Q: One of our employees is afraid to work despite no known cases in our workplace. We need this essential worker to perform maintenance work during this period. Must we accommodate them?
A: If an employee is afraid to come to work, the most important thing you as an employer can do is to talk with your employee about their concerns and do whatever you can to accommodate them. If your employee has a preexisting condition that increases vulnerability to infection, they may be entitled to an accommodation under the Americans with Disabilities Act (ADA) and potentially FFCRA. If a health care provider directs or advises the employee to stay home because they may be susceptible to COVID-19 because of an underlying medical condition, an employee is eligible for paid sick leave under FFCRA. However, an employee is not eligible for paid sick leave where the employee unilaterally decides to self-quarantine without ever seeking medical advice to self-quarantine, even if the employee exhibits COVID-19 symptoms. The decision must be supported by a health care provider.
Q: New York City has ordered everyone to “Shelter in Place” through a PAUSE work order. My employees do not perform jobs that can be done at home. What leaves are available to my employees?
A: Aside from PTO or other personal leave policies provided by your company, your employees are not eligible other forms of leave if there is no work available for the employees to perform from home. An employee is not eligible for the paid leave requirements of the FFCRA if their worksite closes because of the “Shelter in Place” order and work cannot be done remotely, or if it closes for any other reason, such as lack of business. If an employee cannot work for these reasons, unemployment benefits would come into play.
Employers should note that when they reopen and employees return to work, the recalled employees will be eligible for paid sick or family leave under FFCRA and potentially state law, if they meet the respective requirements.
Q: Instead of layoffs, we are cutting the pay of our employees. If an employee doesn’t accept a pay cut because they would be earning the same amount collecting UI, are they eligible for UI? Would this be considered a resignation?
A: The employee is most likely eligible for unemployment insurance in this scenario. If an employee rejects a significant change in the terms and conditions of employment, it is not treated as a resignation under UI. The employee would have good cause for voluntarily leaving employment. If the change is not significant relative to the original terms and conditions of employment, then the employee may not be eligible.
Q: We are working on our return to work plan and want to take the temperature of our employee’s before they enter the office. Are we allowed to do this?
A – Although measuring an employee’s body temperature is considered a medical examination, and is generally not allowed under the Americans with Disabilities Act (ADA), the CDC and state and local health authorities have acknowledged community spread of COVID-19. As a result, the guidance in the EEOC’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act provides that employers may have the discretion to perform temperature checks prior to entry to your business and to deny admittance to any employee whose temperature is above 100.4° F or higher.
If you choose to take employees’ temperatures, certain measures should be taken:
- Refrain from taking an employee’s temperature in a public setting;
- Make sure that all screenings are conducted in a nondiscriminatory manner. A best practice would be to test all employees and individuals entering the establishment.
- Train and educate personnel on measuring body temperatures, including how to protect themselves and those being screened during the process;
- Provide prior notice to those who will be screened;
- Urge employees to self-monitor for symptoms and not to come to the workplace if experiencing any; and
- Prepare a plan for handling the results (e.g., documenting results and sending ill employees home immediately).
- Ensure compliance with the Fair Labor Standards Act and similar state and local laws and pay employees for the time spent for both the time waiting to be screened and the screening itself.
- Any documentation or details recorded relating to an employee’s temperature check must be confidentially stored in accordance with the ADA and all other applicable privacy laws.
- Remember that some people with COVID-19 do not have a fever, and some people with a fever do not have COVID-19.
Q: What happens to PTO accrual when an employee is on furlough due to COVID-19?
A – While you are not required by law to provide paid time off generally the terms of PTO benefit are outlined in your company handbook. Most employer’s policies state that PTO does not accrue during unpaid leaves of absence however if your terms do not specify this, you reserve the right to suspend accruals during furlough periods.
Q: While our employees are while working from home due to COVID-19, what guidance should we give our employees on setting up their workspace?
A – Encourage employees to make their workstation as ergonomic as possible to reduce injury. Employees should sit with a balanced head and wrist position, shoulders relaxed and feet flat on the floor or footrest. Employees should have adequate lower back support and a computer screen at a comfortable height.
Remind employees to take regular breaks throughout the day for a variety of reasons. Taking even a microbreak of two minutes can help avoid mental and physical fatigue, lower risks of aches and pains, and increase blood and oxygen circulation.
Q: Are my employees eligible for partial unemployment if I reduce their hours?
A: Possibly. In New York State, if you work less than four days in a week and earn $504 or less, you may receive partial benefits. Each day or part of a day of work causes your weekly benefit rate to drop by one-quarter. For example, if your weekly benefit rate is $200 and you work three days and earn less than $504, you may receive $50 in benefits. If you work two days, you may receive $100 in benefits. If you work one day, you may receive $150 in benefits. If you receive partial benefits, it extends the length of time you may collect benefits. If you earn over $504 in any week, no matter how many days you worked, you cannot receive benefits for that week.
Federal law specifically requires that a person be eligible for unemployment on the state side in order to collect Federal Pandemic Unemployment Compensation, an additional $600 per week on top of regular benefits under the federal law. The U.S. Department of Labor has released guidelines on this issue and they explicitly state that a person would only be eligible for the $600 if they receive at least $1 on the state level.
This Q&A was created in collaboration with Jules Halpern Associates LLC, a boutique employment law firm.
We have created this document to inform employers of their rights and responsibilities during this difficult time. These issues are incredibly fact-specific, and impacts on employers will, in many cases, require individualized answers. Please note this document is for informational purposes only and is not intended to be legal advice.