Where COVID-19 and Employment Law Intersect Part II: Workforce Adjustments, Pay, Absenteeism and Working Remotely What Employers Need to Know

Each day, the COVID-19 pandemic continues to rapidly evolve.  More and more businesses throughout Florida and the nation are being forced to temporarily close.  Others have been faced with difficult decisions about whether to reduce their work force or, if permitted by local government, to remain open for business while allowing employees to work from home.   In Part II of this multi-part series (hyperlink to Part I) on employment law and COVID-19, we will be answering some frequently asked questions related to workforce adjustments, pay, absenteeism and working remotely.   

WORKFORCE ADJUSTMENTS

How can an employer legally make adjustments to its workforce, such as change of pay rate or method of pay, layoffs, furloughs, reductions in force, or unpaid leaves?

We have entered unprecedented times where busy workforces across the nation have been brought to a standstill – triggering significant challenges for employers who must make changes in their workforce to stay in business. Under Florida law, unless an employee has an employment contract that provides otherwise, employees are considered “at-will,” which means that the employer or employee can make changes to their employment at any time, with or without cause, with or without notice. However, an employer must always comply with state and federal laws when making any adjustments to an employee’s work status or pay.

With this in mind, businesses should first look to whether they have any written employment contracts with their employees that govern the term of employment, termination or the right to implement changes, or whether their written policies or procedures, such as those in an employee handbook, address how an employer must make adjustments to the employment relationship. If there is no written agreement or any other written policy or procedure, then the employer may lawfully reduce or adjust the workforce in accordance with the “at-will” concept, e.g. layoffs, changing an employee from salary to hourly status, or offering unpaid leave, subject to compliance with other state and federal laws. These other laws include, but are not limited to, the Family and Medical Leave Act (FMLA), Fair Labors Standards Act (FLSA), and Title VII Title VII of the Civil Rights Act of 1964 prohibiting unfair or unequal treatment (discrimination), such as negative treatment is based on the individual’s race, gender, religion, national origin, disability, sexual orientation, age, or other protected characteristic.

PAY 

Are employers required to pay employees who are under obligatory or self-imposed quarantines and those who are ill? 

Typically, the answer to this question would depend upon whether the affected employee was considered “exempt” or “non-exempt” under the Fair Labor Standards Act (FLSA).   Under the FLSA, a non-exempt employee (that is, one who is eligible for overtime pay), is only paid for actual time worked.  Exempt employees, on the other hand, are generally (with some exceptions) paid an annual salary in full-week increments.  Exempt employees are typically afforded paid sick days under an established sick leave policy, or a company may offer an employee paid leave under own written policies. Employees can also rely on FMLA, if applicable to the employer who has greater than 50 employees, requires that an employer provide its employees with unpaid job-protected leave under certain circumstances. Accordingly, only an exempt employee who has not exhausted his or her sick days under the employer’s sick leave policy is entitled to pay if he or she misses work due to being quarantined or ill from COVID-19.

On March 18, 2020, however, President Trump signed the Families First Coronavirus Response Act (hyperlink to:  https://www.congress.gov/bill/116th-congress/house-bill/6201/text).  This law will become effective on April 1, 2020 through December 31, 2020, and encompasses the Emergency Paid Sick Leave Act (EPSLA).  Under the EPSLA, employers with fewer than 500 employees will be required to provide 80 hours of paid sick leave to full-time employees, and a prorated number of sick days to part-time employees. 

Additionally, an employee will be able to take 80 hours of paid leave at the employee’s regular rate of pay (or the minimum wage, whichever is greater), if he or she is unable to work or telework because he or she:

(1) is subject to a quarantine or isolation order; 

(2) has been advised by a healthcare provider to quarantine; or 

(3) is experiencing symptoms or seeking a medical diagnosis of coronavirus.  

An employee may also take pay at two-thirds of the employee’s regular rate (or the minimum wage, whichever is greater):

(1) to care for an individual for such purposes; 

(2) to care for a child because the child’s school or place of care has been closed or because the childcare provider is unavailable because of COVID-19; or 

(3) if the employee is “experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.” 

Paid leave is limited to $511.00 per day or $5,110 in the aggregate for those instances when employees are entitled to pay at regular rates, and to $200.00 per day or $2,000 in the aggregate for those instances when employees are entitled to pay at two-thirds the regular rate. 

After exhausting all 10 days of paid leave under the EPSLA, those employees who are still unable to work or telework because they need to care for a child, either due to school or daycare closures or because the employee’s childcare provider is unavailable will be entitled under the Emergency Family and Medical Leave Expansion Act to be paid for the balance of their up to 12 weeks leave, at two-thirds of their regular rate.

Are unemployment compensation benefits available to workers affected by the coronavirus?

In Florida, the general answer is yes.  These benefits, known as “reemployment assistance,” are usually only available once the formerly employed person proves he or she has contacted at least five potential employers for work during the week.  Governor DeSantis has waived this requirement for the COVID-19 pandemic, however. 

Additionally, the U.S. Department of Labor issued guidance (hyperlink to: https://www.dol.gov/newsroom/releases/eta/eta20200312-0) on March 12, 2020 regarding unemployment insurance flexibilities during the COVID-19 outbreak.  This guidance allows for states to amend their laws to pay unemployment insurance benefits where employees: (1) are unable to work because an employer has temporarily ceased operations due to COVID-19, (2) have been quarantined with the expectation of returning to work once the quarantine has ended, or (3) have left employment to avoid the risk of exposure to COVID-19 or to care for a family member.

ABSENTEEISM

Can an employer require an employee to provide a note from a medical provider if the employee is unable to report to work because of an illness?

The CDC is strongly suggesting (hyperlink to:  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html) that employers waive the requirement that sick employees provide a doctor’s note upon returning to work because doctor offices and medical facilities are likely to be extremely busy and not able to provide such documentation in a timely way.

Must an employer hold an employee’s job if that employee is unable to report to work because his or her child’s school is closed? 

It depends upon whether the employer has fewer than 500 employees and the employee has been employed for at least 30 days.  If so, under the Families First Coronavirus Response Act, amendments to the FMLA known as the Emergency Family and Medical Leave Expansion Act (EFMLA) will expand the coverage of the FMLA to allow for up to 12 weeks of partially-paid, job-protected leave between April 1, 2020 to December 31, 2020, to be used by employees who are unable to work or telework because they must care for a child whose school or place of care has been closed or whose childcare provider is unavailable as a result of COVID-19. This time is included in and not in addition to the total FMLA leave entitlement of 12 weeks in a 12-month period.

The first 10 days of EFMLA leave is unpaid.  It is likely, however, that those 10 days will be covered by the EPSLA.  After the initial 10 days, an employer must provide paid leave to employees for the balance of their up-to-twelve weeks of leave at an amount not less than two-thirds of the employee’s regular rate of pay, based upon the number of hours the employee would normally be expected to work.  There is a cap, however.  Employers are not required to pay more than $200.00 per day and $10,000 in total. Any unused portion of this pay will also not carry over to the next year.

WORKING REMOTELY

Is an employer required to allow a healthy employee who fears contracting COVID-19 in the workplace to work from home?

Possibly.  There are no specific standards under the Occupational Safety and Health Act directly applicable to COVID-19.  There is, however, a clause under that Act known as the “General Duty Clause” (hyperlink to: https://www.osha.gov/laws-regs/oshact/section5-duties), pursuant to which employers are required to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Whether the General Duty Clause is applicable to a particular workplace will undoubtedly depend upon the physical workspace, the industry and the profession.  Employers should consider guidelines and recommendations from the CDC, directives from the local and federal government, and any applicable industry or trade organization rules or regulations.

Additionally, issues implicating the National Labor Relations Act could arise if employees act in concert to avoid certain job-related tasks because of fears of contracting COVID-19.  If such activity were to be considered “protected concerted activity” the National Labor Relations Act, employers could potentially find themselves facing charges of unfair labor practices.

Can an employer require employees to work remotely?

Yes.  To control the spread of COVID-19, many companies are allowing or even mandating their employees work from home.  In fact, the CDC recommends that employers increase the physical distance among employees, stating that for employers should encourage employees who are able to telework to do so instead of coming into the workplace.

If you need assistance in reviewing or revising your business’ current workplace policies to adapt to the COVID-19 pandemic, consider consulting an experienced labor and employment lawyer.  The AV-rated attorneys at Chane Socarras, PLLC regularly handle labor and employment matters, workplace disputes, and litigation, on behalf of employers. For more information, click here to contact the business litigation firm of Chane Socarras, PLLC or call us at (561) 309-3190.  

*This information is for general guidance only and is dated as of March 25, 2020.   This article will not be updated regularly to reflect any changes in guidance from the CDC or OSHA as the COVID-19 pandemic continues to evolve – so please check those websites for any updates.*