Employment-related legal considerations during the COVID-19 public health crisis

By Megan La Suer, JD, MHA, Rob Portman, JD, MPP, and Ben Tesdahl, JD, May 1, 2020

Every month, Dermatology World covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.

Among the many challenges that dermatologists are currently facing during the COVID-19 public health crisis, many dermatology practices are being forced to make important and difficult decisions about whether to keep their doors open for patients and how to treat employees if the practice is required to temporarily close. This article provides an overview of the options available and answers questions that dermatologists, in their capacity as employers, may have during these challenging times.

Q: Are furloughs and layoffs the same?

A: These two terms are often used interchangeably when describing employment practices. When an employee is “furloughed,” the employee is required to take temporary leave or receive a reduction in hours. While furloughed employees will technically retain their job and remain on the payroll, they will typically receive no pay or reduced pay and may not be eligible for benefits during the time they are not working or have dramatically reduced hours. “Layoffs” occur when the employer terminates the employee’s employment temporarily or permanently, and the employee is no longer on the payroll and not eligible to receive benefits. The important distinction to note between a furlough and a layoff is whether the employee remains on the practice’s payroll.

Q: What do I need to be aware of when furloughing or laying off employees?

A: It is typical for dermatology practices to employ individuals “at-will,” meaning that the employee can be terminated without cause or can quit without reason. For example, office personnel or administrative staff are considered at-will employees. While at-will employees can be terminated without cause, the reason for termination must still be in accordance with federal and state laws. For example, dermatology practices cannot terminate at-will employees in violation of federal or state anti-discrimination laws. Typically, smaller dermatology practices are not required to give notice before terminating an at-will employee. For large clinics, academic medical centers, or large multi-specialty practices that employee 100 or more full-time employees, the employer is required to provide 60 days’ advanced notice before laying off or furloughing employees if (1) the reduction in workforce affects more than 50 full-time workers at a single site of employment during a 30-day period, (2) the reduction in workforce affects at least 33% of the employer’s active full-time workforce at the site, and (3) the employer reasonably expects the reduction in workforce to last longer than six months.

On the other hand, dermatologists and some front-line health care staff are more likely to have an employment contract that lays out the employee’s compensation, benefits, and the terms for how and why the employee can be terminated prior to the end of the contract term. If the practice intends to lay off a contracted employee during the COVID-19 public health emergency, the terms of the employment contract must still be followed.

As noted above, dermatology practices must be conscious of federal and state anti-discrimination laws when reducing workforce. Federal law prohibits an employee from firing employees or taking other adverse employment actions because of the employee’s race, gender, national origin, disability, religion, age, or other protected characteristics. States also have their own anti-discrimination laws which may include additional protected classes of employees. Therefore, if your practice decides to furlough or lay off employees, this should be done in a non-discriminatory manner that is not based on any protected employment classification.

Q: What should I do if I would like to keep certain employees working on a limited basis during the COVID-19 public health emergency?

A: Furloughing employees would be a good option if you wish to keep employees working in some capacity but must reduce the number of hours or days the employee can work. Most jobs are subject to the Fair Labor Standards Act (FLSA), which establishes minimum wage, overtime pay, recordkeeping, and standards for employees in the private sector and in federal, state, and local governments. Under the FLSA, covered “non-exempt” employees (typically hourly or other lower-level employees in non-managerial positions who are not exempted from overtime rules) must be paid the federal minimum wage for all hours worked and are entitled to overtime pay for work in excess of 40 hours in a workweek. Exempt employees (i.e., executive, professional, and specially defined administrative employees with certain managerial or policymaking authority who are exempted by law from overtime rules) are not entitled to overtime, regardless of how many hours they may work in a workweek. Employers are not required by federal law to compensate non-exempt employees for time not worked and can therefore reduce the number of hours or days the employee can work. However, employers must continue to pay exempt employees the same minimum salary for each period if the exempt employee performs any work during that period. Although employees may receive reduced pay or no pay during the furlough, an employee may choose to use any accrued vacation or sick leave to receive compensation if they are not working or are working reduced hours while on furlough.

Q: I have decided to allow employees to work from home or am required to do so by a state stay-at-home order. What factors should I consider when creating a work from home policy?

A: If a dermatology practice is forced to close or only handle emergencies in the office, dermatologists, nurse practitioners, and physician assistants may be able to provide teledermatology services from home. (See discussion of special COVID-19 telehealth rules below.) Back-office personnel (accounting, billing, and coding, etc.) should also be able to perform their jobs from home. When creating and implementing a work from home policy, employers should consider the following guidelines:

• Employees are still required to follow all the regular policies and procedures in the practice’s employee handbook, along with any recent policies implemented in response to COVID-19. Employees may still be subject to disciplinary actions while working remotely for failing to comply with the practice’s policies.

• The employee’s home worksite is considered an extension of the employee’s primary workplace; therefore, workers’ compensation rules will often apply if the employee is injured when performing official work duties from home during approved telecommuting hours.

• The practice must decide whether it will provide employees with the equipment necessary for them to work from home (e.g., laptops and printers) or allow employees to use their own equipment.

• Remote work must be done through secure communications such as a VPN. Exchanging Protected Health Information (PHI) may only be done through safe and secure communications. If you do not have the proper procedures in place, do not allow PHI to be exchanged when employees work remotely.

• When employees work outside the office, trade secrets or sensitive business information may also travel with them to their homes. You should make sure that employees are aware of the practice’s policies on confidential information and information security and are aware of how those policies play out in a remote work setting.

• Ensure that all non-exempt employee work hours are specified as part of the work from home policy and that they have a system to keep track of hours worked in the absence of normal clock-in and clock-out procedures.

• Ensure that your work from home policy does not treat employees differently based on any protected characteristic, such as age, disability or perceived disability status, or national origin.

Q: Will the Families First Coronavirus Response Act (FFCRA) impact my current business practices?

A: On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law. The FFCRA is the second legislative package aimed at stimulating the economy and mitigating the economic harm caused by the COVID-19. Among other things, the FFCRA includes provisions that address family medical leave and paid sick leave for employees that need time off for reasons related to COVID-19. The Department of Labor has issued a one-page overview of the FFCRA as well as a series of Q&As. These provisions apply for leave taken between April 1, 2020, through Dec. 31, 2020. Below is a brief summary of the key provisions that employers should be aware of.

Expanded FMLA

The FFCRA amends the Family and Medical Leave Act (FMLA) to require private sector employers in the U.S. with less than 500 employees to provide eligible employees with up to 12 weeks of FMLA leave if the employee is unable to work or telework due to a COVID-19-related issue. This includes situations in which the employee cannot work because the employee is caring for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons. The FMLA normally exempts employers with less than 50 employees. The FFCRA’s applies the FMLA to these smaller employers; however, certain employers with less than 50 employees may be exempt from the FFCRA’s expanded FMLA requirements if the new requirements would jeopardize the viability of the business.

The initial 10 days of the employee’s expanded FMLA leave will be unpaid, or the employee may use any accrued paid vacation leave, personal leave, or sick leave as a substitute. Following the initial 10 days, the FMLA leave days must be paid by the employer at an amount that is not less than two-thirds of an employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work.

Paid Sick Leave

The FFCRA also includes the “Emergency Paid Sick Leave Act,” which provides all full-time employees with up to 80 hours of paid sick leave, in addition to the paid sick leave that an employee has already accrued. Employees can use the expanded paid sick leave when they are unable to work or telework for COVID-19-related issues, including but not limited to when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19, the employee is caring for someone who is subject to a quarantine or isolation order or who has been advised to self-quarantine, or if the employee is caring for a child because the child’s school or place of care is closed or the child-care provider is unavailable for COVID-19 reasons. Similar to the FMLA expansion, the paid sick leave provision applies to employers with fewer than 500 employees, and employers with fewer than 50 employees may be excluded from providing child-care related sick leave if doing so would jeopardize the viability of the business.

Q: What should I do if an employee is showing symptoms of COVID-19 or has tested positive?

A: If an employee is showing any symptoms of COVID-19, employers should not allow the employee to come into work or should send the employee home if they are in the office. Per guidance from the CDC, individuals that exhibit symptoms should self-quarantine and not return to work until symptoms subside. Similarly, employers should require employees to stay home if they have come in close contact with someone who has tested positive for COVID-19 or have tested positive themselves. If the employee has been advised by a health care provider to self-quarantine due to COVID-19 related reasons or is experiencing COVID-19 symptoms and is seeking a medical diagnosis, that employee would be eligible for up to 80 additional hours of emergency paid sick leave (see discussion regarding the FFCRA’s expanded paid sick leave).

Q: Can I require employees to disclose whether they have COVID-19 symptoms, have been in contact with someone who has tested positive for COVID-19, or have themselves tested positive?

A: During a pandemic like the COVID-19 public health emergency, the federal Equal Employment Opportunity Commission (EEOC) has indicated that employers may, without violating the Americans with Disabilities Act (ADA), inquire about an employee’s absence from work and ask if the employee is experiencing symptoms consistent with COVID-19, including fever, chills, cough, shortness of breath, or sore throat. An employer may also take an employee’s temperature before allowing him or her to enter the office.

According to the EEOC, employers may also implement policies that require employees to notify the employer if they have been in contact with someone who has tested positive for COVID-19, if a family member has tested positive, or if they have tested positive. Employers should also strongly encourage the employee to notify their local public health official. Employers can also require employees to inform them of recent or upcoming personal travel plans, so long as the employer is not asking based on national origin or race of the employee.

As a reminder, any health-related information that the employee provides should be kept confidential to the extent possible.

Q: Do I have to pay an employee who is under self-quarantine after being in close contact with a person who has tested positive for COVID-19 but is not personally showing symptoms?

A: Whether you are required to pay an employee who is under self-quarantine who was not ordered by a health care provider to self-quarantine depends on the employee’s status (i.e., whether the employee is working remotely or not working, and whether the employee is exempt or non-exempt). If the employee is able to work remotely, they will receive the same pay as if they were working in the office. If a non-exempt employee is not able to work remotely and does not qualify for sick leave because they are asymptomatic, the employer is not required to pay for hours not worked. However, the employer may still be required to pay exempt employees the same minimum salary for each period if the exempt employee performs any work during the self-quarantined period. If allowed under the practice’s benefits plan or state law, the employee may choose to use any accrued vacation or sick leave to receive compensation during the time they are not working. The practice may also consider implementing flexible sick leave policies to permit employees to stay home, even if they are not showing COVID-19 related symptoms. Of course, the employer may also provide supplemental paid leave to workers who are self-quarantining but do not have jobs that lend themselves to working from home.

Q: What precautions should I take if my practice remains open during the COVID-19 public health emergency?

A: If your physical practice location is still open, you should implement policies that follow federal and state guidelines on social distancing. This can be done through creating staggered shifts or increasing physical space between employee workstations. Cancel or preclude all unnecessary meetings or work travel and allow employees to work remotely when possible. Good office hygiene is also important to help stop the spread of COVID-19. Consider redoubling normal office-wide hygiene practices such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal. The practice should require that employees review and acknowledge any new COVID-19 related policy.

This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied up as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.

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