Coronavirus (COVID-19): FAQs

Author: XpertHR Editorial Team

The XpertHR team has created a collection of Frequently Asked Questions, which will be continually updated as developments with the coronavirus (COVID-19) pandemic unfold.

Topics covered include:

General Information

What is a coronavirus?

Coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). A novel coronavirus (e.g., 2019-nCoV) is a new strain of coronavirus that has not been previously identified in humans. It is a newly identified type of coronavirus that causes the respiratory illness known as COVID-19.

How are coronaviruses transmitted?

Coronaviruses are zoonotic, meaning they are typically transmitted between animals and people. However, some coronaviruses (e.g., 2019-nCoV) can be transmitted from person to person, usually after close contact with a person showing symptoms of respiratory illness (e.g., coughing, sneezing).

What are the symptoms of a coronavirus infection?

It depends on the particular strain, but common signs of a person infected with a coronavirus include:

  • Respiratory symptoms;
  • Fever;
  • Cough;
  • Shortness of breath; and
  • Breathing difficulties.

In more severe cases, infection can cause:

  • Pneumonia;
  • Severe Acute Respiratory Syndrome (SARS);
  • Kidney failure; and
  • Death.

The symptomatology may change. The latest information can be found at the Centers for Disease Control and Prevention (CDC).

Attendance and Leave

Is COVID-19 covered under the Family and Medical Leave Act (FMLA)?

It depends. Assuming the employee satisfies the FMLA eligibility criteria, if an employee suffers complications that arise from COVID-19 that may constitute a serious health condition covered under the FMLA. Also, if an employee is caring for a family member with a serious health condition, that leave may be protected under the FMLA. However, leave taken by an employee for the purpose of avoiding getting sick would not be protected under the FMLA.

The Families First Coronavirus Response Act (FFCRA) (Division C, the Emergency Family and Medical Leave Expansion Act) amends and expands the FMLA to cover leave for a qualifying need related to an emergency with respect to COVID-19 declared by a federal, state or local authority. A qualifying need means the employee is unable to work (or telework) due to a need to care for their minor child when the child's school or place of care has been closed, or the child care provider is unavailable, due to a public health emergency. The FMLA expansion, effective April 1, 2020, until December 31, 2020, applies to employers with fewer than 500 employees and to employees who have been employed for at least 30 calendar days.

Employers should review any applicable federal, state or local leave laws, as well.

Are employers allowed to require employees to leave work, or stay home, if they have symptoms of the coronavirus (COVID-19)?

Yes. The Centers for Disease Control and Prevention (CDC) states that employees who become ill with symptoms of COVID-19 should leave the workplace. The Americans with Disabilities Act (ADA) does not interfere with employers following this advice.

How should an employer handle an employee's absence from work during the coronavirus (COVID-19) pandemic?

An employer can enforce its existing policies that touch on an employee absence during a pandemic, such as:

An employee should follow existing procedures, including any modifications made in light of the pandemic (e.g., relaxed or delayed absence reporting timelines), when reporting an absence. An employer's next steps depend on the reason for the employee's absence. For example, the absence may be related to the employee's own sickness, a covered relative's sickness or an inability to find child care. An employer should work with the employee and follow established procedures and applicable compliance requirements.

Failure to follow the work rules and meet expectations may result in discipline.

How much information may an employer request from an employee who calls in sick during the coronavirus (COVID-19) pandemic?

The Americans with Disabilities Act (ADA) allows an employer to ask employees during a pandemic if they are experiencing symptoms of COVID-19 to determine if they have or may have COVID-19. Symptoms include, for example, fever, chills, cough and shortness of breath or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

How should an employer handle increased absenteeism at the workplace during the coronavirus (COVID-19) pandemic?

During a public health emergency, consider the following (if not already mandated by a government agency):

  • Implement plans to continue essential business functions in case the organization experiences higher than usual absenteeism;
  • Encourage all but essential employees to explore flexible working arrangements, including working remotely;
  • Encourage managers and supervisors to allow more flexibility with respect to absences during a pandemic because issues such as child care and accessibility to a reliable network connection may keep employees from being as productive as they would like during usual work hours; and
  • Consider a supportive management style, rather than a punitive one focused on discipline, during challenging times.

What rights does an employee have with respect to absences from work based on a fear of contracting the COVID-19 strain?

A healthy, asymptomatic employee's refusal to come to work based on a fear of contracting COVID-19 may be considered protected activity, and, therefore, protected under a number of whistleblower and anti-retaliation statutes at the federal, state and local levels.

The federal Occupational Safety and Health Act (the OSH Act), as enforced by the federal Occupational Safety and Health Administration (OSHA), allows an employee who may face imminent danger or a threat of death or serious physical harm at work to avoid the workplace. The risk of contracting COVID-19 varies depending on a work location and industry, and may increase or decrease during the outbreak. OSHA classifies risks into four levels, ranging from "very high" to "low."

Therefore, certain employees may have a better claim of being subjected to imminent danger or a threat of death or serious physical harm than others, depending on the employee's risk level.

In addition, an employer's failure to address the spread of the virus in the workplace may trigger employee protections from retaliation for missing work.

An employer should try to work with a concerned employee to devise changes to work schedules or other flexible working arrangements, such as telecommuting, to address the employee's fears and anxieties. In addition, an employer may wish to refer the employee to its employee assistance program (EAP), if one is available.

Consult with legal counsel prior to imposing discipline due to potential retaliation concerns.

Are there any laws protecting employees who cannot go to work because they are quarantined due to the coronavirus (COVID-19), even if they are not sick?

Yes. Some state and local paid sick leave laws allow employees to take leave when a public health authority determines that the employee's or a family member's presence in the community may jeopardize the health of others due to exposure or suspected exposure to a communicable disease, even if the employee or family member has not actually contracted the disease. A few states have discrete quarantine/isolation laws prohibiting an employer from terminating employees who are out of work because they are quarantined by a public authority. Further, some jurisdictions have passed temporary measures and guidance expanding and/or clarifying employees' leave rights in light of the COVID-19 pandemic.

At the federal level, the Families First Coronavirus Response Act (FFCRA) (Division E, the Emergency Paid Sick Leave Act), effective April 1, 2020, until December 31, 2020, requires employers to provide paid sick leave if an employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, among other reasons.

Benefits

When would an employer encounter HIPAA privacy rules?

HIPAA does not specifically apply to employers when they are functioning in the role of employer. However, if an employer sponsors a health care plan for its employees, it may be required to comply with HIPAA privacy rules since the health plan is likely a covered entity.

This means, for example, that information an employer acquires about an employee being diagnosed with COVID-19 through its health plan is generally going to be protected by HIPAA rules.

However, if a supervisor or HR representative finds out about an employee's COVID-19 diagnosis because the employee calls in sick and reveals that information, then HIPAA would usually not be implicated. This is because the information did not come from the employer health plan, and the employer is not acting as a covered entity under HIPAA.

Does HIPAA still apply during the COVID-19 pandemic?

Yes. HIPAA rules still apply during an outbreak or pandemic such as COVID-19, but some health disclosures may be allowed in certain circumstances.

During the COVID-19 pandemic, what types of health disclosures are allowed under HIPAA?

A bulletin from the US Department of Health and Human Services (HHS) provided some clarity on the application of HIPAA privacy rules as they pertain to COVID-19. Under HIPAA, PHI may be used and disclosed "when necessary to treat a patient, to protect the nation's public health, and for other critical purposes."

According to the bulletin, PHI may be disclosed for the purpose of preventing or controlling disease, injury or disability, as well as at the direction of a public health authority or to individuals at risk if authorized by law.

HIPAA also permits disclosures to family, friends and others identified by the patient as involved in the patient's care and "as necessary to identify, locate and notify family members, guardians or anyone else responsible for the patient's care, of the patient's location, general condition or death." The bulletin notes, "This may include, where necessary to notify family members and others, the police, the press or the public at large."

Otherwise, written authorization remains a requirement for "affirmative reporting to the media or the public at large about an identifiable patient, or the disclosure to the public or media of specific information about treatment of an identifiable patient." PHI that is disclosed must be limited to the minimum necessary. However, covered entities may rely on public health authorities or public officials that requested information is the minimum necessary for the purpose when such reliance is reasonable under the circumstances.

Besides HIPAA, do employers have other privacy concerns during the COVID-19 pandemic?

Regardless of whether HIPAA applies to an employer, there are other privacy laws and considerations that should be taken into consideration while dealing with the coronavirus pandemic, including:

What is telehealth?

The Health Resources and Services Administration (HRSA) defines telehealth as the use of electronic information and telecommunications technologies to support and promote long-distance clinical health care, patient and professional health-related education, and public health and health administration. Technologies include, for example, videoconferencing, the internet, streaming media and wireless communications.

Employees can use telehealth benefits from home instead of going to a doctor's office or clinic. This can be useful during a pandemic, such as COVID-19, where an employee can get a doctor's direction on how to proceed given their symptoms, without ever leaving their home and risking their health or others (e.g., those sitting in a doctor's office waiting room).

Should employers offer their employees telehealth benefits during the COVID-19 pandemic?

The CDC encourages employees to use telehealth services, rather than visiting a doctor's office or clinic, to limit the spread of the virus. If telehealth benefits are available to employees, encourage them to use it. Emphasize how use of such offerings can help keep them safe and healthy. For example, employees could use telehealth to help them decide what actions they need to take if they have symptoms of COVID-19 and are unsure about the next steps they should take. Telehealth would also be a good way to see health care providers during the outbreak for mental health issues, especially if an employee is quarantined and feeling anxious or depressed.

Discrimination / EEO

During the COVID-19 pandemic, may an employer require employees to disclose their recent travel locations or prohibit employees from traveling to a non-restricted area on their personal time?

Be aware of potential discrimination and privacy implications. If an employer wishes to ask about recent travels, there should be guidance in place that ensures that employees disclose when they or family members have been in areas affected by the coronavirus.

However, an employer generally may not prohibit legal activity, such as travel abroad by an employee; a variety of jurisdictions protect legal off-duty activities. Employers may provide information to their employees about the dangers of travel and can monitor employees returning from travel for symptoms.

May an employer require an employee who exhibited symptoms of the coronavirus to provide a doctor's note certifying their fitness for duty before returning to work?

Yes. According to the EEOC's Pandemic Preparedness Guidance an employer may ask for a doctor's note if:

  • The request is not disability-related; or
  • If the pandemic influenza is truly severe, it is justifiable under the ADA.

As a practical matter, doctors and other health care professionals may be too busy during and immediately after an outbreak to provide fitness-for-duty documentation. New approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an email to certify that an individual does not have COVID-19.

When an employee returns from travelling during an infectious disease pandemic, must an employer wait until the employee becomes symptomatic to ask questions about exposure to the infectious disease (e.g., COVID-19)?

No. This would not be considered a disability-related inquiry under the ADA. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

With respect to the COVID-19 pandemic, the EEOC recommends employers follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee's return to the workplace after visiting a specified location, whether for business or personal reasons.

May an employer take employees' body temperature during the coronavirus (COVID-19) outbreak?

Yes. According to the EEOC's Pandemic Preparedness Guidance, an employer may implement temperature screening measures in response to the current COVID-19.

Generally, measuring an employee's body temperature is considered a medical examination, which is not allowed under the ADA unless it is job-related and consistent with business necessity. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Be aware that some people with COVID-19 do not have a fever and some people with a fever do not have COVID-19.

What can an employer do to address discrimination against workers of Asian descent during the coronavirus outbreak?

Send a clear message to all employees and supervisors that they should not discriminate, harass, bully or retaliate against individuals of Asian descent in connection with the COVID-19 outbreak, as this violates the employer's policies against discrimination, harassment and retaliation and is a violation of federal, state and potentially local law. Closely monitor the workplace to ensure that individuals of Asian descent are not being discriminated against or harassed. Once notified of a complaint, promptly investigate, and be prepared to take interim measures as well as disciplinary measures.

During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic?

Yes. ADA responsibilities to individuals with disabilities continue during a pandemic.

If an individual with a disability needs the same reasonable accommodation at a remote location that they had at the workplace, provide that accommodation, absent undue hardship. If an undue hardship exits, work with the employee to identify an alternative.

Note, because temporary remote working arrangements may be considered a reasonable accommodation under the ADA, employers that permit employees to work from home as a precautionary measure now, may find it hard to claim undue hardship in the future. To protect against this scenario, if an employer is permitting employees to work from home only because of the pandemic, the employer should clearly state this in a temporary remote work policy.

Downsizing

Does the coronavirus pandemic qualify as an exception to the WARN Act's advance-notice requirements?

It depends. While the federal Worker Adjustment and Retraining Notification (WARN) Act requires covered employers to provide written notice to certain parties 60 days in advance of a plant closing or mass layoff, the Act includes exceptions for unforeseeable business circumstances and natural disasters.

The WARN Act does not directly address whether a pandemic qualifies for an exception, although the argument can be made that the coronavirus (COVID-19) and its impact were unforeseeable.

However, that does not mean an employer is absolved from providing any notice under the Act. In the event that a shutdown or mass layoff could not be reasonably foreseen 60 days in advance, an employer still must provide as much advance notice as practicable to remain in compliance.

Be aware that some states, including California, have mini-WARN Acts that differ from the federal WARN Act in terms of notice, coverage and other requirements.

Immigration

May an employer verify a new hire's Form I-9 documents or reverify an existing employee's work authorization remotely due to COVID-19?

It depends.

The Department of Homeland Security (DHS) relaxed the physical presence requirements associated with the Form I-9 if the employer and its workplaces all operate completely remote due to the COVID-19 (coronavirus) pandemic.

If the DHS permits an employer to use remote verification in light of the COVID-19 pandemic, what steps must the employer take to verify a new hire's identity and employment eligibility?

The employer must:

  • Virtually obtain, inspect and retain Section 2 documents (e.g., over video link, fax, or e-mail) within three business days of the new hire's first day of work;
  • Enter "COVID-19" as the reason for the physical inspection delay in the additional information field in Section 2;
  • Once normal operations resume, require any employee onboarded by remote verification to report within three business days for an in-person verification of identity and employment eligibility documentation;
  • After the documents are physically inspected, add "documents physically examined" with the date of inspection to the Section 2 additional information field or to Section 3, as appropriate; and
  • Employers that avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee.

How long does the DHS in-person review of Form I-9 documents deferral due to the COVID-19 remain in effect?

Until May 19, 2020 or within three business days after the termination of the National Emergency, whichever is first.

If an employer's workforce is only partially remote can the employer verify a new hire's Form I-9 documents remotely during the COVID-19 pandemic?

It depends.

Employers with any non-remote workers (i.e., those with employees physically present at a work location) must still meet their obligations for verifying employment authorization, which requires an in-person examination of documents. However, if newly hired or existing employees are subject to a COVID-19 quarantine or lockdown protocols, such situations will be reviewed by the DHS on a case-by-case basis.

Where employers are seeking to limit in-person meetings, this presents special concerns and steps should be taken to educate employees on health and safety, prior to the meeting.

Is an employer allowed to designate an authorized representative to act on its behalf to complete Section 2 of the Form I-9 documentation requirements?

Yes. Designation of a third-party as an authorized representative (i.e., a person designated to complete and sign the Form I-9 on behalf of the employer) is allowable, however, the employer remains liable for any violations connected to the I-9 or the verification process, including those committed by an authorized representative. Before designating a third-party, employers should check any applicable state laws restricting certain individuals from being designated as an authorized representative.

Are there any best practices to using an authorized representative to assist in the Form I-9 document review process during the COVID-19 pandemic?

Yes. When using an authorized representative it is best to:

  • Upon hire, let the new employee know that they will be using an authorized representative due to the emergency circumstances (e.g., COVID-19);
  • Provide the representative with clear directions on the I-9 process;
  • Have a second review of any completed I-9 forms, with immediate correction of any errors that clearly reflect any later revisions, such as by an initial and date in different ink. This review can take place using a smartphone or video conferencing to allow mistakes to be corrected real time; and
  • Address any errors immediately with the employee and authorized representative.

Labor Relations

Does disciplining employees who absent themselves or refuse to do assigned work due to COVID-19 safety concerns violate federal labor law?

In general, employers can enforce their attendance and work policies as normal during the coronavirus pandemic. However, concerns about safety issues related to the coronavirus may be considered protected concerted activity if two or more employees are joining together to raise those concerns.

The National Labor Relations Act (NLRA) protects any concerted activity designed to increase workplace safety. NLRA protections apply to all employees, even nonunionized workers, who join together. Employees may not be disciplined or discriminated against for engaging in protected concerted activity, including for refusing to come to work for safety reasons or declining to work without safety equipment such as face masks. These protections do not apply to an employee who is acting solely on their own behalf.

As noted above, if a healthy, asymptomatic employee's refusal to come to work based on a fear of contracting COVID-19 is considered protected activity, it, therefore is also protected under a number of whistleblower and anti-retaliation laws at the federal, state and local levels.

May a unionized employer unilaterally change work rules to deal with the coronavirus outbreak?

Whether an employer may act unilaterally to make changes to the terms and conditions of employment of a unionized workforce depends on the terms of its collective bargaining agreement (CBA) with the union. Review any applicable CBAs, especially the management rights clause and provisions covering mandatory subjects of bargaining, to determine if the change being considered must be negotiated with the union.

Making any changes to the terms and conditions of employment that are not permitted by the CBA, without discussing the changes with the union first, could result in a dispute with the union or an unfair labor practice charge being filed with the National Labor Relations Board.

Payroll

Can payroll be processed remotely if payroll employees cannot make it into the office due to the coronavirus crisis?

Yes. In general, higher-level employees and at least one employee of each key department should always have remote working ability in case the office needs to close temporarily for any reason. It will be easiest to process payroll remotely if all employees are paid by direct deposit and payroll personnel have access to the following basic equipment and tools:

  • Online access to management and HRIS systems;
  • Cloud-facilitated file sharing;
  • Laptops with robust, up-to-date virus and malware protection that requires two-factor authentication;
  • Printers;
  • Mobile hotspots;
  • Virtual private networks (VPNs);
  • Instant messaging capability;
  • Video conferencing capability;
  • Blank paper paycheck stock and payroll debit cards for employees not paid by direct deposit; and
  • Mailing labels, envelopes and postage needed to mail any paper paychecks and/or payroll debit cards to employees who are not paid by direct deposit.

Even with these capabilities, payroll managers may still have to go into the office periodically to pick up the mail.

How can payroll personnel timely pay employees working from home during the COVID-19 crisis if the employees are not paid by direct deposit?

For employees who are not paid by direct deposit and are paid by paper paycheck or payroll debit card, payroll personnel working from home will need to have a supply of paper check stock on hand to print paper paychecks, and a supply of payroll debit cards that can be loaded with the employees' wages. Payroll personnel will also need to have a supply of mailing labels, envelopes and postage in order to mail the paychecks and payroll debit cards to the employees. A delivery service could also be used to ensure these wage payments are made on time, in accordance with the applicable state wage payment law.

Note that state laws require that employees receive their full pay, without discount. However, despite being charged for delivery if a service is used, the employees will still receive their full pay. They will simply be charged for the privilege of receiving a paper paycheck or payroll debit card by a private delivery service. The charge, however, must not leave them with less than the minimum wage for the workweek and must not be charged against any overtime pay.

Documenting efforts to comply with the state wage payment laws is important, as it can serve as the basis for a reasonable cause defense if an employee or a state labor department alleges that the employer failed to pay employees on time.

Can payroll personnel switch an employee's wage payment method to direct deposit or payroll debit cards when the office is closed due to the coronavirus?

It depends on state law. For payroll debit cards, an employer must obtain the employee's voluntary consent.

For direct deposit, federal regulations allow an employer to mandate that employees be paid by this method subject to certain restrictions, but many states' laws are even more protective of employees and require an employer to obtain an employee's consent first, among other additional requirements. Because employers must comply with state laws that are more protective of employees than federal law, an employer must carefully check state law requirements before attempting to switch an employee to direct deposit.

Nevertheless, now is a good time to encourage employees who are not already paid by direct deposit or payroll debit cards to sign up for these wage payment methods to ensure they receive their wages securely and on time. Employees should be able to enter their direct deposit or payroll debit card information into the employer's Employee Self-Service Portal (ESSP) from their homes. Designate a contact person to help employees who need to set up remote access to the ESSP or are having trouble accessing it remotely.

Are employees' donations of accrued but unused leave time made during the Coronavirus pandemic under a qualified leave-sharing plan tax-free?

Yes. If the employer's leave-sharing plan meets specific IRC criteria, the donated time is not taxable to the donor of the time; but it is taxable to the employee who receives the donated time. The IRS allows employees to donate accrued leave under a qualified (or tax-favored) leave-sharing plan to other employees under two circumstances:

  1. An employee suffers a medical emergency; or
  2. An employee is a victim of a presidentially declared disaster (as declared in certain states in regard to the Coronavirus pandemic).

In both cases, an employer must have a written leave-sharing plan that meets Internal Revenue Code (IRC) criteria and employees must request the leave in writing.

Recruiting and Hiring

How can an employer keep its workforce safe when recruiting and hiring during the coronavirus pandemic?

For the safety of its workforce as well as job candidates, consider recruiting and hiring measures that limit in-person contact such as online recruiting methods, phone interviews, video interviews and other forms of remote hiring.

If an employer is hiring, may it screen job applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants (with or without a disability) for symptoms of COVID-19 after making a conditional job offer, as long as the employer screens all entering employees in the same type of job.

What are the best recruiting methods to use during the coronavirus pandemic?

The coronavirus outbreak is forcing employers to be more flexible and creative in their approach to recruiting. Shifting to a more virtual recruiting strategy, including using and increasing presence on social media platforms such as LinkedIn, Twitter and Facebook can help to maintain a robust candidate pipeline.

How should an employer handle interviewing during the coronavirus pandemic?

Even during a crisis such as the coronavirus pandemic, it is critical to conduct thorough interviews to ensure the right hire for the organization. The new normal, and likely the only available option, is for employers to get comfortable with video interviews and consider using online platforms such as Skype, Zoom or Google Hangouts. Some tips to consider when interviewing remotely include:

  • Making sure the interviewer and the job candidate have the correct information to connect to the video or remote interview and is comfortable with the technology;
  • Having a thorough understanding of the job candidate's resume and the job description;
  • Helping the candidate feel comfortable and at ease;
  • Conveying the employer's brand, mission, values and culture since they will not be able to see it firsthand;
  • Remaining focused and remove any distractions during the interview;
  • Recording the interview if possible, ensuring compliance with federal and state laws regarding recordings; and
  • Complying with any state laws concerning video interviews.

Remote Work

What should be done if a remote worker becomes sick with COVID-19 and must be quarantined?

An employer should take steps to make the remote worker feel supported as a valued member of the greater team during this stressful time. Be sure to respect the worker's privacy and to follow any applicable laws with respect to confidentiality, reporting workplace illnesses and health care privacy.

Supervisors should not insist that a remote worker continue to work during this time. Because remote workers often continue to work even if they are experiencing symptoms, ensure that the worker is following a health care provider's recommendations closely with respect to COVID-19.

A quarantine period's length is dictated by the risk of secondary transmission to others. With COVID-19, this decision is made on a case-by-case basis. Therefore, an employer should not require that work resume after a two-week period.

Regarding wage and hour, for employees who are nonexempt under the federal Fair Labor Standards Act (FLSA) and state wage and hour laws, employers are not required to compensate them for any time not worked. However, it may be a best practice to provide some sort of compensation during this time.

In contrast, exempt employees who work any part of a workweek must be paid their salary for the full week. If an exempt employee does not work at all during a workweek, salary payment is not required. Employers may require employees to use PTO, sick leave or vacation time, as well.

However, federal, state and local law may require paid or unpaid leave, including paid sick time. Collective bargaining agreements, employment contracts or company policies may dictate other payment practices and should be considered.

Should an employer create a temporary pandemic-specific remote work policy?

It depends. In emergency situations, such as the COVID-19 pandemic, remote working may be required or recommended for the entire workforce or certain employees. For employers new to remote working, that do not anticipate making the work from home option permanent, the best course of action is to create a temporary pandemic-specific remote work policy. The policy should make clear to employees that working remotely during the pandemic does not translate into being able to work from home after the pandemic is over.

What should be included in a temporary pandemic-specific remote work policy?

A temporary pandemic-specific remote work policy should communicate employer expectations in a clear and consistent manner. This is especially important when working from home is new to employees and being implemented because of a pandemic (e.g., COVID-19). The policy should address:

  • Processes for submitting remote working requests;
  • Which positions may work from home during the pandemic (e.g., essential vs. non-essential staff);
  • Communication expectations (e.g., daily phone calls with managers, whether employee needs to be available via a messenger program);
  • Health and safety concerns (e.g., at-home workspace safety, ergonomics, safeguarding confidential company information, use or restrictions on using personal devices for telework purposes);
  • Notification if the employee is symptomatic and can no longer work from home or needs leave or an accommodation;
  • Any onus to advise of disruptions to the remote work arrangement (e.g., illness or personal obligations);
  • Wage and hour issues, particularly regarding nonexempt employees;
  • A point of contact for any questions regarding telework arrangement;
  • Equipment and supplies requests (e.g., reimbursement for set-up of home office, allowable and nonallowable expenses);
  • Return to work procedures;
  • Liability/worker's compensation; and
  • Duration of arrangements, if known and/or a clear statement that working remotely during the pandemic does not translate into being able to work from home permanently (unless an employer anticipates making the work from home option available as a permanent or certain employees were already working from home).

Distribution of the policy can be by email, an employee handbook, the company intranet or wherever else the employer posts such information online. Train supervisors on the particular challenges that arise when implementing the policy and managing a remote team.

May an employer encourage employees to work remotely in an effort to control transmission of COVID-19?

Yes. The Equal Employment Opportunity Commission (EEOC) has stated that remote work is one strategy to control transmission of the coronavirus. Employees with disabilities that put them at high risk for complications associated with COVID-19 may request to work remotely as a reasonable accommodation to reduce chances of infection.

Follow best practices when engaging in flexible working arrangements. Consider implementing a telecommuting policy and agreement so that employer expectations during this time are clear.

How does an organization safeguard equipment and data security when it is taken home by employees?

Mobility often requires employees to have remote access to a company's intellectual property, unique processes, client information and other confidential business information that have allowed the business to grow and thrive. An employer should take steps to protect the information to ensure the information is not used by others to the detriment of the business, as more and more employees begin working from home due to COVID-19.

A telecommuting policy and agreement should address equipment and supplies expectations, as well as the return of the employer's materials. A nondisclosure agreement with the remote worker may be advisable. Consider adding an Electronic Resources policy to your handbook.

What are some of the challenges to employee engagement and productivity when working from home?

Employees working from home, also known as teleworking, face challenges maintaining engagement and connection with their organizations. This can be especially true in situations, like the coronavirus (COVID-19) pandemic, when employees may be required to work from home suddenly for an extended period.

Challenges include:

  • Isolation - It is easier for an employee to feel connected and part of a team when they are in the office and can share ideas quickly and easily every day. Individuals working remotely have fewer interactions with co-workers and must plan more in order to connect and collaborate. Feelings of isolation and being cut off may be more acute during a public health emergency, when employees are self-quarantining or complying with shelter-in-place orders.
  • Distractions - The home environment provides ample opportunities for distraction, from television to pets to unlimited snacks in the refrigerator. If family members also are home (e.g., the children are out of school), that can add an additional layer of potential disruption to work.
  • Work/life balance - It is very easy for individuals working from home to tie themselves to their desks, continually check email or work on projects at all hours of the day, blurring the lines between work and home life.
  • Visibility - The maxim "out of sight, out of mind" encapsulates a fear of those teleworking. Employees may perceive a lack of support from their organization or their supervisor without regular, frequent communication.

Awareness of these challenges can help employers prepare and take steps to minimize the impact of these challenges on employees' engagement and productivity.

How can managers and supervisors keep teleworkers engaged?

When employees regularly work from home or other locations away from the office, they may feel disconnected from their co-workers and the organization. This is especially true if working from home is new to an employee (e.g., suddenly implemented because of a pandemic, COVID-19).

Research shows that actively working with a team is a key factor for promoting employee engagement. Managers and supervisors can help employees who work remotely remain engaged by:

  • Increasing the amount of communication generally;
  • Holding regularly scheduled calls and meetings more frequently;
  • Providing socialization time before starting meetings (e.g., asking people how they are doing and about their activities outside of work);
  • Using appropriate collaborative technology to facilitate group work; and
  • Assigning projects that require collaboration and teamwork.

Must an employer record the injury or illness of an employee who is working at home on OSHA's recordkeeping forms?

It depends. Injuries and illnesses that occur while an employee is working from home are considered work-related if the injury or illness occurs while that employee is performing work for pay in the home and the injury is directly related to the performance of work. However, if the employee had injured their back carrying a load of laundry while on a work call, for example, the injury is not considered work-related and, therefore, not recordable.

What can an employer do to discourage employees from transferring company data to personal email accounts or cloud storage accounts (e.g., Apple iCloud, Google Drive) while working remotely during the COVID-19 pandemic?

Encourage employees who are able to take a work computer or laptop home to download a copy of the information needed onto the computer or laptop. If the employee is unable to take a computer or laptop home with them, speak to the supervisor or IT support about access options, including a loaner laptop with access to company-hosted email or another way to access it through a secure method.

What guidance can an employer give to employees working remotely about protecting and destroying work documents?

While employees may be tempted to print and take documents home for review, it may lead to the loss or misplacement of confidential or sensitive company information. Encourage employees to use online capabilities to view documents, if possible. If an employee must print work-related documents, advise them to print selectively and safeguard them. Employees should also either bring them back to work (when allowed, if in a location with a stay-at-home order due to COVID-19) for secure destruction, review the employer's record retention policy and procedures or seek the employer's advice for other ways for proper destruction.

What guidance can an employer provide employees on setting up a safe and comfortable workstation while working from home due to COVID-19?

Encourage employees to make their workstation as ergonomic as possible to reduce injury. For example, 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.

Also, encourage employees to take regular breaks throughout the day for a variety of reasons. For instance, 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. Employees may take a walk around the block, grab a snack or do some stretches. Employees should feel able to take breaks without fear of judgment or reprisal.

Wage and Hour

If an employee is exhibiting COVID-19 symptoms, what actions may an employer take?

Although not required, many HR experts recommend that employers consider paying employees who should not be at work but cannot afford not to earn wages. Employers may also have employees use paid leave, such as vacation, PTO and sick leave (be sure to check state and local leave laws to determine exact requirements). Short-term disability plans, paid family leave insurance and/or temporary disability insurance could also provide paid leave for medically related absences.

Use discretion so employees are safe and continue to be engaged while balancing business risks and realities.

Does an employer need to pay employees who are not working due to COVID-19?

Generally, no. Federal and state minimum wage and overtime requirements are related to hours worked, so employees who are classified as nonexempt who are not working are not typically entitled to wages.

However, exempt employees paid on a salary basis must be paid their entire salary if they perform any work during a seven-day workweek. (However, there is an exception when an employee decides to stay home and not work when the workplace is open.)

In addition, nonexempt employees paid on a fluctuating workweek basis must be paid their full weekly salaries for every workweek in which they perform any work.

Any changes in work schedules without advance notice may trigger state and local scheduling laws.

Take into consideration any legal obligations to pay salaries under employment contracts, collective bargaining agreements and other policies or under state or local wage law. Keep in mind the public relations aspect of not paying wages during this time, as it may be damaging to the employer's reputation and to employees' morale.

Workplace Safety

What steps can an employer take to reduce the risk of exposure to and transmission of COVID-19 to its workforce?

An employer can reduce the risk of exposure to and transmission of COVID-19, by taking the following steps:

  • Keep abreast of travel advisories issued by the federal government;
  • Avoid business travel entirely;
  • Postpone any pending business trips;
  • Change the location of business meetings or lessen the number of attendees at the meeting; and
  • Conduct all business interactions remotely.

In addition, advise employees to follow standard recommendations for protecting against a range of illnesses, including:

  • Avoid close contact with anyone showing symptoms of respiratory illness such as coughing and sneezing;
  • Maintain basic hand hygiene (e.g., frequently washing hands with soap and water; using an alcohol-based hand sanitizer); and
  • Maintain basic respiratory hygiene (e.g., coughing and sneezing into a tissue or an elbow; immediately throwing away used tissues and washing hands).

Employees should also be encouraged to exercise "social distancing" and have a distance of at least six feet between themselves and others at all times.

Check the CDC website for the latest guidance on protective measures against COVID-19.

Does OSHA consider COVID-19 a recordable illness?

Yes. The Occupational Safety and Health Administration (OSHA) has deemed confirmed cases of COVID-19 are a recordable illness if all of the following are met:

  • The employee has a confirmed case of COVID-19, and not merely exhibiting symptoms consistent with COVID-19;
  • The case is work-related, e.g., more likely than not that a factor or exposure in the workplace caused or contributed to the illness; and
  • The case involves one or more of the general recording criteria (e.g., medical treatment more than just first-aid, days away from work and loss of consciousness).

If all the criteria are met, the employer must record the illness on OSHA Forms 300 and 301.

State-plan states may have additional requirements.

Is there any health and safety guidance out there to help employers reduce exposure and risk to COVID-19 in the workplace?

Yes. In response to COVID-19, OSHA published, Guidance on Preparing Workforces for COVID-19. The guidance explains that planning for COVID-19 by employers may involve updating current influenza pandemic plans to address:

  • Specific exposure risks;
  • Sources of exposure;
  • Routes of transmission; and
  • Other unique characteristics of COVID-19.

Employers with a current pandemic plan in place may need to update it to address exposure sources and risks specific to COVID-19. Employers without a current plan for pandemic events are advised to prepare as far in advance as possible for potentially worsening outbreak conditions.

May an employer require an employee to travel for business despite the employee's fears of the coronavirus?

It depends. If an employee expresses concern over traveling due to the coronavirus, evaluate the reasonableness of the concern. For example:

  • Is there a travel ban or advisory for the area to where the employee would be traveling, or would the employee be traveling to a different part of the country than the coronavirus-affected area?
  • Does the employee have a medical issue, such as a compromised immune system, that increases the risk of infection?
  • Is the employee refusing all business travel on an airplane or other mass transportation, regardless of destination?

Under OSHA standards, an employee can refuse to work only where there is an objectively reasonable belief that there is "imminent death or serious injury." If the risk of infection is low, it is unlikely that an employee could prove that they have an objective belief.

If the employer decides that the employee's concerns are not reasonable, then it should explain its reasoning and educate the employee on ways to reduce the risk of exposure to the coronavirus.

Continue to consult the CDC's coronavirus information for travelers, as advice in this area is constantly changing.

If an employer discovers an employee has been exposed to COVID-19, does the employer have a right to take action under OSHA's general duty clause?

Employers have a duty under OSHA's general duty clause to provide a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm to their employees. If an employer has evidence that an employee has been exposed (for instance, a family member with whom they live has COVID-19 or a coworker), it may require that the employee work from home or take leave for the required quarantine period (e.g., 14 days).

Because the situation deals with workplace safety, failure to follow the employer's protocol and requirements could result in employee discipline.