Unprecedented Times: Employment Considerations Amid COVID-19

Matthew S. Veech

March 16, 2020

Social distancing, extended Spring Breaks, remote work schedules…the coronavirus is bringing to a head a host of new behaviors, both personally and professionally. Have you considered employee policies and procedures during this pandemic? The BoyarMiller team is analyzing the situation as it develops, offering strategic recommendations to our clients. Shareholder Matt Veech has compiled a list of considerations for employers.

Here are top considerations of employers during the COVID-19 outbreak:

Employers should follow the CDC guidelines and require that employees self-quarantine if they have traveled to a country or area that is high risk. Employers should suspend all business-related travel to such countries or areas.

Employers should avoid the urge to implement medical tests or screenings on employees. This type of practice creates issues under the Americans with Disabilities Act (“ADA”). Further, and practically speaking, the availability of testing for coronavirus is limited.

Employers should avoid the urge to ask employees if they have coronavirus. Again, this type of practice creates issues under the ADA. It is never a good practice to make medical-related inquiries of your employees and now is no different. However, we may see new CDC guidance and rules that may ease restrictions against asking employees if they have been exposed.

Employers should consider loosening return-to-work rules. If your return-to-work policy is that the employee must present a doctor’s note to return from a medical-related absence, employers should consider waiving this to avoid overburdening the medical system.

Employers should consider loosening paid time off policies. Employers should recognize that this is an unprecedented time and there needs to be flexibility. Requiring an employee to exhaust all paid time off at this time is likely not a best practice.

Employers should consider allowing employees to work remotely. This is consistent with the recommendations of public health officials who are encouraging work from home where and when feasible. When doing this, employers should put in place or reaffirm workplace rules relating to confidentiality, work hours, etc.

Employers must face the reality that employees with school-age children are going to be faced with tough decisions. Other than potential ADA and Family Medical Leave Act considerations that might be triggered, this is somewhat unchartered territory. Employees certainly should be allowed to use paid time off during these school closures, but again employers should relax the rules relating to notice for use of PTO and avoid enforcing the policy in a manner that results in the employee having to use all PTO due to a school closing.

Employers should make sure that sick employees stay home. This is common sense and implementing the above practices will certainly encourage and motivate employees to stay home when they are sick.

All of these recommendations and best practices should be applied uniformly to all employees and the employer must avoid treating employees differently. Employers want to avoid claims that certain protected classes (gender, age, race, etc.) are being treated differently.

Finally, employers should clearly communicate with employees the rules and expectations. If it is determined there is abuse by employees, employers can always take remedial corrective action.

Would you like to continue the conversation regarding employment concerns around coronavirus? Contact us.