March 25, 2020
This is a confusing time. Many rules, laws, or other guidelines for employers that were established during “normal” times seem to be in conflict with what medical experts are recommending today, or even what your common sense tells you.
Below, we take a look at some of the questions that have arisen in the workplace since this pandemic began - and some of the answers - in this rapidly changing legal environment.
Keeping the Workplace Safe
Can I ask employees about their health?
Prior to the pandemic...no. But now, it’s allowable if you’re careful. When asking questions, make sure they are relevant to the spread of COVID-19 (cough, fever, etc.). You should avoid open-ended questions or questions about the employee’s general health status because those questions might be deemed a “disability-related inquiry” governed by the Americans with Disabilities Act.
Therefore, you should avoid the following:
Asking if the employee has a medical condition rendering them more susceptible to coronavirus complications (“underlying conditions”);
Asking an employee to provide medical documentation regarding a disability or condition rendering them more susceptible to coronavirus complications; or
Asking an employee about any prescription drugs or medications they’re taking.
The EEOC has updated its publication on Pandemic Preparedness in the Workplace and the Americans With Disabilities Act. Some of the features of that publication -- which is a guideline and not a law -- operate to suspend or modify some of the normal rules that otherwise apply under the Americans With Disabilities Act.
What if I Find Out Someone at Work Contracts COVID-19?
OSHA requires you to provide a safe working environment for your employees. If you have objective evidence that someone in the workplace has been exposed to the virus, you must take steps to protect their coworkers.
Those steps can include:
Asking the employee in question to work from home
Asking the employee to take their personal time off (PTO) hours
Extending PTO for that employee, in the event that he or she has already used their allotted time off
Doing a thorough clean of the entire workspace, using effective antibacterial cleansers
Letting co-workers know (without naming names) that one of the employees may have been exposed to the virus, and to be on the lookout for any symptoms
Can you require a negative test result to come back to work?
Probably not. Given the limited availability of tests and instances of “false negatives”, this could get you into trouble. You can require a note, but the CDC asks that you avoid strains on the healthcare system or exposing individuals to the virus.
Approaching Wage & Hour Issues
How can I approach reducing hours for my employees?
First, you’ll need to distinguish between exempt and non-exempt employees. The Fair Labor Standards Act (FLSA) mandates that employers classify every job as being exempt or non-exempt from overtime pay and/or minimum wage. To qualify as exempt, the employee must satisfy three different tests (job duties test, salary basis test, and salary level test). In general, most “white collar” positions can qualify as exempt, whereas most hourly positions are non-exempt.
Reducing hours or pay for non-exempt employees:
Non-exempt employees only need to be paid for hours worked
Remember that you’ll always need to pay for the time that the person reported if you send people home after they’ve already arrived.
A reduction in hourly wage may require a certain amount of notice under state law and cannot be retroactive if you are mid pay-period
Reducing hour or pay for exempt employees
If at all possible, you should avoid reducing hours or reducing salary for only certain employees. The best practice in this situation would be to implement a pay cut for everyone, or a reduction for certain departments or types of employees. By making across-the-board cuts or reductions for all similarly situated employees, you’ll reduce the risk of discrimination lawsuits.
Note also that employees must remain above the federal minimum salary for exempt employees (the minimum according to Federal law is $684 / week; though some states have higher minimum salaries).
If you’re cutting pay, you shouldn’t do this in the middle of a pay period (there is no prorating permitted).
Can I move someone from salaried to hourly?
In most cases this is allowable, but there may be nuances depending on your specific industry and state in which your company operates.
Things to consider:
Reclassification shouldn’t be done to avoid the salary basis requirements under the FLSA
Ensure compliance with state notice requirements, and that it isn’t applied retroactively or halfway through a pay period.
You should typically avoid doing this if it’s for a short-term basis - i.e. three weeks or less.
For those non-exempt employees, overtime wages must still be paid according to federal and state requirements. In other words, if you had to let go an hourly employee, but another employee is working overtime to fill the gap, he or she will need to be paid accordingly. Make sure to factor that in when you are considering any layoffs or furloughs.
How BizCounsel Can Benefit You
Regulations and guidelines seem to be changing on a daily basis. Now more than ever, business owners are relying on experts. As you can see, some of the new rules and regulations are clear. And some are as clear as mud.
Fortunately, there is an affordable legal and tax option to help you weather this current storm, and be in a position of strength when we emerge from the pandemic. Please visit bizcounsel.com/business-attorney if you need an employment law strategy for your business - or other issues around payments, contract reviews, and general legal advice.
