Wage and Leave Issues Implicated by the Coronavirus: What You Need to Know and Do
March 17, 2020
Coronavirus (COVID-19) has been in the news for months and on the minds of many of us for some time, but it has hit us faster and harder than expected and in ways we could not imagine.
On March 6, 2020, Pennsylvania Governor Tom Wolf issued a Proclamation of Disaster Emergency. On March 13, he ordered the closing of many public schools, on March 14, he urged that non-essential businesses close in the suburbs surrounding Philadelphia, and on March 15, he ordered the closing of dine-in bars and restaurants in those same areas. Who knows what is coming tomorrow. As we adjust at home and in the office to this new reality, employers have many questions as to their rights and obligations vis-à-vis their workforce. This brief paper will address some of those questions.
1) Must we pay our employees if our business closes?
For most employees, the answer is no (but see below). The law only requires that employers pay their non-exempt employees for time actually worked. Even if your business is shut down by order of the Governor, you need not pay these employees if they are doing no work. However, if you permit them to work from home or they are otherwise performing work, you must pay them for their time. With regard to your exempt salaried employees, they need not be paid for any week in which they performed no services. If some work is performed, even if limited due to office closure or illness, the employee must be paid for the entire week. That said, certain deductions might be permissible if the employee is absent from work due to reasons other than illness.
2) If we remain open, must we pay an employee who does not work due to reasons associated with COVID-19?
It depends on the reason the employee is absent. COVID-19 raises numerous issues under federal and state laws including the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).
A. Employees who contract the virus or whose family member contracts the virus. If an employee contracts the COVID-19 virus, it could be, but will not necessarily be, either a disabling condition under the ADA or a serious health condition under the FMLA. Typically, a transitory treatable condition will not meet the definition of disability under the ADA. Likewise, such conditions generally do not arise to a serious health condition under the FMLA. For instance, persons who catch a bad cold or a case of the flu (without serious complications), will not often be entitled to the protections of these laws. However, that is not always the case and COVID-19 is not the flu. Under the FMLA, a person will be deemed to have a serious health condition if that condition requires in-patient care (overnight at a hospital), or a period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery there from) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
- treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
- treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
Therefore, someone who contracts COVID-19, is incapacitated for more than 3 days and is under treatment, will likely be entitled to FMLA protection (up to 12 weeks of unpaid leave) if both the employer and employee are covered by the Act (generally speaking, a full-time employee who has worked for more than one year for an employer with more than 50 employees within 75 miles of the employee’s place of business). If the employee does not contract the virus but must care for an immediate family member who contracts the virus, the employee will likewise be entitled to FMLA leave.
B. Employees who have children home from school. Many employees have young children with no one to care for them when school is closed, particularly with the mass closures that have been imposed. Neither the federal or state laws currently in place require employers pay employees in these circumstances, and in fact employers are not even required to grant unpaid leave.
3) May we question employees about their medical condition or ask them to stay home or leave work?
The ADA ordinarily precludes employers from inquiring about an employee’s medical condition. But these are not ordinary times. The World Health Organization has declared COVID-19 a pandemic. Employees who demonstrate symptoms can therefore be asked to leave work and seek medical assistance. Such employee can likewise be told to stay home until cleared to return. If an employee tests positive for the virus, you should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Ask the infected employee to identify all individuals with whom the employee worked in close proximity. Be mindful you may not disclose confidential medical information about one employee to other employees.
4) Must we allow employees leave or the ability to work remotely?
Again, it depends. An employee’s mere concern about the virus does not entitle the employee to such an accommodation. However, if the employee is disabled under the ADA and would therefore be particularly susceptible to the virus or would more likely suffer serious health complications if contracted, the employee may be entitled to a reasonable accommodation as required by the ADA. In such a situation, the employer must discuss what reasonable accommodation might be available to allow the employee to perform the essential functions of his/her job.
5) Families First Coronavirus Response Act.
In this very fluid situation, where it seems recommendations from the CDC and state government are changing day by day, what was required yesterday might not be required tomorrow. On Friday, March 13th, the U.S. House of Representatives passed a bill to address the current health crisis by proposing significant changes to the FMLA. If passed by the Senate in its current form, the Act would expand FMLA leave protections to cover public health emergencies. The Act would apply to private employers with fewer than 500 employees and all public employers. Employees would be covered as long as they worked for their employer for at least 30 days. If passed, protected employees would be entitled to two weeks of unpaid leave followed by a period of paid leave, and leave would be required if needed to care for a child whose school had closed. Employers must pay particular attention to this legislation as it might alter employer/employee leave obligations significantly.