COVID-19 Considerations for Returning to Work: Part Two

Posted on Jun 4, 2020 by

In last week’s blog article, we addressed several issues that employers will want to consider as they return employees to the workplace.  This article continues that thinking by reviewing considerations and legal issues that may arise as employers: (i) confront COVID-19 related absences; (ii) have a need to reduce hours or require employees to take furlough days until business is back to normal; (iii) deal with employees who may have been exposed to COVID-19 through work; and (iv) manage employees who are returning to work from travel and attendance at large social gatherings.

COVID-Related Absences and Laws to Consider

Employees should be instructed not to report to work or should be excluded from the workplace if they have a confirmed case of COVID-19, are experiencing any symptoms of COVID-19, or have been in close recent contact with a person who has a confirmed or suspected case of COVID-19.  Employers may allow employees to use available sick time, vacation time, or paid time off for absences or may allow the employee to take unpaid time off in these situations.

Depending on the circumstances, several laws may come into play, and employers need to consider their obligations under these laws:

  • Paid Sick Time under the Families First Coronavirus Response Act (FFCRA): For employers with less than 500 employees, paid sick time may be available to the employee under the FFCRA when the employee’s absence is for a qualifying COVID-19 reason (see our past blog article on the FFCRA).
  • Family and Medical Leave Act (FMLA): An employee may qualify for leave under the FMLA and Wisconsin Family and Medical Leave Act, if the employee has COVID-19 or is caring for a family member with COVID-19, and the illness is certified as a serious health condition by a health care provider.  The employee may also qualify for paid expanded family leave under the FMLA, if the employee is absent because he/she is caring for the employee’s minor child whose school or childcare is closed or not available due to COVID-19.
  • Disability Law: For employees who have underlying health conditions making them more vulnerable to serious illness or death if they contract COVID-19, the Americans with Disabilities Act (ADA) and state disability law may apply and require the employer to provide reasonable accommodation to disabled employees in the form of continued remote work, a medical leave of absence, and/or other workplace accommodations.

Employers should be flexible in their absence policies and be cautious about disciplining or terminating employees who are absent for COVID-19 related reasons.  Punitive absence policies can lead to claims and encourage employees to report to work when they should not do so, and/or to be dishonest in responding to the employer’s COVID-19 wellness screening questionnaire.

Reduced Schedule, Furlough Days, and Pay Adjustments

If an employer’s business has slowed due to the COVID-19 pandemic, employers may decide to bring employees back to work on a part-time schedule, reduce the number of hours in the workweek, and/or to require employees to take furlough days until business picks up.  Making these types of changes is more easily accomplished for non-exempt hourly employees.  For exempt employees, these changes can be more problematic, and can jeopardize an employee’s exempt status, if not handled correctly.

Potential Issues with Exempt Employees:   If an exempt employee is on furlough for a full week at a time, and the employee performs no work during the furlough week, the employer is not required to pay the employee any salary for that week.  However, if the employer requires an exempt employee to take a furlough day each week, and the employee has performed work on other days of that week, the law requires the employer to pay the employee his/her full weekly salary for that week.

An employer wishing to have an exempt employee take furlough days for a period of time into the future is permitted to reduce the employee’s weekly salary by an amount that corresponds with the reduced work, but will need to ensure that any such adjustment meets the following criteria:

  • The adjustment is made on a prospective (going forward) basis.
  • The adjustment is based on the employer’s longer-term business needs. Employers are not permitted to reduce an exempt employee’s weekly salary based on day-to-day or week-to-week fluctuations in work.
  • The adjustment must not take the employee’s weekly salary below the state and federal minimum salary requirements.

General Considerations for All Employees:  Employers need to specifically instruct employees that they are not to perform any work for the employer, including, but not limited to, answering calls and checking voicemail and email, on days they are not scheduled to work. If employees perform work for the employer on these days, the time is compensable.  Employers will want to ensure that any reduction in hours, required furlough days, and/or pay adjustments are made on a non-discriminatory, non-retaliatory basis and for legitimate business needs.

Worker’s Compensation and Reportable Injury Under OSHA

If an employee becomes ill with COVID-19 and the illness is traceable to workplace exposure, then the illness may be a compensable injury under Worker’s Compensation law and a reportable illness or injury under OSHA law.  Under OSHA regulations and enforcement guidance, employers are required to undertake a reasonable investigation after learning that an employee has tested positive for COVID-19.  Based on the facts available, if the employer determines that there is a reasonable probability that the employee contracted COVID-19 through workplace exposure, the employer may have a reporting obligation to record the illness as work-related under OSHA.

Travel and Social Gatherings

Business Travel and Events:  Employers should discontinue or limit business-related travel for employees, especially when the travel is via public transportation and/or to locations where the CDC and/or the U.S. Department of State has/have issued notices to avoid travel.  Employers will also want to discontinue or limit work-related celebrations, meetings, and conferences through the COVID-19 pandemic.

Personal Travel and Social Gatherings:  When it comes to personal travel and/or attendance at non-work-related social events, this enters the area of employee off-duty, legal conduct, and is more difficult for employers to control.

How to Handle Personal Travel and Off-Duty Attendance at Events: 

  • Employers may suggest that employees avoid non-essential personal travel and large gatherings where social distancing will be difficult and consider wearing a face mask while using public transportation and attending events.
  • Employers may require employees to disclose travel plans and/or plans to attend large social gatherings, and the mode of transportation to be used.
  • Employers may require employees to report whether they have had recent contact with another person who has recently traveled by public transportation and the location to/from which that person traveled.
  • If employers are concerned about an employee’s recent travel or exposure, the employer may require the employee to work remotely or to not report to work for 14 days after the travel. Employers may allow employees to return to work earlier if the employee has tested negative for Coronavirus and is experiencing no current symptoms of the virus.
  • Employees who are not allowed to return to work after travel or attendance at a large gathering may be eligible for unemployment insurance benefits during the time they are off work.

We’re here to help. There are many issues and laws that come into play as you return employees to the workplace during the COVID-19 pandemic. The attorneys at McCarty Law LLP are here to help you avoid legal claims and potential liability as you implement and administer policies, practices, and procedures to return employees to a safe workplace.

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Rebecca L. Kent

Employment & Labor Law and Commercial Litigation Attorney at McCarty Law LLP
Becky assists businesses as they confront the legal questions and challenges that arise each day in the area of human resources. She provides legal services in the areas of employment and labor law and represents clients in employment and business-related litigation.