A COVID-19 employer guide to help businesses prepare a strategy that prevents core functions from disruption as the outbreak continues to grow.
The coronavirus pandemic has forced many companies to shut down offices and ask the employees to work from home. With most countries advising social distancing and confining oneself at home as far as possible, the work from home option seems to be the only feasible way to keep the businesses running without facing a complete shutdown of the marketplace and adding to the economic losses.
Thankfully, advances in digital technology and access to the internet in almost all parts of the world, allows one to stay connected with the place of work without having to be physically present.
But with this work from home option come many questions regarding how it can be implemented for businesses that are trying it out for the first time. The rights and duties of the employers and employees both. And also, what is permissible and not when confronted by a public health crisis in the workplace?
There are many professionals who largely utilize this work from home option especially in the information technology and digital tech world. So they already have policies and norms in place to tackle the legal and professional aspects of this work system.
To answer these work-related questions experts are of the opinion that since there are as such no ground rules established, one can look into the Americans with Disabilities Act, or ADA, which aims to safeguard individuals’ privacy, and Occupational Safety and Health Administration standards, designed to protect workers’ safety. But one thing that should be kept in mind is that the rules at the moment are governed not by legal authorities but the executive and public health authorities and norms.
For businesses struggling to find workplace resiliency during the impact and uncertainty of the pandemic, look no further than our COVID-19 employer guide below.
CAN INDIVIDUALS REQUEST WORK FROM HOME?
You can ask, but there is no right of an employee to demand it. Although, the mitigating circumstances and the government-mandated rule obliges the employer to allow employees to work from home.
Especially for the vulnerable sections, that is those above 60 and the ones having underlying conditions that compromise their immunity.
If the request is reasonable and places you under risk, then it is a feasible request says Dan Eaton, an employment law attorney and partner at Seltzer, Caplan, McMahon and Vitek.
Also, if those over a certain age are asked to keep away then the Age and Disabilities Discrimination Act comes into force?
Not if they have asked to work from home themselves and secondly the public health care authorities have mandated the same, hence, this would not come into effect, says Eaton.
The employers are required by the authorities to provide a place of employment that is safe to work and does not have any hazardous substance under the Health Administration Act.
Even the International Labor standards on occupational safety and health provide essential tools for governments, employers and workers to establish such practices and provide for maximum safety at work.
CAN AN EMPLOYER ASK A PERSON TO WORK FROM HOME, EVEN THOUGH IT IS HARDER FOR THE EMPLOYEE TO DO SO?
Yes, it is the employer’s prerogative says Eaton, because under the employment relationship the employer has the right to control how the job is done.
Also, at the moment, it is more about common sense and public health safety issues. If a person has traveled to any of the affected countries, he can be asked to stay at home. Or in some way has been exposed to the virus, it is prudent on the employer’s part to ask the employee to stay away from work.
IF AN EMPLOYEE IS IN THE HOSPITALITY INDUSTRY OR SOMETHING SIMILAR THAT REQUIRES CLOSE CONTACT WITH OTHERS CAN AN EMPLOYEE REFUSE THE ASSIGNMENT?
If the work is considered an unsafe work assignment, then an employee can refuse. But if the employer provides all the safety requirements and tools to carry out the work in a secure and safe manner, then an employee is required to perform the task. For example, people in the hospitality industry cannot refuse to come to work if they are provided with gloves, masks, sanitation facilities and more to carry on their work of employment, like housekeeping.
But if it means coming in direct contact with a person with COVID-19 then you can refuse, says Howard Mavity, an Atlanta-based partner in the workplace-safety practice of law firm Fisher & Phillips LLP.
WHAT IF AN EMPLOYEE CATCHES THE VIRUS AT WORK, IS AN EMPLOYER LIABLE?
In today’s circumstances, it is not possible to hold the employers liable. It has been declared a pandemic and difficult to prove that it was caught in the office premises.
Unlike when you suffer an injury at the workplace and the employer is liable to compensate for the medical costs.
The Occupational Safety and Health Act (OSHA) requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”
And any injury that one gets working at home, the U.S. Department of Labor has issued specific guidelines for the same:
"The Occupational Safety and Health Administration (OSHA) sharply distinguishes between home offices and other home workplaces, such as home manufacturing facilities in which, for example, employees assemble electronic parts."
OSHA’s compliance directive on home offices is crystal clear:
- “OSHA will not conduct inspections of employees’ home offices.
- “OSHA will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.
- “If OSHA receives a complaint about a home office, the complainant will be advised of OSHA’s policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee.”
There are some guidelines about employers’ responsibilities if some manufacturing activities are carried on at home for the employer.
CAN AN EMPLOYEE WITH COVID-19 BE NAMED?
No, the employee's right to privacy is guaranteed under the HIPPA and the ADA. But an employer can reveal that an employee working in a particular place has been compromised.
CAN YOU TAKE SICK LEAVE FOR QUARANTINE?
It is left to the employee if they want to take sick leave. But there is an ethical obligation to reveal to the employers if you have come in contact with people in the office.
You can use sick leave for the purpose of preventive measures.
IF A BUSINESS FORCED TO CLOSE TEMPORARILY, CAN AN EMPLOYEE FILE FOR GETTING AND EMPLOYMENT INSURANCE?
Yes. Additionally, the Federal authorities have come up with an economic stimulus package to compensate for the loss of business and reimbursement to workers.
CAN EMPLOYEES SEEK COMPENSATION FOR REDUCED HOURS?
Yes, they can. But they have to again check on the state and federal laws on compensation for further clarity.
It is unchartered territory, the law will do its best to keep up but the regulators need to answer these situations.
For parents forced to stay at home because of the closure of schools:
School emergency laws are there which give some hours off to stay at home.
The legislation is working on job-protected sick leave to address this situation.
We bring you the U.S. Department of Labor Issues Workplace Guidelines for Coronavirus Outbreak, Including Specific Guidance on FMLA, FLSA and FECA regarding the temporary loss of payment, reduced hours and liabilities:
Pay to Non-Exempt Employees During Business Closures.
Under the FLSA, employers are obligated to pay non-exempt employees only for the hours worked, not hours the employee otherwise would have worked if the employer’s business had not closed. If telecommuting or working from home is provided as a reasonable accommodation, the employer must pay non-exempt workers the minimum wage, and at least time and one half the regular rate of pay for overtime hours, for hours telecommuting or working from home.
Pay to Exempt, Salaried Employees, Including Requiring Such Employees to Use Vacation or Leave Without Pay During Business Closures.
Under the FLSA, employers are generally obligated to pay exempt, salaried employees their full salary in any week in which they perform any work, with limited exceptions. FLSA does not require employer-provided vacation time. Where an employer offers a bona fide vacation plan, the employer may require salaried employees to use accrued leave or vacation days as long as the employee still receives payment equal to the employee’s guaranteed salary. If an employee does not have enough accrued time to cover the absence, the employer must still pay the employee the full guaranteed compensation amount in order for them to remain exempt. Employers may not deduct from the predetermined compensation amount for absences occasioned by the office closure during a week in which the employee performs any work. Employers are not required to pay exempt, salaried employees in weeks in which they perform no work.
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