WORK IN A TIME OF CORONAVIRUS
The Legal Issues Facing Employers During A Global Pandemic
By Seth Matus, Of Counsel
Like most people, I have spent the past few weeks in a state of bemused dread, watching schools and universities close, civic and sporting events get canceled or postponed around the world, and now, millions of people being ordered to stay at home as much as possible, including all residents of Illinois. To survive this unprecedented uncertainty, employers are being forced to make difficult business decisions. Even in this emergency situation, however, managers need to consider numerous employment laws as they choose their course of action.
How To Address The Issues Employers Are Facing
- Handling Employee Concerns
If an employer’s place of business is remaining open, many employees will naturally be concerned about becoming infected with COVID-19. Employers should expect that at least a few employees will be reluctant to work at the job site. Of course, if all employees respond in this way, a business will not be able to operate.
So how do you balance employee concerns with business needs? The best practice to minimize this problem is to demonstrate to your employees that you are following the COVID-19 recommendations given by government authorities as much as possible. For instance, to the extent possible, management should direct employees to remain at least six feet from each other, customers or vendors. Likewise, if it is possible to allow employees to work from home, you should make that option available. However, keep in mind that employees who are not allowed to work from home may begin to resent the employees given this option. Therefore, it may make sense to create a schedule in which all employees rotate working from home and the workplace on different days of the week.
There are other possible common-sense measures that do implicate the law. While it is permissible to ask employees if they are experiencing fevers, chills, coughs, etc. or to take the temperature of employees, the medical information that the employer obtains needs to be treated as a confidential medical record subject to the Americans With Disabilities Act.
Obviously, employers should make sure that employees who begin to feel ill or who have been exposed to people who may have coronavirus do not come into work. As most employers are aware, Congress has just enacted the Families First Coronavirus Response Act (FFCRA), a statute that mandates that employers provide paid sick time to employees who become ill or may have been exposed. The new sick leave benefit must be provided to employees before the employer requires use of company PTO or paid sick time. Employers can require returning employees to provide a doctor’s release, but this also should be treated as a confidential medical record.
What about employees who simply refuse to come to work? There are a few reasons for employers to be cautious before terminating these employees. Employees whose refusal to work is preceded by complaints to management, the media or government authorities may be able to raise whistleblower or National Labor Relations Act claims. Moreover, if an employer terminates an employee who is absent because he or she is in self-isolation or has a legitimate basis to believe that he or she has been exposed to COVID-19, the employer runs a real risk of liability under the FFCRA or other leave laws that may be applicable based on the size or location of the employer. However, if these situations are not present and an employee simply refuses to come into work as a result of generalized fears of contracting COVID-19, an employer would face limited peril if it terminates the employee, especially If the employer gives warnings beforehand.
- Reductions In Pay and Layoffs
It is an unfortunate reality for many businesses that they will only be able to survive the economic downturn caused by the pandemic by laying off or reducing the compensation paid to workers. Of course, an employer’s anticipated cost savings can rapidly be lost if an employee or employees bring suit. While layoffs or reductions in pay frequently result in litigation, there are several steps an employer can take to minimize its legal exposure.
As with any other layoff, if your business is required to lay off or reduce the pay of employees as a result of the coronavirus crisis, it is imperative to develop and apply legitimate and neutral criteria in selecting the employees who will be impacted to reduce the likely success of any discrimination or wrongful termination claims. Again, if the employer’s decision will impact employees who are self-quarantining or otherwise absent for protected reasons, management should be sure that the employee receives all leave provided under the FFCRA and any other applicable laws to preclude any possible interference lawsuits. Finally, if your business employs more than one hundred people and anticipates laying off at least a third of its workforce for six months or more, this action will probably trigger liability under the Worker Adjustment and Retraining Notification (WARN) Act and you should be sure to provide at least 60-days advance notice or provide the equivalent amount of pay.
- The Families First Coronavirus Response Act (FFCRA)
The FFCRA was signed into law by President Trump on March 18, 2020, and goes into force on April 1. The law mandates that employers provide their employees with paid sick leave and partially paid FMLA leave (for parents who cannot work because they have to care for their minor children). Employers will be reimbursed for the cost of these benefits through payroll tax credits. The text of the law can be viewed by clicking the following hyperlink:
2. The Illinois Stay At Home Order
On March 19, 2020, Governor Pritzker issued an Executive Order that requires them to remain in their homes until at least April 7, 2020. For employers, the critical issue in evaluating how the Executive Order will impact their business is determining whether they are a so-called “essential business.” The following hyperlink uploads the Executive Order if an employer wishes to check whether it qualifies as an “essential business”;