COVID-19 and the resulting pandemic has substantially impacted organizations. As the country embraces for the impact of a second wave, it will continue to change the way we work. Even if temporary, COVID-19 will also continue to force the evolution of employment laws, rules, and guidance.
To help your organization navigate the changes, and prepare for this next wave of the pandemic, we have created a list of policies you should consider when updating or developing your best practices in order to help minimize COVID-19 risk for your organization.
COVID Paid Leave Polices for Emergency Paid Sick Leave and EFMLA
In response to COVID-19, Congress, States, and Municipalities have enacted Paid Sick Leave Laws. Specifically, in April 2020, Congress enacted The Families First Coronavirus Response Act (FFCRA). Set to expire on Dec. 31, 2020, the FFCRA requires employers with under 500 employees to provide Emergency Paid Sick Leave (EPSL), for employees affected by COVID-19. The FFCRA mandates that these “covered employers” give employees time off for COVID-19-related matters, such as getting treatment for the illness and taking care of children whose schools or daycares are unavailable due to the pandemic.
FFCRA also requires that covered employers must post a notice of FFCRA Employee Rights in a conspicuous place at their businesses. The notice requirement may be satisfied by email or direct mailing to employees or posting notice on an employee information website, which can be internal or external.
States such as California, Colorado, Washington, and New York and Municipalities such as Los Angeles and San Francisco, have passed their own paid leave laws which may impose additional requirements beyond those contained in the FFCRA.
The enacting of the FFCRA also created the Temporary Expanded Family and Medical Leave Act (EFMLA). The EFMLA expanded Family Medical Leave Act (FMLA) protections by extending protections to eligible employees who are unable to work or telework in order to care for a minor child whose school or childcare provider is closed due to COVID-19.
EFMLA requires covered employers to provide up to 12 weeks of job-protected leave to eligible employees, with the first two weeks unpaid under EFMLA. However, for those first ten days of EFMLA, the employee may elect to use unused vacation time, sick leave or Emergency Paid Sick Leave under the FFCRA. Regular employees (not Temporary or Seasonal) who have worked for at least 30 days are eligible for EFMLA.
Covered employers may be reimbursed in the form of payroll tax credits for all qualified wages paid under FFCRA.
COVID Travel Policy Considerations
To help reduce the spread of COVID-19 and to protect employees, organizations may add temporary changes to their travel policies such as imposing restrictions on business travel and screening employees who return from travel.
Business Travel Restrictions
Business travel restrictions may include anything that fits your organization: from a complete travel ban, ban on travel to certain locations, banning non-essential business travel, or allowing business travel after conducting risk assessments.
Screening Employees
If your organization does allow business travel you may conduct screening of return employee travelers. Screening may include health questionnaires, employee temperature checks, and COVID-19 testing. Generally, under the American’s with Disabilities Act (ADA) the screenings listed would equal a medical exam. The ADA specifically states that any test or procedure intended to gather information about the health and physical or mental impairments of an applicant or employee is considered a medical exam. The ADA prohibits medical exams unless they are job-related and consistent with a business necessity.
During COVID-19, the ADA is allowing employers to screen employees for COVID-19. Employee screening may include:
- Asking employees health-related questions
- Sending employees home if they think they show COVID-19 symptoms
- Taking employees’ temperatures
- COVID-19 testing
Such screening is allowed because, if employees entering the workplace have COVID-19, they will pose a direct threat to the health of others. The ADA has stated that this employee screening is only allowed as long as all medical information gleaned from the screening is stored in confidential medical files, separate from the employee's personnel file.
Personal Travel
Organizations need not place restrictions on employees’ personal travel as such restrictions may not be necessary nor legal. Many states’ governments, like Connecticut, have enacted a 14-day, self-quarantine order for return travelers. In addition, Connecticut requires travelers to complete the Travel Health Form prior to or not later than the day of return to Connecticut. Thus, the need to limit travel is redundant. Placing restrictions on employee’s personal travel may be in violation of state law, some states have enacted privacy laws which prohibit employers from taking employment related action based on an employee’s lawful off-duty conduct. Travel is a lawful outside of work conduct and limiting may prove detrimental to the organization. To learn more about this, see our Connecticut Self Quarantine Guide for Travel.
However, instead of placing restrictions on personal travel it may be more prudent for organizations to require employees to inform them of anticipated personal travel. Under OSHA’s general duty clause, each employer must provide employees a place of employment that is free from recognized hazards that are causing or likely to cause death or serious physical harm to other employees. Consistent with this clause employers may impose policies that require employees to notify employers of personal travel outside the region, or to COVID-19 hotspots, so long as such policies are applied to all employees in a non-discriminatory manner. Once informed of personal travel employers may impose a 14-day quarantine, telework when appropriate, and/or screening.
Health and Safety Policies for Returning To Work During the COVID Pandemic
When your organization is ready to welcome employees back to your office locations creating a return to work/health and safety policy will establish the when, where, and how employees will function in the work place as well as lay out guidelines on what measures the organization and its employees will take to protect against the further spread of COVID-19.
Employers may require employees to adopt infection-control practices such as regular handwashing and wearing Personal Protection Equipment (PPE).
Organizations should note when an employee has a disability and needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent any undue hardship.
Return to work policies should include information on which employees will return to the office and when. If feasible, limiting the number of employees in the office at any given time will help comply with social distancing. Ways to limit the number of employees may include hybrid working schedules, certain employees or teams in the office on certain days or putting employees on varying shifts. They may also include limiting visitors, social distancing, use of common areas, and implementing cleaning guidelines.
These policies may also include information restricting employees who have COVID-19 symptoms, who have come into contact with someone known to have, suspected to have, or has ultimately tested positive for COVID-19 from coming to work.
When creating return to work / health and safety polices, employers should consider that OSHA inclusion of COVID-19 cases are recordable and reportable. In May 2020 OSHA provided that nonexempt businesses must record COVID-19 cases if an employee is infected as a result of performing their work-related duties and all of the following are met:
- The case is a confirmed case of COVID-19
- The case is work-related, as defined by 29 CFR 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7
COVID-19 cases are reportable if the employee contracted COVID-19 from performing work-related duties dies or is hospitalized as an in-patient.
Telework
As COVID-19 spread across the U.S. many organizations began leveraging telework arrangements. Telework is when an organization allows for an employee to work in an approved alternate work location.
When creating a telework policy, it is important to include the following:
- Employee eligibility
- Duration of telework agreement
- Equipment guidelines
- Equipment that the organization will supply and an agreement from the employee to protect employer equipment in accordance employer guidelines
- If an employee provides their own equipment, the employee is responsible for servicing and maintaining it.
- Employee work schedule
- Employee payment
- Include language stating that the employee’s salary, benefits, travel entitlements and insurance coverage are not impacted by the telework agreement.
- Liability verbiage
- Include that the organization is not liable for damages to an employee’s personal or real property during the performance of assigned work, or while using the employer’s equipment in the employee’s residence.
- Operating costs
- Include that the organization is not responsible for operating costs, home maintenance, or any other incidental costs (e.g., utilities) associated with the use of employees’ residence(s)
- Other employee acknowledgements
- Include that the employee understands his/her supervisor must approve overtime work in advance. Verbiage should include that the employee also agrees that failing to obtain proper approval for overtime work may result in his/her removal from teleworking and/or appropriate disciplinary action.
In addition to a formal telework policy, an organization should require a telework agreement be signed by both the organization and the employee. The telework policy should provide general guidelines and the agreement provide specifics related to the employee. Each telework agreement may be different for each employee engaged in telework, but having those specifics set out and agreed to by both the employee and the manager helps provide guidelines, metrics, accountability and legal protection should the relationship sour or the employee need to be terminated.
Editing larger policies, such as your employee handbook, may create an unnecessary burden on your Human Resources department. Many of the polices you create are reactionary to the changing laws and many will expire, or will be set to expire, a specific guide that you may amend or rescind when needed will be most efficient while allowing you to effectively reduce potential risk.
As your organization creates policies, consider placing them in a cohesive COVID-19 Pandemic Plan. Contact us today to understand how The Human Resources Consulting Group’s Business Partners can craft a custom Pandemic Plan for your organization.
Leverage these tips to ready yourself and your organization for the pandemic’s second wave and let our HR consulting team know if you have any questions.
