Over the past few weeks, we’ve been doing a lot of talking and listening about one particular topic: COVID-19. HR and business leaders are all doing their best to address the situation in the best, safest way possible, but there’s a lack of clarity out there when it comes to what is recommended and what is required.
That’s why we decided to compile a list of the questions we’re hearing most and provide some answers to them in a centralized, easy-to-reference place.
Moving forward we’ll explore:
- How to approach employee health and safety in a way that is legal & compliant
- What you can and can’t do when it comes to a work-from-home policy
- What you can and can’t do when it comes to pay at this time
- How to approach the expanded FMLA leave requirements
- What you need to know about terminating employees at this time
- How to support your employees through unemployment insurance
Questions About Employee Health & Safety
Should we be working right now? Is this safe for our employees?
Based on guidance from the CDC and WHO, gatherings of people should be limited and eliminated whenever possible. In some states and counties, gatherings are restricted based on a specific number of attendees. It is also recommended that all people maintain a distance of two meters (about six feet) between themselves and all other individuals.
That means that unless you are an essential industry, you should not be maintaining standard, traditional office-style operations. That does not mean, however, that the work needs to grind to a halt. If you have the capacity to enable employees to do meaningful work from home, then it is safe and advisable to maintain the highest possible degree of operational normalcy that way.
What if we’re an essential business and employees are refusing to come to work?
This is one of the trickier hypothetical situations businesses are dealing with today. If you are a qualified essential business, you can continue operations more or less as usual. However, other federal, state, and local guidance – as well as personal fears and anxieties – could be reasonably pulling your employees in a different direction.
This scenario is most likely for employees who have a pre-existing health condition or are immunocompromised. To prevent discrimination claims, it’s crucial you provide such workers with access to reasonable accommodations to protect their health or paid leave if you feel accommodations cannot be made.
In the case of employees without pre-existing conditions, it’s important you hear their concerns about health and safety, do everything you can to keep them safe in terms of following guidance, providing PPE, etc. Only when those concerns have been squared away can you begin to address whether an employee is being noncompliant.
Can I send an employee home from work if I believe they are exhibiting symptoms of COVID-19?
Yes! In fact, the CDC recommends separating employees from the rest of the team and sending them home if they are exhibiting symptoms in the workplace.
If the employee feels strongly that they are well enough to work, you can set up a remote work program for them to continue their productivity while doing your best to protect essential workers in the office.
What if an employee is clearly displaying symptoms of illness but insists they are not sick with COVID-19?
The CDC and EEOC have both issued guidance advising employers to send employees home when they are exhibiting symptoms of COVID-19. Therefore, the best and safest approach is to send people home when they appear to be sick.
If an employee is displaying concerning symptoms but states they are related to allergies, asthma, etc., the safest course of action for your team and business is to send that employee home. Of course, if they feel well, you need to be sure you’re either connecting them with resources that allow them to work from home or offering relevant paid leave.
This particular issue may seem frustrating in the present moment, but an abundance of caution now (and some small inconvenience to a few) will go a long way to clarify the scope of the pandemic and enable the best possible business decisions.
How should I address employees who have sick family members/roommates/etc.?
CDC guidance recommends such employees contact a direct supervisor and/or HR to keep them apprised of the situation as soon as possible. To ensure that happens, you need to be sure your employees are familiar with the guidance and know who their relevant point of contact should be.
From there, you’ll need a consistent, fair policy to address how these employees should proceed. It’s reasonable to ask such workers to stay away from the rest of the team if possible, but you must offer them remote work opportunities or FMLA leave (see below).
If employees are calling out sick, can you ask them about their symptoms for your own internal COVID-19 response planning?
The short answer is yes, but it’s important to be careful. If you ask people to “defend” their sick-out, it can be construed as discriminatory, especially if the employee has a pre-existing health condition. However, you can ask them politely and let them know it’s to help guide your response plan.
Also, if you are gathering information about symptoms, it’s important to understand that it’s private healthcare information, which means the data must be confidential. The worst mistake a business could make at this moment would be creating a backlog of discrimination and HIPAA complaints.
Questions About Employees Working from Home
Can we enable certain groups of employees (departments, teams, roles, etc.) to work from home but not all employees?
Yes, as long as you are using non-discriminatory criteria. For example, you can enable your whole sales team to work from home without enabling work-from-home for your production workers, but you cannot base remote work opportunities on criteria like gender, age, disability, etc.
Do we need an official policy to address remote work expectations?
This isn’t a point of regulatory compliance yet, but a codified remote work policy is absolutely an HR best practice for any organization. When you have a remote work policy, it’s easier to monitor workers, assess their productivity, and hold them accountable.
Remote work policies need to address two main issues: communication expectations for employees and work enablement expectations that you will fulfill as the employer. It’s crucial that your remote work policy addresses meaningful enablement and isn’t just a list of employee-facing rules.
Questions About Closures & Pay Adjustments
Can we reduce pay due to the economic slowdown and loss of business?
You can, but you need to provide written notice and may not retroactively lower pay for hours already worked under the previous rate. You may not lower pay below federal, state, or local minimum wage.
If you work in a unionized and/or collective bargaining environment, you will need to speak with your lawyers and connect with union leadership before making or announcing any decisions about pay.
If we close our business down for a few weeks/months, do we need to continue to pay employees?
You only need to pay your nonexempt (hourly) workers for hours worked. That means, if your business is closed, you do not need to pay them for work that is not happening. However, if you are planning to reopen and continue to employ those employees in the future, you need to address their employment status in some way, either by continuing to pay them, allowing them to use banked vacation/PTO, or requiring them to take an unpaid vacation.
Exempt employees must be paid their salaries unless the business is closed and they are doing no work from home. During a closure, exempt employees may also use vacation/PTO time.
If we close temporarily, will our employees be eligible for unemployment insurance?
Unemployment regulations vary from state to state, so you need to consult your local laws. Most states have a waiting time of 1-3 weeks before benefits kick in, so it’s important to plan your closing in a way that ensures continuity of income for employees.
For in-depth information about Furloughs vs. Layoffs, please read our article: What is the difference between a layoff and a furlough?
Questions About Employee Leave for COVID-19
Which leave regulations apply to missing work at this time?
Depending on your situation, federal FMLA or other state leave frameworks will apply. At this time, best practice is to treat all leaves as job-protected to allow workers to protect their health, their families’ health, and the health of your business overall.
How are we supposed to pay for leave under the new FMLA extension?
The recent FMLA extension expanded requirements for thousands of medium-sized businesses around the country. At first blush, many people were scared about how businesses could possibly cover those expenses while facing an economic slowdown.
However, the Families First Coronavirus Act has built a variety of tax credits into the law for businesses to help meet these new burdens. While the picture is far from completely clear, it appears the federal government is willing to step in and help employers support their workers while maintaining the health of the economy.
For in-depth information about the Families First Coronavirus Act, please read our article: What is the Families First Coronavirus Response Act and how will it Affect Your Business?
The rapidly evolving COVID-19 outbreak has HR and business leaders scrambling for answers to pressing questions caused by various unknown factors. However, as we move into the third-week of our nationwide workforce response, some best practices and paths forward are finally becoming clear.
- If you’re still working a traditional office/storefront/etc., you need to manage your workforce in a way that protects everybody’s health
- You should be putting your efforts into keeping work alive via remote work, if possible
- It’s crucial to address employee needs, concerns, and fears in a way that is compliant and avoids unintentional discrimination
- You can reduce pay or close your business at this time, but you must do so in a thoughtful, well-planned way that gives your team members time to adjust
- FMLA leave and paid sick time expansion is presenting some additional challenges to business, but tax credits should offset costs in the long-run
How to Learn More
[Webinar] What Employers Need to Know About the COVID-19 Outbreak
Last week, Launchways hosted a webinar on the most crucial considerations employers must have in mind as the COVID-19 crisis unfolds. On the webinar we covered:
-Formalizing your COVID-19 strategy & response plan
-The difference between furloughs and layoffs
-The COVID Relief Bill HR6201
-Crucial FMLA & Sick Leave considerations
-What to do if one of your employees has COVID-19 or has been exposed to COVID-19
-Employee benefits considerations including telemedicine, COBRA, & STD