Coronavirus FAQs Part 2: Employment Practices

Yes, according to the Department of Labor (DOL), employers may “encourage or require” teleworking “as an infection-control or prevention strategy” to combat COVID-19. However, institutions may not single out employees to work remotely based on factors such as their national origin. If an institution imposes a general teleworking requirement but some employees are unable to work from home, the DOL encourages the institution to “consider additional options to promote social distancing, such as staggered work shifts.”

For individuals who must be on campus to do their jobs, institutions should consider tactics to minimize contact among employees, such as (again) staggering shifts or moving work stations. If an institution must close down entirely or in part so that these employees’ services are not required, consult counsel and consider whether these employees may be eligible for alternatives to termination, such as paid or unpaid leaves of absence.

Some employees who are older or have underlying health conditions, including compromised immune systems or chronic problems such as diabetes, heart disease, or lung disease, are more susceptible to infection by COVID-19 or to becoming seriously ill if they are infected. Such employees may request telecommuting as a reasonable accommodation under the Americans With Disabilities Act. Even if your institution doesn’t have a teleworking program ─ or the employee isn’t eligible ─ it still may have to permit the accommodation. The answer depends primarily on whether the employee’s essential job functions can be performed remotely without causing the institution “significant difficulty or expense.” The Equal Employment Opportunity Commission also encourages flexibility by employers and employees in determining an accommodation. It recommends considering temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment. Institutions should consult an attorney about their obligations.

Employees may have mental health conditions that have been exacerbated by the COVID-19 pandemic, resulting in a need for new or additional accommodations. The Equal Employment Opportunity Commission (EEOC) notes that employers should address these accommodation requests using steps from the regular process, including asking questions to determine whether the condition is a disability, discussing possible accommodation options, performing an undue hardship analysis where necessary, and requesting medical documentation if needed. Institutions should consult an attorney about their obligations.

The EEOC also has stated that temporary or short-term accommodations are allowable, and employers may shorten or adapt the interactive process when granting these accommodations. The EEOC also notes that employers may place an end date on the accommodation due to changing restrictions from COVID-19, but employers must consider employee requests for extensions, particularly if public health directives or government restrictions change.

In these circumstances – involving a collective bargaining agreement (CBA) that provides no employer flexibility on issues such as scheduling and assigning work – an institution needs to consult counsel with experience in wage-hour laws to consider its options. Making unilateral changes to or ignoring the provisions of a CBA, even in an emergency situation, could result in unfair labor practice charges.

Your institution should review current faculty and employee handbooks, collective bargaining agreements applicable to unionized employees, and any individual employment contracts your institution has (such as with administrators or coaches). UE suggests performing these reviews in consultation with legal counsel.

Because multiple federal and state laws may apply, UE strongly recommends consulting with counsel about which laws impact your institution.

On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became law. Among other things, it requires smaller employers – those with fewer than 500 employees ─ to provide emergency paid sick leave to employees who can’t work (including telework) and emergency paid Family and Medical Leave Act (FMLA) benefits. Those provisions become effective April 2, 2020, and expire Dec. 31, 2020. Congress is considering further legislation, and some states are passing their own laws. During the pandemic, both federal and state legislative changes may be rapid and seeking legal advice is essential. For more information on the FFCRA, review the Department of Labor’s FFCRA Fact Sheet and FFCRA Questions and Answers.

In addition, institutions still need to comply with a host of other federal and state laws ─ regardless of the emergency caused by COVID-19 – and should consult counsel about continuing to meet these obligations. Applicable laws may include (but are not limited to):

• Title VII of the Civil Rights Act, and equivalent state laws
• The Age Discrimination in Employment Act (ADEA), and equivalent state laws
• FMLA, and equivalent state laws
• The Fair Labor Standards Act (FLSA), and equivalent state laws
• The Americans With Disabilities Act (ADA), and equivalent state laws
• Section 504 of the Rehabilitation Act
• The Occupational Safety and Health (OSH) Act, and equivalent state laws
• The Worker Adjustment and Retraining Notification (WARN) Act, and equivalent state laws
• The National Labor Relations Act (NLRA), for unionized faculty or staff
• FERPA
• The Employee Income Retirement and Security Act (ERISA)
• Health Insurance Portability and Accountability Act (HIPAA)
• The Genetic Information Nondiscrimination Act (GINA)
• The Equal Pay Act (EPA)
• The Uniformed Services Employment and Reemployment Rights Act (USERRA)

Whether to conduct layoffs or furloughs is a business decision for the institution, but UE strongly recommends consulting an attorney with appropriate expertise before making that decision ─ and continuing to seek legal advice during any layoff process. State laws may come into play. For example, some states require accrued vacation time to be paid when employment is terminated (but usually not if employees are furloughed, since they may be called back to work). In addition, be careful to follow any internal policy and procedure your institution has adopted governing layoffs, including how employees are selected for layoff. This is especially important if you need to lay off tenured faculty, who usually have specific rights through a faculty handbook or individual contracts.

Regarding pay, institutions should examine all handbooks, employment agreements, and collective bargaining agreements to determine any contractual obligations they might have to pay employees who are not working. In addition, check your institution’s written policies on paid time off/paid sick leave, accrued vacation time, and the like, to determine employees’ entitlement to pay if they are temporarily unable to work.

Otherwise, under the Fair Labor Standards Act (FLSA), employers are allowed to pay “nonexempt” employees – those entitled to overtime pay ─ only for the hours they actually work. “Exempt” employees usually receive salaries and are entitled to their full base salary for a designated work period in which they perform any work. In addition, states have their own versions of the FLSA and because these may have different rules, it’s important to consult an attorney licensed in your institution’s state – again, the attorney should have experience in wage-hour laws.

Yes. Now that the World Health Organization (WHO) has declared COVID-19 a pandemic, the Equal Employment Opportunity Commission (EEOC) makes clear that employers covered by the Americans With Disabilities Act (ADA) may ask employees if they have been diagnosed with or tested for COVID-19 or if they have symptoms of the virus (such as cough, fever, chills, or respiratory issues). Employers may exclude from the workplace employees with COVID-19 or its associated symptoms.

The EEOC also states that because the Centers for Disease Control and Prevention (CDC) and other public health authorities have recognized COVID-19 is widespread in communities, during the pandemic employers may take employees’ temperatures; this would normally be considered a “medical examination” that, with limited exceptions, the ADA prohibits. However, the agency cautions that not everyone with the coronavirus develops a fever. In other words, taking temperatures alone is an unreliable way of determining whether individuals may be infected with COVID-19.

In a March 27, 2020, webinar the EEOC clarified, in response to Question #1, that employers may ask questions about COVID-19 diagnoses or symptoms only for employees who physically come into the workplace, where they could “pose a direct threat to health or safety.” The EEOC stated that an employer generally is not permitted to ask such questions of employees who are teleworking and therefore not physically present or interacting with others in the workplace.

Consistent with the ADA, employers must treat all information related to an employee’s illness (whether from COVID-19 or not) as a confidential medical record.

Yes. According to the Equal Employment Opportunity Commission and the Centers for Disease Control and Prevention, if employees have symptoms consistent with either COVID-19 or the seasonal flu during a pandemic outbreak, you can require them to stay home or to return home after they arrive at work. In addition, the Occupational Health and Safety Administration instructs employers to “ [i]immediately isolate people suspected of having COVID-19.” The Department of Labor also recognizes that during a pandemic, employees may be sent home if they show symptoms, but it notes that employers must apply neutral, uniform criteria to everyone and avoid making decisions based on national origin, race, or any category protected by federal or state law.

Yes, although the Equal Employment Opportunity Commission notes that health care providers may be too busy during and immediately after a pandemic to provide this documentation. It suggests employers consider other means of obtaining satisfactory proof of the employee’s fitness to return, such as an email from a local clinic certifying that the employee does not have the pandemic virus. Alternatively, because the Centers for Disease Control and Prevention and public health authorities generally agree that the incubation period for the coronavirus is no longer than 14 days, institutions might consider allowing employees who show no symptoms for a certain amount of time (such as two weeks) to return to work without requiring medical documentation.

In general, no. Under the Occupational Safety and Health Act, employees can refuse to come to work only if they believe doing so would put them in “imminent danger,” a high standard that means an immediate risk of “death or serious physical harm.” Very few, if any, educational workplaces are likely to present this level of risk to employees due to the coronavirus.

However, UE recommends applying more flexible standards for employees who are especially vulnerable to COVID-19 or who run a high risk of becoming seriously ill if they contract the disease.