Guidance for Reacting to the COVID-19 Pandemic

Issue 1: Health and Safety

The situation is rapidly evolving, and employers must continue to frequently monitor guidance from the Center for Disease Control and local public health organizations.

The CDC has provided interim guidance for employers related to health and safety issues.

The EEOC has Pandemic Guidance for employers to refer to related to issues of Americans with Disabilities Act (ADA) and Genetic Information Nondisclosure Act (GINA):

You may ask employees if they are experiencing influenza-like symptoms, such as fever, coughing, chills, or shortness of breath.
You may make reasonable inquiries into employees’ exposure to COVID-19, including where the employees have traveled for business or personal travel in the last 14 days.
You may require employees who are displaying symptoms, have traveled to affected areas, or were otherwise potentially exposed to stay home from work until risk of transfer is eliminated.
Determinations on potential exposure and the ability to return to work should be based on the CDC’s risk-assessment guidance and should be completed on a case-by-case basis.
You cannot require employees to be tested for COVID-19 unless directed to do so by health authorities.When not all employees can work from home, you are encouraged to consider additional options to promote social distancing, such as staggered work shifts.

Issue 2: Payment to Employees

The U.S. Department of Labor recently put out guidance regarding the requirements under the Fair Labor Standards Act (FLSA) during a pandemic.

Under the FLSA,

Non-exempt employees who are not performing work are not entitled to payment, unless entitled by contract or other relevant laws.
As a general rule, if an exempt employee performs any work during the workweek, he or she must be paid the full salary amount.
- The employer may not make deductions from an exempt employee’s pay for absences caused by the employer or by the operating requirements of the business.
- Deductions from salary for exempt employees are permissible for absences of one or more full days due to sickness or disability, if the deduction is made in accordance with a bona fide plan, policy, or practice of providing compensation for salary lost due to illness, and for unpaid leave taken by the employee under the Federal Family and Medical Leave Act (FMLA).

Therefore, you may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. For more information, see WHD Opinion Letter FLSA2005-41.

If you require employees to telework/work remotely, you should be cognizant of recording requirements under the FLSA. You should develop a system so employees can accurately record and report their time worked to prevent issues under the FLSA.

You should also be cognizant of continuation of benefits in accordance with your written policies.

Issue 3: New COVID-19 Law

The coronavirus emergency relief package, which became law in March, gives many American workers paid leave if they need to take time off work because of COVID-19.

It gives qualified workers two weeks of paid sick leave if they are ill, quarantined or seeking diagnosis or preventive care for coronavirus, or if they are caring for sick family members. It gives 12 weeks of paid leave to people caring for children whose schools are closed or whose childcare provider is unavailable because of coronavirus.

The Labor Department must issue guidelines by April 2 to assist employers in calculating how much paid leave their employees should get. After that, employees should be able to simply notify their employer, take the leave and get paid the amount specified by the law.

Employers will be reimbursed for the full amount within three months, in the form of a payroll tax credit. The reimbursement will also cover the employer’s contribution to health insurance premiums during the leave.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

CONTACT ATTORNEY JULIE T. BITTNER

Julie T. Bittner
Partner – West Des Moines
1501 42nd St., Suite 465, West Des Moines, IA 50266
P: (515) 453-8509 / F: (515) 267-1408
E: julie.bittner@mwhlawgroup.com
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