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1. What do I do if my employees don't want to come back to work?
It depends on why they are not coming back to work. If the employee refuses with no explanation or reason, ask the employee for a reason. If none is given, then the employee is voluntarily separating from employment or terminated (refer to your policy). However, if the employee or a family member has a health-related issue impacting their ability to return, you must determine if the employee is protected under applicable law (i.e. Americans with Disabilities Act (ADA), Fair Employment and Housing Act (FEHA), injury or illness, Emergency Family Medical Leave, Emergency Paid Sick Leave) requiring a leave of absence or other forms of reasonable accommodation. If there is a child care related issue also look at the new emergency leaves as well as school activities leave.
2. What if my employee doesn't want to return to work because they are earning more money on Unemployment Insurance?
Some workers don't want to return to work because they're earning more money on enhanced unemployment benefits than when they were working for your company. Notify your employees in writing that there is work available and the effective date that work is available. Any refusal to return to available work should be documented, and employers can inform employees that a refusal to return is a voluntary resignation. Document that you offered the employee an opportunity to return to work and that this offer was rejected. Getting an employee's refusal in writing via text or email is also highly recommended. Process the Notice of Change in Relationship as you would any other separation from employment — noting either resignation or termination.
3. What if my employee says they are afraid to return to work?
Fear of the virus is on the mind of most employees being called back to work. People might say, "I'm afraid I will get sick at work and bring it home to my family." In the notice to employees that there is work available, employers should outline all actions being taken to comply with federal, state, and local laws to ensure a safe and healthy workplace such as cleaning protocol, staggered shifts, social distancing, etc. And make sure that you have met all those safety requirements. Check your local city and county COVID-19 resource pages, as well as CDC and Cal-OSHA for guidance. Tell your employees additional training on these protocols will be implemented on their return.
4. What if my employee says that they are "immunocompromised"?
When an employee tells you that they are not willing to come back to work because they are immunocompromised you should now begin going through the ADA/FEHA process to determine what accommodations are needed to allow them to return to work safely. Request a doctor's note outlining any limitations and proposed accommodations such as providing the employee with a special mask, allowing the employee to work remotely or putting the employee on a leave of absence.
5. Am I allowed to take my employee's temperature?
Yes. Employers are allowed to ask about coronavirus-related symptoms and take the temperatures of employees under guidance from the Equal Employment Opportunity Commission (EEOC). The EEOC also permits employers to mandate that employees be tested for the virus before entering work under certain circumstances. Use caution when mandating testing as it is not always available — a release from an employee's doctor may suffice.
If temperature taking at the workplace is mandated, the time spent being tested and waiting for a test is considered part of the workday. Reminder, those records are confidential medical records that should be maintained so that only those with a legitimate right of access can see those files.
6. Should I require my employees to wear a mask?
The Centers for Disease Control and Prevention has recommended that individuals wear face masks "to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others." And many employers are making face coverings part of the work uniform for jobs that require physical proximity and for jobs in counties that have mandatory face mask requirements.
If you are requiring employees to wear face masks, as a best practice decision or because required by a state or local law, you should provide the masks or reimburse employees for the cost.
Again, check your local ordinance. For example, both Los Angeles and Sonoma County require masks and require employers to pick up the cost of masks for employees.
Some executive orders that do not expressly call for employees to wear face masks still require employers to take a range of precautionary measures to protect personnel who are required to work onsite because the employer falls within a critical infrastructure sector exempt from stay-at-home orders or to maintain minimal business operations (such as payroll, or essential functions that support the rest of the workforce in teleworking).
7. What happens if an employee returns to work and they (or someone in their family) get sick?
Employers need to understand the Families First Coronavirus Response act which provides paid sick leave for people affected by COVID-19. Smaller employers (under 50 employees) need to understand their ability to be exempt from some of the paid emergency family leave requirements. You can find more information here.
If you're a CEA Member, take advantage of our Returning to Work Tool Kit! Our HR Directors compiled several resources to help employers make a smooth transition as they bring back their workforce.
Non-members can purchase this resource from the CEA store for a limited time.
Courtesy of Russell Lookadoo, SPHR
President & Chief Strategist, HRchitecture
1. Why are we having this conversation?
· The COVID-19 (Corona, Novel Coronavirus) pandemic is an extraordinary circumstance with impact on the workplace. It is important that company leadership actively address the concerns of their employees and reduce speculation and misinformation. Leadership needs to be aware and comply with all employment laws.
Exposure Related Issues
2. Can I use a screening mechanism such as taking employee temperature?
· Yes when performed consistently and with positive intent to maintain a safe workplace. Employee privacy and confidentiality must be maintained. Therefore checking off those screened is ok. Recording the temperature should not be done visibly or in a non-confidential manner. The ADA restricts inquiries that an employer can make regarding an employee’s medical status unless the inquiry is job-related and consistent with a business necessity. The EEOC has indicated screening in this circumstance may meet that requirement.
3. Who should conduct the medical screening?
· Individuals in a management role should not be temperature takers. Instead, utilize an HR professional or consider outside resources such as contracting a CRNA to conduct the screening. Screening is not advised due to the lack of professional diagnostics and potential false negatives and results not related to COVID-19 such as seasonal allergies.
4. Do I have to provide notice in advance of any medical screening?
· Some states have very specific privacy laws requiring notice prior to or simultaneously with any screening.
5. Can I screen vendors, customers and other visitors?
· Yes. The advice for screening employees applies to non-employees on your premises.
6. How can I determine how risky an employee’s presence is?
· If any employee presents themselves at work with a fever or difficulty in breathing, this indicates that they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having the COVID-19 coronavirus is extremely low, it pays to err on the side of caution.
· Train leadership on the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.
7. Can I require an employee to leave the workplace?
· Yes, leadership should first take a collaborative approach. Remind the employee that you are asking them to leave. Try to make them understand the reasons why their departure is necessary to maintain the health and safety of the entire workplace. If there are benefits available such as paid sick leave, use of accrued vacation, or something else that may appease them, you should explain these benefits and how the employee can utilize them.
· If the employee still refuses to leave the workplace, you can consider (a) explaining that the employee is now trespassing on private property and if they do not leave you will be forced to call local law enforcement to escort them off the premises; or (b) terminating the employee for insubordination.
8. Can an employee refuse to work with another employee they expect to be contagious?
· Employers are obligated under the Occupational Safety and Health Act to provide a workplace free of known safety and health hazards and employees have a right to refuse work that is unsafe and unhealthy. Proper sanitary practices should be enforced. The company should educate employees on social distancing and hygiene practices. The company should reasonably accommodate requests. Employees cannot simply refuse to work, or to leave work without following OSHA defined processes.
9. Can leadership inquire if an employee has been exposed?
· Leadership can inquire if related symptoms are obviously presented. The employee can be required to see a doctor, however if required, the company must pay the expense. You cannot specifically inquire as to diagnosis, prognosis or treatment.
10. Can I require employees to self-report exposure and positive test results?
· Yes. However the results and any actions taken must be maintained confidential. You should encourage the employee to report by telephone and not report to work to limit contact.
11. What if an employee reports a positive test?
· Positively appreciate their coming forward. Ask for a list of other employees they had close contact over last 14 days and quarantine exposed workers. Notify impacted employees, vendors, customers without identifying by name. Take appropriate actions such as extra cleaning and reinforcement of social distancing. Communicate all actions taken.
12. Can I require a doctor’s note to clear to return to work?
· Yes when performed consistently. However if required, the company must pay the expense. Currently the CDC is advising that companies not require provider’s notes due to the heavy demand currently being placed on the health care system.
13. Are tests covered by health insurance? Are co-pays and deductibles being waived?
· Recently passed laws are addressing this issue outside of health insurance plans. This will vary by plan. Consult your health coverage provider or plan administrator.
14. How do I implement social distancing in my workplace?
· It is a good idea to brainstorm ideas specifically for your company then communicate centrally for consistency. Each area should not be creating their own practices unless they are in a unique situation. Some ideas are spacing workstations, staggering breaks and lunch periods and providing flexible hours for those reporting to work.
Remote Work and Quarantine Issues
15. Can I require self-quarantining?
· Yes when performed consistently and with positive intent to maintain a safe workplace. Non-exempt employees do not have to be paid; exempt employees must be paid their weekly salary if any work is performed in that week.
16. Can I require working at home or remotely?
· Yes. Follow any existing policies and practices you have in place. If this is new, be sure to articulate this is a temporary situational policy and not a policy to allow anyone to work from home without prior approval. Run tests for system capacity and security.
17. Can I send employees home?
· Yes, if you reasonably believe the employee could be a risk to their co-workers. You should act consistently and with positive intent to maintain a safe workplace.
18. If my community is under a shelter-in-place decree, can I require some employees to come to work?
· Yes, you can identify employees performing minimal basic operations and essential functions such as payroll, functions essential to facilitating other employees working remotely, and inventory and premises security. If your business is designated as an “Essential Business” the decrees generally not applicable. Social Distancing practices should be followed.
19. If an employee is allowed to work from home, do I have to extend this to all employees?
· No, the designation can be based on a business necessity. To manage Employee Relations impacts, leaderships should designate key jobs and non-key jobs without consideration of individual employees.
20. If an employee is required to work from home, does the company have to provide equipment and pay for internet access?
· The company is legally not required to provide equipment or pay for internet access. From an Employee Relations perspective and business operations this should be considered
21. How do I manage remote working employees?
· Be positive, supportive and treat your employees as responsible adults. Clearly establish results-based expectations. Define working hours and schedules. Check in multiple times daily. If customer contact is required emphasize professional standards eliminating distractions and background noise. Define and utilize collaboration software.
· Be clear about holding meetings away from work with other employees, vendors and customers.
Legal and Regulatory Issues
22. Are any employment laws or regulations suspended due to this emergency?
· Leadership must continue to comply with all federal, state and local laws and regulations unless specifically suspended or altered by those jurisdictions. You should consult with your legal advisors if you have any specific questions.
23. Do I have to comply with timekeeping, work breaks and other pay related laws?
· Yes, companies must comply with all applicable laws such as minimum wage, overtime, mandatory breaks, predictive scheduling, standby and show up or reporting pay.
· Time keeping is a challenge and clear procedures for recording time worked and breaks need to be communicated. Exempt employees must be paid their regular salary if any work is performed during the week. If an exempt employee does not work a whole day, the company can deduct a whole day pay.
24. Do I have to comply with Predictive Scheduling, Standby, and Show Up or Reporting pay?
· Generally yes. Some provisions may not apply if the operation cannot begin or continue due to a threat to employees or property or due to acts of God or other cause not within the control of the control of the employer. From an Employee Relations perspective, it may be best not to invoke these exclusions.
25. Can I require use of PTO or sick leave programs when employees are unable to work?
· You should act consistently with your PTO or leave policy and consider being more flexible. Flexibility may include waive waiting periods, allowing negative balances or implementing leave donation programs. Any regulatory paid leave regulations must be complied with.
26. Does COBRA apply?
· Yes, COBRA applies if the employee is terminated, It does not apply in layoffs or furloughs with an intention to return to work. If a recall does not occur the COBRA requirements apply.
27. Is COVID-19 exposure reportable for OSHA logs?
· You must record instances of workers contracting COVID-19 if the worker contracts the virus while on the job. The illness is not recordable if worker was exposed to the virus while off the clock.
28. Does the WARN Act apply?
· The WARN (Workers Adjustment and Retraining Notification) act has a specific section applies to “unforeseen business circumstances” that likely may apply. An important indicator of a business circumstance that is not reasonably foreseeable is that the circumstance is caused by some sudden, dramatic, and unexpected action or condition outside the employer's control. A government ordered closing of an employment site that occurs without prior notice also may be an unforeseeable business circumstance. Generally, there is no clear public policy on this issue, but some states have suspended the WARN act for this crisis.
29. How does the recently passed Family First Response Act impact me?
· The final details are still being ironed out and information should be obtained from official channels only.
30. If I shut down how soon must I get final checks to my employees?
· Some states have very specific requirements regarding final pay checks for terminated employees. However, if a business is temporarily shutting down because of a federal or local quarantine order, or even out of a precaution for the safety of the employees and customers, but it is only a temporary closure and the employees are not being laid off, employers are not required to issue final paychecks. Employees not working due to a suspension of operations can be paid on the next regular payday. A final paycheck is only required if the employee is being terminated or laid off.
31. Are employees eligible for unemployment benefits if I send them home or suspend the business?
· Most state unemployment insurance benefit regulations remain in place. Some states are waiving waiting periods and the looking for work requirements. For example, in most jurisdictions to be eligible for benefits the employee must be available and willing to work. Employers will most likely have their experience-based tax rate impacted.
General Employee Relations Issues
32. Can I prohibit personal travel to high risk locations?
· No, however if consistently applied, the company may require an unpaid self-quarantine before returning to work.
33. Can I require employees to travel?
· Yes. From an Employee Relations perspective, it is advisable to investigate technology-based alternatives such as video conferencing particularly if this involves travel to locations identified as high or moderate risk by WHO/CDC. Be aware that exposure contracted while on required travel may be subject to Workers Compensation liability. If travel to high risk areas happens, consider a paid self-quarantine period.
34. How do I deal with employees who are not appropriately dealing with affected co-workers?
· Employees are generally protected against any form of retaliation. These rules apply. From an Employee Relations perspective, while uncivil behavior and bullying are not generally illegal, any incidents should be dealt with quickly and emphatically.
35. Can I prohibit or limit work time spent discussing conditions?
· Leadership is prohibited from banning discussions of working conditions under the National Labor Relations Act. You can enforce the meeting of work requirements and minimizing workplace disruption. However Leadership should take a collaborative approach and must avoid discipling or discharging employees for exercising their rights.
36. How do I handle an employee who is asking to bring their children to work?
· Although this is a crucial issue with all the school and activity cancellations, this solution does not address the need for social distancing. There is no requirement for this. If allowed the Company needs to issue a policy stating that the company is not accepting a child supervisory position and is not providing childcare or instruction. Many states require proper licensing to operate a day care. It is recommended that you consult with your insurance company regarding accepting this liability.
37. What should leadership do proactively?
· Communicate, communicate, communicate. The communication needs to be kind, compassionate, and inclusive. The message should reinforce that we are all experiencing this together and we are in uncharted territory. If not in place, develop polices for attendance notification, remote working, telecommuting, children at work, workplace visitation, travel, workplace hygiene, communicable disease, absentee leaves, and general business continuity.
38. What resources can I access for this issue?
· I have access to tool kits through the Society of Human Resources that contains useful information.
· Recommended links:
o OSHA’s Guidance on Preparing Workplaces for COVID-19
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