Coronavirus: Advice for Massachusetts Employers
The global spread of the novel coronavirus (COVID-19) has people struggling to understand how to stay safe. Managing exposure in the workplace is critical for the small business owner. We want to keep ourselves, our customers, our employees and our communities safe.
Business owners also have many questions about the employment law implications of the COVID-19 emergency. Below is a summary of the CDC guidance for businesses and employers, as well as answers to some frequently asked questions about managing the situation in the workplace.
Business owners also have many questions about the employment law implications of the COVID-19 emergency. Below is a summary of the CDC guidance for businesses and employers, as well as answers to some frequently asked questions about managing the situation in the workplace.
CDC Recommendations for EmployersThe Centers for Disease Control and Prevention ("CDC") has issued specific guidance for businesses and employers in Massachusetts. The recommendations include:
Employer Responsibility for Sick Time and LeaveCongress recently passed the Families First Coronavirus Response Act ("FFCRA"). This bill requires all business with fewer than 500 employees to provide an additional 80 hours (two weeks for regular full time employees) of paid sick time. Employees are eligible for this time not only if they are sick, but also if they are subject to actual or preventative quarantine. Employees are also eligible if they are home because their children's school has been closed.
This time is in addition to any sick time currently required by state law or available under an employer's policy. In Massachusetts, existing wage and hour law requires that all employees accrue sick time. Any business that employs 11 or more people is also required to pay for that sick time. Employees can either be given a bank of 40 hours of time at the beginning of the year, or accrue it at a rate of one hour for every 30 hours worked. The Earned Sick Time law covers time needed for medical appointments or taking care of a sick family member. It does not explicitly address time needed to self-quarantine or to watch a child whose school is closed due to the COVID-19 outbreak. It is likely, however, that courts would interpret the law to include these things in a public health emergency. The FFCRA also creates an emergency expansion of the Family Medical Leave Act ("FMLA"). Previously, only employers with 50 or more employees had to provide leave under the FMLA, and the leave was not required to be paid. The FFCRA expands these protections to employees of small business, and requires payment of 2/3 of their regular pay during the leave period. Under either the FFRCA or existing state law, an employer cannot retaliate against an employee for taking protected sick or COVID-19 related leave. This means once an employee asks for or takes this leave, you cannot terminate their employment without facing significant legal risk. |
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What Questions Can You Ask Employees About Their Health?
Ordinarily employers do not inquire about medical details, other than to get medical confirmation that an employee is medically cleared to return to work after a leave. in the current situation, however, you may want to know which employees are exhibiting COVID-19 symptoms in order to manage exposure in your workplace.
Further complicating the matter is the fact that as this writing most people with symptoms cannot get COVID-19 testing in Massachusetts. That means neither you nor your employees may have a clear answer about whether someone has seasonal flu or COVID-19 during the highest period of contagiousness.
Employers need to be mindful that overly broad or intrusive medical inquiries can violate the Americans with Disabilities Act ("ADA"). There are some exceptions, however, if an employer is following local, state or federal guidance mandating or recommending screening questions.
Employers should also be mindful of employee privacy under both the ADA and Massachusetts privacy laws. If an employee discloses an exposure to COVID-19 or associated symptoms, that information should not be shared except with those who need to know.
Further complicating the matter is the fact that as this writing most people with symptoms cannot get COVID-19 testing in Massachusetts. That means neither you nor your employees may have a clear answer about whether someone has seasonal flu or COVID-19 during the highest period of contagiousness.
Employers need to be mindful that overly broad or intrusive medical inquiries can violate the Americans with Disabilities Act ("ADA"). There are some exceptions, however, if an employer is following local, state or federal guidance mandating or recommending screening questions.
Employers should also be mindful of employee privacy under both the ADA and Massachusetts privacy laws. If an employee discloses an exposure to COVID-19 or associated symptoms, that information should not be shared except with those who need to know.
What Questions Can You Ask Employees About Travel?
One of the known risk factors for COVID-19 is recent travel to one of the countries hardest hit by the virus. You can certainly ask if your employees or their family members have traveled to any of those countries.
You need to be careful, however, about making assumptions or risk assessments based on the ethnicity or national origin of your employees. For example, you should not focus your questions or concerns on only Chinese employees. Doing so could put you in violation of state and federal anti-discrimination laws.
You need to be careful, however, about making assumptions or risk assessments based on the ethnicity or national origin of your employees. For example, you should not focus your questions or concerns on only Chinese employees. Doing so could put you in violation of state and federal anti-discrimination laws.
What is an Employer's Liability if an Employee Catches COVID-19 on the Job?
Generally, injury or illness caused in the workplace is covered by workers compensation. This means an employee is entitled to income replacement and payment of medical bills from your workers compensation insurer. Except in extraordinary circumstances, the employee cannot seek further compensation directly from you.
It is unclear if a workplace COVID-19 exposure would count as a workplace injury. For contagious illness to be considered a workplace injury, the work environment generally must present a particular risk.
For example, health care workers who contract a contagious disease while treating patients are likely to be covered. An employee who traveled to an affected country for work and contracted the virus would probably also be covered. As community spread of COVID-19 grows, it may be more and more difficult to pinpoint the workplace as the site of any particular exposure.
The workers compensation system is intended to be the exclusive remedy for workplace injury or illness. Employers should know that there is an exception if the employer engages in "willful or wanton" conduct that endangers employees. Under those circumstances, the employer could be liable to cover the costs that would otherwise be paid by the insurance company and pay a penalty.
"Willful and wanton" is generally a high bar. It does not include making a mistake or failing to recognize symptoms in an employee. It might include requiring a known COVID positive employee to continue to come to work.
It is unclear if a workplace COVID-19 exposure would count as a workplace injury. For contagious illness to be considered a workplace injury, the work environment generally must present a particular risk.
For example, health care workers who contract a contagious disease while treating patients are likely to be covered. An employee who traveled to an affected country for work and contracted the virus would probably also be covered. As community spread of COVID-19 grows, it may be more and more difficult to pinpoint the workplace as the site of any particular exposure.
The workers compensation system is intended to be the exclusive remedy for workplace injury or illness. Employers should know that there is an exception if the employer engages in "willful or wanton" conduct that endangers employees. Under those circumstances, the employer could be liable to cover the costs that would otherwise be paid by the insurance company and pay a penalty.
"Willful and wanton" is generally a high bar. It does not include making a mistake or failing to recognize symptoms in an employee. It might include requiring a known COVID positive employee to continue to come to work.
What if You Have to Close Your Business?
Recent directives from Governor Baker have required bars to close and restaurants to limit service to take out and delivery. Some may be able to continue to operate under these conditions, but others may need to close temporarily. If the situation worsens, other businesses considered "non-essential" could face closure.
The financial implications to a small business owner are, of course, sobering. On top of that are concerns about what your obligations are to employees if you have to suddenly close.
Larger employers (more than 100 employees) are subject to the Federal WARN Act, which requires 60 days notice of plant closings or mass layoffs. If your business is subject to this law, there are exceptions for unforeseeable business circumstances, faltering companies, and natural disasters. Most likely the COVID-19 pandemic would fall within either the "unforeseeable business circumstance" or "natural disaster" category.
For the rest of us, there is no legal requirement that we provide notice of closure or compensation after closure on an ongoing basis. Be aware, however, that if you close completely your employees will be considered terminated, at least temporarily. This means they will be able to collect unemployment. It also means that if they have accrued and unused vacation time, you need to pay out that time when you close. If you have to close and terminate employees, however temporarily, you should also consider best practices for termination.
The financial implications to a small business owner are, of course, sobering. On top of that are concerns about what your obligations are to employees if you have to suddenly close.
Larger employers (more than 100 employees) are subject to the Federal WARN Act, which requires 60 days notice of plant closings or mass layoffs. If your business is subject to this law, there are exceptions for unforeseeable business circumstances, faltering companies, and natural disasters. Most likely the COVID-19 pandemic would fall within either the "unforeseeable business circumstance" or "natural disaster" category.
For the rest of us, there is no legal requirement that we provide notice of closure or compensation after closure on an ongoing basis. Be aware, however, that if you close completely your employees will be considered terminated, at least temporarily. This means they will be able to collect unemployment. It also means that if they have accrued and unused vacation time, you need to pay out that time when you close. If you have to close and terminate employees, however temporarily, you should also consider best practices for termination.
Conclusion: Employer Best Practices During the Coronavirus Emergency
First and foremost, consider what is practical in your business that you can do to limit everyone's exposure. If you have people in roles that can effectively work remotely, this will help limit exposure. If people must be physically in the workplace, you can limit close contact and require that everyone wash their hands regularly during the work day.
If any employee reports that they or a family member has tested positive, make sure they stay home for a quarantine period. You may consider offering additional paid sick time beyond what the law requires to discourage people from coming to work when they may be contagious.
Plan for the possibility of closure. This could be because you are mandated to close. It could also be because people are simply not going to be buying things from you during the crisis. If you wait until you are forced to close to consider cash flow needs, you may not be able to meet your legal obligations to employees at closing.
Whatever systems you put in place, apply them equally. If you need to collect information about recent employee travel, do not just ask the people you assume are at the highest risk for such travel.
Remember that your employees are anxious too, and may need support especially if you are changing the way they do their work. Be transparent, keep your expectations reasonable, and be aware that many may need additional flexibility if their school aged children are home for a long period of time.
If any employee reports that they or a family member has tested positive, make sure they stay home for a quarantine period. You may consider offering additional paid sick time beyond what the law requires to discourage people from coming to work when they may be contagious.
Plan for the possibility of closure. This could be because you are mandated to close. It could also be because people are simply not going to be buying things from you during the crisis. If you wait until you are forced to close to consider cash flow needs, you may not be able to meet your legal obligations to employees at closing.
Whatever systems you put in place, apply them equally. If you need to collect information about recent employee travel, do not just ask the people you assume are at the highest risk for such travel.
Remember that your employees are anxious too, and may need support especially if you are changing the way they do their work. Be transparent, keep your expectations reasonable, and be aware that many may need additional flexibility if their school aged children are home for a long period of time.
How Can We Help?
We can help answer your specific questions about managing this COVID-19 crisis. We routinely conduct consultations and meetings by phone or video-conference, so you can reach out without increasing your exposure to the virus. You can use the button below to schedule a call back from a member of our team, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.
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