By Jonathan Yarbrough
The hotel industry is being hit particularly hard by COVID-19 with occupancy rates plummeting for those hotels open during this crisis. Some hotels that are open are operating with a skeleton crew – with exempt managers working alongside hourly employees to ensure that hotel operations run as smoothly as possible under the circumstances. Still, these operating hotels must take precautions to ensure that staff are as safe as possible during this pandemic, while complying with the various, and seemingly ever-changing, employment laws.
Wage and Hour Laws and Workplace Safety
While safety of employees is certainly paramount, hotel employers have to remember that federal and state wage and hour laws still apply. If a non-exempt employee is working overtime during this crisis due to labor shortages, that employee would still be entitled to overtime despite likely revenue declines.
Although wages are certainly high on every employees list of concerns, workplace safety may well be the number one concern of all employees regardless of industry. The Occupational Safety and Health Administration (OSHA) has released Guidance on Preparing Workplaces for COVID-19, which can be accessed here: https://www.osha.gov/Publications/OSHA3990.pdf. Hotel employers should consult this guidance for information prevention measures suggested by OSHA, particularly since hotels are at least a medium exposure risk for COVID-19. Most hotel employees have high contact with the general population and because telecommuting is largely impossible for employees involved in hotel operations.
Hotels should ensure that their employees are following the latest hygiene and infection control policies issued by the Centers for Disease Control, including frequent hand washing, staying home when sick, enacting social distancing policies when possible and discouraging employees from using each other’s desks, phones and other work tools (something that might take some creativity with front desk employees for example). And, appropriate and consistent housekeeping is a must during this pandemic.
Management When Employees Become Infected
Since many employees live paycheck to paycheck, employees who are exhibiting signs and symptoms of COVID-19 might continue reporting to work. Imagine someone in housekeeping who is symptomatic yet manages to come to work in need of a paycheck. What steps can be taken to try to ensure that this situation does not occur?
One step employers can take is to take the temperatures of their employees in an attempt to keep the virus from spreading and possibly affecting the health and safety of co-workers and guests. Prior to the shutdown of the Las Vegas Strip, Wynn Resorts employed thermal cameras to monitor the temperature of guests. Those with temperature of 100.4 or higher were discretely asked to leave the property. Until recently, employers could not similarly check the temperatures of their employees because such monitoring would have been a medical exam under the Americans with Disabilities Act. However, the Equal Employment Opportunity Commission just issued a guidance titled “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” This guidance states that, since COVID-19 has community spread, an employer may take the temperature of its employees with the understanding that some employees with COVID-19 do not have a fever. The EEOC Guidance further provides that, during a pandemic, an employer may ask employees if they are experiencing COVID-19 symptoms and send them home if they are.
If an employee is absent, coworkers are likely to ask whether that employee has COVID-19. Employees feel they have a right to know whether their fellow co-worker is positive. However, according to the EEOC’s Guidance,
employers cannot disclose the identity of an employee with COVID-19 but should work to identify all persons the infected employee had contact with during the 14-day, CDC-identified period. This could be quite a few given the nature of the hotel business. Regardless, those individuals should be informed of their possible exposure,, and the employer should consider requiring those employees who had been exposed to self-quarantine for 14 days.
Paid Leave and Reimbursement Under Families First Coronavirus Response Act
What options does an employee have if they have the coronavirus or if they have been quarantined for 14 days (as opposed to unilaterally deciding to self-quarantine)? Present Trump recently signed the Families First Coronavirus Response Act, which amended the Family and Medical Leave Act (“FMLA”) and provided for a new form of paid leave for eligible employees. Under the Act, the FMLA was expanded to include all employees who have been employed at least 30 days by the employer (traditional FMLA leave limits such to employees who have been employed at least 12 months and who have worked at least 1250 hours in the 12 months preceding the need for leave). While traditional FMLA applies to employers with 50 or more employees, the Act applies to employers employing fewer than 500 employees. Smaller employers, those with fewer than 50 employees can petition to be exempt from the Act.
There has been much confusion over what the Act actually provides in terms of expanded FMLA because the House version of the bill was more expansive than what was signed in to law. As signed by President Trump, eligible employees can take FMLA leave if unable to work or telework because their child under age 18 is home due to school or child care closings – or due to the unavailability of child care due to a COVID-19 emergency. The first 10 days of leave may be unpaid unless the employee elects to use paid leave or the statutory paid leave (discussed below). After the first 10 days, any remaining leave would be paid at the reduced rate of two-thirds of the employee’s regular rate multiplied by the number of hours the employee is usually scheduled to work.
If an employee, their spouse, parent or child has the Coronavirus, then traditional FMLA may apply to cover their absence provided the employee is eligible and provided the definition of “serious health condition” is met.
The Act also provides for limited paid leave for employees (without the 30 day employment requirement of the FMLA provisions). Employees can take paid sick leave if unable to work due to federal, state or local quarantine or isolation orders; the employee is advised by a health care provider to self-quarantine; the employee has symptoms of COVID-19 and is seeking a medical diagnosis; or, the employee is caring for an individual who meets the latter two categories. Paid leave is also available to employees who are caring for a child whose school or child care center is closed because of COVID-19 or the employee is experiencing any other “substantially similar condition specified by the Secretary of Health and Human Services.” Full-time employees can receive a maximum of 80 hours of leave, while leave for part-time employees is based on the average hours worked over a two week period. If the employee takes paid leave due to her own condition or situation, such leave is paid at the greater of the employee’s regular rate or the minimum wage. If leave is taken for the other reasons, then the paid leave is at two-thirds of the employee’s regular rate of pay.
If there is any silver-lining in the Act, it is that employers providing the paid leave under the Families First Coronavirus Response Act can receive 100% reimbursement for paid leave, including health insurance costs. Under the Act, the employer can retain withheld federal taxes, as well as the employee and employer share of Social Security and Medicare taxes with respect to employees. According to the IRS, if the employer paid $5000 in sick leave but would otherwise have to deposit $8000 in taxes, the employer retains $5000 and deposits the $3000 on its regular deposit date. If the employer paid $10,000 in sick leave payments and was required to deposit $8000 in taxes, the employer would retain the $8000 and then would file a request for an accelerated credit of $2000.
Both the Department of Labor and the Internal Revenue Service are going to be issuing regulations to implement the Act, and the Department of Labor is going to have temporary non-enforcement policy for 30 days from April 2, the date the Act takes effect.