Coronavirus (COVID-19) has been in the news for months and on the minds of many of us for some time, but it has hit us faster and harder than expected and in ways we could not imagine.
On March 6, 2020, Pennsylvania Governor Tom Wolf issued a Proclamation of Disaster Emergency. On March 13, he ordered the closing of many public schools, on March 14, he urged that non-essential businesses close in the suburbs surrounding Philadelphia, and on March 15, he ordered the closing of dine-in bars and restaurants in those same areas. Who knows what is coming tomorrow. As we adjust at home and in the office to this new reality, employers have many questions as to their rights and obligations vis-à-vis their workforce. This brief paper will address some of those questions.
1) Must we pay our employees if our business closes?
For most employees, the answer is no (but see below). The law only requires that employers pay their non-exempt employees for time actually worked. Even if your business is shut down by order of the Governor, you need not pay these employees if they are doing no work. However, if you permit them to work from home or they are otherwise performing work, you must pay them for their time. With regard to your exempt salaried employees, they need not be paid for any week in which they performed no services. If some work is performed, even if limited due to office closure or illness, the employee must be paid for the entire week. That said, certain deductions might be permissible if the employee is absent from work due to reasons other than illness.
2) If we remain open, must we pay an employee who does not work due to reasons associated with COVID-19?
A. Employees who contract the virus or whose family member contracts the virus. If an employee contracts the COVID-19 virus, it could be, but will not necessarily be, either a disabling condition under the ADA or a serious health condition under the FMLA. Typically, a transitory treatable condition will not meet the definition of disability under the ADA. Likewise, such conditions generally do not arise to a serious health condition under the FMLA. For instance, persons who catch a bad cold or a case of the flu (without serious complications), will not often be entitled to the protections of these laws. However, that is not always the case and COVID-19 is not the flu. Under the FMLA, a person will be deemed to have a serious health condition if that condition requires in-patient care (overnight at a hospital), or a period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery there from) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
- treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
- treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
B. Employees who have children home from school. Many employees have young children with no one to care for them when school is closed, particularly with the mass closures that have been imposed. Neither the federal or state laws currently in place require employers pay employees in these circumstances, and in fact employers are not even required to grant unpaid leave.