The last month has been interesting, dramatic, and stressful as the country has taken small and large measures to limit the spread of COVID-19. Employers nationwide are struggling with how to deal with these changes. Below are answers to some frequently asked questions as well as links to several resources that employers may find helpful. More information is available on the HR Support Center and can be found by typing COVID-19 or coronavirus into the search bar.
What am I obligated to do, legally?
There aren’t any universal employer responsibilities that crop up as soon as something is declared a pandemic. That said, pay attention to federal, state, and local authorities to see if they are rolling out benefits or prohibitions that you need to be aware of. For instance, Colorado passed an emergency paid sick leave rule for certain employees, and Oregon has banned all gatherings larger than 250 people, both of which may affect employers directly.
What should we be doing to reduce risk?
These are fairly common-sense answers, but they bear repeating:
Can we send employees home if they are symptomatic?
Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 (e.g., fever, cough, shortness of breath) should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute.
Note: Non-exempt employees may be entitled to a few extra hours of pay if you’re in a state with reporting time pay, but this cost will be well worth it to maintain the safety of the workplace. You can check for state law by searching for reporting time pay <your state> on the HR Support Center.
What if my employee discloses that their family member or roommate has COVID-19?
Our recommendation is to follow guidance from the Centers for Disease Control and Prevention (CDC). Employers should ask employees who live with someone confirmed to have COVID-19 to notify a designated HR representative or their supervisor as soon as possible. The employer and employee should then refer to CDC guidance to assess risk and determine next steps—see Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management. If the employee is able to work from home, you may require that they do so.
Do any leaves apply?
Whether FMLA or a state family and medical leave or insurance program will apply to a particular case of COVID-19 will be fact-specific. Even if FMLA or state leaves do not apply, though, we would recommend that employers treat leaves related to this illness as job-protected, both for legal reasons and because it’s the right thing to do. If you’re in a state with a sick leave law, that will apply if the employee is sick, a family member is sick, or (in many states) when an employee is told to stay home by a public health authority.
What if I have a fearful employee who refuses to come to work?
You should be prepared for employees who express anxiety about coming to work and evaluate any request on a case-by-case basis. Consider alternative arrangements such as working from home. It may be that they are most concerned about using public transit, in which case you may be able to find (and possibly pay for) an alternative. If their concern is a crowded workplace, perhaps you can change their hours.
If the nature of the employee’s job doesn’t allow for working from home, and there is no reason to believe that coming to work poses a real threat, reiterate the steps they can take to keep themselves safe from contracting the virus and explain the proactive steps you are taking to keep infection risk low in the workplace.
Employees who are immunocompromised or have other relevant disabilities may be entitled to a reasonable accommodation under the ADA, such as working from home or taking a leave if working from home is not possible.
How do I make a work from home policy?
Although some employers will be comfortable sending everyone home with their laptop and saying, go forth and be productive, most will want to be a little more specific. A good work from home policy will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses.
For instance, your policy might require that employees are available by phone and messaging app during their regular in-office hours, that they meet all deadlines and maintain client contacts per usual, and that they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.
You’ll also want to specify how expenses related to working from home will be dealt with. If you don’t expect there to be any additional expenses involved, communicate this. You don’t want employees thinking this is their chance to purchase a standing desk and fancy ergonomic chair on your dime. That said, you should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses, but it’s a good practice to cover such costs even if it’s not required by law.
You can find a template Work From Home Policy in the Policy Library on the HR Support Center.As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
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