Public health experts urge people to stay away from work if they experience symptoms, but that means time without pay for many workers. Faced with the choice of going to work sick and possibly spreading the virus or not being able to pay their bills, some workers feel they have no choice.
Now some major employers are responding to the dilemma with paid time off (PTO) for workers who come down with COVID-19 as well as those who don’t get sick but whose jobs are disrupted because of what world health authorities are now calling a pandemic. In addition, the new coronavirus is driving momentum for national legislation to provide paid sick time.
Advice on Paid Leave
The spread of COVID-19 likely will spur more employers to consider paid sick time policies, and Gary Fealk, an attorney with Bodman PLC in Troy, Michigan, says they must be sure to treat similarly situated employees similarly to avoid discrimination claims.
Some employers may want to implement a paid leave policy in response to the public health emergency without making it permanent, and Fealk says employers generally can do that, but they will need to keep abreast of legal developments that could affect such a decision.
Justine L. Abrams, an attorney with Genova Burns in Newark, New Jersey, also cautions employers that decide to introduce paid leave because of the coronavirus to offer it to all employees and craft a written policy specifying exactly how much paid coronavirus leave is available, for what purposes it can be used (treatment, care, preventative care, etc.), and what notice and documentation will be required.
Employers also need to think about whether they want to end coronavirus-related paid leave if a vaccine or treatment becomes available, Abrams says. She adds the written policy must specify when the paid leave will no longer be available and why. “Without the specific and written ‘why’ from the employer, employees deprived of coronavirus paid leave can attribute the deprivation to unlawful reasons, such as their belonging to a certain protected class,” she says.
An employer that does not make provisions for paying employees who are quarantined or otherwise not willing or able to work won’t face liability unless a state or local law requires paid leave, Fealk says. For example, in his state–Michigan–the Paid Medical Leave Act requires employers to allow employees to use accrued PTO. Currently, 13 states, Washington, D.C., and several municipalities have passed laws requiring at least some employers to provide paid sick leave.
What if an employer allows sick employees to come to the workplace? Could it face liability? That’s unclear, Fealk says. But arguably there could be liability under the U.S. Occupational Safety and Health Act’s general duty to maintain a safe workplace.
Advice on Remote Work Policies
In addition to offering paid leave policies, many employers are promoting remote work, and that brings up legal considerations, Abrams says. Employers can encourage telecommuting, “provided the employer does not single out employees either to telecommute or continue reporting to the workplace based on any protected characteristics,” she says.
Telecommuting also may be a reasonable accommodation under the Americans with Disabilities Act (ADA), but Abrams says being diagnosed with COVID-19 alone may not constitute a disability. However, telecommuting may be a reasonable accommodation for employees with disabilities whose medical conditions could be made worse by contracting the virus.
Employers unable to offer telecommuting have other options, Abrams says, such as:
- Implementing staggered work shifts;
- Reminding employees to regularly wash their hands;
- Making hand sanitizers containing 60-95 percent alcohol available;
- Discouraging handshaking;
- Distributing personal protective equipment such as gloves;
- Increasing ventilation; and
- Regularly disinfecting high-traffic surfaces, such as keyboards, phones, steering wheels, machine buttons, and manual timeclocks.
Major Employers Announce Paid Leave
The largest employer in the country, Walmart, has responded to the coronavirus by offering paid time for both full- and part-time employees who are quarantined either by the government or the company after exposure to the virus. Those employees will receive up to 2 weeks of paid leave. Employees who test positive for the illness also will get PTO, up to 26 weeks.
The retailer also is waiving its attendance policies through the end of April so that employees can stay home without being penalized if they are unable to work or feel uncomfortable at work because of fears about the virus. That time won’t be paid.
In its response, Microsoft notes how hard the coronavirus outbreak has hit the Puget Sound area of Washington and northern California, where the company has major operations. Early in March, the company asked its employees who can work from home to do so. That move has reduced the need for many hourly workers who drive shuttles, work in company cafes, and provide other services on the company’s campuses. So, the company has responded by paying those workers even when they’re not needed on-site.
“We recognize the hardship that lost work can mean for hourly employees,” an announcement from the company says. “As a result, we’ve decided that Microsoft will continue to pay all our vendor hourly service providers their regular pay during this period of reduced service needs. This is independent of whether their full services are needed. This will ensure that, in Puget Sound for example, the 4,500 hourly employees who work in our facilities will continue to receive their regular wages even if their work hours are reduced.”
The company’s announcement also spoke of the need for other businesses to step up as the virus spreads. “We’re committed as a company to making public health our first priority and doing what we can to address the economic and societal impact of COVID-19,” the announcement says. “We appreciate that what’s affordable for a large employer may not be affordable for a small business, but we believe that large employers who can afford to take this type of step should consider doing so.”
Another of the companies responding to the coronaviruses, Darden Restaurants, also has announced a plan for paid sick leave for hourly employees. The company, which operates Olive Garden, Longhorn Steakhouse, The Capital Grille, Eddie V’s, Cheddar’s Scratch Kitchen, Yard House, Seasons 52, and Bahama Breeze restaurants, says it was already working on a policy, but the coronavirus outbreak pushed it forward.
|Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.|