can be reached at jblandford@mcbrayerfirm.com or (859) 231-8780, ext. 1252.

Cynthia L. Effinger, Member with McBrayer, is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mcbrayerfirm.com or (502) 327-5400, ext. 2316. 

Stephen G. Amato is a Member of McBrayer law. Mr. Amato focuses his practice in the areas of hospitality law, civil litigation, employment law, and administrative law, and is located in the firm's Lexington office. He can be reached at samato@mcbrayerfirm.com or 
(859) 231-8780, ext. 1104. 

Claire M. Vujanovic, member with McBrayer, is located in the firm's Louisville office.  Ms. Vujanovic's practice is concentrated in the areas of labor and employment law and includes NLRA compliance, drafting and reviewing employment manuals and policies, drafting severance, non-compete and employment agreements, and counseling clients related to overtime and wage and hour regulations, laws and claims and workplace discrimination.  Ms. Vujanovic can be reached at cvujanovic@mcbrayerfirm.com or (502) 327-5400, ext. 2322.  

Jason R. Hollon is an Associate of McBrayer law. His law practice primary focuses in the areas of employment law, employment litigation, civil investigations and estate and trust litigation. He is in the firm's Lexington office and can be reached at jhollon@mcbrayerfirm.com or at (859) 231-8780, ext. 1147.

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This article does not constitute legal advice.