How do I pay quarantined workers? Absence management for COVID-19.
Updated April 30, 2020 with the latest information about The Emergency Paid Sick Leave Act of 2020 (part of the Families First Coronavirus Response Act).
Mandated or voluntary quarantine create confusion for employers and employees alike. Most of us have never experienced a global public health crisis that has affected virtually every aspect of our lives.
Business owners and Human Resources professionals are doing their best to protect employees while continuing to serve their customers, clients and—in the case of healthcare providers—their patients.
In the rebuilding phase, employers need to update their absence management policies to reflect new emergency paid sick leave legislation which is effective until December 31, 2020. The EPSLA is designed to protect employees and workforces while limiting the financial hardship of missed paychecks. If one of your employees contracts COVID-19, immediate quarantine can prevent the employee from infecting coworkers, clients and business partners.
How do you pay quarantined employees? What if they aren’t sick?
First, we will look at obligations under federal laws. Whether or not the employee is sick is a determining factor for FMLA. We discuss FMLA after we discuss broader Fair Labor Standards Act (FLSA) requirements. This is intended to be a general guide. Competent legal guidance is a good idea.
NOTE: On March 18, The Emergency Paid Leave Act of 2020 was passed. This new legislation provides additional assistance to individuals affected by the COVID-19 crisis. It provides employers with tax credits to offset newly required paid sick leave, paid family and medical leave and specific health plan expenses. We explain how this law affects how you pay employees who take sick leave due to the coronavirus pandemic.
How do I pay quarantined employees?
- Identify employee status
- Use a timekeeping app to track hours
- Determine if FMLA, union contracts, or PTO applies
Identify employee status (exempt, nonexempt, fluctuating work week (FWW), subject to collective bargaining agreement)
Is the employee exempt?
FLSA requires employers to pay an exempt worker his or her weekly salary in any workweek in which they work. Whether or not they are quarantined.
Did the exempt employee perform work during the week in which they were quarantined?
If a salaried employee is quarantined after they perform work during a workweek, the employer must pay them their entire salary for that week.
Exempt quarantined employees working at home?
If quarantined exempt employees are working at home, they must be compensated the entire weekly salary for any week in which they perform work.
Exempt quarantined employees at home not working?
The employer doesn’t have to compensate an exempt employee for a workweek in which the employee doesn’t perform any work. We talk about PTO ahead.
Is the employee nonexempt?
The FLSA requires employers to pay nonexempt employees for the time they actually work. Thus, an employer need not compensate hourly employees for time spent in quarantine unless the employee performs work OR there are state requirements for providing paid leave to hourly, nonexempt employees.
Do you have hourly employees working at home during quarantine?
If hourly employees work at home during quarantine, they must be paid for all of their time worked.
How do I track time for hourly employees working at home during quarantine?
Use an employee timekeeping system with a mobile app. Your hourly quarantined employees can clock in at home on their phone, tablet, or laptop.
How do I know my hourly (nonexempt) quarantined employees are at home working?
If you want to ensure your hourly at-home employees are where they say they are, get an employee timekeeping app with geotracking. Their manager (or you) can see where they punch in and out. Geofencing takes it a step further. If you configure a geofence in your mobile employee timekeeping app (it just takes a second), you will be alerted if the employee tries to punch in outside of the fence (geographic location). Read more about geofencing here.
Paid by fluctuating workweek (FWW)
Nonexempt workers paid on a FWW (as defined by the FLSA) generally must be paid their full FWW compensation for each workweek in which they perform any work, whether under quarantine or not.
Exempt quarantined employees with PTO
If your employee is quarantined, you can generally require them to use vacation time or PTO, pursuant to your company PTO policy. This is tricky. If you have any question, consult your legal counsel.
What if I send an hourly employee home in the middle of a shift?
Your state law may require you pay the nonexempt worker for a minimum number of hours for the day. Check with your state department of labor.
Do you have union employees?
Union contracts could affect your absence management during the coronavirus.
Employers with union employees should review their collective bargaining agreements to determine if there are any restrictions on asking people to take unpaid administrative leave or sick leave. The Society for Human Resources Management (SHRM)
The Emergency Paid Leave Act of 2020
This law provides additional assistance to individuals affected by the COVID-19 crisis. As part of this program, employers with fewer than 500 employees will be required to provide:
- Up to 80 hours of emergency paid leave to full-time employees along with special considerations for part-time employees.
- Up to 12 weeks of job-protected leave related to caring for a child.
- In addition, the bill requires group health plans, health insurers and government programs to provide free coronavirus testing.
What Do Employers Need To Do To Qualify?
Employers can qualify for tax credits if they are able to:
- Provide employees with a special allocation of qualified PTO;
- Track employee usage of qualified PTO separately from regular PTO; and
- Report qualified PTO usage in a compliant tax filing.
The Emergency Paid Leave Act of 2020 defines an “emergency leave day” as a day in which an individual is unable to work due to one of four qualifying reasons related to COVID-19:
- The worker has a current diagnosis of COVID-19.
- The worker is quarantined (including self-imposed quarantine), at the instruction of a health care provider, employer, or government official, to prevent the spread of COVID19.
- The worker is caring for another person who has COVID-19 or who is under a quarantine related to COVID-19.
- The worker is caring for a child or other individual who is unable to care for themself due to the COVID-19-related closing of their school, child care facility, or other care programs.
It also defines other key terms including “eligible individual,” which is someone who was working in the thirty days before they were impacted by COVID-19.
Qualifying for relief under this law can help your business weather this crisis.
What if I have to close my business temporarily due to the coronavirus?
If you have to close your business temporarily due to the coronavirus, you can generally require exempt employees to take vacation or PTO. You must compensate the employee their full weekly salary. If the worker doesn’t have earned vacation or PTO, you must pay them their regular weekly salary IF they do any work during the week. Otherwise, they could lose their exempt status.
Does FMLA leave apply for employees or family members who may contract coronavirus?
Yes, assuming that the FMLA applies to the employer, coronavirus would qualify as a “serious health condition” under FMLA. The employee could take FMLA leave if either the employee or an immediate family member contracts COVID-19 (or any other illness). In addition, the worker would be entitled to job reinstatement. Your state may have additional protections.
For an employee to invoke their 12 weeks of unpaid FMLA leave, he or she must have a “serious health condition” and otherwise satisfy the FMLA eligibility criteria. Although the symptoms of COVID-19 have been reported as flu-like, COVID-19 may be considered a serious health condition depending on the circumstances. Accordingly, an employee with COVID-19 or an employee who is taking care of a qualifying family member with COVID-19 may be permitted to take protected FMLA leave. However, employees who refuse to come to work out of fear of contracting COVID-19 would not typically qualify for FMLA leave. (SHRM), February 27, 2020
If your company is subject to FMLA, and the employee is eligible for FMLA, you must provide unpaid leave. Make sure you follow state leave laws as well.
Would I need to pay workers’ compensation for workers who contract coronavirus?
If the employee contracted the disease in the course of their employment, it would probably apply. Does the employees’ work require them to be exposed to persons who are infected? Most healthcare workers meet this criteria. If an employee incidentally contracts the disease from a co-worker, there will likely be no workers’ compensation liability.
Haven’t sent workers home yet?
This graph has been published everywhere in the past few weeks. I am including here in case you haven’t seen it. It helps show why it’s critical to enact measures now to slow the spread of the coronavirus.
Allowing employees to work at home protects your business, your community, and healthcare workers.
By Annemaria Duran and Liz Strikwerda. Last updated April 30, 2020
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