As the Covid pandemic marches on with no end in sight, stresses and complications for small business march right along with it. As they struggle to make ends meet in a weakening economy, employers must also find ways to keep their workers both safe and productive. These competing objectives present a legal minefield around questions about when to require employees to appear at workplaces and when to prevent them from doing so. Decisions on these matters can be costly at a time when small businesses can least afford extra expenses.
Not surprisingly, courts are increasingly involved in this area. In September, a federal court ordered an employer to permit remote work by one of its employees. The case highlights the confluence of handicap discrimination principles and Covid-19, a situation in which employers must impose job rules carefully. It is not the only legal issue for them to worry about. The Families First statute (FFCRA) enacted by Congress last Spring may require up to 12 weeks of pay for employees affected by a Covid illness or the closure of school or day care. Massachusetts workers also have sick leave benefits by statute. They will soon enjoy up to 26 weeks of paid time off for their own illnesses or to care for certain family members under the Massachusetts Family and Medical Leave Act.
All of these laws can impact both productivity and profitability as employees either work remotely or don’t work at all while still being paid. Meanwhile, small businesses may not survive if they permit Covid-19 to infect workplaces or, worse yet, to be passed to customers. Job one must consequently be to protect employees’ health. Doing so requires diligent enforcement of clearly written policies that instruct workers when to come to work, how to act when there, and how to address perceived health problems or risky behaviors. Sending employees home, either with or without pay, is not always easy. It can affect productivity, morale, raise health concerns for others, and require time-consuming contact tracing.
Managing all this while succeeding in business requires employers to regularly review their policies and the applicable law. At the current time, e.g., Massachusetts requires most people who leave the state to be quarantined for 14 days when they return to the Commonwealth. The rule is not universal, however, and will be modified as Covid-19 develops. Changes will also arise in other laws, which will surely develop in unforeseeable ways. While this all will present challenges for employers, they are ones that must be met head on to maximize the likelihood that a business will survive what promises to be many more months of Covid to come.