1. What are the current rules for working remotely in Pennsylvania? Must an employer allow its employees to work remotely?
The Governor of Pennsylvania has issued guidelines for restarting the Pennsylvania economy. The guidelines are based upon the incidence of COVID-19 cases in each county over a period of several weeks. As of May 1st, 24 counties in the northern, more rural part of the state were placed in the “yellow” zone, which means that they can start opening businesses on May 8th that have been under the closure order in effect since mid-March. There will still be significant limitations requiring, for example remote working where possible, social distancing and the wearing of masks. Other, more populous counties remain in the “red” zone, which means that they are still subject to the closure order.
The full text of the Governor’s reopening plan can be accessed here: https://www.governor.pa.gov/process-to-reopen-pennsylvania/
2. Can an employer be sued if an employee becomes infected with COVID-19?
If a worker has contracted COVID-19 in the course of their employment, Pennsylvania Workers’ Compensation Law would be applicable. Under Workers’ Compensation, an employee is entitled to payment of all medical expenses and a percentage of lost wages, up to the statewide maximum which for 2020 is $1,081 per week. Workers’ compensation wage loss is generally based upon two-thirds of the employee’s “average weekly wage”, which is a formula calculated upon the previous 4 calendar quarters of wages from the employer.
With very rare exceptions, an employer cannot be sued for injuries or illnesses that an employee suffers at work. COVID-19 would not be an exception. An employee can sue a third party (a person or entity who is not his employer) if the injury or illness was caused by that third party.
3. Can an employee refuse to travel for business reasons?
If an employer is operating during the pandemic, and it required an employee to travel for business purposes, should the employee refuse to travel because of concern for their health there would be several legal issues that could arise. If the employer decided to terminate the employee’s employment, the first question would be whether the employee would be entitled to unemployment compensation. There is no easy answer to this question; the legal standard is whether the employee had a “necessitous and compelling reason” to refuse the travel or whether the refusal constituted “willful misconduct”.
Could the employee sue for “wrongful termination” if the employer fired them due to refusing to travel during the pandemic? Pennsylvania is an at-will employment state. That means that generally there is no basis for a lawsuit for being fired, unless the action was illegal discrimination (e.g. age, race, sex, religion, etc), or whether there was a public policy that prohibited the firing. Public policy exceptions to at-will terminations are rare, but whether firing an employee during a pandemic for refusing to expose themselves to the virus could certainly present a compelling argument for such an exception.
4. What are some of the legal considerations that have or might come up as it relates to COVID-19 in the workplace?
Workers’ compensation laws should guide many of the decisions that employers, and employees make as the country transitions into a post-lockdown era. Any workplace exposure to the disease becomes a potential workers’ compensation claim.
An employee in a “vulnerable” medical state may be able to request accommodations from the employer to protect themself against the disease. The Coronavirus is known to be much more dangerous to elderly individuals and those with immuno-compromised conditions. Such an employee could request an accommodation allowing a more flexible working environment to limit workplace exposure, such as increased remote working or greater social distancing. Accommodations must be reasonable and must not create an undue hardship, but all employers should be more open and flexible in considering such requests that will protect their workers’ health and safety.
5. Are there any other common-sense guidelines for operating the workplace in the COVID-19 era?
There are far more “unknowns” than “knowns” as the world transitions into the next phase of dealing with the Coronavirus. It is in the economic and safety interests of all employers and employees to be creative and flexible in understanding that how we work has changed temporarily, and possibly for the immediate future.
6. How can employers implement workplace-related cost savings without actually terminating the employment of its employees?
Assuming that there is no union contract, an employer has the right to operate its business as it sees fit. Of course, an employer may not make business decisions that are discriminatory. It cannot decide to terminate or lay off employees based upon age or disability for example. Therefore, an employer who feared that its older or more physically vulnerable employees would be more likely to contract COVID-19 could not terminate those employees for that reason; that would be illegal discrimination.
Business decisions to reduce payroll are of course permissible that are not motivated by discrimination.
7. What is the difference between a furlough and a termination?
Legally there is no practical distinction. A furlough has no precise legal definition, but commonly means that an employee has been laid-off temporarily and is eligible to be recalled. However, unless the employer is a party to a collective bargaining agreement with a union, there is no legal mechanism governing a recall to employment.
8. Are employees eligible for unemployment benefits if they are furloughed?
9. If a municipality where employees live or work issues a shelter-in-place order, what does that mean generally, and how does that impact an employer?
Employers should abide by any governmental order regarding their operations. Failure to do so could subject them to civil or in some instances criminal sanctions, although there is no current experience for criminal sanctions being issued.