Cases of COVID-19, more commonly known as the coronavirus, continue to increase in the United States. Understandably, businesses have questions and concerns about protecting their employees’ safety and maintaining a healthy workplace. The potential for increased absenteeism and business disruptions also raises questions about employers’ legal obligations.
As with any situation that poses a risk to your business, being prepared can go a long way. That means reviewing your existing leave policies and evaluating how they may apply to the COVID-19 outbreak is essential. Equally imperative is that businesses identify whether any applicable employment laws cover situations where workers are required to stay home due to their own illness, concerns they may become ill, a family member’s illness, or school or business closings.
Businesses should also be prepared for workers to have questions about their employers’ obligations to keep them healthy and what might happen if they fall ill. To help New Jersey employers get the ball rolling, the following are some frequently asked questions and answers:
(1) Can Employers Require Social Distancing?
Yes. Employers can require workers to cancel meetings and/or conduct them remotely. They can also restrict all non-essential business travel. In the workplace, employers can encourage workers to practice “social distancing” and minimize person to person touch, especially handshaking. In addition, the CDC maintains that a six-foot distance will help prevent immediate airborne spread from those exhibiting symptoms, such as coughing, sneezing, etc. Employers may also require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal.
(2) Can Employers Require Employees to Work Remotely?
Yes. Working remotely is an effective infection-control strategy, and many large companies are already instructing employees to work from home. If your business does not already have a policy in place for working remotely, it is a good time to implement one. Under the Americans With Disabilities Act, employees with disabilities that put them at high risk for complications of COVID-19 may request telework as a reasonable accommodation to reduce their chances of infection.
(3) What Should Employers Do If an Employee Becomes Sick While at Work?
Employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Employees should also be instructed to stay home if they are feeling unwell. The CDC advises telling employees to stay home if they have symptoms of acute respiratory illness, a fever of 100.4 degrees or higher, or signs of a fever. Employees should be fever-free for 24-hours without the use of medication before returning to work.
(4) Can Employers Require Workers to Disclose if an Absence is COVID-19 Related?
Yes. An employer is always entitled to know why an employee has not reported for work. Employers may also require employees who have been away from the workplace during the COVID-19 outbreak to provide a doctor’s note certifying fitness to return to work.
(5) Can Workers Who Are Instructed to Self-Quarantine Use Sick Leave?
Yes. Under New Jersey’s Earned Sick Leave law, employers of all sizes must provide full-time, part-time, and temporary employees with up to 40 hours of earned sick leave per year so they can care for themselves or a loved one. With regard to self-care, the law provides: “Time needed for diagnosis, care, or treatment of, or recovery from, an employee's mental or physical illness, injury, or other adverse health condition, or for preventative medical care for the employee.” The need to protect public health is also a permitted use of earned sick leave, as provided in the statute: “because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others."
(6) Does the Earned Sick Leave Law Cover School and Business Closures Due to COVID-19?
Yes. As set forth in the Earned Sick Leave Law: “Time during which the employee is not able to work because of a closure of the employee's workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee's family in need of care by the employee, would jeopardize the health of others.”
(7) If Our Business Is Forced to Close Because of COVID-19, Are Employees Entitled to Unemployment Insurance Benefits?
Employees may be eligible for Unemployment Insurance benefits (UI). The NJDOL advises that the claim would initially be considered a temporary layoff, thus suspending the provision that the worker be able, available and actively seeking work. As of now, a layoff lasting longer than eight weeks would require the person to be able, available and actively looking for employment.
(8) Are Workers Required to Self-Quarantine or Stay Home from Work Eligible for UI?
If the employer sends a person home because there is a possibility that the person was or may have been exposed to COVID-19, assuming that the person is not being paid by the employer while at home, the person may be eligible for unemployment benefits. As stated above, the claim would initially be considered a temporary layoff, thus suspending the provision that the worker be able, available and actively seeking work.
(9) If an Employee Must Care for a Sick Family Member, What Benefits Are Available?
In addition to using any accrued sick leave, employees may be eligible for benefits under the state’s Family Leave Insurance. After a health care provider confirms the diagnosis and the expected length of time the individual will be out of work, the employee’s wage records would then determine the amount of benefits.
(10) Are Workers’ Who Contract COVID-19 Eligible for Workers’ Compensation?
It depends. If a worker contracts the virus because he/she waited on or worked with someone who had the virus, or contracted the virus for any other work-related reason, that person could be eligible for workers’ compensation.
Employers should review their obligations under state and federal law prior to being overwhelmed with potential claims. While the FAQs above answer common questions, it is also important to remember that eligibility for sick leave and other employment benefits is often fact dependent. To aid compliance, the attorneys of the Scarinci Hollenbeck Employment Law Group are available to answer your questions.
If you have questions, please contact us
Information and guidance regarding COVID-19 also continues to evolve rapidly. Employers should stay up to date via the CDC website, as well as NJ Department of Health website. Otherwise, if you have any questions or if you would like to discuss the matter further, please contact me, Maryam Meseha, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.