Coronavirus Raises Legal Questions for Employers

Coronavirus Raises Legal Questions for Employers

By Scott Horton, Founder/Attorney, Horton Law PLLC

March 10, 2020

If you manage employees, most likely they’ve already started asking about how your company plans to respond to the coronavirus (COVID-19) outbreak. Hopefully, you’ve been giving thought to the practical impacts these new health concerns could have on your business. But maybe you haven’t had a chance to consider the legal implications of your response.

Many medical and scientific questions remain unanswered. Governments are still developing their response (which may include new laws affecting businesses). But let’s take an early look at several legal considerations you might face as you decide how to address coronavirus in your organization.

CAN WE SEND SICK EMPLOYEES HOME?

That’s probably the best idea, but it’s not entirely without risks. A sick employee might qualify as having a disability, in which case you’d have to consider reasonable accommodations (more below). But even with disability discrimination protections, you don’t have to allow someone to come to work if they pose a direct threat to others in the workplace.

Once you send them home, you must consider questions like: Do we let them work from home? Do we have to pay them?

More on these questions from a legal perspective below. But you should also consider the practical impact on your employees and business. For example, if you make someone go home and don’t pay them, can they afford to remain your employee? Will they be disgruntled when they come back? Do you have any choice?

Do we have to let employees work from home?

Generally, no. Unless you have contractually agreed to allow certain employees to telecommute, you should have discretion in whether to do so in response to coronavirus.

One possible exception may exist if you have employees whose medical conditions prevent them from coming into work. If the employee’s condition qualifies as a disability (quite possible under New York law, which has a low threshold for that designation), then you must consider whether there are reasonable accommodations that would enable them to continue to perform their job. If you have a history of allowing employees to work from home, then allowing an employee to work from home—at least temporarily—might be a reasonable accommodation that you must permit, unless there is an alternative accommodation that would also suffice.

Whether you can or must let anyone work from home will depend on various factors, including the nature of the job. But if it’s at all possible, you should at least evaluate the situation on a case-by-case basis, including interacting with the employee making the request, before telling employees they can’t work from home when there’s a medical issue involved.

DO WE HAVE TO GIVE EMPLOYEES PAID TIME OFF?

New York State does not currently require any employees to give paid time off to any employees. The only partial exceptions relate to insurance programs, such as short-term disability, workers’ compensation, and paid family leave. But, technically, these benefits are not paid by the employer, but rather through insurance coverage. However, some states and cities (e.g., New York City) do have paid sick leave laws. And New York State may follow suit with similar laws, especially given the heightened concern based on the coronavirus.

But, barring a new law, most employers in New York State currently only have to provide whatever leave benefits they have agreed to provide. Your sick leave, vacation, personal leave, and other forms of paid time off benefits must be clearly described to employees in writing. If you don’t already have written policies and procedures in place regarding these matters, now would be a great time to re-evaluate and prepare the appropriate documentation.

HOW DO WE PAY EMPLOYEES WHOSE WORK SCHEDULE IS AFFECTED?

You might have some employees who will work fewer hours, more hours, different hours, etc., during the coronavirus outbreak. Some will now work at home for all or part of the time they usually would have been at work. State and federal wage payment, minimum wage, and overtime laws will still apply. Make sure you don’t violate them while trying to do the right thing for your employees and customers!

Employees who are properly exempt from overtime usually get paid a fixed salary. With limited exceptions, they’re entitled to receive their full salary for any week in which they perform any work. On the plus side, this covers the employer for work performed at home without the need to track time worked precisely. On the other hand, it can create logistical problems when employees can’t work their full schedule.

Before reducing an exempt employee’s schedule, you must be sure there is a legal exception that permits it. You can, in some cases, reduce an exempt employee’s salary for full-day absences, but generally cannot for partial-day absences. Even for full-day absences, and especially if resulting from the employee’s own illness, you may need to ensure you had appropriate time off policies in place and that the employee has run out of time before you reduce their salary.

Non-exempt—typically, but not necessarily, hourly—employees present different concerns. Employers much track all time worked by these employees and pay them accordingly, including overtime for hours worked beyond 40 in a week (or based on a lower threshold agreed to by the employer). Tracking time can become challenging when employees work irregular schedules or particularly when they work from home. But failure to maintain accurate time records and pay overtime when earned can result in costly liability for the company.

Horton Law PLLC represents employers regarding a wide range of labor and employment law matters. Attorney Scott Horton has nearly 15 years of experience practicing in this area in Western New York. The firm’s offices are conveniently located in Orchard Park. Contact us at 716-508-7748 or through our website, hortonpllc.com.