Employers have a duty to provide employees with a workplace that is free from recognized hazards that are likely to cause death or serious physical harm. Given the rapid spread of the novel coronavirus (COVID-19), what should New York employers do to fulfill this duty while balancing legitimate business needs? And, what legal pitfalls must New York employers be aware of in responding to this pandemic? Read on for answers to these urgent questions.
Every employer should begin by tasking a qualified individual to stay abreast of COVID-19 guidelines and recommendations issued by the Center for Disease Control and Prevention (CDC) and state or local departments of health, as well as applicable laws and regulations. All employees should be notified of who the designated individual is, and it should be made clear that any questions can be directed to that person.
At present, the CDC’s most prominent message is: “the best way to prevent illness is to avoid being exposed to this virus.” Employers can take a number of steps to ensure that their employees do just that.
First, employers should educate employees. Providing staff with detailed information (preferably in writing) about the signs and symptoms of COVID-19, and the manner in which the virus is transmitted, will enable employees to make informed decisions about their daily activities. This information is readily available on the websites of CDC and the World Health Organization.
Employers should also remind employees of the importance of good hygiene. This includes frequent hand washing using soap and warm water for at least twenty seconds, and covering one’s mouth and nose (preferably with the crook of an elbow) when coughing or sneezing. Employers should make hand sanitizer that contains at least sixty percent alcohol available in common areas, but should emphasize that hand washing is a far superior method of eliminating germs. It is also important to ensure that frequently touched surfaces are cleaned and disinfected at least daily, and more frequently when practicable.
Second, employers should clearly define what is expected of employees who are ill. The CDC recommends that employees with symptoms of respiratory illness and a fever greater than 100.4 Fahrenheit stay home. Employers may require employees with these symptoms to refrain from coming into the workplace, and may send home employees who report to work while exhibiting such symptoms. The CDC recommends that such individuals stay home until they have been free of fever and other symptoms for a minimum of twenty-four hours without the use of fever-reducing medications such as ibuprofen or acetaminophen.
Employers should also prohibit employees who have tested positive for COVID-19 from entering the workplace, and should immediately contact the department of health to ascertain what type of containment and/or sterilization measures should be followed. Employers must also inform other employees that they may have been exposed to COVID-19 through contact with an infected employee, but should keep the infected employee’s identity confidential.
The CDC recommends against requiring employees to provide a physician’s certification of fitness for duty before allowing them to return to work, because physicians will likely become overwhelmed during this time and unable to promptly provide such documentation. Instead, the CDC recommends that employees be permitted to return after at least twenty-four hours free of fever and symptoms without the use of fever-reducing medications. However, in circumstances in which the Americans with Disabilities Act or the Family Medical Leave Act are applicable, an employer may require an infected employee to provide a physician’s note before returning to work.
Third, employees may be excluded from the workplace if, despite being asymptomatic, they have had close contact with another person who is symptomatic and has had a positive laboratory test for COVID-19. Employers may also exclude from the workplace, for a period of fourteen days, employees who have recently returned from locations designated by the CDC as subject to widespread, ongoing transmission of the virus. At present, China, Iran, Italy and Japan have been given this classification by the CDC.
Fourth, employers should consider whether non-essential work travel and large events or gatherings (both inside and outside of the workplace) can reasonably be cancelled or postponed.
In formulating and implementing protocol addressing the spread of COVID-19, employee safety is not the only concern. Employers must be sure to comply with existing federal, state and local labor and employment laws.
One of the simplest ways of doing so is to ensure that policies are applied consistently, in a neutral manner and based strictly on safety considerations. For example, an employer must not restrict employees from the workplace simply because they are of Italian or Chinese descent (or are perceived to be even if that perception is incorrect). Similarly, employers should not make exceptions for employees returning from one high-risk country but not for employees returning from a different country of equal risk.
Employers must also be mindful of wage and hour laws. For example, employers must consider whether they are obligated to pay employees who are unable to report to the workplace due to the implementation of COVID-19 response protocol.
Employers may generally direct non-exempt employees not to report to work without any obligation to pay wages. In New York, however, employers must be mindful of “call-in pay” obligations. For most employers, if an employee reports to work on a given day and is later sent home before the end of a shift, the employee must be paid at least the minimum wage for four hours or the duration of the scheduled shift, whichever is shorter.
Employers are generally obligated to pay exempt employees for the entire week if they perform any work in that work week, subject to certain exceptions. For example, the pay of an exempt employee may be docked for any full (not partial) day on which the employee fails to perform any work, if he or she has no available paid time off pursuant to company policy. Because the circumstances in which the pay of exempt employees may be docked are limited and fact specific, it is recommended that employers handle these situations with caution.
What if employees do have accrued paid time off? Generally, New York employers can require employees to use paid time off during a period of illness or quarantine so long as doing so is consistent with the employer’s policies. If an employee lacks accrued paid time off, employers must still consider whether, depending on the circumstances, an employee is entitled to unpaid job-protected leave under the Family Medical Leave Act or the Americans with Disabilities Act. And, where an employee requires leave to care for a family member afflicted with COVID-19, the New York Paid Family Leave Benefit Law might apply.
The CDC and state and local authorities are urging employers to be flexible in providing paid leave to employees who are ill or have potentially been exposed to COVID-19. There are significant practical benefits in heeding this advice. Employees are more likely to comply with a direction to stay home when sick if paid leave is available. This furthers the goal of slowing transmission of COVID-19, and has the potential to encourage employee loyalty and decrease rates of attrition. Ultimately, whether an employer should afford extra paid time off to employees is a business decision as to whether the cost of doing so is outweighed by the benefits of further limiting COVID-19 risk.
The law allows employers to deviate from its usual policies and to provide additional paid leave to employees, so long as such leave is provided in a neutral and non-discriminatory manner. In fact, it has been reported that Governor Cuomo is in the process of proposing legislation requiring paid leave for employees affected by COVID-19.
Employers may also encourage or require employees to telecommute when possible while the COVID-19 pandemic continues, but should be sure to consider wage and hour issues associated with this practice. In the case of non-exempt employees, it is of critical importance that hours are accurately tracked so that all time worked is compensated and overtime is paid when required. Employers should make use of timekeeping apps or software, and should have written policies which make it clear that non-exempt employees must accurately keep track of their time. In the case of exempt employees, while tracking time is potentially less critical from a wage and hour perspective, it remains important from a business perspective to ensure that employees are actually working and doing so productively.
In the end, this rapidly evolving situation presents unique challenges for New York employers of all sizes. A qualified professional can assist in developing comprehensive protocol and addressing personnel issues as they arise.
**This information is current as of March 10, 2020 and is subject to change.**