- Ensure that 100% of their workforce is vaccinated against the COVID-19 virus, with any of the emergency or fully FDA-approved vaccines; OR
- Receive a weekly negative COVID-19 test result from all unvaccinated employees prior to coming to work.
In addition to this vaccination and/or weekly testing requirement, employers must also provide paid-time off benefits for the time needed to get tested and post-vaccination recovery, if necessary. OHSA should release its ETS in the coming weeks, outlining the specifics of this new ruling and how to comply with its requirements, including information on payment responsibility for vaccinations and testing and the timeline for implementation.
There are many compliance concerns raised by this plan under ERISA, HIPAA, certain wellness program rules, and other regulations that will need to be contemplated by employers. Upon OSHA’s issuance of the ETS, we will provide further guidance and information on compliance with the requirements. We also recommend you reach out to your legal counsel for assistance. If you are a large employer and would like to discuss the above requirement in more detail or if you are a healthcare entity, federal contractor, or federal government employer and would like information on how the other pieces of this plan apply to you, please visit https://www.whitehouse.gov/covidplan/ or contact Launchways directly for additional HR and compliance support.
The global COVID-19 pandemic that has altered operations for nearly every business in one form or another is finally beginning to subside. Although concerns over continued spread and new variances continues, cases are trending downward and vaccinations are trending upward.
Because of these encouraging trends, many employers are now asking themselves what they should do in terms of getting their employees back to the workplace. Some businesses may choose to permanently allow some or all of their employees to work from home. However, many other businesses are realizing that it’s time to start making plans to bring their remote workers back to the office on a regular basis.
In this post, we’ll discuss some key things that employers should consider as they make decisions and coordinate the logistics of safely bringing employees back to work.
Specifically, we’ll talk about:
- Public Health Best Practices
- Acknowledging the Adjustment Period for Employees
Testing for COVID-19 in employees has been a very expensive task for most businesses throughout the pandemic. Most businesses have left the testing to their local health departments and encouraged employees who have felt unwell to go through the standard public testing process rather than providing on-site or direct-to-employee testing. Fortunately, this is changing due to recent advances in rapid testing.
Advancements in our understanding of COVID-19 have led to rapid, at-home antigen tests that can be taken by consumers without requiring a prescription from a physician. These tests cost far less that other testing methods, and provide a much more practical tool for employers to encourage regular employee testing.
Employers should work with their HR and legal teams to determine how to best encourage or require that employees receive the COVID-19 vaccinations. Some ideas for encouraging vaccination include:
- Be flexible with time off for employees who may need to temporarily leave work to receive the vaccine, or who may need to take time off to take a dependent to get vaccinated.
- Consider providing an extra day of sick leave for employees who experience side effects from receiving the vaccine. If possible, expand this benefit for employees who may need to care for one of their dependents who experiences vaccine side effects.
- Offer cash bonuses or other prizes for employees who choose to be vaccinated.
- Reach out to local health departments to see what educational vaccine materials they have that you could share with employees. This will eliminate the need for staff to create such materials, and you’ll know that the information is accurate.
Public Health Best Practices
Even though the pandemic seems to be nearing its end, the reality is that we will still live in a “new normal,” at least for a period of time. This new normal will require special attention to basic public health best practices to ensure that there is no chance of a late-stage COVID outbreak in your office. Employers should consider the following public health best practices as employees return to the workplace:
- Continue to encourage or require masks at the office. The CDC will most likely continue to recommend that masks be worn for several more months as the pandemic subsides.
- Invest in an improved ventilation system. Studies have shown that buildings with higher quality filtration in their ventilation systems can reduce the spread of COVID-19.
- Encourage hand washing and sanitizing. This can be done by setting up extra hand cleansing stations or putting up signage in restrooms and other common, high-touch areas.
- Promote physical distancing. Consider rearranging the setup of your office so that employees can work at least six feet away from each other throughout the day. If it makes sense given the layout of your office, tape directional arrows on the floor to decrease close interactions as people move around.
As an added bonus, these strategies should also keep employees safe from other illnesses, such as influenza, moving forward.
Acknowledging the Adjustment Period for Employees
Employers should remember how hard the transition was for many employees when they shifted to primarily working from home. The sudden lack of face-to-face interaction with coworkers, the juggling of at-home school for children, and the sharing of office space with spouses were challenging adjustments to make.
Unfortunately, transitioning back to in-office work will most likely come with similar challenges. Consider the following examples that can be anticipated:
- Employees will have to readjust to a daily commute, which can cause stress because of lost time during the day.
- Some employees who are more introverted may have a hard time reengaging themselves socially around the office.
- Simple office norms and etiquette that were long taken for granted might have to be relearned in some workplaces.
- After avoiding gathering of people for so long, there will be some employees who experience anxiety as they return to being physically closer to more people throughout the day.
Employers should ask for feedback from employees to determine other company-specific challenges that employees anticipate with returning to the office. Plans should be made to take appropriate steps to help employees manage these challenges as they readjust to working on-site.
The light at the end of the pandemic tunnel is near. Within a few short months, many business leaders will start to encourage or require their employees to return to working in-person at the office. However, there are some key things employers should consider as they make these organizational adjustments:
- Provide rapid, affordable COVID-19 testing for employees.
- Encourage vaccinations by being flexible with time off, offering cash or other prizes for employees who get vaccinated, and curating existing vaccination educational materials. Of course, HR and legal council should be involved with any such program to ensure there are no violations of health privacy laws.
- Implement public health best practices such as requiring masks, improving ventilation systems, encouraging hand washing, and promoting physical distancing.
Remember that there will be an adjustment period before many employees feel fully comfortable returning to the office. Consult with employees to learn what challenges they anticipate with returning to the office, and make plans to help them overcome those challenges as comfortably as possible.
Navigating all of the challenges and operational changes related to the COVID-19 pandemic has been difficult for both employers and employees. Thankfully communication between the two has played a pivotal role in keeping employees safe and healthy. Now, with the FDA having issued emergency use authorization for two vaccines, the long-awaited relief for COVID-19 is here. While the initial supply of vaccines has been allocated for people in specific groups, it’s important that employers begin planning for when access to the vaccine becomes available to the general public.
Research conducted by the Kaiser Family Foundation showed that 70% of Americans polled said they will get a COVID-19 vaccination. While many feel optimistic about the release of vaccines, the topic doesn’t come without challenges. Employers need to be diligent when considering things such as whether or not the vaccine will be encouraged or required and how they will get buy-in from employees who are hesitant about the idea.
This article covers the important questions employers need to ask themselves, as they navigate the legal risks and the logistics of employee vaccinations.
What to Communicate
When it comes to promoting and providing accurate information about COVID-19 vaccinations, employers play an important role, as many employees will look to their employers for this kind of guidance. The big picture that needs to be reinforced with employees is that getting vaccinated will likely be the driving force that allows for a safe return to work.
Employee vaccinations need to be lead with facts and transparent communication. Employee communication is the most important factor in seeing vaccination plans come to fruition. With that, as employers develop their plans for COVID-19 vaccinations, they must consider sharing the following information with their employees:
- General COVID-19 vaccine information:
- Overview of available vaccines and their differences
- Facts and myths about the vaccine
- How vaccines work
- Efficacy and safety
- Possible side effects
- Vaccination timelines from the Centers for Disease Control and Prevention (CDC), including distribution phases for targeted groups and the general public
- Vaccination timelines for the organization
- Organization vaccination policy
- Vaccination sites (whether at authorized clinics and pharmacies, or on-site)
- Vaccination costs (including potential paid time off for getting vaccinated or recovering from any side effects)
- Workplace COVID-19 safety precautions or protocols, such as continuing to wear a mask and avoiding close contact in the workplace
- Educational resources to learn more about COVID-19 vaccines
A thoughtful and proactive approach to employer communication efforts will undoubtedly be more effective than a reactive approach. Employers need to anticipate the most common vaccine objections and develop a plan for responding in a way that mitigates concerns and doubts. This should be done by providing accurate information, engaging with concerned employees, and offering educational resources on the vaccines.
It should also be stated that to provide continuity in what hesitant employees might be hearing about the vaccines, your messaging should also reflect what is being communicated by local health officials and healthcare providers. Point to research and guidance from the CDC and other public health experts, but keep in mind that CDC guidelines continue to evolve and are subject to frequent changes.
How to Communicate
The opinions and attitudes toward the vaccinations are certain to vary among your employees. It’s important for employers – as with any communication – to tailor their approach to their individual employees. An effective approach isn’t one-size-fits-all. Employers need to be mindful of this and conduct some research to better understand their employees. Depending on what your workforce looks like, you might consider things like, pretesting content ideas or making the information available in different languages if necessary.
Sticking to the Facts
There is a lot of opinion surrounding the COVID-19 vaccines, so it’s important that you stick to the facts and avoid using charged jargon or strong language. Building a strong case supported with science and data in concert with a sensitive and respectful tone will likely be more successful when communicating with employees who are unsure about getting the COVID-19 vaccine. Compassion and transparency will help to create employee buy-in and overall support of workplace vaccination plans.
Highlighting values such as unity and interconnectedness will likely be effective in communications as they motivate employees to act. Ultimately, the end goal here is to protect employees and make their communities safe from the threat of COVID-19. The pandemic has certainly taken a toll on most employees. By leading with values, you emphasize protection for the employee, their loved ones, and the coworkers around them.
Using Communication Channels
In order to best communicate with employees, employers should consider their existing communication channels and how they can be leveraged to relay information about the COVID-19 vaccination. Here are few tools that could help to build workplace confidence in the vaccine:
- Company intranet
- Fact sheets
- Meetings or town halls (including virtual town halls)
- PowerPoint presentations
- Social media
The overall goal of this effort is to reach all employees, so it’s important to note that information consumption differs between on-site employees, non-wired employees, and remote employees. The most effective communications strategy for informing and engaging employees is one that leverages multiple channels.
Just as important as what and how employers are communicating to employees, is listening to what employees have to say. It’s important that employers aren’t ignoring the concerns of their employees about the COVID-19 vaccines. Employers should identify a point person within their organization who can field and address questions or concerns and provide information in response. If the workforce is spread across multiple locations or working remotely, it is especially important that there is two-way communication between employers and employees. Not only is it important to stay in touch with how employees feel, but offering tailored content that addresses their concerns will help increase employee buy-in. Employers have an opportunity to demonstrate that they are truly listening to and care for their employees.
When to Communicate
Because the vaccines are out and already being administered to people across the country, the time to start communicating with employees is now. While it might take some time before the general public has access to the COVID-19 vaccines, it’s important to start planning with employees now. It’s all about starting the dialogue and meeting employees where they are. Use this time to be thoughtful and sympathetic to employee concerns.
Employers should start communicating that they are monitoring the availability of COVID-19 vaccines and developing a plan for when they become available to the general public while highlighting how it will have a positive impact on the workplace and other organization needs. Most importantly, employers must listen to and address the concerns of their employees to help build the necessary buy-in for the COVID-19 vaccinations.
For More Information
In addition to the considerations above, employers should consult employment law counsel to determine whether there are unique risks to consider for their specific organization and industry.
Employers are playing a vital role in helping promote COVID-19 vaccines. For more information on the pandemic and keeping your workforce safe and informed, be sure to check out our COVID-19 Resource Center.
Individuals, economies, and health care systems around the globe have been anxiously waiting for a COVID-19 vaccine. Fortunately, news from the vaccine developers is promising, and most reliable medical professionals agree that a vaccine will become widely available in the foreseeable future.
As exciting as this news is, employers might find themselves scrambling for answers if they are not prepared to handle the logistics and legality of providing the vaccine to their employees.
In this post, we’ll cover some key considerations for employers related to the COVID-19 vaccine:
- What governmental guidance has been (or will be) provided
- Legal and safety considerations
- Sorting out logistics of vaccine administration
Guidance has been issued by the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) in the past, although it hasn’t specifically addressed a COVID-19 vaccine. However, employers can still find value in this guidance.
In some cases, employers can require that their employees get vaccines. According to OSHA, employers can require that employees be vaccinated for influenza. However, employers must properly inform employees of “the benefits of vaccinations.” Further, OSHA states that employees can refuse to get a vaccination due to a reasonable belief that they have an underlying health condition that creates a real danger of serious illness or death.
It has not yet been determined if this same precedent will apply to a COVID-19 vaccine, but employers will want to keep an eye on this as more OSHA guidance is released.
The EEOC is more commonly known for enforcing the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). However, the EEOC has also issued guidance regarding vaccines in the employment context. In March of 2020 around the time that COVID-19 started being widely spread in the United States, the EEOC addressed whether employers covered by the ADA and Title VII can compel employees to receive the influenza vaccine. In this guidance, it was acknowledged that there was not a COVID-19 vaccine yet and more information would be needed before specific guidance could be provided.
However, the EEOC explained that an employee may be entitled to an exemption from an employer’s vaccine requirement based on a preexisting disability that prevents the employee from taking the vaccine. This would be considered a reasonable accommodation, and the employer would be required to grant the accommodation. If an employer believes that this causes undue hardship, they can dispute the exemption. According to the ADA, undue hardship can be defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation. However, you should always consult with legal counsel before taking this route.
Under Title VII, the EEOC also states that employees with sincerely held religious beliefs may be entitled to an exemption from a mandatory vaccination, which is considered a reasonable accommodation, unless it creates an undue hardship for the employer. Title VII defines undue hardship as a “request that results in more than a de minimis cost to the operation of the employer’s business.” It’s important to note that this is a much lower standard than under the ADA.
As a general rule of thumb, employers should do their best to encourage vaccination rather than mandating it. There are clear risks associated by mandating employees to receive any vaccine
Safety and Legal Concerns
Employers will be challenged to find the balance between determining how much risk to accept by allowing employees to not get vaccinated, and how much risk to accept by mandating the vaccine despite the exceptions that employees may try to claim. Allowing employees to go without the vaccine poses a safety burden to their coworkers. Trying to mandate a vaccine to employees who may claim a religious or health exemption carries the risk of lawsuits if not handled properly.
When trying to find this balance, employers will need to decide whether there are other precautions that can be put into place to protect employees, which may include social distancing protocols, requiring employees to wear masks at work, and leveraging telecommuting arrangements
If you as an employer decide to mandate employees to get a COVID-19 vaccine, you will need to be prepared for the challenge of determining if exemptions to that mandate are legitimate under ADA or Title VII. Of course, this should not be done without the advice of your legal counsel. Be prepared to make these decisions on a case-by-case basis.
You need to consider the possibility that legal claims may arise if an employee has an adverse reaction to the COVID-19 vaccine. Have a plan in place for this possibility before any employees receive the vaccine.
Sorting Out the Logistics of Vaccine Administration
Whether you decide to mandate that your employees get a COVID-19 vaccine or simply encourage them to do so, you’ll need to ask yourself the following questions:
- Will you hold on-site vaccination clinics? If so, where will you set up? What will the hours be? Who will administer the vaccines? What costs are associated with these decisions?
- Assuming that multiple versions of the COVID-19 vaccine will be available, which one will be used? Who will ultimately make that decision?
- Who will pay for the vaccine? Will it be covered by your company’s health plan?
- Will the company require or cover the costs of vaccination for the employee’s family?
- How long after the vaccine becomes available must employees receive the vaccine, if vaccination is mandated? This will be impacted based on vaccine availability.
Employers must navigate the inherent legal risks and logistics of mandating or encouraging employees to receive the COVID-19 vaccine. Some key considerations include:
- Understanding that the government allows vaccine mandates in certain circumstances, but also allows certain religious or health exemptions.
- Employers will need to weigh the pros and cons of vaccine mandates and the risks involved.
- The logistics of vaccine administration should be determined long before you implement a vaccination. Because it’s been stated that a vaccine will be available within the next several months, employers should start making these plans now.
We hope that this guidance has been helpful for you. As is the case with any complex health mandate for your employees, always have a qualified attorney review your plan to implement or encourage the COVID-19 vaccine to your employees.
As the COVID-19 situation continues to wear on, every school district in the country has been forced to make difficult decisions, many of which can easily be perceived as “lose-lose” due to the complexity of the ever-changing COVID regulations. Remote learning is certainly not ideal as it can force parents to stay home from work, and in-person learning comes with the obvious risks of exposing children and teachers to the virus.
Employers are caught in the middle of this issue as they try to understand the Families First Coronavirus Response Act (FFCRA or Act) and how it applies to their employees with school age children at home.
This post is designed to provide some guidance to the millions of employers who now face the dilemma of how to best approach this situation.
In this post, we’ll cover:
- What things CAN you do to better understand the situation that your employees find themselves in.
- What things you must NOT do while trying to make leave decisions because they violate the FFCRA or other regulations.
- Things to consider as you weigh the pros and cons of certain FFCRA-related decisions.
Green Light: Things You CAN Do
If you are an employer or HR administrator who is tasked with making FFCRA leave decisions for employees whose children are starting the school year, the first thing you need to do is understand the specific situation of each employee who submits an FFCRA leave request. Fortunately, there are some questions that you are allowed to ask and other pieces of information you are allowed to request from your employee:
- You are allowed to ask how old the employee’s child or children are. If the child or children are age 15 or older, you can and should require that the employee provide a statement or affirmation that there are special circumstances that cause the older child to need their care. If the employee is unable to make such a statement or affirmation, then you can deny their FFCRA leave if the children are over 15.
- You are allowed to request from your employee the name of their child or children’s school, place of care, or caregiver that is closed or unavailable due to COVID-19. In the case of a closed school, you can contact the school district to confirm plans that the school has made, whether it’s in-person learning, remote learning, or a hybrid option. Remember, FFCRA leave is not available for the parents of a child whose school is open for in-person attendance. If the child is home not because his or her school is closed, but because the parent has chosen for the child to remain home, the parent is not entitled to FFCRA paid leave.
- Some employees may ask about the possibility of bringing their children to the office with them. Depending on the nature of your workplace, this is a possibility that you may want to consider. However, you should consult with an attorney or trusted insurance broker that is familiar with the kind of licensing and insurance that would be required to do this.
Most importantly, try to keep an open channel of communication with your employees. If your employees can see that you are there to support them, they will be much more willing to discuss compromise and alternatives such as only requesting a few hours off each day in the morning or afternoon. Alternatives like this can still allow your employees to get significant work done – which can make a world of difference during these uncertain economic times.
Red Light: Things YOU CANNOT Do
Now let’s talk about the things you must NOT do while considering FFCRA leave decisions for your employees:
- You cannot ask an employee to look for different childcare if their usual provider is unavailable. An employee is entitled to leave if the child’s usual care provider is unavailable due to COVID-19 — they are under no obligation to look for alternatives, and any attempt on your part to require that would be an illegal interference with their right to leave.
- You cannot request FFCRA documentation from an employee until after the first workday of FFCRA leave.
- If an employee with children over the age of 15 provides a statement explaining that there are special circumstances that cause the older child to need their care, you are not allowed to dig any deeper into the situation.
- Independent sleuthing to verify what an employee tells you is not a good idea. Never do anything that might infringe upon your employees’ right to privacy.
Yellow Light: Weighing the Pros and Cons of FFCRA Leave Decisions
When making decisions about approving or denying employee FFCRA requests, always be sure to weight the pros and cons of your decisions.
In some instances, you may be tempted to terminate an employee if they are unable to work and do not qualify for FFCRA leave. Assuming that no other leave laws apply, termination may be an option. However, you may want to instead consider offering the employee an unpaid personal leave of absence or revisiting whether a flexible or part-time work schedule would be better than losing the employee entirely. Recruiting, hiring, and training are all expensive undertakings, so if there’s a way to keep an employee around — even if they need some time off — that is likely better for your bottom line.
Making the determination that a leave request is fraudulent is another situation in which you’ll want to spend considerable time thinking about your next steps. If you feel like you have enough evidence to believe a leave request is fraudulent, you have the option to deny it. However, there is significant risk in denying a request for FFCRA leave if an employee has provided the appropriate documentation. Further, you don’t want to discipline an employee who was acting in good faith and simply misunderstood the leave rules.
There are still many gray areas related to the FFCRA. The Department of Labor will be releasing more guidance in the coming days and weeks. Be sure to stop by our blog regularly as we will make future posts that highlight the most important things that employers need to know about the FFCRA.
However, there are things that you CAN do and things that you CANNOT do related to the FFCRA as we’ve discussed in this post.
- You CAN ask certain questions to ensure that your employees qualify for FFCRA leave.
- You CANNOT ask an employee to look for different childcare if their usual provider is unavailable. And never do anything that violates an employee’s privacy.
- As is the case in many aspects of managing your business, take time to weigh the pros and cons of FFCRA decisions. While you may be tempted to try to fight an employee leave request, consider the long-term costs and benefits of doing so.
Many businesses are preparing to transition to return to work in a continuously COVID-impacted world. Many states are starting to loosen COVID-19 related restrictions and open back up, and others are sure to follow suit.
Whether you already have a start-date in mind or do not know when it will be safe to bring employees back into the workplace, it is important to develop a return to work plan now to prepare your business for the inevitable reopening.
To help our clients and our community get back to work safely and effectively, Launchways held a comprehensive webinar on May 15, “Everything You Need to Know to Build a Return to Work Plan”. Our panel included experts in commercial real estate, human resources, executive management, and labor laws. They spoke for over an hour, addressing a staggering range of topics that employers will need to address to get back to work.
Luckily, we recorded the webinar and it is available to stream on-demand. We’ll share the link at the end of the article, but in the meantime, let’s take a look at each topic that our panelists addressed to get you started down the path to business as usual during the new normal.
Meet the Panel
Each of our panelists brought decades of valuable industry experience to the presentation. We were extremely lucky to field such an experienced panel, which included:
Bill Sheehy, Executive Vice President, CBRE: Bill is an experienced Executive Vice President at CBRE with a demonstrated history of being a top producing broker for almost two decades. Bill specializes in helping his clients through acquisitions, dispositions, lease negotiations, and more.
Heather Bailey, Partner and COVID-19 Task Force Member at SmithAmundsen’s: Heather Bailey is a partner in SmithAmundsen’s Labor & Employment Practice Group. For 18 years, Heather has concentrated her practice in employment and labor counseling and litigation, including discrimination and trade secret/non-compete lawsuits, FLSA class actions, labor negotiations and arbitrations, affirmative action, OFCCP/DOL audits and FINRA issues. She counsels on day-to-day operations, human resources, and management decisions regarding employees, practices, and policies.
Jim Taylor, Founder and President, Launchways: Jim is the CEO and Founder of Launchways. At Launchways, Jim focuses on bridging the gap between Finance and HR. He helps Finance leaders take a data-driven approach to Human Resources and Employee Benefits, allowing them to have more productive relationships with their HR team members. Jim is passionate about helping fast-growing businesses approach the people side of their business strategically.
Building a Return to Work Plan
Create a Cross-Functioning Steering Committee
The first step in building your return to work plan is to assemble your team. That means putting together a cross-functioning steering committee headed by a program lead who will engage the individual players and keep the ball rolling. While the whole leadership team needs to be involved in the decision-making process, giving one member ownership over the project will help keep your efforts focused and productive.
Next, get everyone involved in your organization: business leadership, finance, HR, IT, operations, and management. Not only will their voices be useful in developing an effective plan, but you will need their involvement to implement that plan.
Finally, engage your key partners including your corporate real estate partner, third-party providers for any outsource functions, as well as HR and benefits partners. Your property manager or building owner is a very most important partner to engage in your planning process as facility readiness is a key part of the reopening process.
Once you have everyone at the table, it’s time to put together your plan.
Before you bring your team members back into the workplace, you have to make sure that it is a safe environment free of the risk of infection. Jim and Bill explored how you can get your facilities ready for your team to return to work.
Your facility readiness responsibilities begin as soon as your employees walk through the front door. Work with your commercial real estate partner to establish shared policies for common areas of your building including elevators and entrances to the building and your offices. Elevators are going to be a particular pain point that you will have to figure out before opening.
Next, assess the cleaning requirements for different spaces in your office. Some may need more, or different, attention than others. Consider which areas are high-traffic or high-touch. These areas may need daytime cleaning, which you will have to work into your budget.
Finally, establish a space configuration plan that meets enterprise distancing standards. This plan should include:
- Desk policies
- Conference room policies
- Gathering space policies (break rooms, kitchens, etc)
- Access and traffic flow policies
Allowing Employees to Return to Work
After the space is ready to receive them, it’s time to start bringing employees back into the workplace. As part of your Return to Work Plan, you will need to determine who will come back into work and when. This depends partially on the state’s phase of reopening as well as federal guidelines.
When establishing this plan, employers need to differentiate between essential and non-essential workers, particularly when it comes to in-person work at a non-essential business. For example, in Illinois, non-essential businesses are required to maintain a remote work policy for everyone except for “Minimum Basic Operations” staff. You should also consider protective measures for those at higher risk, including telework and tasks that minimize contact.
Heather also explored the legal issues around requiring employees to return to work. The short version is that businesses that have been authorized to reopen and are implementing proper safety precautions can require their employees to return to the workplace. She also reminded employers that employees who choose not to risk losing their unemployment benefits. If employers are struggling with employees resisting returning to work rather than collecting unemployment, they can report those employees to the unemployment office. However, you must maintain a safe workplace to assert these rights.
That is why it is important to train your employees on proper distancing, cleaning, and safety best practices. You must also provide employees who will not be able to maintain 6-foot distancing with appropriate PPE, at your cost. And be ready to make accommodations for individual employees or customers who will not or cannot use PPE because of a disability or religious belief. There may not be a reasonable accommodation that you can make but you have to go through the process to protect your legal interests.
Heather also explored additional concerns including transportation and childcare. While employers are not responsible for employee’s transportation to and from work, they should do what they can to minimize the risk and assuage fears through proper education and scheduling. Employers also need to be prepared to respond to requests for remote work or time off to take care of children, including extending remote work or offering flexible scheduling or a leave of absence. Bearing in mind that employees who refuse to return to work because of childcare requirements may be eligible for benefits under the federal CARES Act, including unemployment.
The bottom line was that employers should try to be creative and think of possible solutions to each of these issues before they open up because these issues will come up.
Employee Health Screenings
Heather explored the legal and practical aspects of employee health screenings, a key area of concern for many employers considering their return to work plan.
She started by laying out the legal protections for employee health screenings. The EEOC has issued guidance on temperature and symptom checks before letting employees return to work. In the era of COVID-19, temperature checks also fall under “job related and consistent with business necessity” mandatory employee medical testing as allowed under the Americans with Disabilities Act.
That being said, it is important to notify your employees of temperature and symptom screening measures in advance. It’s also important to emphasize that the purpose of the screenings is solely to protect employees from exposure to COVID-19 and not to detect any other illness, impairment, or disability. Finally, make it clear that it is not meant to be, nor is it, a substitute for a medical diagnosis.
Keep in mind that the laws and guidelines around testing may change over time, so plan to keep up-to-date and revise your policies as necessary. And as always, be prepared for requests to be exempted from screening due to medical or faith-based reasons. You may also have to compensate employees for time spent getting screened or waiting to be screened. While federal law likely does not require compensation, state laws may and employees are already filing lawsuits against their employers seeking compensation for time spent on screening.
Lastly, make sure that you have the equipment, personnel, and protocols in place before you start opening up. You should equip your team members who will be conducting the screenings with proper training and protective equipment. They are going to be on the front lines, protecting your workplace and team from exposure and risking exposure themselves in return, and should be treated as such. And you should minimize the risk of spreading the virus through screening. Meaning that touch-free thermometers and other safety measures are a must.
Establish a Timeline
Once you know how you are going to ensure that your employees return to work safely, it’s time to set a timeline for the transition back to work. This should be a week-to-week plan starting when the criteria for reopening are met. Bill presented a sample 90-day timeline based on CBRE’s 55-page reopening playbook:
- Opening Criteria Met: the clock starts as soon as the community readiness criteria are met and reopening plans are in place
- Week 1: “Readiness Teams” return to make final preparations
- Week 2: Employees who can work remotely continue to do so, while those who cannot start to return to the workplace
- Weeks 3-4: Select teams/employees return to the office, continued guidance to work from home if possible, return to the office is not mandatory
- Week 5: Refine approach based on employee return levels and ability to maintain safe distancing and other safety practices
- Recurring Status Review: Recurring 30-45 day status review process, updating guidance and processes as necessary
Our panel explored a range of further topics that employers will have to consider when allowing their employees to return to work. These topics included:
Potential discrimination concerns when it comes to implementing and enforcing new policies. Policies tend to be framed relatively loosely which leaves room for often-unintentional discriminatory enforcement. Furthermore, remind employees that it is illegal to harass or discriminate against coworkers based on race, national origin, color, sex, religion, age, disability, or genetic information. There continues to be xenophobia and discrimination directed towards Asian Americans due to COVID-19 and it is your responsibility to advise supervisors and managers of their role in watching for, stopping, and reporting any harassment.
Issues around hiring including your rights to delay the start date or withdraw the job offer for a new hire who tests positive for the virus and cannot safely enter the workplace. However, being a high-risk individual is not grounds for postponing the start date or withdrawing a job offer.
Potential lawsuits and the current state of workers compensation, particularly recent developments in the Illinois Workers’ Compensation Commission rules. Industry associations successfully got the Commission to withdraw its emergency rule that allowed any employee who tested positive to receive worker’s compensation. But employees can still receive worker’s compensation if they show that they were exposed to the virus through their work. Luckily, Heather outlined a Worker’s Compensation Questionnaire that will help employers protect themselves from fraudulent claims.
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