The recent worldwide coronavirus outbreak thus far has had a fairly limited impact in the U.S. However, health officials believe that it’s not a matter of if the U.S. has an outbreak of the virus, but when.
The Centers for Disease Control and Prevention (CDC) stated that the “[d]isruption to everyday life may be severe,” which could include schools being closed, mass public gatherings being suspended, and businesses having their employees work remotely.
Additionally, we’re still well within the grasp of cold and flu season, so employers are going to have to deal with the impact of employees needing leave illnesses of some severity.
The impact of cold and flu season raises a number of potential employment law concerns. Here are a number of considerations for employers on this issue.
Wages & Hours and Exempt Employees
Under the Fair Labor Standards Act (FLSA), an employee is considered exempt if they meet certain duties tests and receive compensation on a “salary basis.” The FLSA regulations provide that, for an exempt employee to be paid on a salary basis, the employee must receive his or her full salary for any week in which the employee performs any work without regard to the number of days or hours worked.
However, a deduction may be made when an exempt employee is absent from work for one or more full days for sickness or disability, if the deduction is made pursuant to a “bona fide” plan, policy, or practice of providing compensation for loss of salary occasioned by sickness or disability.
The employer is not required to pay any portion of the employee’s salary for a full-day absence for which they receive compensation under such plan or if they do not receive compensation under such plan because the employee has not yet qualified for the plan or has exhausted their leave allowance under the plan.
Therefore, an exempt employee may be forced to take leave for such illness under the employer’s bona fide plan. If they are not yet eligible or have exhausted their leave, an employer may deduct a full day’s wages from an exempt employee’s salary if that person does not report for work for the day due to sickness or disability. Such a deduction will not violate the “salary basis” rule or otherwise affect the employee’s exempt status.
If, however, the employee works only a partial day because of sickness or disability, the employer may not make deductions from the employee’s salary for the lost time, because an exempt employee must receive a full day’s pay for the partial day worked in order for the employer to meet the “salary basis” rule. Time worked includes time worked from home.
Additionally, if the employer chooses to close due to concerns regarding the spread of disease, it cannot deduct the day’s wage from an exempt employee’s salary. It is the U.S. Department of Labor’s (DOL) position that an employer must pay an exempt employee his or her full salary for any week in which work was performed, if the employer closes its operations due to a weather-related or other emergency.
The DOL position is based, in part, on the FLSA’s regulation that provides that deductions may not be made for time when work is not available. When it is the employer’s decision to close its business because of an emergency, the DOL presumes that employees remain ready, willing, and able to work.
Under such circumstances, deductions may not be made from an exempt employee’s salary when work is not available. If deductions are made under such circumstances, the employer risks losing the exemption, thus subjecting it to potential overtime liability.
If the employer’s operation are closed for a full work week, no salary must be paid. Employers are permitted to require that employees utilize their available paid time off during an employer-mandated office closure, whether for a full day or a partial day.
However, if the employer does not provide paid time off, or if the employee does not have available paid time off, the employer may not deduct from the employee’s salary for the closure. The employer may not require that the employee have a negative leave balance or make an already negative leave balance more negative as the result of requiring the employee to take paid time off for an office closure.
Nonexempt employees do not have to be paid for time not worked.
Family Medical Leave Act (FMLA) and Time Off
The FMLA is clear that, ordinarily, the common cold and flu are not serious health conditions. However, more severe cases that require inpatient care or continuing treatment by a health care provider, and therefore meet the definition of serious health condition, do qualify.
Therefore, employers need to be carefully tracking who is eligible for FMLA leave and why the employee needs time off, and providing timely eligibility notices to employees. When in doubt, employers should err on the side of caution, and provide an eligible employee taking time off for illnesses with an eligibility notice and certification of health care provider. Then, with the information provided by the employee’s health care provider, the employer (potentially assisted by counsel) can determine whether the employee’s particular illness meets the definition of a “serious health condition” under the FMLA.
Additionally, eligible employees are entitled to FMLA for the care of a family member who has a serious health condition, so employees with spouses, children, or parents who are suffering from a severe flu or coronavirus may also be entitled to FMLA leave.
Disability Discrimination and Sending Employees Home
Employees with certain health conditions may be more susceptible to other diseases, such as colds, flus, or the coronavirus. Therefore, employers may have to consider reasonable accommodations, such as working from home or avoiding travel, in order to help those employees avoid the risk of further infection.
However, employers should be cautious about requiring health screenings or otherwise inquiring about potential medical conditions, as this could also be a violation of the Americans With Disabilities Act (ADA) and state disability discrimination laws.
If the employee is displaying symptoms of a contagious illness at work, the employer can (and probably should) send them home, and that will not violate the ADA. If it turns out that the condition was a minor illness, it will not be considered a disability; and if the condition is severe enough to be considered a disability, then the employer was justified in protecting other employees from the direct threat that the contagious illness posed.
Occupational Safety and Health Administration (OSHA) and Employee Safety
Although OSHA has not issued any guidance specific to the coronavirus, under OSHA, employers have a general duty to furnish a place of employment that is free from recognized hazards that are causing or likely to cause the death of or serious physical harm to employees.
To that end, employers should consider:
making hand sanitizer available, particularly in environments with public contact;
making sure that surfaces and eating areas are cleaned and disinfected; and
encouraging employees who are sick to stay home.
Additionally, while the standard cold and flu are not reportable illnesses, OSHA has deemed the 2019 Novel Coronavirus a recordable illness when a worker is infected on the job. Therefore, employers need to know whether their employees are infected, how they got infected, and fill out the appropriate OSHA Form 300 if necessary.
Making an Emergency Plan
In planning for a pandemic, employers should consider how to maintain essential operations and services when necessary resources may not be available. In particular, employers should determine whether core business activities can be sustained over an extended period of time when only a minimal workforce may be available.
The U.S. Department of Homeland Security provides steps for employers to take now, to ensure that their respective businesses can survive and continue to provide critical goods and services to the public. These steps include:
identify your company’s essential functions, such as payroll or information technology, and identify the individuals that can perform them;
cross train nonessential employees to perform essential functions;
ensure sufficient essential resources are available at each worksite;
plan for interruptions of essential government services, such as mass transit;
update and modify sick leave policies, and communicate with employees the importance of staying away from the workplace if they become ill;
establish policies and practices to allow employees to work from home;
collaborate with insurers, health plans, and major health care facilities to share your pandemic contingency plans and to learn about their capabilities and plans;
promote and maintain a healthy work environment by, for example, providing easy access to alcohol-based hand sanitizer products; and
communicate with your employees about the threat of a pandemic and the steps that you, as their employer, are taking to prepare for it.
For more information on what your business can do to be prepared for a pandemic, visit the U.S. Department of Homeland Security’s website at www.ready.gov.
Employer Rights at Termination is the topic of the March Labor and Employment Law CLE Luncheons on March 12 in Milwaukee and March 13 in Madison, and via live webcast. These presentations are offered at a special discount to section members. Register at on WisBar’s Marketplace.