COVID-19 Staffing Considerations in Connection with a Temporary Office Closure

In an effort to support our members’ practices and to summarize some of the more frequently asked employment related questions as a consequence of the COVID-19 pandemic, Dallas County Dental Society has assembled this Q&A. Please note that this guidance does not, and is not intended to, constitute legal advice. This guidance is for general informational purposes only and may not constitute the most up-to-date legal or other information. We recommend that you contact your attorney to obtain advice with respect to any particular legal matter and prior to taking or not taking any action based on this guidance. Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation.

1.       Do I need to pay my staff during this shut down?

Employers must be mindful of an employee’s exempt (salaried) or non-exempt (hourly) status.

An employer is obligated to pay an exempt (salaried) employee their entire salary for the work week if the employee performs any work during the week, including work completed remotely or if the employee works only a partial week.

Non-exempt (hourly) employees must be paid for all work performed whether performed onsite or remotely. Hourly employees are not entitled to compensation unless company work has been performed. (Reviewing and responding to company emails are considered work for the company.)

Thus, if you are forced to close your business temporarily due to COVID-19 issues, you are not required to pay non-exempt employees for hours the non-exempt employees do not work, even though they may have been scheduled to work. Please see this link for a summary of the requirements: https://www.dol.gov/agencies/whd/flsa/pandemic.

2.       Staff reductions

If you need to reduce your payroll expenses, at least temporarily during this period of office closure, you have several options to consider:

• Furlough some or all employees if the shutdown is expected to be temporary

• Lay off some or all employees

• Reduce employee hours

Although it may not result in a significant expense reduction, you of course can continue to pay employees without requiring them to report to work. You also may require employees to use their unused vacation time for days they are not working. A furloughed and laid off employee will qualify for state unemployment benefits. Please see this link for a summary of Texas’s response to COVID-19 related unemployment rules and benefits: https://twc.texas.gov/news/covid-19-resources-employers

3.       What is the difference between these options?

The main difference between a furlough and a layoff is that a furlough may allow workers to retain their jobs at a later date. The general expectation is that an employee will return to work following a furlough (often a period of a few weeks or a month). But returning to work after a furlough is not guaranteed. A layoff results in final employment termination. Although some layoffs are temporary, there is less expectation of recall to work at a later date. Furloughs and layoffs also have specific requirements:

• Furlough—Furloughs are mandatory time off from work with no pay. They generally are implemented by employers as a cost-saving measure during tough economic times or otherwise slow periods for a business. An employer can permit or require an employee to use vacation time during a period of furlough. An employer also can refuse to permit an employee to use vacation time during a furlough.

While no one wants to be out of work, furloughs can be beneficial to either employers, employees, or both, depending on the specific circumstances:

Avoiding layoffs: Even though employees are not receiving paychecks during a furlough, they have more assurance that they will have jobs in the future. While employees are still free to seek other employment and not return, a furlough can provide some level of comfort to persuade an employee to wait to return to work, especially if employees know the furlough will be for only a short period of time.

Reduces rehiring needs: While there’s no guarantee that all furloughed employees will return, employers can be fairly confident that they’ll have experienced workers ready to return as soon as the doors re-open for business.

Employee Benefits: Furloughed employees are eligible to receive unemployment benefits while on furlough.

Furloughed employees are able to stay on the employer’s medical insurance and other benefit plans at the level that they currently participate in, provided they remain eligible under their employer’s plan. They must pay their share of the monthly premiums, but the employer must continue to fund their share of the premiums. Payment arrangements between the employee and employer must be arranged.

The No Work Rule: A furloughed employee can’t so much as take a phone call or answer e-mails. If a salaried employee does any work while on furlough, the employer must pay them the equivalent of their salary for the entire work week. If an hourly employee works while on furlough, the employer must pay them for the time worked. Payment for time worked must be paid in the pay cycle in which it is worked. Payment may not be postponed until the employee returns to their regular work hours.

• Layoff— A layoff results in an employment termination. Employers must pay all wages due to the employee, including accrued but unused vacation time, within six (6) days of the layoff. Employees will lose benefits eligibility and, assuming the employer is covered by COBRA, must apply for COBRA (or mini-COBRA) to continue their health insurance and will be responsible for the entire premium, plus an administrative fee. Employees may file for unemployment. While laid-off employees sometimes are brought back to their jobs, it’s less likely to be the case.

• Reduction in hours—A dentist may alter a non-exempt employee’s schedule. An employee whose schedule is reduced may be eligible to collect unemployment benefits for any lost Before reducing an employee’s hours, please understand that you may impact benefits eligibility. We encourage you to discuss this scenario with your insurance broker and legal counsel.

An employer that temporarily alters the work schedule of an exempt employee and reduces their compensation accordingly is at risk of losing the exemption status. We encourage you to seek more detailed advice on this subject.

4.       Which staff can I lay off?

The law generally presumes that all employees are employed “at will” unless they can prove otherwise, usually through written documents relating to their employment (like employment contracts) which state otherwise, or oral statements that you, the employer, has made.

If an employee is employed at will, you, as the employer, do not need good cause to terminate the employee’s employment. An at will employee’s employment can be terminated at any time, for any reason that is not illegal.

Caution must be exercised around job discrimination, particularly if you are laying off certain employees while furloughing or continuing the employment of others. You cannot lay off an employee because of certain protected characteristics (e.g., age, race, religion, or gender). And remember, if you have signed an employment contract that promises an employee job security for a certain length of time, then that employee is not employed at will.

5.       Employer responsibilities when laying off an employee(s)

• Texas law requires that the employer give laid off employees all final pay owed. If the company lays off an employee, the employee must be paid all wages owed within six (6) days, not at the end of pay cycle.

• If the company is covered by COBRA, it must notify a laid-off employee of their rights to continue health insurance coverage. This is typically done after the employee leaves, when the employer or a benefits provider sends out a “COBRA notice,” which provides information to the employee about their rights to continue their health insurance coverage. The cost of COBRA is 102% of the full monthly premium for such coverage. Employers are not obligated to fund any part of the cost of health insurance once an employee is laid off.

6.       Can an employer choose to pay severance to employees being laid off?

Yes.

7.       If staff chooses to voluntarily not work, do I need to pay them?

No, unless the employee is an exempt employee and works at any time during the course of the week.

8.       Can I mandate that my staff come into work for emergency care?

While each situation is different, and a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers should conduct a thorough review of the facts and consult with legal counsel before any disciplinary action is taken against an employee who refuses to perform his or her job for fear of exposure to COVID-19. Employers are encouraged to be flexible with respect to attendance in connection with this rapidly changing situation.

Additionally, the federal government requires small and mid-size employees provide paid sick leave and expanded paid FMLA leave for public health emergencies. The expanded paid sick leave benefit and the expanded Family and Medical Leave Act were recently passed by the Senate and signed by the President. This is of particular significance to companies that employ fewer than 500 employees. Click here for a summary of requirements.

9.       Is an employer required to document the layoff or furlough in writing with each employee and must they meet with each employee in person to notify them of any change in employment?

No documentation is required, but it is suggested that a simple letter be distributed so that everyone is on the same page and understands what is happening. Employers do not have to meet with employees in person to notify them of a change in employment status—telephone conferences or email is fine.

10.    Are there are hardship loans available?

Unemployment benefits are available for any employee who is laid off or put on furlough. We are not currently aware of any hardship benefits for employers although legislation is under consideration for employers impacted by these closures due to the COVID-19. For updated TWC COVID-19 resources for Texas employers click here.

11.    Can I pay employees during some period of shutdown and then lay off or furlough staff on an unpaid basis if the shutdown continues?

Yes.

12.    Do I need to treat all employees the same (i.e., lay off everyone or just lay off one person)?

A layoff is not an all or no one policy; however, caution is advised around any decision that may be perceived by an employee as being discriminatory.

13.    Can I rehire staff that I previously laid off?

Yes.

14.    Can staff qualify for assistance if they are still technically employed?

As stated above, furloughed and laid-off employees are eligible to apply for unemployment benefits.

15.    Employee Confidentiality

While non-infected staff and personnel should be notified of possible exposure to the virus, employers should not release the names of infected employees or those who are suspected of infection. Employees have common law privacy rights in their medical information, and there are numerous statutory limitations and restrictions on the disclosure of an employee’s medical information. Therefore, even in a pandemic situation, employers should exercise significant care with respect to safeguarding medical information.

According to the U.S. Centers for Disease Control and Prevention (CDC), employers should inform fellow employees of their potential workplace exposure, but only to the extent necessary to adequately inform them of the potential exposure, while maintaining confidentiality under the Americans with Disabilities Act (ADA) (i.e., without revealing the infected individual’s name unless otherwise directed by the CDC or applicable public health authority). Employers may communicate to non-exposed employees generally that there has been a potential COVID-19 exposure, without sharing additional identifying information. Employers also may be able to communicate to appropriate non-employees (e.g., patients, vendors, and others with whom the employee may have come in contact while working) that there was a potential COVID-19 exposure, again without sharing identifying information. In all cases, time and circumstances permitting, employers may find it helpful to coordinate with state or local health authorities for guidance and direction regarding the scope and content of disclosures.

Employers also should evaluate any applicable state privacy law or state “mini-ADA” laws to ensure they do not contain different or additional requirements or provisions.

16.   Could COVID-19 be covered by workers’ compensation if contracted by an employee?

Workers’ compensation claims and procedures are based on state laws and vary from state to state. In Texas, Gov. Greg Abbott has declared a state-wide disaster and has instructed with special instructions related to the Texas Workforce Commission (TWC) and benefits. This TWC webpage can be forwarded to exiting employees to guide them in filing for disaster unemployment assistance.

17.   Final Thoughts

Information regarding COVID-19 is constantly being updated and released by official organizations such as the CDC, World Health Organization (WHO), and Occupational Safety and Health Administration (OSHA). Employers should take active measures to keep abreast of the changes and monitor their policies accordingly. Updated guidance will be provided by the DCDS to members as more information becomes available.

For additional details, we refer you to the Department of Labor’s reference guide at https://www.dol.gov/agencies/whd/pandemic.

This Q&A was adapted from communications from the Massachusetts Dental Society