As featured in #WorkforceWednesday: In the event the coronavirus spreads drastically, many employers will want to implement mandatory work-from-home policies. Employers should consider various aspects of the Fair Labor Standards Act when crafting these policies. Attorney Jeffrey H. Ruzal explains best practices in the following video interview. See also his recent post on the Wage and Hour Defense Blog.
Labor & Employment
By Eliab Taïrou, from our Labour and Employment Law Practice Group
March 11, 2020 — According to the WHO, 109,577 cases of COVID-19 coronavirus disease have been confirmed worldwide, including 3,809 deaths, as of March 9, 2020. In the last 24 hours as of March 9, these figures include 3,993 new cases and 225 deaths. In Canada, there have been 77 confirmed cases according to the Public Health Agency of Canada. The Agency is maintaining its assessment of a low risk to the Canadian population at this time, while noting that the elderly and those with underlying medical conditions are at increased risk of more severe outcomes.
As the number of U.S. states reporting cases of COVID-19 coronavirus increases, many employers are imposing mandatory work from home (“WFH”) policies to mitigate risk of contamination and ensure business continuity. Some employers are requiring employees who have travelled to or received visitors from mainland China (or other areas with high infection rates) and those with fever or other flu-like symptoms to remain at home for 14 days, while others are instructing half or more, up to their entire workforce, to work remotely until further notice. Whatever the form, employers enacting WFH policies need to make sure they are appropriately compensating their workers and are otherwise complying with all applicable federal, state, and local wage and hour laws.
Coronavirus Supplemental Appropriations Act – Construction Grants for Non-Federally Owned Facilities
The Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (the Act), signed by the President on Friday, March 6, provides $8.3 billion in much needed multi-year funds to battle the coronavirus public health crisis. While there are many important aspects of the Act, below we focus on the Act’s grants for construction, alteration, or renovation of non-federally owned facilities.
With six official cases of COVID-19 confirmed in the Republic of Ireland in recent days and the decision taken by schools to close where those diagnosed with the virus are students or family members, it appears to be only a matter of time before employers will face a similar dilemma regarding closure.
There is no advice from Government to close workplaces just yet but with the pace of contagion seemingly refusing to slow down employers must now consider what steps may need to be taken to protect their workforce and business in the face of such uncertainty.
Below we set out some practical steps that employers may need to consider when faced with potential workplace disruption.
Practical Steps for Employers
1. Carry out a Risk Assessment
Management would be well advised to undertake a full scale review of the risk that may present should COVID-19 spread further.
Depending on the industry, sector particular aspects of a business may be more affected than others. For example, a business that requires regular travel to affected regions to meet customers and suppliers or a business heavily reliant on staff being on-site, i.e. the retail or construction sectors.
The remainder of these practical steps below act as a guide through common areas of concern for employers.
2. Existing Policies and Procedures
A key step for employers is to review the existing policies and procedures which may apply in such a scenario. For example, relevant policies may include those regarding:-
- Absence from work;
- Pay whilst absent;
- Health and safety;
- Working from home; and
- Bullying and harassment.
If these policies are not adequate it would be prudent to issue a “COVID-19 Policy” which could capture the relevant sections of many of the above named policies in one document. It is important that any change to an existing policy is notified in advance to employees. Legal advice should also be sought in such circumstances.
Key questions for employers to address when reviewing existing policies in the context of a COVID-19 outbreak are:-
- Is an employee entitled to be paid for absence, for sickness or isolation?
- If an employee is not entitled to be paid, will such a fact encourage them to return to work when they may still be potentially carrying the virus?
- Does a leave policy require certification that the employee is fit to return to work? This could be problematic where employees are being advised not to attend a GP.
- Should an employer consider temporarily amending the leave or sickness policy due to the extreme circumstances? If so, notice to the employees is essential.
3. Sick Pay and Sickness Certification
There is no legal obligation to pay an employee in Ireland if they are on sick leave from work. Some employers do pay sick leave for defined periods and such benefits, if any, are set out in the employer’s policies or an employee’s contract of employment.
In terms of the rights of particular employees and pay:-
- People who are diagnosed with COVID-19: normal workplace arrangements in respect of sick-absence should apply. Employees diagnosed with COVID-19 can, as is the case of any other illness, apply for income support from the Department of Employment Affairs and Social Protection in the form of illness benefit based on social insurance contributions or supplementary welfare allowance based on a means test.
- People who are not diagnosed with COVID-19 but who self-isolate: if their employer ceases to pay their wages, such employees can apply for income support from the Department of Employment Affairs and Social Protection. A person who self-isolates in accordance with the up-to-date guidelines from the HSE but does not have a medical certificate from a medical practitioner, may apply for an income support in the form of supplementary welfare allowance.
- People who are requested to stay at home by their employer: Anyone who is not advised to self-isolate in accordance with the up-to-date guidelines of the HSE, but is requested to stay at home by their employer as a precaution against the spread of COVID-19, should continue to be paid but in situations where the employer cannot continue to pay their wages employees can apply for income support in the form of a jobseeker payment or supplementary welfare allowance.
- People who need to take time off work to care for a person affected by COVID-19: employers can, and do, agree compassionate leave arrangements with staff who need to take short periods of time off to care for another person.
Certification of potentially infected employees is clearly a practical challenge, to both employers and employees, where employees are unable to attend their GP for a diagnosis.
If an employee is self-isolating the employer will need to trust that the employee is not abusing the instruction not to attend work. Any breach of this trust could be a disciplinary issue and should be set out as such in any COVID-19 Policy. Nevertheless, considering health and safety (discussed further below), it would be advisable that their employer take a conservative view here rather than rush any employee back to work where they are reporting symptoms.
If an employee is verified as having the virus, they should request a medical certificate from their doctor and supply these to HR until certified as “fit to return” by their GP.
4. Obligation to Provide a Safe Place of Work
In accordance with section 8 of the Safety, Health and Welfare at Work Act 2005 (as amended) an employer is obliged to provide a safe place of work for all employees. For this reason, it is essential that employers make sure any employee who suspects that they may have been exposed to COVID-19 is told not to report for work and self-isolate until the advised 14 day incubation period has safely expired without diagnosis of the virus.
If an employee refuses to self-isolate when recommended by the employer and the employer is concerned that such employee is a high risk person, it may be possible for the employer to suspend such an employee so that they do not report for work at a workplace but only in cases where the policies and procedures of the employer allow for such action. We strongly advise that legal advice is taken before any suspension is contemplated.
Employers should also circulate the following guidance to employees and facilitate such practices in the workplace:-
- Wash hands frequently;
- Use alcohol based hand sanitiser;
- Practice good respiratory hygiene;
- Maintain social distance; and
- Self-isolate if symptomatic (fever, cough, shortness of breath).
5. Discrimination, Equality and Bullying & Harassment
Employers should be very careful not to discriminate against employees who are from high risk regions or of a nationality that is strongly associated with the virus. Further, employers have an obligation to protect against bullying and harassment in the workplace which could arise in the context of such employees.
6. Working from Home
An employer may request multiple employees to work from home should they self-isolate or for other reasons for the benefit of reducing any contagion. If an employee starts to work from home but does not normally work from such a location, it is essential that an employer takes steps to protect the business, as follows:-
- Identify if any device that is to be used to work from home is safe from a cyber security and data protection point of view and complies with company policy;
- Perform a sweep of devices and install virus protection software or other security tools to protect previously unregistered devices on the company server;
- Train staff sufficiently in the use of devices at home and to be vigilant in terms of cyber and data security; and
- Remind staff of their confidentiality obligations particularly if working from a public location or on a public broadband or wifi.
The infrastructure required to enable all staff to work from home may not be readily available to every employer but businesses should at least enable “essential staff” (i.e. HR staff, accounts staff and management) to work from home in case of emergency.
In summary, employers must be vigilant to protect the spread of COVID-19 while balancing the need to continue their business. Should any employers have concerns about best practice and suitable action to protect staff and business continuity, including the drafting of a COVID-19 policy, please do not hesitate to contact us.
Video and Podcast: Employee Travel and the Coronavirus, NLRB’s Joint-Employment Rule, and DoorDash’s 5,000+ Individual Arbitrations
Following are the top stories featured in this week’s #WorkforceWednesday, from Employment Law This Week: