Strict parsing of the law – what it requires, what it permits – may not serve businesses or their employees well as they navigate huge uncertainties as the coronavirus pandemic unfolds. That’s one takeaway from employment lawyers evaluating the situation.
Lawyers are receiving many questions. At a webinar on coronavirus held by the Baker Donelson law firm before a national emergency on the disease had been declared, participants learned that of 300 questions received, 295 were about employment issues.
Running a business, already a balancing act, will be even more so going forward, lawyers say.
Employees might want to come to work when ill to keep money coming in at home. Employers will want employees to stay home when they’re sick so other workers don’t get sick. If they’re hourly workers who are not paid if not working, they might not return to work when they recover because they’ve already found another job, says Alex Long, Williford Gragg Distinguished Professor at the University of Tennessee College of Law.
If workers are laid off without pay for lack of business or if they lose their jobs under an attendance policy they can’t follow because of coronavirus, they also might already have another job by the time business-as-usual resumes post-coronavirus.
A general principle of employment law is to treat similarly situated employees the same and to follow contractual and legal obligations, such as collective bargaining agreements and anti-discrimination laws that protect people based on race, sex, religion, disability or national origin.
For example, when deciding which employees can work from home, managers should look at whether job functions permit remote work, not at particular employees’ productivity levels, Baker Donelson law firm partner Martha Boyd said in the recent webinar on coronavirus.
In other words, if Sue is a go-getter and Steve isn’t, but both have jobs that permit telework, both should be allowed to do so. This is not the time to alert an employee that her performance or productivity is too low to merit telework if the employee had not been previously counseled or warned.
Also, following guidelines from the Centers for Disease Control might be a good practice for employers, as long as the guidelines are applied consistently to employees and don’t discriminate against protected groups, Long says. Government guidelines aren’t always clear, however, and can raise more questions than they answer, he adds.
And many possible scenarios raise open legal questions, he continues.
For example, if a worker comes down with coronavirus after coming in contact with a co-worker who is infected, can the employer be held liable for not taking reasonable care to protect workers?
Is coronavirus covered by workers’ compensation insurance if it’s contracted in the workplace?
These are examples of open questions, Long says.
Allowing workers to telecommute wherever possible will help, but this won’t apply to all employees.