NACE Journal, May 2020

The world is changing on a daily basis, and it is important that colleges and universities, students, employers, and career services professionals have the knowledge and information to respond to issues and questions as they arise. This article addresses some of the key legal questions that have arisen in regard to the coronavirus pandemic.

Question: Can an employee’s start date be delayed or an offer withdrawn due to COVID-19?

While unfortunate for those just entering the work force, yes, an employee’s start date can be delayed or an offer can be rescinded due to COVID-19-related issues. In this regard, an offer can be delayed if either the place of business is shut down or the applicant has COVID-19 or is symptomatic. In either situation, an employer is not, generally, required to pay the applicant until the employment actually commences. The applicant may file for unemployment at that time, but the individual’s eligibility would be based upon the applicable state law.

An employer may also withdraw a job offer if the employer is shut down due to a state order or if the applicant is unable to start immediately due to having COVID-19 or being symptomatic of COVID-19. If an employer decides to withdraw a job offer, it should do so in writing and make it clear as to why the offer is being rescinded. Once again, an applicant may file for unemployment; their eligibility would be based upon the applicable state law.

Question: Can an employer ask about an employee’s or applicant’s health condition?

In the non-pandemic world, the answer to this question is generally “no.” Under the Americans With Disabilities Act (ADA), employers are generally prohibited from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if they are necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. A direct threat is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

The U.S. Equal Employment Opportunity Commission has stated that employers may take steps to determine if employees entering the workplace have COVID-19, including testing to determine if employees have the virus, because an individual with COVID-19 poses a direct threat to the health of others. Therefore, during the pandemic, an employer can ask employees questions regarding their medical condition as it relates to COVID-19. In this regard, employers can ask employees if they are symptomatic or if they have been around anyone who is symptomatic or who has been diagnosed with COVID-19. Employers may also take an employee’s temperature prior to commencing a workday and send an employee home if the employee has an elevated temperature.

If an employer is taking an employee’s temperature, the employer should inform employees in writing of this practice and that it is being done solely to check for symptoms of COVID-19. Any records maintained from the temperature checks should be stored in an area separate from an employee’s personnel file.

An employer may also screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.

Question: What happens if an employee is unable to work due to COVID-19?

If an employee is unable to work due to a COVID-19-related reason, there are several factors that come into play. As an initial matter, the reason is important to ascertain in order to determine what laws, rules, regulations, or polices are applicable. This is due to the fact that, as of April 1, 2020, the Family First Corona Response Act (the FFCRA) went into effect.

Under the FFCRA, all employers with fewer than 500 employees, whether for-profit or not-for-profit, are required to provide an employee with paid sick leave for certain reasons relating to COVID-19. In this regard, employees of a covered employer may be eligible to use paid sick leave if the employee is unable to work or work remotely because he or she 1) is subject to a local, state, or federal quarantine or isolation order related to COVID-19; 2) has been advised by a health care provider to self-quarantine because of COVID-19; 3) is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; 4) is caring for an individual subject to or advised to quarantine or self-isolate; 5) is caring for a child whose school or place of child care is closed, or whose child care provider is unavailable, due to COVID-19; or 6) is experiencing substantially similar conditions as specified by the U.S. Secretary of Health and Human Services, in consultation with the U.S. Secretaries of Labor and the Treasury.

The FFCRA also provides for an expansion of the Family and Medical Leave Act, referred to as the EFMLA in the FFCRA. In this regard, the FFCRA also requires all employers with fewer than 500 employees to provide up to 12 weeks of job-protected EFMLA leave to an employee who has been employed for 30 calendar days if he or she is unable to work or telework due to the need to care for a child whose school or place of child care has been closed, or whose child care provider is unavailable, due to COVID-19. The first two weeks of the EFMLA leave would be unpaid and the remaining 10 weeks would be paid at two-thirds an employee’s regular rate for the number of hours the employee would have otherwise worked, up to a cap of $200/day and up to an aggregate of $10,000.

If a leave request is not covered by the FFCRA, the employer’s response would be based on the applicable state or federal law and the employer’s applicable policies. For example, if an employee has been instructed by a physician not to come to work due to a medical condition (such as asthma) that renders that employee more susceptible to COVID-19, an employer may have to accommodate the employee’s request for leave pursuant to the Americans With Disabilities Act (ADA). Each request for leave must be reviewed by an employer on a case-by-case basis to determine the appropriate response.

Question: How are employees paid in the event of a “layoff” or “furlough”?

As an initial matter, it must be noted that there is a difference between a “layoff” and a “furlough.” A layoff is a separation from employment with an employer; in this case, the employee no longer is employed as of the date of the layoff. A furlough, on the other hand, is a period of unpaid leave for an employee. The employee remains, technically, “employed” by the employer and may, depending on the employer’s policies and the health care policy, remain eligible for certain employer-provided benefits during this time, such as health insurance.

In the event of a layoff, an employee will generally no longer receive compensation or benefits beyond the date of the layoff. An employee may, however, be eligible for unemployment compensation. The amount of unemployment compensation an individual would be entitled to during the period of layoff would be dependent on the state law where the individual is located. It should be noted, however, that the CARES Act, which was passed in response to COVID-19, has provided for an additional $600 per week in additional unemployment compensation for eligible individuals through July 31, 2020.

In the event of a furlough, the initial determination of compensation is up to each individual employer. An employer may continue to pay employees while on furlough, may require an employee to use any accrued and unused paid time off, or may place the employee on a fully unpaid leave of absence. In the event the leave is unpaid, the unemployment compensation benefits mentioned herein would be applicable for those impacted individuals, e.g., the employee may receive the state-provided benefits plus the additional $600 per week.

Question: Can an employer require an employee to work from home during the pandemic?

The simple answer to this question is “yes”—an employer may require an employee to work from home during the pandemic. To the extent practicable, an employer may require its employees to perform duties remotely while a place of business is shut down due to state, local, or federal order, or if a business merely chooses to remain closed during this time period.

There are certain issues that arise when an employee works remotely. The first consideration for employers and employees is compensation. If an employee is non-exempt, meaning that the individual is entitled to overtime for any hour worked over 40 in a workweek, the employer must ensure that it has a mechanism in place to track employee work hours. The foregoing can be as simple as requiring the employee to submit a weekly timesheet indicating the hours worked in a given workweek. Employees must make sure that they account for all hours worked during the given workweek to guarantee they are not missing out on earned compensation.

Employees who are exempt under state or federal law must be paid their weekly salary for any week when they perform services for an employer. An employer may require employees to use accrued and unused paid time off for days when no services are provided; however, if an employee does not have any accrued and unused paid time off for a given week, the full salary must still be paid if any work is performed during a workweek.

Another significant issue that employers and employees must be mindful of in a telecommuting situation is the potential for work-related injuries. If an employee is injured while working from home—for example the employee trips over a carpet while working from home—that employee may be eligible for workers’ compensation (depending on applicable state law). As such, the employer and the employee should agree as to where the employee will “work” while at home and limit the workspace to avoid potential issues in the future.

To the extent an employer does not have a “telecommuting policy,” one should be implemented as soon as practicable so that there is no confusion as to the requirements, expectations, or restrictions placed on the employees. The policy must be communicated to the employees and should be provided in writing.

Question: What is an employer required to do to maintain a healthy and safe work environment?

Pre-pandemic, employers were required to provide employees with a healthy and safe work environment. That requirement has not changed; it has only been enhanced by pandemic-related issues.

The Occupational Safety and Health Administration (OSHA) is the federal agency responsible for overseeing and handling complaints regarding workplace safety matters. Since the start of the pandemic, OSHA has issued guidance and rules for employers to follow to the extent they remain open. In addition to OSHA, each state may have implemented distinct requirements for employers to follow to ensure worker safety.

Employers must adhere to the guidance from OSHA, state agencies, and the Center for Disease Control and Prevention to avoid potential liability. As such, employers should implement a pandemic response plan that documents what steps it is taking to comply with the various state and federal requirements, e.g., social distancing, cleaning of work areas, the wearing of masks, and so forth. The plan should be communicated to employees, and employees should be provided with training—virtually, if necessary—on what they can and are required to do to comply with the new requirements. The plan should also address what employees should do if the employee is in contact with someone with COVID-19 or if the employee contracts the virus.

If an employee believes that an employer is not complying with the various federal, state, or local health and safety requirements, the employee should immediately notify the employer. Employees are also permitted to make a report of any workplace issues directly to OSHA. Employees should be aware that they are protected from retaliation for making any such complaints. Accordingly, if an employer terminates an employee for making a complaint, it may be in violation of OSHA; such an action would also entitle the employee to damages under the applicable law.

Question: What happens if an employee or intern contracts COVID-19 while at work?

If an employee contracts COVID-19 as a result of a workplace exposure, the employee would be entitled to protections based upon pertinent state law. In this regard, depending on the state or commonwealth, work-related injuries or illnesses are generally covered by workers’ compensation. Accordingly, if an employee contracts COVID-19 due to a workplace exposure, that employee should notify the employer and file a claim for workers’ compensation. That claim would cover lost wages in addition to medical costs related to the exposure.

If the impacted individual is an intern, the same general rules would apply, with a few caveats. If the intern is paid, the individual would be considered an employee of the organization and the organization’s workers’ compensation coverage would likely cover any such claims.

The more complicated question arises when the intern is unpaid and not considered an employee of the business. In this situation, the law of the state or commonwealth would once again need to be considered. Some states’ workers’ compensation laws would cover the intern in this situation, as the individual would still be considered covered by the organization regardless of whether the person receives compensation. If the organization’s workers’ compensation coverage did not apply, the unpaid intern would have a potential claim for negligence (depending on the circumstances of contraction) against the employer. The unpaid intern could also seek remuneration from the educational institution to the extent that the educational institution maintained any responsibility over the internship. For example, if the educational institution placed the student and was aware of potential risks at the internship site, the intern may claim that the educational institution was also negligent in failing to protect the student from harm.

To protect themselves from such claims, educational institutions should enter into specific agreements with employers if they are placing students in an internship. The agreements should articulate who is liable in such circumstances and include indemnification provisions that indicate that, if a claim is brought, the employer will be liable for any costs and expenses and reimburse the educational institution for any costs and expenses related to a claim.

Question: Am I entitled to unemployment compensation?

One of the biggest questions that has come up is whether an individual is entitled to unemployment compensation if the person is displaced due to COVID-19-related reasons. The initial answer to that question is “yes, but.”

As a general matter, if an employee is out of work due to a workplace closure due to COVID-19 or a reduction of hours, the individual would be entitled to unemployment compensation. The more difficult question arises when an employee elects not to work due to health and safety concerns or because the employee would prefer to stay home and collect unemployment and the additional $600 due to the increased amount provided through July 31, 2020. While each state law would dictate entitlement, there is some guidance that can be provided.

If an employee refuses to return to work due to health or safety reasons, the employer should request additional information regarding the refusal. If the employee has legitimate concerns that preclude the person from returning to work, the employee may be entitled to unemployment compensation. Conversely, if an employee merely wishes to remain unemployed to collect increased unemployment benefits, it may impact the employee’s ability to continue to receive such benefits.

Depending on the applicable state law, an individual normally has to be “able and available” to work to be eligible for unemployment compensation benefits. Those who refuse to work to remain on unemployment compensation are technically removing themselves from the work force and may lose entitlement to benefits. Accordingly, employees need to be mindful of the reason they are refusing to return to work as it may ultimately impact their benefit entitlement.

Other considerations

Employees and employers alike need to remember that the regular workplace laws still remain applicable regardless of the pandemic. As such, employers are still prohibited from engaging in workplace discrimination, employers still must pay their employees properly, and employers must abide by other state and federal work-related laws.

With regard to the pandemic, employers and employees must be mindful of the workplace laws when decisions are made pertaining to layoffs, furloughs, employee pay, employee leave, returning employees, and workplace accommodations. For example, if an employee indicates that he or she cannot wear a mask due to a health or religious reason, the employer cannot merely dismiss this request. The employer must engage in an interactive process to determine if any reasonable accommodation is available to remedy the problem.

Of equal significance is that employers must continue to address any claims of harassment or discrimination in the workplace. If an employee believes he or she is being treated differently or subjected to harassment due to a COVID-19 diagnosis or because of his or her race or national origin, the employee should lodge a complaint pursuant to an employer’s policies and procedures. The employer must then investigate any such complaints as it would have done so previously. The pandemic has not relieved employers from complying with the laws that were in place pre-pandemic.

Employees, employers, and educational institutions are all hopeful that the pandemic we are currently facing is a bad memory in the near distant future. Until that time, however, the laws, statutes, and regulations in place need to be followed to protect the employees who continue to work and employers from potential future liability.