January 24 Tip of the Week
“COVID – The Gift that Keeps on Giving”
Employers are faced with many decisions with respect to COVID and its impact on business operations and the workforce. Mask mandates, vaccination requirements, business interruptions, supply chain problems, quarantines, paid sick leave – the list of issues is a lengthy one and includes items that may not occur to employers. Add to that the everchanging regulations and laws related to COVID and how employers handle their employees during these difficult times and it is clear that there are a number of compliance traps for unwary employers.
When COVID first became an issue, both the federal government and a number of state and local governments implemented paid COVID sick leave. This leave was designed to provide employees with access to paid sick leave if they had to miss work due to a COVID quarantine, contracted COVID, or needed to care for a child due to the loss of childcare resulting from COVID. Many of these laws have expired and such leave may no longer be available to employees affected by COVID. In many cases, however, while the leave laws specific to COVID have expired and not been renewed, other paid sick leave laws may apply. For example, New York State has added COVID to its list of reasons for eligibility for coverage under its paid sick leave law. Other states have taken similar actions to ensure that employees are not penalized for problems that arise as a result of the pandemic.
The question of whether a COVID quarantine should be paid – because many employees are asymptomatic and must stay home as a result of exposure – is an open one and controversial. Many employers do not want to pay employees for quarantines; however, the quarantine requirement is imposed by state and local laws and is consistent with employer policies. If an employer’s policy says that an employee who has been exposed to COVID must stay home, then an exempt employee must be paid for that time off. The same protections do not exist for hourly employees; however, these employees may be entitled to be paid for their regularly scheduled work hours during a quarantine under a sick leave policy.
In addition to the COVID leave laws, there are new requirements regarding the recall of employees who were laid off from their jobs due to COVID. A large boutique hotel in New York City has been sued by an employee who was not recalled to her position when the hotel reopened. The employee claims that the hotel discriminated against certain older and longer tenured hotel employees and did not recall them in an effort to save on labor costs. The case is still pending, although the request for class action status has been dismissed. In response to the concerns raised in this case, some states have implemented protections for laid off employees. For example, California passed legislation requiring employers in the hospitality and business services industries to offer new positions to qualified employees laid off during COVID within a certain time frame.
Another pitfall for employers is the question of who pays for employee testing when an employer has a vaccination or testing policy as required by OSHA and unvaccinated employees must be tested on a regular basis because they choose not to receive the vaccine. Employers want to avoid the additional costs of COVID testing or want to pass that cost on to their employees, who they believe have made a poor choice in refusing the vaccine. This can create an issue. Many states have laws on the books that forbid employers from passing on the cost of a medical examination to employees. Whether a COVID test, which is required because an employee is unvaccinated, is a medical examination is an open question. The reason why an employee has refused the vaccination – which may include health concerns or religious beliefs – also impacts the question as to whether the testing is a reasonable accommodation and the cost should be borne by the employer. The timing and location of the testing also play a role in determining whether an employee should be compensated in the time spent in getting tested and whether the employer is required to pay for the test.
Even the most carefully written policy cannot hope to keep up with the endless changes brought about by COVID. The key, however, in protecting yourself and your business from COVID lawsuits and compliance issues is to treat employees fairly and consistently and in accordance with the clear public policy of minimizing the impact of COVID on employees from both a health and safety perspective and from a wage and benefit standpoint. When in doubt, contact us at MyHR Counsel and we can help you navigate these murky waters.