We are aware of the bill that passed through the House providing paid sick time and extending FMLA protections to employees and family members impacted by COVID-19. However, the bill must be passed in the Senate before it becomes a law, and there are indications that revisions will be made before it is finalized. We realize the answers below may be impacted if and when a new act is passed.
In the meantime, below is a list of frequently asked questions with answers that we have received from business owners across the nation.
If the company does not have forty (40) hours of work for my employees right now, what are our options?
Your three different options include:
- Keep pay as is. Pay exempt employees their full salary. Pay non-exempt employees for the hours they are normally/regularly scheduled to work.
- Reduce non-exempt employees’ hours and pay them for the hours that they actually work.
- Reduce the number of hours you expect your exempt employees to work and reduce their salary accordingly. Remember to keep the salary above the applicable State and/or Federal threshold to maintain exempt status.
If you decide to reduce hours or wages, the intention to reduce should be communicated to employees and should not become effective until the payroll following the communication.
How many hours do employees need to work per week to maintain benefits?
Generally, employees must work a minimum of thirty (30) hours per week to maintain most benefits, including health insurance benefits. If an employee works less than thirty (30) hours per week, COBRA or state continuation benefits would be offered. If, however, employees will be laid-off or furloughed see below.
What if the company needs to furlough or layoff some or all employees?
If employees are laid off, they would be offered COBRA or state continuation benefits. If employees are furloughed, they may maintain health insurance benefit eligibility for a period of time (depending upon the terms of your insurance plan) before continuation coverage would need to be offered. If/once an employee is called back to work, they would have to follow the normal new hire eligibility process for benefit plan eligibility (i.e., effective 1st of the month following 30 days of employment).
In addition, if employees are laid off or furloughed, they can apply for unemployment benefits. Whether an employee qualifies and the amount of the benefit, are completely determined by the State unemployment department.
Depending on the number of employees the company is laying off, and the anticipated length of the layoff, you may need to follow strict notice requirements under Federal or State mass layoff laws.
Are employees able to apply for unemployment insurance if there is a reduction in their hours?
Yes, employees can apply for unemployment benefits due to a reduction in hours. Whether an employee qualifies and the amount of the benefit, are completely determined by the State unemployment department.
Can the company allow employees to use vacation/sick time if they need time off from work right now?
Yes. You should follow all current paid time off policies.
What should I do if an employee is diagnosed with COVID-19?
If one of your employees has a confirmed COVID-19 diagnosis, you should:
- Ask the infected employee to work from home or take sick leave for fourteen (14) days.
- Ask the infected employee to identify all individuals who worked in close proximity in the previous fourteen (14) day period. Once identified, you should ask these individuals to also work from home or take sick leave for fourteen (14) days.
- You should communicate to the workforce that an individual in the company has been diagnosed with COVID-19. Do not identify by name the infected employee, or you could risk a violation of confidentiality laws.
- Employees should be prohibited from entering the workplace until a deep cleaning can be executed.
- Recommend those who can work remote do so if you have not already.
What if an employee is exposed to an individual who has been diagnosed with COVID-19?
Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that an employee is asymptomatic for the virus, but you are acting out of an abundance of caution.
What if an employee is symptomatic, consistent with those of COVID-19?
Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that an employee has not tested positive for the virus but has been exhibiting symptoms that lead you to believe a positive diagnosis is possible.
Is an employer required to pay employees who are prohibited from returning to work based on a reasonable belief that the employee may have been exposed to or has contacted COVID-19?
Employers should follow their paid time off policies and allow employees to utilize this to care for their own illness or their family members.
Can employers require employees suspected of exposure to or contracting COVID-19 to be tested as a condition of returning to work?
Generally, employers may ask for a doctor’s note if it is the employer’s practice to require certification after an employee’s absence due to illness. But some state and local laws limit when an employer may require a doctor’s note by the number of days an employee is out. Also, some states limit an employer’s ability to ask for a healthcare provider’s certification or impose other privacy-related obligations or restrictions.
Practically speaking, even if certification is allowed, doctors and other healthcare practitioners may be too busy to provide it, and public health officials in some states and the CDC have asked employers to relax their policies on this issue.
Can the employer take employees’ temperatures before entering the workplace each day?
Yes, in fact some states require it. Our friends at Littler have created a list of each state’s laws and requirements for temperature screening. Check it out here.
Updated May 28, 2020 to reflect new laws and regulations.
Do you have additional HR questions related to COVID-19?
Submit them to Ask the HR Expert.