In response to the recent coronavirus outbreak, employers everywhere are striving to limit the risk of exposure in the workplace. That means implementing workplace precautions, ensuring that sick leave policies and practices are effectively communicated to employees and familiarizing yourself with state and federal laws.
On January 30, 2020, the World Health Organization declared the outbreak a “public health emergency of international concern.” Although the risk of infection appears to be low for most American employees, the disease is easily transmissible, and individuals can be infected and spread the disease without even experiencing symptoms. All employers must remain cautious and take proactive steps to maintaining a hygienic workplace, but they also need to understand how wage and hour laws may be implicated by the steps they take.
Because COVID-19 is highly contagious and is thought to be spread when people are in close contact with one another (within about six feet), the U.S. Centers for Disease Control (CDC) recommends employees take the following steps to protect themselves from exposure to the virus:
- Wash their hands with soap and water for at least 20 seconds after going to the bathroom, before eating and after blowing your nose, coughing or sneezing.
- Use alcohol-based hand sanitizer if soap and water are not available;
- Avoid touching their eyes, nose, mouth with unwashed hands;
- Notify their supervisor and stay home when feeling sick;
- Cover coughs or sneezes with a tissue and throw the tissue in the trash
- Clean and disinfect frequently touched objects and surfaces (e.g., computer screens, mouse, keyboards, phones, doorknobs, counters)
Employers are required by law to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. As such, the CDC recommends employers develop and implement a plan to avoid the risk of exposure to COVID-19. That should include encouraging your employees to stay home when sick, instructing employees to clean their hands often, providing adequate hygiene supplies in the workplace and routinely cleaning all frequently touched surfaces in the restaurant. Employers also should consider separating employees who have symptoms of acute respiratory illness and sending employees home if necessary.
Family Medical Leave and Sick Leave
Laws dictating whether employees receive paid leave when they are sick or caring for a sick family member vary at the federal and state level. It is important for employers to be aware of the distinctions between the different laws and how they may overlap.
As COVID-19 may qualify as a “serious health condition” under the Family and Medical Leave Act (FMLA), federal and state laws may apply to employees who contract the virus or have an immediate family member who does. Employers need to be aware of how eligibility requirements under the federal and applicable state laws can differ and how some can overlap. For example, employers with 50 or more employees are covered under the federal FMLA, but only employers with 75 or more employees are covered under the Connecticut FMLA.
Employees receiving federal FMLA currently do not get paid while on leave, but, in light of the outbreak, there is a nationwide push to enact paid FMLA leave. Eight states and the District of Columbia have enacted their own paid FMLA leave laws, which may serve as a guideline for federal legislation.
People thought to have had exposure to COVID-19 virus are encouraged to stay home from work and quarantine themselves. Unable to work, employees will try to secure pay through the state or federal government. That means franchisees need to know not only whether their Dunkin’ shops are in a state that requires paid FMLA leave, but also how that leave is funded and which employees are entitled to job protections under the law.
With regard to sick leave, rules can differ state to state. Employers need to be aware of potential implications of sick leave. Although there is currently no federal sick leave law, 11 states and the District of Columbia have paid sick leave laws requiring employers provide paid or unpaid sick leave to employees. Franchisees need to review the laws that are applicable to them to ensure compliance—paying particular attention to the number of employees a franchisee must have to be covered, the reasons for which employees may use sick leave, the accrual rates at which an employee earns sick leave, and the maximum amount that employees may accrue and carry over each year.
Employers should be wary of employees who attempt to use FMLA or sick leave out of fear of contracting COVID-19. Such employees would not typically qualify for FMLA or sick leave. However, some state laws do indicate that employees could qualify for sick leave if their workplace closes. Franchisees should review and document each request to use FMLA and sick leave. Many states also allow employers to require medical documentation if paid sick leave is taken for more than three consecutive days.
It is important to note that some employees may be hesitant to take advantage of available leave out of fear that doing so could prompt their employer to retaliate in some way. With this in mind, franchisees should consider implementing flexible leave policies, then communicate those policies directly to employees. This includes explaining what flexibility the company has with regard to leave, pay and benefits.
Wage and Hour Law Implications
Employers may also reduce the number of hours an employee works as part of their strategy to prevent the spread of COVID-19 in the workplace. Wage and hour changes must comply with state and federal laws and employers need to consider how any changes will affect non-exempt and exempt employees.
Non-exempt (hourly) employees need only be paid for time they work, so ordinarily, wage and hour laws are not implicated if the number of hours worked or hourly pay (in the next payroll) is reduced. Employers should still provide notice to employees of any pay rate changes in writing or by posting such notice in a place accessible to employees.
Exempt employees (salaried) must be paid the same weekly salary regardless of the number of hours worked. To avoid violating the salary-basis test, employers can impose a week-long furlough—essentially requiring that employees take a temporary leave of absence from work. In that case, the employer need not pay the employee’s weekly salary, as long as the employee is not expected to do any work from their home. Similarly, and depending on each state, employers should evaluate how paid time-off banks may be debited for absences to ensure that the weekly salary is maintained.
Employers also have the option of reducing salaries and hours due to a legitimate business or economic slowdown, without affecting employees’ exempt status. This reduction is permissible so long as it is “bona fide” and the exempt employees are paid at least the required minimum salary level. Under the federal Fair Labor Standards Act, the minimum salary level is $684 per week, but employers also are required to meet applicable state law salary levels. In California, for example, the minimum salary level $1,040 per week for employers with 26 or more employees; in New York State the minimum weekly salary is $885; in New York City it is $1,125.
There are many unknowns ahead regarding COVID-19, so employers need to be prepared with appropriate policies and procedures in place to avoid the risk of exposure and to address when an employee becomes exposed. Communication to all employees is key, whether it is a supervisor talking about routine hygiene or an employee making it known he/she is sick. And, employers need to be sure their FMLA and sick leave policies are flexible and effectively communicated so that employees feel secure in staying home when they need to. Of course, that can make running a Dunkin’ franchise that much more challenging. •
Glenn Duhl is a management-side employment and litigation lawyer at Zangari Cohn Cuthbertson Duhl & Grello P.C. You can reach him at firstname.lastname@example.org.
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.