The COVID-19 pandemic has provided us all with a seemingly endless supply of questions, concerns and fears. At the same time, we are witnessing dramatic world events that will no doubt alter both our social landscape and affect us in every way as we move forward.

In an effort to prepare our clients for what is to come, we are looking ahead to anticipate legal ramifications that will result from these circumstances. Clearly, the pandemic has caused business disruption on a scale we have never seen. As businesses and organizations gradually open, employers need to know what must be done to insure adequate protection for employees, and employees want to know what their rights are if they do not feel comfortable returning to the workplace when called back.

The first and best resource is the Centers for Disease Control and Prevention (CDC) and the numerous guidelines they publish. The CDC cautions that until a vaccine or therapeutic drug becomes widely available, community mitigation strategies (such as social distancing and wearing face covering) is necessary.

It is essential for employers to recognize the following:

  • Some states, due to the severity of the outbreak, will have different guidelines than others. For example, New Jersey and Pennsylvania are among the hardest hit states, therefore the employer’s first inquiry must start with health officials at the local level;

  • Some workers are at a higher risk for severe illness. These workers include individuals over age 65 and those with underlying medical conditions such as chronic lung disease, asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease and chronic kidney disease requiring dialysis. Workers at higher risk should be encouraged to self-identify, thereby enabling employers to avoid making unnecessary medical inquiries;

  • As we move from one mitigation level to the next, consider offering workers who are at higher risk duties that minimize their contact with others if agreed to by the worker, and provide options as feasible to eliminate travel to the workplace and continue remote work;

  • Promote healthy hygiene practices by posting signs on how to stop the spread,  such as hand washing and masks, and provide adequate supplies to support hygiene, such as soap, hand sanitizer (with at least 60% alcohol), tissues, paper towels and no-touch trash cans;

  • Encourage telework for as many employees as possible, and consider rotating or staggering shifts for employees who come to the workplace;

  • Consider conducting routine, daily health checks such as temperature and symptom screening of all employees. If implementing health checks, conduct them safely, respectfully and maintain confidentiality. Information  on symptom screening for non-healthcare settings is available on the CDC website.

  • Plan for when an employee becomes sick by immediately sending the employee home and offering safe transport if necessary to a health care facility. Notify local health officials, staff and anyone who came into your place of business and may have had contact with the sick employee. Close off areas used by the sick person until they have been thoroughly disinfected. The CDC recommends waiting 24 hours to disinfect, if possible.

  • Designate a staff person to be responsible for responding to employee’s COVID-19 concerns and communicate this to all staff; and

  • Check your state and local health department notices daily about transmissions and be prepared to adjust your operations accordingly.

The Families First Coronavirus Response Act (FFCRA) requires private sector employers with fewer than 500 employees and certain public sector employers to provide eligible employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19 through December 31, 2020. There are six qualifying reasons for leave related to COVID-19 and three levels of paid leave. Information is available on the Department of Labor website.

Employees should be clear on the distinction between termination, layoff and furlough, and what rights they might have as a result. A termination is the elimination of the employee with no intent to bring the individual back. This will trigger an end to health insurance benefits and will enable the employee to apply for unemployment. A layoff is the term often used when the employer’s place of business is closed and the employee’s job cannot be performed remotely or supply chain interruptions or other temporary conditions result in a lack of work. While a layoff also severs the employment relationship and ends health insurance, the layoff could be temporary. The employee could be recalled and the parties could negotiate an option to continue health insurance. A common example of employees who were laid off are restaurant workers who, when take-out, curbside pick-up and outdoor dining opened up, were recalled to work. A furlough is a situation where the individual is still deemed an employee and the employer can reduce the hours worked or the rate of pay. It will depend on the specific health plan whether the furloughed individual remains covered. Some health plans require that a minimum number of hours must be worked. It is anticipated that the furloughed employee will return to work at some point. The concept of furlough is vague with health insurance companies, reports an attorney who spoke with many carriers about the topic, and they look to the policy terms when interpreting coverage.

When enacting furloughs, layoffs or terminations, employers must also consider ramifications under a number of laws depending on the status of the employee, the size of its workforce, and the percentage of reduction in its workforce. When furloughing exempt employees (salaried employees ineligible for overtime), an employer must be cautious. If an exempt employee makes more than $684 as a weekly base salary, the employee cannot be subject to the furlough unless the employee voluntarily opts into taking unpaid time off or the employee is provided notice and the furlough is structured in full-week increments where the employee does not perform any work. Also bargaining agreements and/or an employer’s handbook or other formal employment policies may effect enacting a layoff or furlough policy. Alternatively, “non-exempt” employees (hourly employees) should be paid at least minimum wage for all hours worked.

Additionally, the federal WARN Act as well as state law (commonly referred to as Mini-WARN acts) provide notice requirements before enacting layoffs and terminations. These regulations are applicable based on the size of the workforce and the number of employees being subjected to the reductions in workforce. New Jersey’s mini-WARN Act mirrors the Federal WARN Act by requiring employers with more than 100 full-time employees to provide 60 days notice before reducing their workforce by more than 50% or for more than 6 months. Pennsylvania’s mini-WARN act requires employers with more than 100 full-time employees to provide 60 days notice before the employer reduces their workforce by more than 33% or by 50 employees or more during a 30-day period of time. Notice may also be required if an employer meets these thresholds as a result of multiple employment actions made within 90 days. There are specific exemptions to the notice requirements under the WARN Act and each states’ mini-WARN act that may apply depending on the circumstances surrounding the layoffs or terminations.

As an employer, be clear with employees about the terms of any furlough, layoff or termination, the applicable time period and what, if any, benefits will continue. Employees should ask questions about the effect and extent of your changed employment situation.

Envision the scenario where an employee who works in a nursing home (deemed essential) feels fine, but is just not comfortable going to work. If the state government deems that work to be essential, the employee will likely have to use his paid time off, or will risk termination if he refuses to return.

For the non-essential business, such as an accounting office, the employer may not require the staff to be in the office if there is a telecom option that enables the employee to perform her job remotely. This employer risks fines, a physical shut down and possibly a court appearance by failing to observe state guidelines.

Due to the unchartered nature of these concerns, there have been no cases that have been decided as of this writing. It is anticipated that Courts will be reluctant to make pronouncements that dramatically change laws due to the constantly changing nature of the pandemic.

If you have employment questions or concerns arising out of COVID-19, please contact Maselli Warren, P.C. and we will connect you with an attorney., 609-452-8411.