Today we start a five-part series where we answer your top questions regarding how Covid-19 affects your business.* With many states reporting an increase in cases, it's important to know how this could affect your business. We have the first four questions and answers below.
Can a business reduce pay because of a COVID-19-related economic slowdown?
Yes, a business can reduce pay based on an economic slowdown, provided it is not done retroactively. For example, if you give employees notice that their pay will change on the 10th, and the payroll period runs from the 1st through the 15th, make sure their next check reflects the higher rate of pay for the first nine days in the payroll period.
Can a business terminate an employee because of a COVID-19-related slowdown?
Unless there is an employment contract altering the employment relationship—and many employment contracts explicitly specify that the employment relationship is at will—at-will employees may leave their job at any time and employers may terminate them at any time. Terminations are occurring because of slowdowns due to COVID-19. A business cannot be forced to retain an employee that it cannot afford to pay. One caveat is that employers cannot discriminate against employees who choose to use the federal benefits provided under the Families First Coronavirus Response Act (FFCRA). Documentation is key to show that the termination was for a business-related reason (e.g., revenue has decreased by 75%) and not discrimination against an employee for taking leave.
What if an employee does have an employment contract or is subject to a collective bargaining agreement?
Consider consulting with an employment attorney before making changes in pay or other changes in employment terms and conditions.
If an employee lets you know he or she will be absent because of illness, can an employer ask the employee about his or her symptoms?
This question is especially relevant when employees are not working remotely, e.g., those working in essential industries or businesses who cannot work from home. Under ordinary circumstances, employers should not ask about employees’ symptoms, as this could be seen as a disability-related question.
But during the current crisis, because an employer has the duty to maintain a safe working environment for all employees, the employer can ask specifically about COVID-19-related symptoms, but should make it clear that that is the extent of the information about which the employer is inquiring. The following is a suggested communication: Thank you for staying home while sick. In the interest of keeping all of our employees as safe as possible, we would like to know if you are having any of the symptoms of COVID-19. Are you experiencing a fever, cough, or shortness of breath?
Keep in mind that medical information must be kept confidential under the American with Disabilities Act (ADA). If the employee does reveal that he or she has COVID-19 or if you otherwise learn that this is the case, the Center for Disease Control has issued guidance about how to determine next steps.
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*This information is provided for information purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included herein without seeking legal or other professional advice from Marvel Law.
