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The coronavirus is forcing employers to rejigger and reimagine their sick leave policies to better serve their businesses and employees, and to help them avoid legal snafus.

coronavirus 4942077 640 smallGovernment officials have pressured or required many businesses to permit their employees to work from home as part of social distancing efforts. While this may be difficult for many employers who are used to old and traditional business practices, employment law attorneys warn that failing to adapt is not wise. So reports the Society for Human Resource Management (SHRM).

Many businesses may want to opt to go with policies that ensure their staff reports to work and that production does not falloff, “but it’s a mistake to adopt an inflexible policy that would pressure a sick worker to come to the office,” says Marissa Mastroianni, an attorney with Hackensack, N.J.-based Cole Schotz.

This is a good time for employers who don’t have a work from home policy specific to the coronavirus to create one, The National Law Review reports. But such a policy should be a stand-alone, or even an email, and not made a permanent, formal part of the employee handbook. That policy should make clear who is allowed to work from home or telecommute as well as protocol on work hours, including breaks for meals, productivity standards, connectivity, logistics, confidentiality and data security concerns, and rules for bringing paperwork home.

“While rolling out a telecommuting policy, employers must also consider disability accommodation issues,” The National Law Review reports. “If an employee has a disability-related accommodation at work (e.g. taking additional breaks or using an ergonomic keyboard or chair), employers need to consider providing those same accommodations for an employee’s work at home, subject to the same undue hardship considerations as exist with providing such accommodations when working in the office.”

Mastroianni reminds employers that the Occupational Safety and Health Administration (OSHA) obligates they ensure their workers are protected against workplace hazards, SHRM reports. OSHA notes in its Guidance on Preparing Workplaces for COVID-19 that if businesses do not have an existing plan, that they “develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19.”

That OSHA guidance notes that workers may be absent if they:

  • Are ill or need to care for family members who are sick
  • Need to watch over children who are home because their schools or daycare centers are shut-down
  • Are taking care of people at home who are at-risk
  • Don’t want to come to work for fear of exposure to the virus

“Be more flexible with existing policies,” says Susan Kline, an attorney with Indianapolis-based Faegre Drinker. She urges employers to increase sick time for ill workers. “For a lot of companies, it's a challenge, because they want to be supportive but also don't know how big this is going to get,” Kline says.

Employers should ensure that any changes they make to their sick-leave policies to deal with the crisis is uniform “in order to avoid any claims of discrimination or unfair treatment,” says Jason Habinsky, an attorney with New York-based Haynes and Boone. Employers also must be mindful of actions that might be viewed as retaliation under laws, such as the Family and Medical Leave Act (FMLA) and the American with Disabilities Act.

“This could include any form of discipline in response to an employee's use of sick time or request to use sick-leave time,” Habinsky notes. “Likewise, to the extent employees are performing services while working remotely from home, they must be paid for time worked in accordance with applicable federal and state wage laws consistent with their classification as exempt or nonexempt.”

One top question asked on a recent webcast hosted by SHRM was whether an employer could ask an employee if he or she has COVID-19, Bloomberg reports. The answer for the about 40,000 participants, including human resources professionals, business owners and CEOs, was no. “The [Centers for Disease Control and Prevention] has also recommended that employers not require a doctor’s note at this time because we know that medical professionals are going to be extremely busy,” Amber Clayton, director of SHRM’s HR Knowledge Center, said on the webcast.

Last modified on Wednesday, 25 March 2020
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