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As employers and individuals grapple with the emerging global pandemic of COVID-19, it is helpful to consider seven key questions to protect both the health and the bottom line of employers and employees:

1. Where do I start in dealing with this issue at work? As COVID-19 developments change daily, employers and employees should become familiar with – and check daily – solid sources of public health information. A good starting point is the website for the Centers for Disease Control and Prevention (CDC),linked here. . State and county departments of health also may provide more localized guidance (for example,Pennsylvania, here).

2. Should we allow employees to work from home? Whether initiated by employers or their employees, we are seeing more clients tackle the issue of working from home. For those companies that already have a policy, the transition is much easier – but still requires consideration for each position and ongoing business needs.Unless the employee has a disability, the employer does not have a duty to accommodate such a request – even if the employee seeks to work from home to avoid becoming sick. Working from home in order to care for a child staying at home due to a school closure order also is not protected under the Family and Medical Leave Act, unless the child has a serious health condition (again, not just fear of becoming sick). That said, adopting a policy and procedure with guidelines can help ensure that important variables are considered and applied in a fair and legal way. We can help on this, as needed.

3. Do we need to continue employee pay for any fixed period? If a company decides to suspend operations or furlough employees indefinitely or temporarily due to the pandemic, must employees receive any pay continuation? Generally, no, but exempt, salaried employees must be paid their full salaries for any workweek in which they perform any amount of work for the employer, with limited exceptions such as a final partial week of employment. To be safe, employers should plan ahead and transition salaried employees out at the end of a workweek. For hourly, non-exempt employees, there is no general duty to pay beyond the hours worked but check your employee handbook as to any pay continuation obligations. And keep an eye on the news – federal and state officials are proposing pay continuation plans that could benefit your employees. In addition, furloughed employees should be qualified to receive unemployment compensation benefits after a seven-day waiting period.

4. What about paid time off? Most paid time off, such as vacation and personal time, is provided at the option of the employer, and is not mandated by law. The employer’s only obligation, therefore, is to comply with its policies in paying out such time – again, check your handbooks. Nevertheless, many employers are allowing (or requiring) employees to use accrued paid time off during a COVID-19 layoff. To the extent an employee seeks to use paid sick time, local and state laws – such as New Jersey’s paid sick leave law - may apply, in addition to the employer’s own policies.

5.What about health benefits? Employers that furlough and terminate employer-provided health insurance coverage will be required to provide COBRA health insurance continuation coverage notices, if the employer has 20 or more employees. Smaller employees may be covered by state “mini-COBRA” laws. Some employers are choosing to continue health insurance coverage for furloughed employees during this fraught time, when health concerns are paramount, and we support those efforts.

6. Can I ask employees to disclose potential exposure to COVID-19 or symptoms in order to protect my workforce? The Americans with Disabilities Act (“ADA”) has a “direct threat” provision that allows employers to inquire about health threats, such as exposure to contagious diseases, without violating the ADA (which prohibits most health-related inquiries). Employers should be careful, however, not to focus their attention on employees of certain races or national origins. A better course is to direct inquiries toward all employees, to those exhibiting symptoms of illness, or to those known to be traveling out of the country, especially to high-risk countries (currently China, Iran, Italy and South Korea). In all cases, health information that is provided should be kept confidential, in accordance with the ADA and HIPAA.

7. What if an employee displays symptoms of COVID-19?According to the U.S. Equal Employment Opportunity Commission, ordering an employee who shows symptoms of a contagious sickness to leave the workplace does not violate the ADA. Moreover, an employer should consult with healthcare professionals to determine if further action is warranted to protect the workforce, while also protecting – to the extent practicable – the confidential health information of the infected employee.

We hope these items have addressed some of your questions but realize that there are likely many more that remain unanswered.If we can help with these issues or any others related to COVID-19 and labor and employment issues, please reach out toMichael Homans orDavid Eisen. Thank you and be safe!