Working from home and the other new realities of everyday life during the time of COVID-19 has exposed a lot of gray areas when it comes to employment law. Just what are the rights and responsibilities of employees and the companies they work for? While common sense should rule in most situations, there may be times when employees or employers try to take advantage of circumstances or “game” the system. Other times, companies and workers may simply not be aware of laws or regulations that govern specific situations. We created this guide to help employers and employees navigate the swirling waters of employment relationships. This article is not meant to serve as legal advice. When in doubt, always consult an attorney licensed to practice in your state.
- Reasonable Accommodation – While many erstwhile office workers are now toiling from their sofas and dining room tables, a large percentage of 8-to-5ers are returning to their workplaces. If you have a medical condition that would make contracting COVID-19 worse, you may request reasonable accommodation from your employer. Working from home is one form of accommodation. Taking some unpaid time off to stay away from the office for a few weeks is another. The onus is on your place of employment. If the company wants to deny your request, it must demonstrate that the accommodation would not be reasonable; that is, that it would subject the company to undue expenses or other hardship. On the other hand, if multiple options are available to accommodate you, the employer can choose the one it wants to make available.
- Social Distancing – Employers have the right to tell employees to work from home as part of the effort to isolate the virus. Workers must comply with their employer’s directive whether it applies across the board to all staff members as part of social distancing or if it is directed only certain employees such as when the workplace remains open, but a supervisor has reason to believe a worker poses a direct threat to coworkers or customers. If the boss has reasonable belief that a worker exhibits symptoms of COVID-19, the company can request for that employee to undergo testing, and can ask him or her to stay at home for 14 days (the incubation period)
- Medical Privacy – Workers have the right to privacy when it comes to their medical condition and history. If an employee misses work because they have contracted, exhibited symptoms of, or been in contact with someone who has COVID-19, their employer should not disclose the reason for the absence. If a worker tests positive, the company should inform workers that the office may have been exposed to the virus, but not how the possible exposure occurred. By no means should it identify a specific worker as the source.
- Work Hours – Workers’ output is a better indicator of their productivity than enforcing them to account for their time spent on the job. However, the pandemic has spurred many employers to monitor remote workers’ time on task. Software can log workers’ keystrokes, take screenshots of their computers at random intervals, and time their interactions with Facebook, Instagram, and other possible distractions.. Many companies take a low-tech approach, such as tracking how long it takes employees to respond to email or requiring them to fill in activity logs. These measures are within the employers’ rights; they are within their rights to keep ensure employees who should be working, whether in the office or at home. Companies should evaluate the benefits of using them against the risk of offending their workers with these Big Brother policies.
- Workers Compensation – Even though employers exercise little control over the remote work environment, employees who are injured while toiling from home likely will be entitled to workers compensation. The key determinate seems to be whether an injury occurs while performing typical or assigned work duties. State laws vary, but as long as the worker can prove he or she was hurt “during the course of employment,” no matter where or how the mishap occurred, the employee should be covered. Determining whether the injury is job-related may hinge on whether the employee is working from home because the company directed them to do so (regardless of whether that directive came as a result of the state’s stay at home order) or because the worker asked for the accommodation.
Other worker rights have been expanded as part of the Coronavirus Aid, Recovery, and Economic Security (CARES) Act. For instance, the Family and Medical Leave Act requires government employers and some private companies to allow workers up to 12 weeks of leave without jeopardizing their job status. Those provisions now include time off for COVID-19-related illnesses and circumstances. Under FMLA’s emergency leave statute, workers at jobs with fewer than 500 people can use the time – at two-thirds their regular salary – to take care of children confined to home because of school or daycare closures related to the outbreak. Some healthcare workers are excluded, and emergency leave applies to employees on the job for at least 30 days. While the first 10 days of any such leave are unpaid, workers may apply vacation or sick days to that time. Regular FMLA remains unchanged, allowing all government employees and people who work for employers of 50 or more to take off for their own or a family member’s serious health condition.
COVID-19 also has led the federal government to compel companies with fewer than 500 workers to grant employees emergency sick leave at full pay for a variety of circumstances. Workers can take up to two weeks of paid sick leave if they are unable to work because the virus has created any of these conditions:
- Forced them to remain under government-mandated isolation or medical quarantine
- Led a healthcare worker to advise them to self-quarantine because of possible exposure to the virus
- Caused them to seek a diagnosis because they exhibit COVID-19 symptoms, and the diagnosis has not yet been performed
COVID-19 also has driven some jurisdictions to amend their unemployment insurance provisions. For instance, Maryland will extend benefits to people who decide not to report to their jobs over concerns about the virus. It is unclear whether other states will follow suit. In most instances people who voluntarily leave their jobs are not eligible for unemployment.
Life during the COVID-19 pandemic changes by the hour, and governments and employers are constantly developing policies and strategies to deal with work issues related to the virus. The above content was accurate when written, but as polices and laws may have changed in the interim, Metasys cannot be held accountable for the information provided. Always talk to your company’s human resources representatives and/or your attorney for guidance on laws and policies.