Note: Some of these laws are changing rapidly as the federal government responds to the crisis. For example, paid sick leave and paid family leave are required of small employers beginning April 1, 2020. That’s why some of the information below has been deleted. Be sure to call an employment lawyer for the latest information and advice.
As COVID-19 dominates the headlines, Texas employers still have businesses to run and employees to supervise. The novel coronavirus, which causes the disease “COVID-19”, is creating all kinds of questions for these businesses, and most of those are best answered by medical and governmental resources.
But there are also employment law issues arising that a Texas employer may wrestle with. I wouldn’t even think about giving medical advice, but 32 years of practicing law has given me some insight that you may find helpful about the legal issues you are facing with your employees.
While there are some companies that can and should practice social isolation and allow employees to work from home, many businesses require employees to show up to perform work—think grocery stores, pharmacies, restaurants, retail, medical offices, hospitals, construction, feedlots, landscapers, agriculture, trucking companies, banks, childcare facilities, etc.
In those businesses, employers must walk the tightrope between compassion for those who are sick and the reality of needing your employees to be present in the workplace. There may also be tension between wanting to pay your employees even while they are absent and a possible huge decrease in your revenue during this time.
So there are no easy answers, but here are the laws you need to consider and discuss with your human resources professionals and your employment attorney BEFORE you take any action involving your employees:
- OSHA: All employers have a general duty under the Occupational Health and Safety Act to provide employees with a safe workplace. What constitutes “safe” right now is not always clear, so you must keep informed of what the CDC, the Texas Department of Health and the local Public Health authorities are recommending. For Texas Panhandle businesses, Amarillo has created an informative website. Dr. Scott Milton, the local Public Health authority and an infectious disease specialist, has promised
weeklydaily updates every Wednesday. Don’t let the rumors circulating make the decisions for you or your employees. For example, as of March 13, 2020, there are no confirmed cases of COVID-19 in the Texas Panhandle and we should be able to proceed with business as usual, as long as we exercise reasonable caution.
- Family and Medical Leave Act: If your business is subject to the FMLA (generally because you employ more than 50 employees within 75 miles of each other), you are required to allow an employee with a “serious health condition” (their own or a family member’s) up to 12 weeks off (without pay) and restoration of their job when they are able to return to work. COVID-19 will undoubtedly qualify as a serious health condition if the employee (or their child) actually has it. If you are skeptical of the employee’s claim of a health condition, do not “play doctor”. Grant the FMLA conditionally and then use the approved FMLA forms to get proper documentation of the health condition.
- Americans with Disabilities Act: If you have at least 15 employees, you are required by federal and state law to refrain from disability discrimination and to reasonably accommodate a person with a physical or mental impairment. The Equal Employment Opportunity Commission has a detailed document about how employers should comply with the ADA during a pandemic that was written during 2009’s H1N1 outbreak. It answers such questions as whether an employer can mandate temperature-taking of its employees as they report to work each day
(answer: not until the pandemic has been declared to have reached your particular geographic area by either state or local health authorities, meaning that WHO’s declaration on March 11, 2020 of a global pandemic is not sufficient). It also addresses whether you can send employees home who are exhibiting symptoms (you can).
- Title VII: There has been some bigotry directed to Asian-Americans since the beginning of this epidemic, even though there is no scientific basis for believing that your ethnic origin has any bearing on the vectors of the disease. This is a global pandemic and is affecting all peoples. You have an obligation as an employer to make sure that every employee is free from discrimination and harassment on the basis of their ethnic origin. It is your responsibility to stop your employees who call this the “Wuhan flu” or the “Chinese Coronavirus” or make any other xenophobic jokes or remarks that target anyone of Asian descent.
- Sick Leave and Other Paid Time Off Policies:
These policies are purely an employer-policy invention and not required or regulated by any law. So you will need to consult and follow your written policies as to whether you provide any employee with paid leave (remember, FMLA is unpaid leave). Understand that you can enforce violations of your attendance policies even during this unusual time period. For example, fear of COVID-19 prompting a young, healthy employee to just want to stay home and not work may be an abuse of your sick leave policy. Despite what your malingering employee may claim, his/her fear is also not enough to qualify your premises as an unsafe workplace under OSHA or FMLA (the employee has to actually be in immediate danger of serious injury or death to refuse an assignment or refuse to report to work). But if you have an employee exhibiting symptoms, such as fever, coughing and shortness of breath, that can indicate that the employee is making the workplace unsafe and needs to be sent home to protect other employees and customers.
- Fair Labor Standards Act: How and when you pay your employees is heavily regulated by both the FLSA and the Texas Payday Law. If your nonexempt (hourly) employee is scheduled but absent from work, you don’t have to pay that employee for time that was not actually worked. But, for your exempt (salaried) workers, the rules are very different, as I recently explained in my January 2020 alert. These same distinctions between exempt and nonexempt employees apply to compensating your employees if you were to furlough, layoff or fire your employees during the COVID-19 pandemic because your business has fallen off. Of course, if you are able to financially swing it, there is no legal prohibition to prevent you from paying your employees even when they can’t work, and you would be a hero to all of your employees if you did.
- Texas Unemployment Law: If you do furlough, layoff or fire your employees during this crisis because your business is hurting, your employees will be eligible for unemployment compensation. There is no reason for you to contest their unemployment claims. They will have a “waiting week” for the first seven days that they are not working, but after that they can start receiving (inadequate) weekly unemployment benefits. If the employee has a “medically verifiable illness”, such as COVID-19, and that’s the reason for that employee’s layoff, then the employee can still receive Texas unemployment benefits and it won’t result in a chargeback (tax increase) to your business. So in that case, you should respond to the notice of claim of unemployment benefits because you need to let the Texas Workforce Commission know that the employee was laid off for illness.
- WARN Act: If you have at least 100 employees and you layoff or terminate 50 or more full-time employees at a single site, you are required to give your employees 60 days’ written notice of the layoff or closing. There are exceptions that may let you give a shorter notice in these COVID-19 circumstances, but this is a highly technical law and you need to consult your employment law attorney about these technicalities as soon as you anticipate that you may need to do a mass layoff.
- NLRA: The National Labor Relations Act protects employees, even in non-unionized workplaces, who act together to discuss or call for improvement in workplace conditions or terms of employment. They can even alert the media if they believe workplace conditions are unsafe and be protected by this act. So you are going to need to be transparent about the actions you are taking to protect your employees and communicate clearly with your workforce about each material action you are taking. Your calm, rational and clear decisions will go far in preventing employment law violations.
- Privacy Laws: Remember that everything concerning an employee’s medical condition must be kept private under the ADA, HIPAA (if you are in healthcare), and many other employment laws. Private health information that is in writing must be locked in a separate cabinet and electronic information must protected/encrypted and made inaccessible to those who don’t have a need to know. So do not publicize even among your employees who has the virus and who doesn’t. In general, you may release health and emergency information to first responders or governmental authorities to provide emergency treatment for your employee or to cooperate with a contact investigation by the health department. However, unless you are a school or healthcare employer, you have no duty to report to the authorities a suspected case of COVID-19 (that will be done by the healthcare facility if the employee tests positive).
- Employment Contracts:Many of these issues, such as compensation during a layoff, can be modified by a written contract. So if you have employment contracts with your employees, you must consult those contracts before you take any adverse actions with that employee.
This is such a brief overview of some very complex employment law issues that I have to strongly urge you to consult with your HR professionals and your employment lawyer before you make any hard decisions in response to this pandemic. Meanwhile, be kind, be rational, and look out for your employees, your family and your neighbors to the greatest extent that you can.