Many employers are having to layoff, terminate or furlough staff during the mandated isolation caused by this pandemic. This raises many issues and questions about the proper handling of these decisions.
HOW TO HANDLE REDUCED NEED FOR STAFF – FURLOUGH VS. TERMINATION
Consider all the options including reduced hours, staggering workforce so staff work one week but not the next, furloughs, or terminations (as a last resort). It is also wise to consider asking for voluntary layoffs for employees who want or can do so. The difference between a furlough and layoff/termination, is that a furlough is a temporary layoff and the expectation is that the employee will be returned to his/her position once the need for their services returns. Also, in a furlough you can usually maintain all benefits and have the employee continue to pay their share of the premiums.
REDUCING HOURS AND PAY – SALARIED VS. HOURLY EMPLOYEES
There is a significant difference when cutting pay for salaried/exempt and hourly/non-exempt employees. You can cut the pay of hourly workers pay as needed with no concerns. However, if a salaried employees does any work in a given week, that employee is entitled to be paid for the entire week. There are a few exceptions. For example, if the employee requests an entire day off work and performs no work, you can require them to utilize paid leave to make up for that day of missed work. Additionally, employers may reduce the salary of a salaried employee (implement a pay cut) for reduced work so long as the salary is not reduced below the required minimum of $684 per week to retain salaried/exempt status. Likewise, a salaried exempt employee may be converted to an hourly/non-exempt employee. In this case, however, the converted employee will then be entitled to overtime pay if he or she works more than 40 hours in a week.
CHECKING TEMPERATURES OF EMPLOYEES
If you have employees still physically reporting to work, you should take temperatures at least once, if not twice per day. The EEOC has waived the normal requirements for performing such a “medical exam” in this pandemic. See EEOC guidance for details on ADA and health issues related to employees during this crisis:
https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
REFUSAL TO WORK
For employees who cannot work remote and must report to work, some employees are refusing to do so for fear of contamination. In this situation, employees are not eligible for sick leave and should be considered either a voluntary resignation or voluntary furlough.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT
This Act was signed into law on March 18, 2020, and provides an expansion of the Family and Medical Leave Act and also provides paid sick time in certain circumstances for employees affected by COVID-19. Please see our separate blog post regarding details of this Act.
Changes are occurring rapidly to address employees and businesses affected by this pandemic and the mandated closures. We will continue to update this information as needed.
