With hourly reports of a possible coronavirus (COVID-19) pandemic in the news, employers are confronted with preparing for widespread employee absences or a pandemic situation. Among many issues to consider is how to treat absences related to coronavirus. Not only must employers consider how to treat employees who themselves become ill, they must also prepare for those who will be absent to care for others, as well as possible illness-related furloughs or facility closures.
Under the FLSA and most state wage and hour laws, there is a distinction between how employees are treated, depending upon their status as exempt or non-exempt employees.
Non-exempt employees. Employers should pay non-exempt employees for all time worked but are not required to pay them if they do not perform work. For example, if the non-exempt employee performs work from home, they should be paid for all time actually worked. On the other hand, the employer need not pay non-exempt employees if they perform no work because, for example, the employer closes its facility (1) because of an epidemic, (2) to prevent the spread of disease, or (3) for lack of work.
Employers should allow non-exempt employees to use sick, vacation or personal leave according to their policies. For example, sick employees eligible for sick leave would be able to use leave if they become sick themselves. They would also be allowed to use vacation or personal time, absent some limitation of those policies. An employee who is not sick, but chooses to miss work to avoid illness, or to care for a sick family member, may be able to use vacation or personal leave for time missed. A more complicated question arises if the employer directs a non-exempt employee who is not sick, but who has been exposed to coronavirus or another communicable illness, not to report for work. Technically, the employer is not required to pay for forced time off, although it might consider some type of paid or unpaid leave under those circumstances.
Exempt employees should be paid for any week in which work is performed, subject to the usual exemptions. For example, assuming the employer has a bona fide sick leave policy and the exempt employee either is not eligible or has exhausted sick leave, the employer can deduct for time missed, but only for full days not worked. For example, if the employee misses three and a half days of work, the employer should only deduct three days of salaried pay. If the exempt employee misses work for personal reasons (i.e., chooses to stay away from work to avoid illness or care for a family member), employers can deduct, but only in full day increments. If the exempt employee is turned away from work (e.g., because they have been exposed to an illness or because the company closes its facility) the employee should be paid for all weeks in which some work is performed. Employers are not required to pay exempt employees for weeks when no work is performed (e.g., if a furlough or facility closure persists for more than one work week AND the employee performs no work from home or remotely).
Exempt or non-exempt employees who qualify for FMLA leave (or comparable state leave) should be allowed to take leave in accordance with the law and the employer’s FMLA policy. In general, however, having a fever or cough (common symptoms of COVID-19) are not considered serious health conditions triggering FMLA rights. An employee would only be entitled to FMLA if additional complications arose from the flu or COVID-19.
Employers should be aware that states and some cities have their own requirements regarding sick leave. For example, Oregon’s sick leave law requires most employers to allow employees to accrue and use up to 40 hours of paid sick leave per year. Most coronavirus-related absences will qualify as sick leave under Oregon’s law, which covers, among other things, absences related to an employee’s health condition, a family member’s health condition, preventative medical care, and public health emergencies, including those that result in closure of the employee’s place of business or closure of the employee’s child’s school or place of care.
Oregon employers should also remember that Oregon’s Family Leave Act (“OFLA”) is broader than the FMLA. Even if a coronavirus diagnosis is not considered a “serious health condition,” an OFLA-eligible employee may be entitled to sick child leave to care for a sick child who does not have a serious health condition, but requires home care.
Employers subject to “secure or predictive scheduling” or “fair work week” laws should also be mindful about how those laws might come into play if an employee’s shifts are changed or cancelled. We previously blogged about Oregon’s requirements here and about Seattle’s requirements here. Under both the Oregon law and the Seattle ordinance, an employer does not have to pay a penalty if an employee’s work shift or on-call shift cannot begin or continue due to the recommendation of a public official. This exception should apply to (1) coronavirus-related closures ordered or recommended by a public official or (2) employees with symptoms who are sent home based on the recommendations of public officials.
If you have questions about the application of leave or secure scheduling laws to epidemic or pandemic situations, contact your Stoel Rives Employment Law professional.