I Knew This Day Was Coming! How to Manage Employees Who Want to Use Coronavirus as a Reason Not to Come to Work.

And so, it begins.  Had my first client call today with an employee who wants to work from home because of Coronavirus fears.  Mind you, nobody at her place of work has been sick, or tested positive for Coronavirus.  She isn’t sick, and is not claiming to be sick.  This is a manufacturing facility, too, so she has to be there to do the job.  The employee wants to either telecommute or stay home and not use Paid Time Off (PTO).  Wouldn’t it be nice if we could all decide when, where, and how often we show up for work?

First step – go to your policy manual or employee handbook.  Remember, as with any policy, consistency and good documentation protect you.  You always have the right to enforce your attendance policy, and to take action on those employees who are not at work, and are not covered by worker’s comp, disability, FMLA or Paid Family Leave (in NYS).

You have the right to force employees to use PTO time for time missed from work due to an absence that is not covered by a protected leave.

Managing through all of this requires employers to pay attention to many state and federal laws including but not limited to: OSHA, HIPAA, ADA, FLSA, FMLA, PFL (in NYS), and others.  We have provided some helpful links below:

https://www.dol.gov/coronavirus (pay special attention to the many helpful links on this site)

https://www.eeoc.gov/facts/pandemic_flu.html
https://paidfamilyleave.ny.gov/
http://www.eeoc.gov/facts/telework.html
https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

Excerpts From the EEOC:

May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?   Yes.

May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?  Yes.

During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?  Yes. 

During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?  Yes.

During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?  Yes.

May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?  Yes.

…and from the USDOL:

Can an employee stay home under FMLA leave to avoid getting pandemic influenza?

“The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition.  Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.  Employers should encourage employees who are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.”

Now, I am not heartless.  This Coronavirus and Covid 19 pandemic is scary stuff.  Employers should understand employees’ fears, and spend a great deal of time pro-actively communicating with employees, listening to their concerns, and adapting their policies during this pandemic when possible.  But, employers, you still have the right to run your business, subject to the many laws that you need to follow every day.  Coronavirus did not create new laws that you need to follow, nor did it create new rights for employees. 

Yes, telework is a great tool to prevent spread of a disease, but only if it works for your business.  There is no requirement to provide telework options to employees.  But if you do, be consistent as to whom receives this benefit. 

Good luck, we are in for a bumpy ride!

Founded in 2005, Saratoga Human Resources Solutions, Inc. helps CEO’s, business owners, and senior managers address and solve their human resources challenges.

www.SaratogaHR.com

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Saratoga Human Resources Solutions