The Families First Coronavirus Response Act (FFCRA) launched last month, temporarily expanding paid sick and FMLA leave for employees of businesses with headcounts of fewer than 500 as part of the national COVID-19 response. The follow-up CARES Act provided payroll tax credits for employers to offset the cost and impact of the leave expansion.
The quick but piecemeal rollout of legislation has created some confusion as to how employees should declare their eligibility/need for leave and what documentation trail needs to exist to ensure employers are eligible for tax credits.
In this post we’ll cover:
- What conditions or situations justify paid leave under the FFCRA
- What documentation employees should submit as part of an application for leave
- What documentation employers need to maintain to qualify for tax credits
Clarifying Who is FFCRA Leave Expansion Eligible
The FFCRA establishes three specific situations in which an employee working for a business with 499 or fewer employees qualifies for two weeks of paid sick leave at their regular rate, up to $5,110:
- If the employee is subject to a federal, state, or local quarantine or isolation order
- If the employee has been advised by a healthcare provider to self-quarantine
- If the employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis
The act also establishes three other scenarios in which an employee working for a business with 499 or fewer employees qualifies for two weeks of paid sick leave at two-thirds (2/3) their regular rate, up to $2,000:
- If an employee is caring for an individual subject to a quarantine or isolation order
- If an employee is experiencing any substantially similar condition identified by the HHS
- If an employee is caring for a child whose school or daycare is closed or unavailable due to COVID-19
Finally, the act also provides extended family leave for situations in which schools or childcare facilities remain closed beyond the two weeks of leave above. During that 10-week period, employees earn two-thirds (2/3) their regular rate, up to $10,000 (in addition to the $2,000 from their two initial weeks of leave).
Documentation Requirements for Employees Requesting Leave
The DOL did not codify any single approach to transitioning employees toward COVID-19 leave, instead saying that employees should file their request as soon as possible and follow reasonable documentation procedures as soon as practical. Here are the specific pieces of information/documentation the DOL stipulates employees must provide:
In their signed request for leave, employees must provide:
- Their full legal name (as it appears on IRS records)
- Their qualifying reason for leave (from the above list)
- A clear statement that their illness or responsibilities prevent them from working from home during this time
- Their anticipated date for return
If the employee is requesting leave due to a quarantine order, they must also provide:
- The name of the government entity who issued the order
If an employee is requesting leave because a healthcare provider has instructed them to, they must also provide:
- The name of the healthcare provider
If an employee is requesting leave to care for a child without school or daycare, they must provide:
- The child’s full legal name as it appears on school rosters
- The name of the school, childcare facility, or provider who is closed or unable to provide care due to COVID-19
- A clear statement that they are the only option to provide care for this child at this time
As long as you’re requiring, collecting, and maintaining the above documentation, you and your employees are compliant in the eyes of the DOL.
What About a Doctor’s Note?
Generally speaking, a doctor’s note is the gold standard for medical leave and should be provided in COVID-19-related ADA accommodation requests. However, the DOL is not requiring one as part of their leave documentation procedure, in part because the strain of the pandemic is putting on the medical community.
That means if an employee believes they have COVID-19 or needs to care for someone who does, waiting to get a doctor’s note could actually put more of your employees at risk. That’s why the best guidance for now is to keep your application protocol relatively straightforward and stick to the DOL’s documentation requirements.
Documentation Requirements for Tax Credits
While the DOL’s documentation requirements are crucial to executing the FFCRA correctly, the IRS’ documentation requirements are equally important to getting the payroll tax credits available to help your business weather this storm.
In order to maintain eligibility for your tax credits, you must maintain:
- IRS Form 7200
- IRS Form 941
- Any other documentation related to filing for credits with the IRS
- Documentation of how you calculated FMLA/sick leave pay for employees
- Documentation of how you determined the amount of qualified health plan expenses that you allocated to wages
In terms of documentation from your employees, the IRS’ requirements are extremely similar to the DOL’s, but there are a few key differences, specifically involving childcare scenarios.
The IRS requires documentation of the following information for employees requesting leave under the FFCRA to care for a child or children whose school(s) or place(s) of childcare are closed due to COVID-19:
- The full name of each child as they appear on school rosters
- The name of the school, childcare facility, or provider no longer able to provide childcare due to COVID-19
- A clear statement that they are the only option to provide care for this child at this time
- In the case of a child over 14 who would only be alone during daylight hours, employees should provide a statement explaining the special circumstances that require childcare
The goal of the FFCRA is to protect individuals and families across America during the COVID-19 pandemic. The CARES Act backs up the FFCRA by providing businesses with the tax credits they need to make the considerable leave expansion feasible. Getting those credits requires documentation of the right information, however.
- There is no official leave documentation process for the DOL, but they do require a few specific pieces of information
- The IRS has slightly stricter requirements for documentation of childcare-related leave
- IRS forms 7200 and 941 are essential to receiving your tax credits
- Be ready to explain how you calculated wages for employees on leave and determined your health plan expenses
The COVID-19 outbreak is changing nearly everything about how we work and do business. And if changing work conditions weren’t enough for employees to deal with, they also have to navigate a host of new federal policies including temporarily expanded sick leave and FMLA family leave. But, they don’t have to do it alone. Employers can help their team members work more effectively while achieving a healthy work-life balance by setting clear leave policies.
The Families First Coronavirus Response Act established Emergency Paid Sick Leave and drastically, albeit temporarily, expanded the scope of the Family Medical Leave Act. But it also left it up to employers to set the terms of how employees can use that leave. That means that employers must educate themselves on how their team members can take advantage of the leave to protect themselves and their families while staying productive, and then provide clear guidelines for their teams.
This can be particularly useful for employees who don’t want to take time off of work but have to take care of children who are now home from school or childcare. These employees are entitled to paid leave if they decide not to work. But they may not know how to take paid leave for time spent caring for their children while working part-time. That’s where employers can help employees navigate the situation so that they can work as much as possible while simultaneously taking care of their other obligations.
In this article, we’ll provide an overview of how employers can set flexible leave policies and help their team members navigate the new leave policies including:
- Employees’ leave coverage under the Families First Coronavirus Response Act
- How to expand the leave policies to help your team members work more effectively during the outbreak and as businesses begin returning to work
Employees’ Rights Under the Act
The Families First Coronavirus Response Act implemented several employee leave expansions that went into effect at the beginning of April. We wrote a full overview that you can read here, but here is a quick overview of what your employees are entitled to from the FFCRA if you have fewer than 500 employees:
- 2 weeks full paid sick leave if they are unable to work due to COVID-19 illness, quarantined due to exposure, or are experiencing symptoms and waiting for a diagnosis
- Paid sick leave is available to employees who are quarantined but not sick only if they cannot work remotely
- 2 weeks of paid family leave at 2/3 pay if they need to care for an individual subjected to quarantine or need to take care of minors whose schools or childcare facilities are closed due to the virus
- 10 weeks of extended family leave at 2/3 pay if employees need to take care of minors and have been with the company for at least 30 days
Notably, if your company has 49 or fewer employees, you can apply for a small business exemption. But unless you receive a small business exemption, you cannot prevent qualified employees from taking leave. Nor, given the current health crisis, should you aim to prevent employees from taking the leave they need. Your leave costs will likely be covered by tax credits under the new CARES Act. It’s often in your best interest to help your employees maximize their ability to leverage the leave policies, especially to discourage the spread of the virus amongst your workforce.
Expanding Leave Policies for More Effective Work
Under the FFCRA, employees may not be eligible for leave if they are healthy, do not have to care for minors, and can work remotely. While on the other end of the scale, employees who have to take care of minors may be eligible for a full 12 weeks of leave, paid at 2/3 their normal rate. However, many employees who do qualify for leave to take care of minors, but can work remotely, will not want to take three months away from their work. And many employees may be concerned about keeping some of that time in reserve, since no one knows how long the outbreak will last. That’s where employers can help their employees make the most of their paid leave while simultaneously minimizing the disruption to their business.
You have the right to force employees to either work full time or go on leave. But it is often in both of your best interests to work out an arrangement where employees with family obligations work as much as they can while taking leave when they cannot. And the FFCRA gives employers a lot of leeway in allowing employees to take sporadic or intermittent paid leave.
Employers can allow employees to take paid leave in increments anywhere from week-to-week, day-to-day, or even hour-to-hour. That means you could allow your team members to take paid leave to homeschool their children every other day while working full time on the other days. Or they can take a few hours of paid leave every day to take care of their family obligations and work for the rest of the work day. And this does not just apply to remote employees: you can allow employees who have to come into the workplace to work a partial schedule while taking paid leave on their days off.
It’s important to remember that employers are not obligated to provide this kind of flexibility. But it can often be in your best interest to work with employees to find the best arrangement for both parties. Not only will it allow you to retain key employees, on a partial basis, who would otherwise go on full-time leave, thus reducing the disruption to your business from COVID-19, but it can also have a lasting impact on employee relations. Employees will remember it if you work to help them juggle their work and non-work obligations, increasing loyalty and productivity in the long-term. On the other hand, they will also remember if you took an all-or-nothing approach that adhered to the bare minimum requirements of the FFCRA. It’s crucial to consider the optics of your approach to leave during COVID and as employees begin transitioning back to work.
To recap, you are allowed but not required under the FFCRA to let your team members take emergency paid sick leave or family medical leave:
- On a day-by-day basis while working a partial schedule either remotely or in-person
- On an hourly basis to allow for reduced hours per day, either around a shorter shift or to allow for breaks to care for family
- On a weekly or monthly basis
- At your discretion, within the limitations of the FFCRA (you can prevent employees from working until they come back from leave but you cannot prevent them from taking continuous leave while they qualify for it)
You should decide which of these arrangements, if any, will work for your business and then set a clear leave policy. Then, inform your entire staff of that policy and work with each employee to help them set up the arrangement that works best for them, within the limits set in your policy. Clarity and flexibility will help your business run smoothly and help your employees balance their work with their other obligations.
With the COVID-19 outbreak continuing to disrupt every part of life and business as we know it, we can all benefit from working together to find solutions. The FFCRA requires that employers offer 2-12 weeks of paid leave for qualifying employees at either full or 2/3 pay and you should take responsibility for that obligation. If you create flexible leave policies that enable employees to work as much as they can while taking only as much leave as they need, you can minimize disruptions to your business. Setting clear and flexible leave policies and helping employees take advantage of those policies is truly a win-win strategy. Just remember that:
- Healthy employees who do not need to care for minors or sick family members may not be eligible for any expanded leave and can be required to work full time if they can work remotely
- Employers are allowed to decide whether and how their employees can take intermittent sick or family medical leave
- If they chose to, employers can let their employees take their expanded leave on an hourly, daily, or weekly basis
For more on the Families First Coronavirus Relief Act and running a business during the COVID-19 outbreak, check out Launchways’ comprehensive resources on our COVID-19 Emergency Resource Center.
Filling out form I-9 is a standard onboarding procedure for any new hire. The new employee fills out Section 1 and provides supporting documentation of their identification and work-eligible status; then an HR professional makes copies of that documentation, completes Sections 2 and 3 (as applicable), and retains the form.
Generally speaking, it’s expected that the I-9 is completed in person, with the new hire and a HR professional exchanging physical documentation and verifying information face-to-face.
However, given the CDC’s social distancing guidance for COVID-19, that procedure obviously isn’t appropriate for this moment. In order to enable strong businesses to continue hiring and providing meaningful work for new employees, the Department of Homeland Security (DHS) has temporarily deferred in-person I-9 verification.
Moving forward, we’ll explore:
- Hiring/operating procedures during the current COVID-19 I-9 deferral period
- The term of the deferral
- Compliance expectations at the end of the deferral
- The value of this deferral period for businesses
Modified Procedures for COVID-19
The DHS has temporarily suspended the need for in-person I-9 verification. That means businesses can continue to hire and onboarding new employees remotely during this time without fear of non-compliance.
For now, documents pertaining to identity verification and employment eligibility can be submitted and reviewed remotely (i.e. by scanning and attaching documents to an email or submitting through an HR portal). Copies of those files should be retained in your internal HR records.
DHS’ verification deferral has also loosened up the time window for I-9 completion. Temporarily, employers have three working days to complete the paperwork and confirm documentation instead of just one day.
How Long Will This Deferral Last?
The I-9 verification deferral period will end either sixty (60) days from March 20, 2020 or three (3) days after the end of the COVID-19 national emergency has been announced, whichever comes first.
What Do We Need to Do to Comply When This is Over?
Once the deferral period ends (as described above), employers have three business days to complete standard in-person I-9 verifications for any employees they have hired and onboarded during the deferral.
Under “Additional Information” on Section 2 of form I-9, the employer must note that COVID-19 temporarily prevented them from a detailed physical review of the original documentation and provide the date they physically examined the documents. From there, the forms can be filed and retained as usual.
Why is This Deferral Good for Business?
In-person I-9 verification would prevent many businesses from filling the holes in their depth chart created by COVID-19, as employees must take leave for their own health, to care for a family member, or to supervise children. By enabling streamlined remote hiring, the DHS is providing support to businesses who are doing their best to continue the work and provide paychecks to their teams during this time.
Furthermore, remote hiring has the potential to connect great talent with jobs where they can be impactful faster than ever, fighting back record unemployment to help jumpstart the economy once again.
The Department of Homeland Security is deferring in-person I-9 verification during COVID-19-related social distancing. This is a great opportunity for businesses to fill out their teams and keep the work going without slipping into noncompliance, but it’s important to remember:
- The deferral window will end on May 19 or 3 days after the national emergency is declared to be over
- Employers still need to review digital versions of identification/eligibility documents within three days of hire
- When the deferral period ends, employers will have 3 days to complete traditional in-person I-9 verification
COVID-19 is continuing to affect our ability to do work in the way we’re all used to. For billions of workers around the world, there has never been a greater time of uncertainty and concern.
In order to continue the work effectively, you need to address those concerns directly. Furthermore, you need to codify your expectations for work and behavior during this time to give employees something to hold onto and provide them with stability and knowledge during this time of unknowns.
One emerging best practice is creating an employee handbook addendum specifically built around modifications to work and workplace culture created by COVID-19. By including this information in your handbook, you create both a new level of clarity and a new level of accountability for employees.
Moving forward, we’ll explore:
- What you need to add to your employee handbook to address employee safety at this time
- What you need to add to your employee handbook to address remote work enablement at this time
- What you need to add to your employee handbook to address work reductions, potential layoffs, etc.
Safety in the Workplace
Everybody’s health, safety, and wellness should be the top priority at this time. Here’s a list of considerations your employee handbook needs to address in order to keep everybody safe!
For each consideration, it’s important to think about:
- How you will communicate expectations
- How you will bring the modifications to life
- How you will enforce new employee expectations
- How you will keep yourself accountable for employee safety
You need to clearly communicate your expectations when it comes to employees washing their hands. Handwashing is key to preventing the spread of COVID-19, and if you’re going to protect your workforce, you need an official enforceable policy.
Your policy needs to communicate which occasions should lead to an employee washing their hands. The exact shape of your policy will likely depend on the kind of work your employees are doing, but here are some situations you should think about addressing in your policy:
- Should employees wash their hands immediately upon arriving at work?
- Should employees wash their hands regularly on any set timeframe (i.e. every 30 minutes)?
- Should employees wash their hands any time they exit and re-enter the building?
- Should employees wash their hands at the start and/or conclusion of any breaks?
- Should employees wash their hands immediately before or after any specific work task or processes?
It’s now believed that COVID-19 spreads on surfaces much more effectively than scientists originally thought. That means keeping frequently touched surfaces clean and disinfected is essential to community health in your workplace.
Your policy needs to address both what responsibilities individual employees have when it comes to cleaning and what new practices the company as a whole will employ. For example:
- How often are employees expected to clean and disinfect their individual workstations?
- With what kind of cleaning materials should individual employees disinfect their workstations?
- How will individual employees clean/disinfect shared surfaces and equipment after they use them (i.e. equipment, communal spaces like the break room, etc.)?
- What additional custodial/janitorial practices will your business adopt to protect your workers?
Checking Employee Temperatures
Checking employee temperatures when they enter the building is very inconvenient, but it’s also a best practice for limited the spread of coronavirus in settings like healthcare or retail/hospitality, where there’s frequent interaction between employees and the public.
Your handbook needs to address:
- When and where regular employee temperature checks will occur
- Procedures for employees who display a fever upon temperature check
- Procedures for employees who feel they are developing a fever at work
- When and where temperature checks for incoming members of the public will occur
- Procedures for members of the public who display a fever upon temperature check
Eliminating Shared Food
Usually sharing food regularly is a feature of a healthy, positive workplace culture, but now is not the time for potlucks or picnics. Your handbook must clearly establish the expectation that there will be no communal eating or sharing of food at this time. That means:
- Modifying procedures in expectations in the cafeteria, breakroom, etc.
- Modifying policies on free food from managers as a work incentive/reward
- Providing employees with guidance on how they can eat in safe, compliant ways
- Explicitly stating areas in which nobody should be eating
As we’ve explored, community spaces are a very touchy issue during this time. It’s important everybody has access to what they need, but it’s equally crucial to create that access in social distancing-friendly ways. Staggering breaks is a great way to do that, but you need to create a strong policy that addresses:
- How these modifications will be provided in ways that are compliant with labor laws, collective bargaining agreements, etc.
- How supervisors/managers will release employees for breaks
- Maximum number of employees on break at one time
- Expectations for employees during breaks
- Procedures for employees returning from break
It’s important for your business’ employee handbook addendum for COVID-19 to address how employees will maintain at least six feet of distance between each other at all times.
Your policy needs to include:
- How you (the employer) will modify the space to support social distancing
- Daily measures employees need to make to support social distancing
- How employees will interact with customers/the public in ways that support social distancing
- How you will address situations where an entire team can no longer share the same physical space during the workday
- The elimination of in-person meetings and expectations for video/remote conferencing
FMLA & Paid Sick Leave Expansion Under FFCRA
Does FFCRA Apply to Us?
If you have fewer than 500 employees (499 or less), your company must comply with FMLA & paid sick leave expansion under the Families First Coronavirus Response Act.
If you have 500 or more employees, the temporary expansion does not apply to you.
If you have 50 or fewer employees and the expansion would threaten the viability of your business, you can apply for a small business exemption.
What Does Our Policy Need to Address?
Responsibilities Under the Act
The FFCRA states that employers must provide up to two weeks (80 hours) for full-time workers or a part-time employee’s two-week equivalent in sick time at their regular rate of pay if they:
- Are subject to a federal, state, or local quarantine or isolation order related to COVID-19
- Have been advised by a health care provider to self-quarantine related to COVID-19
- Are experiencing COVID-19 symptoms and seeking a medical diagnosis
The FFCRA also provides up to 80 hours of paid sick leave at 2/3 the employee’s regular rate if they:
- Are caring for an individual subject to a quarantine/isolation order or self-quarantine
- Are experiencing any other substantially-similar condition specified by the US Department of Health and Human Services
Additionally, the FFCRA creates up to 12 weeks of paid sick leave and expanded FMLA leave at 2/3 the employee’s regular rate if they:
- Are caring for their child whose school or place of care is closed or unavailable due to COVID-19 related reasons
What Your Handbook Needs to Address
In your COVID-19 handbook addendum, you need to explain to your employees:
- How much paid leave they are entitled to (see above)
- Procedures for application/approval of paid leave
- Procedures for communication/check-in during paid leave
- Procedures for returning to work at the end of paid leave
Telecommuting or Work-from-Home Policy
Right now, safety is everybody’s number one concern, but after that’s addressed, continuing organizational momentum is the next concern. Given the variety of regional stay-at-home orders, work enablement for most businesses will require considerable expansion of telecommuting and work-from-home programs.
Your handbook should describe your telecommuting program and provide employees with an understanding of:
- Who is eligible to work from home
- How to apply for or request to work from home
- General expectations for work-from-home continuity
Anytime you transition an employee from the traditional office setting toward telecommuting, it’s important to have a formal agreement in place. That document should effectively be a contract that communicates:
- The approximate length of the work-from-home engagement
- The individual names and signatures of the employee and either their supervisor or an HR professional
- Attendance, time-logging, and overtime expectations
- Expectations for the use of company-owned devices and platforms from home
- Official communication platforms and expectations in terms of check-ins
- Procedures for expense reporting and reimbursement
Your COVID-19 addendum needs to address what will happen if your business cuts back employee hours or temporarily closes during this economic slowdown, including:
- Procedures for communicating with employees about hour reductions
- Employee rights during their time of reduced hours
- Continuity of employee benefits during their time of reduced hours
- Procedures for re-expansion of work hours down the line
- How employees with reduced hours can connect with employee assistance programs and other resources
- Communication expectations for employees whose hours have been reduced
Furloughs & Temporary Layoffs
Your handbook also needs to address how furloughs and temporary layoffs will be conducted during this tough time. This section needs to help employees understand how furloughs or layoffs will be conducted and how they can protect themselves and their families, including:
- Timeline for reevaluation of furloughs and layoffs
- Continuity of employee benefits during their time of furlough or layoff
- How furloughed or laid off employees can connect with employee assistance programs and other resources
- Expectations for employees during furlough or layoff
- Official communication platforms during furlough or layoff
- Reinstatement procedures for furlough’s end
COVID-19 has already significantly disrupted our business space, and it will continue to do so for the foreseeable future. That’s why it’s so crucial every business creates an addendum to their employee handbook at this time to provide clarity, reassurance, and structure for employees during this tough time.
- Your first priority should be protecting health and safety: How will you keep employees safe? How will they be expected to keep each other and your business safe?
- Your second priority should be work enablement: How will you ensure your employees are able to continue high-quality work through telecommuting, working from home, and other outside-the-box approaches?
- You also need to help employees understand how you will address work reductions, furloughs, and layoffs.
Governor Pritzker signed the Workplace Transparency Act in August of 2019 and this January, the new law went into effect. While many people, business owners and employees alike, welcomed the law as appropriate in the #MeToo era, employers are grappling with how to adapt to the new regulations.
The law makes sweeping changes to the Illinois Human Rights Act, providing greater protections for workers and introducing new requirements for employers including mandatory sexual harassment training and changes to confidentiality agreements and arbitration agreements. But while the law is a big deal, it is by no means a threat to Illinois employers. With just a few smart policy changes you can not only ensure compliance, but also make your business run smoother than ever.
Let’s take a look at what the new requirements are and how you can adapt to them easily and effectively, including:
- What the Workplace Transparency Act means for employers
- How to meet the new training requirements
- Navigating other compliance issues from the new law
- Best practices to protect your brand and your workplace culture
What the Sexual Harassment Training Requirements Mean for Businesses
What does the new law entail? Broadly speaking, the Workplace Transparency Act and its impact on employers can be broken down into two parts: how companies train their employees and how they treat their employees.
The first part is the biggest one for most employers. All Illinois businesses are now required to conduct sexual harassment training on an annual basis. The law also establishes standards for sexual harassment training programs. Companies must now implement an approved training program or develop their own program that meets the minimum standards. Key standards include:
- An explanation of sexual harassment consistent with the definition outlined in the IHRA
- Examples of conduct that constitutes unlawful workplace harassment
- A summary of relevant statutory provisions concerning sexual harassment including remedies available to victims of harassment
- A summary of the employers’ responsibilities for preventing, investigating, and correcting workplace harassment
But the changes to the IHRA are not limited to training. The new law also bans companies from requiring employees to sign confidentiality agreements and from enforcing mandatory arbitration agreements. It also changes how confidentiality agreements are handled and requires employers to report any adverse findings of workplace harassment to the Illinois Department of Human Rights. And the law extends sexual harassment protections to independent contractors and consultants, a move with significant ramifications for the growing gig economy.
Violating the law comes with serious consequences for employers. In addition to damaging your employer brand and workplace, you will face up to a $1,000 fine for the first offense and $5,000 fines for each subsequent violation.
How to Comply with the Sexual Harassment Training Requirements
How can you create an effective sexual harassment training program or modify your existing training to ensure compliance? The good news is that the best practices for bringing your training into compliance are also great ways to build a safer, more productive workplace.
Beyond the four bullet-points outlined in the previous section, it’s important to be as explicit and comprehensive as possible regarding what does and does not constitute workplace harassment, what employees can do to prevent and address harassment, what promises and obligations you have regarding workplace harassment including any and all official company policies, and what employees can and should do if they are harassed.
It can be especially useful to clarify who can be a harasser or harassed (pro-tip: it’s anyone) and to examine power dynamics and unconscious biases that can cause or worsen harassment. Outline specific best-practices for employees to prevent inadvertent workplace harassment and provide clear and helpful guidelines for reporting harassment.
When creating your training program, don’t overlook your managers. You do not want to end up in noncompliance, damage your company culture and employer brand, or lose valuable employees because a manager mishandles harassment on their team. Implement specialized manager training to educate your management team on their responsibilities to protect employees and take action to address workplace harassment, the liability that they can cause if they do not follow proper procedure, how to avoid harassment allegations against themselves, and what to do if a complaint is filed against them.
Other Workplace Harassment Compliance Considerations: Confidentiality Agreements and More
In addition to the training requirement, the new law makes significant changes to how employers can create and enforce confidentiality agreements and arbitration agreements. But while there are new limitations, these are still viable tools to protect your company and its brand. You just need to be more careful about how you use them.
For both types of agreements, the law is focused on making sure that the agreements are consensual. Specifically, confidentiality in a severance agreement or settlement is only valid if the employer takes extra steps to ensure that the employee enters the confidentiality agreement freely and fully informed. So, employees must be able to show the agreement to an attorney of their choice, have 21 days to decide whether or not to sign the agreement and be able to revoke their signature for 7 days after signing. So long as a confidentiality agreement meets those standards, it is valid under the new law. And while employees may subsequently report the unlawful harassment to a government agency, they may be required to wave monetary compensation as a result.
Arbitration agreements are similarly affected rather than prevented by the new law. Employers are no longer allowed to make hiring decisions contingent on signing the agreements and must take steps to make sure that they are consensual. But the requirements are even less stringent than for confidentiality agreements. If employers give employees a brief opt-out period, odds are the arbitration agreements will be considered valid under the new legislation.
Finally, employers should include contractors in their sexual harassment training and policies. It should be clear to employees, managers, and the contractors themselves that contractors are now protected by the law and by company policies.
Workplace Harassment Best Practices to Protect Your Brand and Culture
In addition to requiring companies to conduct sexual harassment training and report violations, and reducing companies’ ability to limit employees’ speech and methods of recourse, the new law makes it more important than ever to prevent and properly address workplace harassment. It represents and reinforces a culture that will not tolerate harassment in the workplace. That means that failing to properly handle any cases of harassment at your company or to foster a company culture that discourages harassment and encourages equality will hurt your ability to attract, engage, and retain the talent you need to succeed.
So, it’s important to do more than follow the letter of the law when it comes to the Workplace Transparency Act and the Illinois Human Rights Act. Unchecked workplace harassment can cause a toxic workplace culture that undermines your employer brand and decreases employee productivity, creativity, and diversity. And it’s not just your employer brand at stake – as companies like Uber, Guess, and Google can attest. If customers find out about workplace harassment at your company, you can see your corporate brand take a hit as well.
Beyond taking employee and manager training seriously, companies should establish firm and comprehensive guidelines for workplace harassment investigations and remedial action. Your employees should know that you are on their side and will take allegations seriously while also providing a fair and transparent evaluation process for those accused.
Once an employee reports workplace harassment, you should start a serious investigation at once, whether they request one or not. Interview both the accuser and accused, as well as any witnesses as necessary, and document all responses thoroughly. If the accused is in a position of power, take steps to keep them out of the decision-making process during the investigation and prevent them from taking retaliatory actions against the employee who made the allegations.
Depending on the results of your findings, it’s important to take prompt remedial actions. Even if you have not found evidence of true misconduct worthy of disciplinary action, you should address areas of concern to ensure that all employees are comfortable in the workplace. But whatever you do, do not transfer the accuser unless they explicitly ask to be transferred. Transfers are often seen as disciplinary or retaliatory towards the accuser.
When determining how to punish misconduct after concluding your investigations, it’s important to consider several factors, including:
- Extent and severity of the misconduct
- Relative positions of the harasser and complainant
- Previous allegations or findings against the harasser
- Requested punishment by the complainant and previous punishments for the same behavior
Creating a positive, inclusive culture can go a long way towards preventing incidences and allegations of harassment. But it is equally important to take any allegations seriously, establish standardized approaches towards handling cases when they come up, and to take swift and meaningful action.
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Few issues employers face are as nuanced and potentially damaging as sexual harassment. Especially in light of the new law and changing culture, it’s important to get every aspect of your workplace harassment policy and procedures exactly right. Needless to say, we can’t cover it all in one blog article.
That is why we are holding a free and informative webinar on March 31st to educate employers and HR professionals about how to ensure compliance in light of the new laws. Our first panelist is Heather Bailey, a partner at SmithAmundsen’s Labor and Employment Group and an expert in discrimination, employment, and labor lawsuits, negotiations, and mediation. Heather will be joined by Launchways’ own HR Client Manager and expert in all things human resources, Karina Castaneda.
Heather and Karina will outline how to create an effective and compliant training program and adapt to the other clauses of the Workplace Transparency Act. The presentation will be followed by an in-depth Q&A so Heather and Karina can help you address your specific challenges and concerns.
Save your seat at the webinar today!
In June 2019, Illinois became the 11th state in
the country to legalize the use of recreational marijuana. This January, that
law went into effect and was met enthusiastically by Illinoisans: newly legal
dispensaries did $10 million in business in the first week alone.
Although it is often viewed as a legal matter affecting
individual citizens, legalization introduces numerous complications and
concerns for employers. While employers can still regulate the use of marijuana
in the workplace, legalization has made enforcing those policies much more
difficult and employers risk compliance violations if they overstep their
Whether you are a business owner or HR professional, you are probably already grappling with the effects of Illinois marijuana legalization. At Launchways, we know that our clients certainly have. So, we decided to bring in a legal expert and our in-house HR expert for a free webinar on navigating legalization in Illinois. We hosted the webinar on February 19th but you can still stream it on-demand anytime.
We want everyone to benefit from
the advice that our experts gave during the webinar, so let’s take a look at
the key points covered during the lively session.
- Webinar Overview
- Legalization Details
and Key Distinctions
- What can employers legally
do from a compliance standpoint?
- Compliance Concerns
On February 19th, HR
leaders from across Illinois tuned in for a presentation by two industry
experts.Our first panelist was Heather Bailey. Heather is a partner in
SmithAmundsen’s Labor & Enforcement Practice Group and has practiced in
employment and labor counseling and litigation for 18 years. She
counsels on day-to-day operations, human resources, and management decisions
regarding employees, practices, and policies. In short, she is an expert in
navigating employers through compliance issues and helping them create
effective and compliant employee policies.
The second panelist was Launchways’ HR Client Manager,
Karina Castaneda. Karina is a seasoned HR professional with over 15 years of
experience working in employee benefits, performance, and staffing. She helps
Launchways clients with all of their compliance questions and concerns and
provides them with strategic advice regarding talent management.
Needless to say, both panelists know the ins-and-outs of
compliance and effective employee management. And they proved full of valuable
insights into effectively responding to marijuana legalization in Illinois.
Legalization Details and Key Distinctions
To start the webinar, our panelists went over the specifics
of what the Illinois legalization law, officially known as the Illinois
Cannabis Regulation and Tax Act, does and does not do.
The Act made recreational consumption of marijuana legal
throughout Illinois and enshrined marijuana as a legal substance that employers
can not regulate outside of the workplace as part of the Illinois Right to
Privacy in the Workplace Act. The fundamental consequence of legalization and
the modification of the Right to Privacy Act is that employers’ enforcement
strategy needs to change from regulating use or consumption to regulating
intoxication. Luckily, our panelists provided clear guidelines for how to
effectively make the shift.
What can employers legally do from a compliance standpoint?
Employers can still take action against employees for being
intoxicated in the workplace from marijuana just as they can for alcohol
intoxication at work. Where things get tricky is that there is no such thing as
a “breathalyzer” for marijuana. Your current drug testing policies will likely
catch general drug use, but cannot pinpoint real-time intoxication,
making them an ineffective enforcement tool that will expose you to compliance
and lawsuit liabilities if you try to use them as the sole basis to prove intoxication
As Karina outlined during the presentation, the law does not
prohibit employers from regulating the possession, use, or distribution of
marijuana in the workplace. So, employers can treat marijuana much as they
already treat alcohol in the workplace, just with a slightly different
enforcement strategy. Specifically, they should establish clear intoxication
standards based on a combination of drug testing and document reasonable
suspicion signs. And, says Karina, employers should update their policies to
clarify the company’s stance on marijuana and the consequences of using the
substance at work.
Heather delved deeper into effective and compliant
enforcement of a zero tolerance workplace drug policy. Specifically, she
emphasized the importance of establishing a good faith belief in intoxication
as the grounds for any disciplinary action. She advised employers to provide
concrete reasonable suspicion checklists and train managers on how to identify
symptoms and record them using the checklists. Importantly, drug testing should
be used to support these checklists but not used as an enforcement tool on
Compliance Concerns from Legalization
Our panelists explained that employers need to tread
carefully when pursuing disciplinary action against impaired employees in light
of legalization. In addition to relying on a good-faith belief in intoxication
and reasonable suspicion checklists, Heather emphasized that employers must
allow employees the opportunity to contest the allegations to avoid compliance
issues or potential grounds for lawsuits. However, the burden lies on employees
to prove that they were not impaired so long as the employer has provided
reasonable grounds for disciplinary action.
Heather also explained that because the Act protects
marijuana use outside of work hours and while not on call, employers have to
tread carefully so that they do not give even the appearance of discriminating
against employees for using marijuana in their free time. That means that you
cannot refuse to hire, terminate, or otherwise treat employees differently
because of their perceived marijuana use so long as they are not using it at
work. Similarly, you may face lawsuits if you take disciplinary action that is
not based on a good-faith belief in actual impairment.
Both panelists cautioned employers against the inconsistent
or uneven application of drug testing policies given the additional
discrimination risks introduced by legalization. If drug testing seems targeted
and is not based on recorded reasonable suspicion, you may face discrimination
lawsuits. And across the board, clarity is your friend: make your drug policy
and enforcement language as clear and explicit as possible and communicate
changes to managers and employees.
Heather finished her presentation with a list of
best-practices that employers should follow, including:
- Have a Zero Tolerance drug policy
- Educate employees on your company’s stance on
- Have an ADA process for medical marijuana users
- Update job descriptions for safety-sensitive
- Train, train, train management
- Do not rely on drug testing alone to prove
Karina outlined how these changes affect your human
resources policies, advising employers and HR professionals that they should:
- Evaluate current drug testing policies,
including pre-employment testing, general testing, and post-accident testing
- Update employee handbook with a clear policy
that states the company’s stance on cannabis use
- Notify and train managers on policy updates in
light of legalization
- Enlist outside help for areas of confusion or
when additional assistance is needed to update policies or train employees
Stream the Webinar for More Valuable Insights
In this article, we covered the general overview of the panel’s advice to employers and HR professionals. But addressing the effects of cannabis legalization in the workplace is such a complex and important topic that it is best to hear from the experts themselves. Stream the complete webinar on-demand anytime here.
Do you need help ensuring your drug policy and testing procedures are compliant? Launchways offers a free handbook and employer policy review. Request your free handbook review today.