Let’s be real. With the Coronavirus in the news everyday, these are crazy times we’re living in and there is a lot of uncertainty, including the potential impacts we may all experience or are already experiencing in our lives. Work is an incredibly big part of that and when it comes to workplaces, there is not a one size fits all plan to ensure ongoing productivity and employee safety.
Similarly, all businesses are unique, with different challenges that come into play when determining the best course of action. However, in an effort to hopefully eliminate some uncertainty, we put together some frequently asked questions and answers. Obviously, these do not address all questions that may come up, so we invite you to contact us directly regarding any other questions and scenarios you may have.
- I’m thinking about having my employees work from home. What should I have in place?
You want to make sure these basic questions are addressed: (1) how will the employee access the information necessary to do the job; (2) how will the employee communicate with coworkers, management, customers, etc.; and (3) how will the employee track his or her hours, if necessary?
Remote access to business email accounts, servers, shared drives, etc. is necessary for employees to access the information necessary to perform their jobs. Make sure you have adequate systems in place. Same goes for communication.
With respect to compensation, employees must be compensated for all hours of work they are suffered or permitted to perform. Supervision of that work certainly becomes more difficult when employees are working remotely. For this reason, you must have policies in place that are clearly communicated to all employees stating that they are responsible for accurately recording and reporting all hours worked while working remotely. If you do not already have one in place, no particular system has to be utilized to accomplish this. It is more important to emphasize the importance of accurate recording and reporting of hours and the repercussions for failing to do so (i.e., won’t be compensated for work that is not recorded and reported, employee discipline for discrepancies, etc.).
- What do I do if my employee can’t come to work and I don’t have a formal leave policy?
If your workplace does not already have a formal leave policy, then this is going to be discretionary. If you have a policy, it is expected that you will follow it. If you have fifty (50) or more employees, the FMLA could be implicated, which is addressed next (and at which point we would expect a written policy to be in place already).
As a baseline, employers are not required to provide leave to their employees. However, it is recommended that they do. That said, providing leave is not equivalent to providing paid leave. This, again, is discretionary, particularly when you do not have a formal policy already in place. It is up the business whether leave will be paid or unpaid. It is also up to the business to discern how long leave will be provided.
If your business does not have a policy in place already, now is the time to determine what it will do and to communicate it to employees in advance to set the expectation.
- Is being infected with the coronavirus a “serious medical condition” under the Family and Medical Leave Act (FMLA)?
As a refresher, regulations define a “serious medical condition” is an illness, injury, impairment or physical or mental condition that: (a) involves inpatient medical care (overnight stay in a hospital or other medical facility); or (b) continuing treatment by a health care provider after a period of being unable to work.
Looking at this definition, yes, leave from work due to a coronavirus infection and recovery thereafter certainly could be FMLA-qualifying, particularly in more serious cases.
- How long do I have to hold an employee’s position open if they’re out with the virus?
If the employee is FMLA-eligible and requires FMLA-qualifying leave, then that employee’s position is protected while he or she is on FMLA leave.
Smaller employers (those not covered by the FMLA) are not required to hold an employee’s position open while he or she is out of work due to illness. Accordingly, they have the discretion to decide what is best given the particular circumstances of the workplace. Can the employee work from home? Can the business survive without the employee for a period of weeks, if necessary? Can the employee’s duties be divided amongst other employees? Can a temp be used to cover for the employee? These are all factors that should be considered, and communication is incredibly important with all employees who are directly or indirectly impacted by the absence.
- Is being infected with the coronavirus considered a “disability”?
In Wisconsin, there are two (2) definitions of “disability” at play – the Wisconsin Fair Employment Act’s (WFEA) definition and the Americans with Disabilities Act’s (ADA) definition.
Under either definition, an illness resulting from the coronavirus would not constitute a “disability.” However, should the illness result in any further medical conditions, those conditions may qualify depending on the circumstances. Communication between the employee and the employer regarding the employee’s health and return-to-work status are critical for all involved.
Above all, it is important for all of us to exercise good judgment, take all reasonably necessary precautions, and take workplace safety and the health of our employees seriously. If you have questions, reach out.