Having examined the health and safety aspects of Coronavirus (COVID-19) in The Workplace Coronavirus Guide – Part 1, let’s now look at pay and benefit issues that are likely to arise when employees are unable to work, seek time off or are sent home.
Do I have to pay employees if I send them home?
You should apply your regular paid time off policies (sick leave, vacation, PTO) to employees who are staying home because they are ill. Employees exempt from overtime under the Fair Labor Standards Act (FLSA) generally must be paid their full salary for any week in which they perform any work, although you may deduct any absences from their existing leave bank. The FLSA does permit deductions from salary for exempt employees for absences of one or more full days occasioned by sickness if the deduction is made pursuant to a bona fide sick leave plan. Employers should proceed cautiously in this regard and should review their salary deduction practices with legal counsel to be sure that they meet the standards of this limited exception. Exempt employees who perform no work during a particular work week need not be paid.
Non-exempt employees only need to be paid for their hours worked, but some employers are examining whether strict compliance with this practice might end up undermining their overall COVID-19 prevention plan by incenting their workers to come to work if they are out of sick leave.
Do my pay practices change if we implement a quarantine?
No, your ordinary pay practices apply. Interestingly, Minnesota law includes a general quarantine statute to protect employees in the event that they are required to isolate or quarantine. Under the provisions of the statute, an employer is prohibited from discharging, disciplining, threatening, or penalizing any qualifying employee, or otherwise discriminating against them with respect to their work, terms, conditions, location, or privileges of employment because that employee has been in isolation or quarantine. This usually only applies when an employee is in isolation or quarantine by virtue of:
– a directive from the Commissioner of Health and Human Services;
– an order of a federal quarantine officer;
– a state or federal court order; or
– written recommendation of the commissioner or designee that the person enter isolation or quarantine.
The statute specifically states, though, that nothing within it is intended to alter sick leave or sick pay.
Do I have to provide Family and Medical Leave Act leave to employees who are sick with COVID-19?
It depends. The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of job-protected leave each year in the event of a serious health condition. A serious health condition is one requiring one day of inpatient treatment or incapacity from work for more than three consecutive days with a continuing course of medical treatment. While influenza and mild cases of COVID-19 probably do not rise to the level of a serious health conditions under FMLA, more serious cases (especially those requiring a stay in the hospital) or cases involving complications might meet this definition. If so, it triggers the employer’s responsibility to provide FMLA leave.
FMLA also covers situations where the employee must miss work due to serious health condition of a spouse, child or parent. The same test applies as to whether the medical issue of that spouse, child or parent constitutes a FMLA-recognized serious health condition.
What if employees need to stay home because their children’s school has closed?
This is not a FMLA event since it does not involve a serious health condition on the part of the employee or their spouse, child or parent. It also would not likely trigger an obligation to pay sick leave under a typical sick leave policy.
However employers subject to the Minneapolis or St. Paul Sick and Safe Time Ordinances do have to allow employees to use their sick time under these circumstances since those ordinances cover absences caused by “emergency closure of school or place of care” (Minneapolis) or “need to care for a family member whose school or place of care has been closed by order of a public official to limit exposure to…[a] public health emergency.” Although there is some room for interpretation, it seems likely that an official order to close the schools would be considered the type of emergency closure triggering the obligation to pay sick leave in both of the Twin Cities.
For non-Minneapolis or St. Paul employers that offer paid sick leave, the Minnesota Paid Sick Leave Statute requires you to permit employees to use available “personal sick leave benefits” for absences due to an “illness of or injury to” the employee’s child, adult child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. Absences due to school or daycare closures would not necessarily be covered, but nothing would prevent an employer from making an exception given the exigencies of the current situation.
If an employee suggests that the Minnesota School Conferences and Activities Leave statute applies, just tell them that it does not (and try not to roll your eyes).
Watch for our next installment where we examine work-at-home issues, the privacy implications of COVID-19 and the legal considerations surrounding employees who refuse to come to work out of fear of contagion.