Getting Back To Work: Guidelines in The Time Of Covid-19
By: Dawn Ross
As restrictions continue to ease, it is important for employers to be aware of the ever changing and evolving requirements and expectations to keep your staff and the public safe.
A. Guidelines for Keeping Staff and the Public Safe
1. Health Check App. The CDC and OSHA recommend that all employers consider some kind of health check for employees coming into the workplace (other than home). The Sonoma County Health Orders instruct all employers to create policies that require employees to complete a health check when they come to work.
Sonoma County has paid to develop this health check app that is easy to use and involves a very minimal invasion of privacy. The app is available on the Apple App Store and Google Play store. Here is more information. According to the Sonoma Business Resources Guide, use of the app is required by all businesses in Sonoma County. If employees object to using the app, there are alternatives available.
2. Protocols: Best Management Practices Per Industry. The Sonoma County Economic Development Board, Business Resources website has created helpful guidance to mitigate COVID-19 infection and spread which is tailored by industry. Please see this link for a list of the industries and the associated protocol. The Best Management Practices were created with help from local leaders in each relevant industry.
Sonoma County requires any business that is re-opening to self-certify that they are implementing these practices. The self-certification is found here.
3. Consider an Assumption of the Risk Notice for Customers. Many companies are adopting an Assumption of the Risk policy for customers who visit their property. The state has not weighed in on whether such an agreement would be enforceable. It is possible that the state could declare such agreements entirely unenforceable or partially unenforceable depending on the circumstances.
In the meantime, while we wait for a specific directive, some companies feel more at ease by getting customers to sign the waivers when they visit the company property. Obviously, this is more user friendly for companies that do not rely on foot traffic. However, even retail companies could post a sign that simply states that by entering the location, the customer is assuming the risk of contracting COVID-19. While unclear, such a sign could possibly work to reduce or eliminate liability.
B. Keeping Order in a Time of Change
1. Work from Home Expectations. The CDC and local guidance still states that employers should continue to have as many employees work from home as possible, especially those over 65 or in medical high risk groups. We expect these directives to work from home will continue for months into the future. We recommend creating a work from home policy that clearly states your expectations and requires your employees to commit to those expectations. Please let us know if you need help with this.
2. Changing Employees from Salaried Exempt to Non-Exempt. Many businesses have had to re-structure which may have left managers not managing anyone or, at least, not working full time any longer. If you have an employee who is not performing sufficient exempt work, you must reclassify them to non-exempt/hourly status to avoid potential legal exposure for wage claims. The best way to reclassify an employee is to explain the reasoning, and then make sure they are fully prepared to track their hours and take their legally mandated meal and rest periods.
3. Make Employment Decisions in a Methodical and Documented Manner. When you are downsizing and making other decisions that affect your workforce (e.g., deciding who is permitted to work from home and who is required to come to work, or whether tasks and opportunities are being spread evenly, etc.) be careful that your decisions are not discriminatory or appear to be discriminatory. One way to ensure your decisions do not have an adverse impact and to create a record of your non-discriminatory process is to document the process by:
- First, determine the needs of the business and make some assumptions as business ramps back up;
- Second, design a fair, consistent and nondiscriminatory selection process based on as many objective criteria as possible; and
- Third, document conversations with employees to track who is willing to make changes and who is not, so that it is clear what decisions were made by the employee and which were made by the employer.
4. Handling Employees Who Do Not Want to Return to Work. When you contact employees to return to work, it is possible they will not want to return for various reasons. Being told “no” is always an uncomfortable position to be in, but employers must take a measured approach to make sure the employee does not have a legally protected reason to say “no.” For example, employees who band together to refuse to work because they feel the employer has not taken sufficient steps to minimize COVID-19 exposure may be protected under the NLRA for union concerted activity.
Employers should be reasonable when discussing concerns held by employees to come back to work and approach it in the same manner as the “good faith interactive process.” This is not legally required but is a good way to ensure that you have done enough to feel confident that the employee does not have reasonable grounds to refuse to return to work. Also, the conversation may unearth other rights the employee may have such as the right to take FFCRA protected leave (see below) or FMLA leave.
If employees do not want to return because they are making more on unemployment, you can advise them that they will not qualify for unemployment if they refuse to return to work. You can then decide whether to put them on an unpaid leave of absence or consider them to have voluntarily resigned.
5. Need for FFCRA Leave. The FFCRA will continue in place through the end of the year. It provides flexibility for employees who cannot work due to COVID-19 related illness or a lack of childcare. The childcare component should ease up as daycares begin to re-open but will very likely be a problem again in August when school is supposed to resume.
As a reminder, the FFCRA provides paid leave (that involves a tax credit for the employer) for the following reasons:
- (i) The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- (ii) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- (iii) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- (iv) The employee is caring for an individual who is subject to either (i) or (ii) above;
- (v) The employee is caring for his or her child if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions; or
- (vi) The employee is experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.
Amount of Paid Sick Leave. All eligible full-time employees will have up to 80 hours of paid sick leave available to use for the qualifying reasons above. Eligible part-time employees are entitled to the number of hours worked, on average, over a two-week period.
For employees with varying hours, one of two methods for computing the number of hours paid will be used:
- The average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type. Or,
- If the employee has worked less than 6 months, the expected number of hours to be scheduled per day at the time of hire.
Rate of Pay. Paid emergency sick leave will be paid at the employee’s regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons (i) – (iii) above. Employees taking leave for reasons (iv) – (vi) above will be compensated at twothirds their regular rate of pay, or minimum wage, whichever is greater. Pay is capped at:
- $511 per day and $5,110 in total for leave taken for reasons (i) – (iii) above;
- $200 per day and $2,000 in total for leave taken for reasons (iv) – (vi) above.
Interaction with Other Paid Leave. The employee may use emergency paid sick leave under this policy before using any other accrued paid time off for the qualifying reasons stated above. Employees on expanded FMLA leave under this policy may use emergency paid sick leave during the first 10 days of normally unpaid FMLA leave.
Expanded FMLA. In addition to the extra sick leave, expanded FMLA leave is available to eligible employees who are unable to work (or telework) due to a need to care for their child when their school or place of care has been closed, or the regular childcare provider is unavailable due to a public health emergency with respect to COVID-19. The FMLA leave is 12 weeks and provides pay at the same rate as described above for this type of leave.
The new “normal” has an enormous number of moving parts for employers. We are here to help! Feel free to call Dawn Ross or Samantha Pungprakearti at Carle, Mackie, Power & Ross LLP with any questions or concerns at (707) 526-4200.