By Kevin M. Mosher • Mar 12, 2020
Normally at myHRgenius we don’t cover the same topic two weeks in a row, but COVID-19, or the coronavirus, is a topic that warrants repetition. If you did not read last week’s HR Tip of the Week you can find it at www.myhrgenius.co.
This situation raises a number of questions related to employees. Here are a few you have encountered, or might.
Question: Can I tell my employee to stay home?
In general, yes. There is no legal entitlement to work. If you have a concern an employee is sick or infected, you can tell them to stay home. If you have a union, however, you will want to review your collective bargaining agreement to see what potential restrictions you might have.
Question: Do I need to pay employees if I send them home?
Maybe/maybe not. Non-exempt, hourly, employees are only entitled to pay for the time they work. If they aren’t working they are not entitled to compensation. You can allow them to use paid time off per your policies, and, if the employee has a long-term ailment, they may even be eligible for benefits under an insurance policy.
Exempt employees paid on a salary basis are entitled need to pay if they are willing to work and you tell them not to, unless they do not work at all during the week. While there are some limited circumstances, such as being on FMLA, where you can reduce the salaried exempt employee’s wages, as a general rule, if the salaried employee wants to work and you’re not letting them (and they’ve worked some that workweek) they are entitled to their weekly salary.
Question: Would a shutdown of my operations trigger WARN requirements?
Potentially, though it’s unlikely. In general, federal law (the WARN Act) requires employers with 100+ employees to provide 60 days’ notice before closing a plant, if that closure results in the termination of 50 or more employees. The act does not apply, for example, when:
The layoff is of between 50 and 499 employees, and that number is less than 33% of the employer’s total active workforce at that site;
The layoff is for 6 months or less; or
Work hours are not reduced 50 percent in each month of any 6-month period.
A short-term layoff is therefore not subject to the act.
Even if you terminate, or layoff ,a number of employees sufficient to trigger WARN obligations, there is an exception under the law for unforeseeable business circumstances at the time the notice should have been given. We don’t have any guidance from the courts or the DOL whether COVID-19 would be considered an unforeseeable business circumstance, exempting your company from having to comply with WARN, but it surely would seem like a good argument.
Finally, many states have their own WARN laws, so you will want to understand those laws as they may differ from the federal law.
Question: Are we taking risk by having our employees come to work?
To have employees is to have risk. Employers have a duty to maintain a safe working environment. It starts there. If you have knowledge that an employee is infected or even possibly infected, affirmatively keeping them away from clients, customers and co-workers is facilitating a safe working environment. There are additional steps you can take, but until there is a medical solution for having infected employees interact safely with others, removing them from the workplace is an effective step. Doing more should then lower your risk further: cleaning their workspace and any other potentially affected workspaces; notifying customers and co-workers, (though make certain to comply with HIPAA restrictions in any communications); providing cleaning supplies around the office. All such mitigation responses should work to keep your workplace safer and lower your risk.
Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.