The coronavirus pandemic (COVID-19) is an evolving situation that raises challenging issues for Washington employers.
What should employers be doing?
Employers should track the COVID-19 situation closely and monitor information from government authorities in real time. The following resources and materials related to COVID-19 may assist employers:
- Centers for Disease Control and Prevention (CDC) Guidance for Businesses and Employers
- Occupational Safety and Health Administration (OSHA) Guidance on Preparing Workplaces for COVID-19
- United States Department of Labor COVID-19 Guidance
- Washington State Department of Health Workplace and Employer Resources and Recommendations
- Washington State Employment Security Department Guidance for Workers and Businesses Affected by COVID-19
- Washington’s Paid Family and Medical Leave program
- Local Resources:
- King County Guidance on COVID-19
- Snohomish County COVID-19 Info for Businesses and Employers
- Pierce County COVID-19 Information for Businesses
- Washington State Resource List for Impacted Businesses
What are the main workplace safety guidelines we should follow?
OSHA’s recently published Guidance on Preparing Workplaces for COVID-19, outlines steps employers can take to help protect their workforce. The guidance does not create new legal obligations, but provides employers with helpful information and advice on how to limit the risk of exposure and infection for their employees, and how to respond if an employee becomes ill.
At a minimum, OSHA recommends all employers develop an infectious disease preparedness and response plan and stay informed of the latest guidance to keep the plan up to date. Employers emphasize the importance of good hygiene practices including frequent hand-washing, covering coughs and sneezes, and cleaning and disinfecting high-touch surfaces. Employees should be instructed to stay home if they are ill.
OSHA has divided workplaces and work operations into four risk zones according to the likelihood of occupational exposure during the pandemic. The guidance provides tailored suggestions for workplace practices and policies according to the applicable risk exposure level. The four risk zones range from Very High – for those employees with a high potential for exposure, such as first responders and health care personnel who have direct contact with COVID-19 patients – to Lower Exposure Risk – for workplaces which do not involve frequent contact with the public. For each level of risk exposure, OSHA details the physical and administrative controls and other practices employers can implement to best manage the risks associated with the virus.
What if an employee appears sick?
Employees should notify their supervisor and stay home if they are sick. Employees who have symptoms of respiratory illness and/or a fever should not return to work until they are free of symptoms for at least 24 hours.
If any employee reports to work with symptoms of respiratory illness (i.e., cough, shortness of breath, fever) or becomes ill at work, the employee should be separated from other employees and sent home immediately.
Can an employer encourage or require employees to work remotely as an infection control strategy?
Yes. An employer may encourage or require employees to work remotely or telework as an infection-control strategy, based on timely information from public health authorities. Of course, employers should enforce any remote work policies in a uniform, nondiscriminatory manner.
Does an employer need to keep paying employees who are not working?
In general – subject to applicable sick leave requirements – employers are not required to pay non-exempt hourly employees who are unable to work. The wage and hour laws typically only require employers to pay hourly employees for the hours they actually work. However, if a non-exempt employee performs any work during a quarantine or similar period, the employer should ensure the employee tracks and reports their working time and is paid for that time in accordance with applicable law. Employers are still required to maintain an accurate record of hours worked for all employees, including those participating in remote working arrangements.
Salaried exempt employees generally must receive their full salary if they perform any work during a workweek, including during weeks in which they are quarantined or furloughed. If an exempt employee performs no work during a workweek, it is possible the employee may not need to be compensated for the week, however that assessment should be done on a case by case basis with advice from experienced counsel to ensure the employee’s exempt status is not compromised.
Are employees allowed to use sick leave for absences related to COVID-19?
Employees must be allowed to use paid sick leave for absences related to the following circumstances:
- If the workplace is closed by a public official in connection with COVID-19
- If a school or place of care of an employee’s child is temporarily closed by a public official because of COVID-19
- If an employee is ill with COVID-19 or if an employee is absent to care for a family member with COVID-19
If an employer chooses to temporarily close their workplace to mitigate the risk of exposure to COVID-19, the employer is not legally required to allow workers to use paid sick leave, although an employer may permit employees to use sick leave to cover such absences.
Employers cannot force or require employees to use paid sick leave to cover absences related to COVID-19. Under Washington law, it is an employee’s choice when to use their accrued paid sick leave.
Do OSHA regulations and standards apply when employees are working remotely?
OSHA does not have any regulations regarding remote work arrangements. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employee home offices, will not hold employers liable for employee home offices, and does not expect employers to inspect the home offices of their employees.
If you have any questions about this information, please contact one of MPBA’s employment attorneys, including Tammy Roe or Sara Campbell.