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Coronavirus - Top 10 Recommendations for Your Workplace

The coronavirus outbreak seems to raise new issues for our society on a daily basis and the workplace is no exception.   While the employment law and practical HR approaches involved in responding to the coronavirus emergency will continue to evolve, there are some key recommendations that all employers should consider and/or observe at this time:

  1. Keep in mind that OSHA's general duty clause requires employers to provide a workplace free from recognized hazards and/or that are likely to cause death or serious physical harm.   This almost certainly imposes responsibilities on employers to inform employees about the coronavirus in the workplace, limiting exposure in the workplace, and presenting reminders about ways to limit the spread of the disease.   Most significantly, this includes informing employees that they MUST stay at home if they are showing any of the CDC's listed symptoms of coronavirus.   This cannot be optional, so that if an employee shows up with any symptoms, he/she will be sent home immediately. 
  2. Make sure to place numerous posters throughout the workplace (including in bathrooms and any shared spaces such as a break room) reminding employees to regularly wash their hands and recommendations on the best techniques for washing hands.   The posters should also address staying at home if showing symptoms, coughing and sneezing etiquette, and regularly sanitizing personal workspaces as well as shared workspaces after use.   OSHA would likely expect all employers to be taking these steps already in the workplace, along with having hand sanitizer and disinfectants available throughout the workplace, and working with your building custodial staff and/or landlord to ensure that proper cleaning techniques are being used daily.
  3. Immediately determine what positions could be performed remotely.  These steps should be evaluated to implement any technology or other arrangements to ensure that working remotely will run as smoothly as possible.   Our recommendation is to allow remote work immediately if viable, and if not viable currently, to continue to make preparations to transition other employees to  remote work assignments as soon as possible.  The key -- be ready to go with your remote work plan (if you have not already started implementing it) so that if a temporary shutdown of your workplace becomes necessary, you will have as many employees as possible able to work remotely. Employers should at this point expect that remote work arrangements are almost certainly a reality within days or weeks to come.
  4. For those positions that cannot be performed remotely, each employer must evaluate options.   While the recent bill passed by the House may become law and require many employers to begin providing paid leave during this crisis (see blog by John Gardner addressing this bill), employers should consider paid leave even if that is not required.   Consider the long-term implications as a temporary shutdown with paid leave might be a better alternative than a longer-term shutdown if the virus infects and impacts substantial parts of your workforce for a longer period of time.  
  5. Consider amending your company's PTO policy for these special circumstances, so that employees can go negative into their PTO allocations if they need to take time off due to either contracting the coronavirus or if the workplace is shutdown.
  6. Consider combining various strategies as noted above.   For example, during the first week of a temporary shutdown, consider providing paid leave.   During the second and third week, consider providing 50 percent paid leave, and 50 percent use of accrued PTO.  For longer periods of three weeks, allow PTO usage in full and as noted above to go negative up to a certain amount of hours.   Again, the recent bill passed by the House may alter such strategies if the paid leave component is passed into law. 
  7. If a temporary shutdown does not become necessary, consider implementing alternative work schedules that are much more flexible.   This could be particularly helpful to parents of school age children who are at home due to the increasing numbers of school closures.  Such alternative work schedules could be that employees are allowed to work part-time during hours other than their normal workday hours, including over weekends.   For single parents and two parent households, they may be able to secure childcare assistance from grandparents, aunts and uncles, neighbors or other trusted friends that would allow them to work different hours, particularly over the weekends.   While this is not a perfect solution, providing it as an option may be attractive for employees rather than using all of their PTO and or going negative into PTO.
  8. While the coronavirus is unlikely a "disability" under the Americans with Disabilities Act (ADA) due to its temporary duration, keep in mind that employers are not allowed to require medical exams.  While it is likely that most individuals are almost certain to try to be tested if they show symptoms, the employer cannot require them to do so.   Additionally, as the coronavirus is more likely to impact employees with certain medical conditions that are considered to be disabilities under the ADA, certain accommodations for that employee may be necessary to limit the risk that he/she is not exposed to the coronavirus.   
  9. Review FMLA and Leaves of Absence policies to potentially use and follow for employees who have contracted the coronavirus as it certainly will be considered a "serious health condition" for FMLA purposes as well as likely being covered under a leave of absence policy for an employer with fewer than 50 employees.   
  10. The FLSA does apply regarding certain wage and hour issues.   If non-exempt hourly employees are working from home, they must record their working time so that they are properly compensated.   While this is also a requirement in the workplace, it is important to remind employees of this requirement if they are working from home and more likely to overlook maintaining a record of their work hours.  You should make sure that timecards or other time records are being accurately maintained daily and e-mailed or texted to the Company.   For exempt salaried employees, keep in mind that if they work any part of a workweek, the FLSA requires them to be paid for the entire week.   So if a salaried employee works one day and then is out sick with the coronavirus, or if the employer is required or decides to close the office, the exempt employee must still be paid his/her full salary for that workweek, even if no further work is performed in that week.  

If you have any questions about these recommendations or other employment/HR issues related to the coronavirus, please contact one of the attorneys in DeWitt's Employee Relations Practice Group.   Steve can be reached directly at 608 252-9362 or sad@dewittllp.com.   And please stay safe and well.  

About the Author

Stephen DiTullio is an attorney practicing out of our Madison office. He is a member of the Labor & Employment, Litigation and Transportation practice groups. Contact Steve by email or by phone at (608) 252-9362.

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