If you are running a business with employees during the COVID-19 outbreak, you may be uncertain about what you need to do to comply with new and pre-existing laws. You also may want advice on how to transition employees to working remotely in a way that minimizes disruption to your business. Workplace safety is another concern that many employers will want to consider, while some employers may want to review their health plans to ensure that employees will be covered.
The COVID-19 pandemic has inflicted severe damage on many types of businesses. If your business is struggling to survive, you may need to terminate or lay off some of your employees. You do not need to worry about a wrongful termination claim if financial exigencies force you into terminations or layoffs. Employment is at will in almost all states, so an employer can end the employment relationship for any reason that is not illegal or in violation of an employment contract. If you illegally remain open in violation of a government directive, however, you may face a wrongful termination lawsuit if you fire an employee who refuses to come to work.
Employers still may face liability in the areas of discrimination, harassment, and retaliation. Even if your office is closed, and your business is operating in an unconventional way, you must protect your employees from adverse treatment based on protected characteristics identified by federal, state, and local laws. Some common examples include race, gender, religion, age, and disability. You may want to be especially alert to national origin discrimination as well, due to a misguided backlash against Asians and Asian-Americans in many parts of the U.S. Read more here about compliance with workplace discrimination and harassment laws.
You still need to comply with wage and hour laws that set requirements for paying your employees. If a non-exempt employee under the Fair Labor Standards Act (FLSA) is not working, you technically do not need to pay them. There also may be limited situations in which you do not need to pay an exempt employee who is not performing work while your office is open. However, if your resources permit, you still may want to pay non-working employees as a gesture of goodwill to bolster employee morale. Read more here about paying employees during the COVID-19 outbreak.
Transitioning to Remote Work
While some businesses have been forced to transition to remote work as a result of shelter-in-place orders, other businesses are conducting this transition voluntarily to protect employee health. Before launching into remote work, you will want to set up a clear policy that outlines your expectations. Among other things, you will want to decide which items of equipment employees can take home from the office. You should set up a video conferencing program that allows remote meetings, and you should update digital security as needed to prevent data breaches. A policy also can address where and when employees may work. Some business owners may want to limit remote work to certain employees, while requiring others to come to the office, if this is permitted in their area. If an employee refuses to come to work when your office is legally open, you likely can terminate that employee for their refusal, but you may want to work out a less drastic solution. Read more here about setting up remote work policies.
The Occupational Safety and Health Administration (OSHA) has issued certain guidelines to help employers understand the risk of contracting COVID-19 in various types of workplaces. Even if your workplace falls within the lowest zone of risk, however, you should plan your response if an employee is exposed to the virus. You should tell your employees to inform their supervisor if they test positive for COVID-19, if they have symptoms of COVID-19, or if they have been exposed to COVID-19 outside work. You have a right to take an employee’s temperature and to tell them to go home if they exhibit symptoms. If one of your employees gets sick, and you suspect that they may have the virus, you should send home everyone who has worked with that employee in any meaningful way during the last 14 days. You will need to close off the areas of your office that the employee used before thoroughly cleaning and disinfecting them. Read more here about how to handle COVID-19 exposure among your employees.
You may want to review the terms of your group health plan to find out whether it will lapse if employees stop working or fail to keep up with payments. If the benefits will lapse in either of these situations, you should consider whether you will negotiate with the insurer to adjust the terms or make payments on behalf of your employees. If you provide your own group health plan, rather than working with an insurer, you can decide whether to modify the terms of the plan to provide more protection to employees. You also may want to draw the attention of your employees to certain key features of the plan that may be especially useful during the COVID-19 outbreak, such as medical programs that they can access from home. If you have temporary employees, you may want to review the rules pertaining to their coverage so that you understand the scope of your obligations. Read more here about managing group health plans.