Earlier this month, the DOL’s Wage and Hour Division issued new model forms for employers to use when administering employee leave under the FMLA. The revised model notice of rights, certification, and designation forms were immediately effective and are now available to assist employers and employees in meeting their FMLA notice and certification obligations.
The federal Family and Medical Leave Act (FMLA) covers private employers with 50 or more employees as well as public agencies and public and private elementary or secondary schools, regardless of the number of employees. The FMLA generally entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons and additional leave to care for a covered servicemember.
All covered employers must post a general notice about the FMLA (FMLA poster) in each workplace and distribute a notice to new hires. Additionally, covered employers who have FMLA-eligible employees must provide them with notices about: FMLA eligibility status, rights, and responsibilities; when specific leave is designated as FMLA leave; and the amount of time that will count against their FMLA leave entitlement. When an employee requests FMLA leave due to their own or a covered family member’s serious health condition, or for military family leave, the employer may require appropriate certification.
The DOL’s Wage and Hour Division (WHD) released revised versions in mid July of its model notice of rights, certification, and designation forms under the FMLA. According to the WHD, the new forms, which are effective immediately, are “simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use.”
The following updated FMLA forms are now available to assist employers and employees in meeting their FMLA notification and certification obligations:
These optional-use forms can be used by employers to provide required notices and by employees to provide certification of their need for FMLA qualifying leave. The new forms are electronically fillable PDFs that can be saved and transmitted electronically. Employers may still use the agency’s prior model forms or they may use their own forms, as long as they provide the same basic notice information and require only the same basic certification information.
To some extent, the new model forms simplify FMLA administration by substituting check boxes for some previously required written responses. The revised Notice of Eligibility & Rights and Responsibilities form contains additional information on the substitution of paid leave and concurrent leave usage during a qualifying FMLA absence. The revised certification forms similarly include additional information on the circumstances in which employers may obtain follow-up information from health care providers and are reorganized to make it easier to determine whether a serious health condition exists. As the WHD made clear, an employee who already provided the required FMLA information using the old certification form cannot be required to provide that same information using the revised form.
Notably, the WHD did not revise the FMLA poster or issue a generic “Fitness-for-Duty” certification. Further, the new forms do not address the paid sick leave or expanded FMLA leave requirements of the Family First Coronavirus Response Act (FFCRA).
An employee who erupts into an angry tirade or bursts into tears may be just as surprised as everyone else at the workplace by the sudden onslaught of emotion.
As workers deal with the uncertainty and loss resulting from a global pandemic, a recession and racial tensions, such emotional flare-ups are increasingly likely to occur. However rattling, a meltdown is not necessarily a terrible thing.
Emotions that aren’t dealt with “don’t go away. They just go underground, to the detriment of everybody,” said Laura Putnam, a workplace wellness consultant and the CEO of Motion Infusion, a wellness and performance improvement provider in San Francisco.
With so much for employees to worry about, “there’s an extra load on a manager right now, no question,” said Jordan Friesen, national director of Workplace Mental Health at the Canadian Mental Health Association, based in Winnipeg, Canada. “But the idea of creating a sense of psychological safety among your employees hasn’t changed; it has just become more important.”
Managers who find themselves in the middle of an employee’s emotional crisis should aim to be patient and kind—and to stay calm themselves. Other tips for dealing with breakdowns in a compassionate way include:
Do not direct the employee to an employee assistance program (EAP) or other outside resource until the very end of the conversation. “It shouldn’t be just putting it on the employee—’This is your problem, here, go fix it,’ ” Lewis cautioned.
“The typical formula for dealing with emotions has been to just refer out,” said Putnam, who is the author of Workplace Wellness that Works: 10 Steps to Infuse Well-Being and Vitality into Any Organization (Wiley, 2015). But providing a referral to an EAP can come across as aloof and disinterested if there isn’t a sense of rapport between the employee and the manager. “It’s difficult to play this role if there’s not a foundation of trust,” she said.
Of course, it’s always better to prevent an employee breakdown than to clean up the aftermath. Managers may notice performance or personality changes that can indicate a worker is struggling, including:
Don’t make the mistake of assuming female employees are more likely to have an emotional breakdown at the office. A January study by Totaljobs, a London-based job board, found that while women were twice as likely to have cried in the workplace (41 percent compared to 20 percent of men), men were far more likely to have been overcome by anger. Forty-three percent of men reported shouting in the workplace, compared to 26 percent of women. Men were also three times more likely to get upset because a project missed a deadline, went over budget or got canceled.
“Managers are uniquely positioned within the organization to create a safe harbor for their team. This is more true now than ever before,” Putnam said. To this end, managers can build employee trust by incorporating routines that anticipate workers’ concerns and prevent or address some of their worries.
One-on-one check-ins. Managers should check in with their employees on a one-on-one basis, ideally every week, experts said. That’s not the same as taking a couple of minutes at the start of an in-person or virtual meeting to ask how everyone is doing.
During this one-on-one time, employees should be encouraged to talk about the demands of the job, their workload, any safety concerns or any personal issues. Some employees may have no one they can talk to outside of work.
“The message should be, ‘We care about you first,’ ” said Mari Ryan, the founder and CEO of Advancing Wellness, a workplace well-being consultancy based in Watertown, Mass.
Communication—lots of it. “There is a huge amount of job insecurity right now,” said Ryan, who is the author of The Thriving Hive: How People-Centric Workplaces Ignite Engagement and Fuel Results (Pequossette Press, 2018). “So it’s important to communicate in a really transparent way—and frequently.” She suggests a weekly or even daily e-mail from a manager or head of the organization saying, “Here’s what’s going well, here’s where we’re having challenges.” A lack of communication only adds to the uncertainty, so even if nothing has changed, tell employees that.
The second type of communication that employees need right now: anything that pertains to benefits or help they can receive. “Whatever resources your organization offers, make sure that employees know about them,” Friesen said. “Employees in crisis may not have the energy or the will to take on an extensive search” to uncover the details of a company’s physical and mental health or financial services options.
“By repeating simple messages often, employers can reach more employees and have more of an impact,” said Jenny Burke, senior director of the Impairment Practice at the National Safety Council in Itasca, Ill.
Modeling self-care. For physical and mental well-being, good self-care is essential. But for employees who are already strained, carving out time to do something for themselves might seem like an impossible task.
Managers can lead the way by practicing good self-care and making it a point of discussion with their teams. “Getting some exercise, preferably outside, getting enough sleep, eating healthy foods—these can all create a sense of security and are things each person feels they can control to some degree,” Ryan said. During work hours, managers can allow time for employees to take walks, engage in meditation or yoga, or take part in support groups and other wellness-related opportunities.
It’s expected that the mental health impacts of the COVID-19 pandemic, the recession and racial tensions will continue to manifest in the coming months and years, Burke said. “Providing support for individuals and educating employees is critical but will have limited impact if workplaces do not simultaneously work toward the reduction or elimination of stressors in the workplace.”
Lewis agreed that even after the virus is under control, unemployment goes down and racial tensions ease, “it’s important for organizations to come up with a long-term plan to make sure they have the supports in place for dealing with employees who will be suffering from anxiety, depression and trauma in the future.”
Organizations have a responsibility to their workers to reduce stress on the job and to provide for their physical and mental well-being, Friesen believes. “If it’s the human beings that make the work great, we as the employers need to be taking care of them,” he said.
The 2021 open enrollment season is quickly approaching. This week the IRS released Rev. Proc. 2020-36 which, among other items, set the affordability threshold for employers in 2021. In order to avoid a potential section 4980H(b) penalty, an employer must make sure one of its plans provides minimum value and is offered at an affordable price.
A plan is considered affordable under the ACA if the employee’s contribution level for self-only coverage does not exceed 9.5 percent of the employee’s household income. This 9.5 percent threshold is indexed for years after 2014. In 2021 the affordability threshold will be 9.83 percent which is up slightly from the 2020 affordability threshold of 9.78 percent.
An employer wishing to use one of the affordability safe harbors will use the 2021 affordability threshold of 9.83 percent when determining if the safe harbor has been satisfied. The first affordability safe harbor an employer may utilize is referred to as the form w-2 safe harbor. Under the form w-2 safe harbor, an employer’s offer will be deemed affordable if the employee’s required contribution for the employer’s lowest cost self-only coverage that provides minimum value does not exceed 9.83 percent of that employee’s form w-2 wages (box 1 of the form w-2) from the employer for the calendar year.
The second affordability safe harbor is the rate of pay safe harbor. The rate of pay safe harbor can be broken into two tests, one test for hourly employees and another test for salaried employees. For hourly employees an employer’s offer will be deemed affordable if the employee’s required contribution for the month for the employer’s lowest cost self-only coverage that provides minimum value does not exceed 9.83 percent of the product of the employee’s hourly rate of pay and 130 hours. For salaried employees an employer’s offer will be deemed affordable if the employee’s required contribution for the month for the employer’s lowest cost self-only coverage that provides minimum value does not exceed 9.83 percent of the employee’s monthly salary.
The final affordability safe harbor is the federal poverty line safe harbor. Under the federal poverty line safe harbor, an employer’s offer will be deemed affordable if the employee’s required contribution for the employer’s lowest cost self-only coverage that provides minimum value does not exceed 9.83 percent of the monthly Federal Poverty Line (FPL) for a single individual. The annual federal poverty line amount to use for the United States mainland in 2021 is $12,760. Therefore, an employee’s monthly cost for self-only coverage cannot exceed $104.52 in order to satisfy the federal poverty line safe harbor.
Obviously employers are dealing with a lot of issues as the COVID-19 crisis continues to impact almost every employer in the country. However, it is important for employers to remain compliant with the always evolving ACA rules and regulations. When planning for the 2021 plan year, every employer should check to make sure at least one of its plans that provides minimum value meets one of the affordability safe harbors discussed above for each of its full-time employees. It would not be surprising if individuals were more scrupulous with their healthcare choices in 2021 which could leave noncompliant employers exposed to section 4980H(b) penalties.
The U.S. Supreme Court recently ruled that employers can’t terminate workers based on their lesbian, gay, bisexual, transgender or queer (LGBTQ) status, and employers should understand that the ruling provides employment protections beyond being fired.
The court ruling is significant as the decision makes clear that “sex” discrimination under Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity.
Title VII prohibits an employer from discriminating against workers based on protected characteristics with respect to terms and conditions of employment, including hiring, firing, laying off, training or disciplining.
An employer may not discriminate with respect to benefits provided to any group of similarly situated workers that includes members of a protected class, and that would be particularly true with respect to health care coverage, parental leave and similar emoluments.
Employers should thoroughly review their application, hiring and ongoing work processes to look for issues that may relate to these areas, said Randy Coffey, an attorney with Fisher Phillips. The review should include health plan coverage and procedures, leave and insurance benefits, and any other areas in which LGBTQ employees conceivably might be affected or treated differently from other employees, he said.
Workplace Protections
Under Title VII, employers are prohibited from discriminating against workers because of their color, national origin, race, religion or sex. The act makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.”
The Supreme Court held in its landmark ruling, Bostock v. Clayton County, Ga., that an employee’s “homosexuality or transgender status is not relevant to employment decisions.” Federal appeals courts had disagreed on whether Title VII’s ban on discrimination based on sex included LGBTQ status, but the high court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The decision focused on unlawful terminations, which were the subject of the cases before the court, but the ruling extends to all employment actions that are protected under Title VII.
“The Supreme Court’s decision not only prohibits an employer from refusing to hire or discharging an employee based on LGBTQ status, but also prohibits treating employees differently in the spectrum of compensation, terms or conditions of employment because of the individual’s LGBTQ status,” explained Amy Blaisdell, an attorney with Greensfelder, Hemker & Gale in Chicago and St. Louis.
Of course, employers will still be able to defend such discrimination claims in the same ways they have defended against other Title VII discrimination charges. In the event that an employee can make a viable, initial claim of discrimination—or prima-facie case—the employer will then have the opportunity to show nondiscriminatory reasons for the employment action.
As is the case generally with respect to Title VII, it is a best practice not only to be fair but to document employee-related decisions, furnish accurate evaluations, and maintain and publicize anti-discrimination policies.
Employers should note that Title VII applies to employers with at least 15 employees, though many state and local anti-discrimination laws that protect LGBTQ workers apply to smaller employers.
Scope of the Ruling
“There are definite health and benefit considerations for employers stemming from the court’s ruling,” Blaisdell said. For example, LGBTQ employees may rely on the case to argue that employers are required to offer medical plans providing transgender medical benefits to them.
“Yet, many faith-based employers decline coverage for such services on the basis that covering transgender benefits would conflict with moral and religious teachings,” she said. “This push and pull between individual rights and religious liberties was left unresolved by the court’s decision.”
Jay Dade, an attorney with Polsinelli in Kansas City, Mo., said he would caution anyone from drawing legal conclusions past the issues addressed by Bostock—that is, those of employment. However, he noted, employers are always free to offer protections beyond those provided by applicable laws and many provide employment protections to LGBTQ employees through workplace policies.
“The court also made it a point to note that these cases did not require the court to address concerns about religious conviction,” added Jason Plowman, also an attorney with Polsinelli in Kansas City, Mo. On that point, the court specifically noted that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases” because “none of the employers before us today represent in this court that compliance with Title VII will infringe their own religious liberties in any way.”
The intersection of these two sets of protections will almost certainly be a focus of future litigation related to sexual orientation and gender identity, along with how the Bostock ruling applies or does not apply in other contexts, Plowman said.
For instance, the U.S. Department of Health and Human Services (HHS) announced a final rule on June 12, three days before the Bostock decision, that eliminated anti-discrimination protections based on gender identity in health care and health insurance that the agency said were unenforceable and exceeded the prior administration’s authority.
“The Supreme Court ruling does not directly impact the recent HHS rule,” noted Jeffrey Smith, an attorney with Fisher Phillips. That’s because the HHS interpretation is based on Section 1557 of the Affordable Care Act, while the Supreme Court was interpreting provisions of Title VII.
“That said, it does demonstrate a shift in the legal landscape, and it may be harder for HHS to continue to enforce the interpretation it has just released,” Smith added.
Coffey said employers should expect a wave of litigation over the “outer reaches” of the Bostock decision. “There is no question that there will be many new filings alleging discriminatory failures to hire, harassment and hostile work environment claims, and discriminatory termination, all based on the sexual orientation, transgender status or gender identity of applicants and employees.”
Review Policies
For many employers, the Bostock decision will reinforce their policies prohibiting discrimination in employment on the basis of sexual orientation and gender identity, said Lori Armstrong Halber, an attorney with Reed Smith in Philadelphia and Princeton, N.J. Other employers will need to amend their policies immediately to include sexual orientation and gender identity within the classes protected from discrimination in their workplace.
“All employers would be best served by taking the opportunity to educate and train their employees on their anti-discrimination and anti-harassment policies and to focus some of that training on LGBTQ bias,” she said.
IRS Notice 2020-44 was issued last week as a reminder that Patient-Centered Outcomes Research Institute (PCORI) fees were extended under the Further Consolidated Appropriations Act of 2020 and are now not scheduled to expire until plan years ending after September 30, 2029. Annual PCORI fees will still need to be paid by insurers for employers with fully insured group health plans (and will remain to be included in annual premiums). Groups that offer self-insured plans are responsible for filing and paying the fee on IRS Forms 720, which must be filed by July 31 each year.
The IRS Notice also clarifies there is still a filing obligation owed for all such group health plan filings for plan years ending on or after October 1, 2019, and before October 1, 2020, with the PCORI Fee amount being $2.54 (up from $2.45 for the previous PCORI fee period). However, the guidance recognizes that insurers and self-funded plan sponsors may not have been accurately tracking the number of covered lives to be reported and paid for the plan year periods from October 1, 2019, through October 1, 2020, because the previous PCORI fee assessments under the Affordable Care Act were scheduled to end after September 30, 2019. To allow for ease in current reporting of covered lives information, the Notice clarifies that in addition to the other statutory methods of reporting covered lives, for the PCORI reporting periods for plan years ending from October 1, 2019, through October 1, 2020, the IRS will allow insurers and plan sponsors to use a “reasonable” method to calculate the average number of covered lives for this period.
Impact on Employers
Employers with fully insured health plan coverage provided by an insurance carrier may see a slight increase in future insurance premiums to account for this recent update from the IRS. Self-funded health plan sponsors need to ensure they timely file their annual Form 720 by July 31, 2020, using the appropriate PCORI fee amount (i.e., $2.45 per covered life for plan years ending on or before September 30, 2019, or $2.54 per covered life for plan years ending on or after October 1, 2019), based on the calculated covered lives formula alternatives (e.g., actual count method, snapshot method, Form 5500 method, or for the October 1, 2019, through October 1, 2020, periods, a “reasonable” method for average covered lives).
If you are feeling a sense that the rules around benefits haven’t changed enough in the last three months, this is a reminder of a change made during the long ago time of December 2019. We all thought the annual PCORI (Patient-Centered Outcomes Research Institute) was set to expire back in 2019 but the SECURE Act extended the PCORI fee for another 10 years, meaning the fee will be in effect until 2029 for most plans (2030 for others, depending on the plan’s year-end).
If your company had a self-insured group health plan in 2019, make sure you’ve set your calendar alerts to pay the PCORI fee for the 2019 plan year. As a reminder, the PCORI fee was put into place by the ACA to help fund the Patient Outcomes Research Institute and is based on the average number of covered lives under the plan. The fee and the related IRS Form 720 are due no later than July 31st.
For plan years ending before October 1, 2019, the fee is $2.45/person. The IRS has not announced the specific fee for plan years ending between October 1, 2019 and December 31, 2019; however, it is expected to be slightly higher than $2.45 per covered member. Remember, covered lives include spouses, dependents, retirees, and COBRA beneficiaries. If you have not been through this process before, or if you just need a quick refresher, the IRS has issued detailed guidance on the multiple methods you may use to calculate the PCORI fee, as well as instructions for completing the Form 720 and submitting your payment.
With employees returning to work and companies reopening their doors to customers, employers are looking for ways to limit liability related to potential COVID-19 cases contracted in the workplace. To do so, many are considering waivers for not only their employees, but also for customers. Such waivers, however, are somewhat limited in their effectiveness and employers should consider the pros and cons before attempting to implement them. You may also want to consider an alternate strategy that may offer you some of the assurances you seek without many of the negatives associated with waivers.
No waiver or other attempt at limiting liability can replace the need to maintain a safe workplace. You should start by ensuring you are in strict compliance with local orders, state regulations, and guidance from government agencies like the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity Commission (EEOC), and local health authorities.
What Are Waivers?
The term waiver has more than one meaning. In this context, employers may look to a waiver and releases of liability agreement consisting of a series of contractual provisions to mitigate certain risks of liability. Such an agreement not only includes a waiver clause, but also includes additional protective provisions like clauses for assumption of risks, covenants not to sue, and identification. If enforceable, they would eliminate liability for the risks discussed within.
Employee Waivers
Waiver agreements between employers and employees are traditionally disfavored due to the unequal bargaining power between them, as employers typically have superior bargaining power. In most states, such waivers do not apply to gross negligence or willful, intentional, or wanton conduct, as employers cannot waive such liability.
Employee waivers are even further limited due to workers’ compensation statutes, where states generally require medical expenses, lost wages, and rehabilitation costs be provided to employees injured in the course and scope of their employment. For work-related injuries, employees generally cannot waive their worker’s compensation claims. Although it may be difficult for employees to prove they contracted COVID-19 at work, some states (like California) have created a rebuttable presumption that workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system.
Waiver agreements with employees do not protect employers from OSHA complaints or enforcement action when a workplace is dangerous. However, the president recently signed an executive order directing federal agencies, like OSHA, to make exceptions for employers who attempt in good-faith to follow agency regulations during the COVID-19 pandemic, which may ease some concerns about agency actions.
Practically speaking, waivers may discourage employees from returning to work and hinder restarting operations as a result. They may also result in negative reactions and publicity concerns, as has occurred in several instances across the country already.
But due to the COVID-19 pandemic, it remains unclear whether courts and states will allow employers to enforce waiver agreements in this unprecedented time. Regardless of whether you decide to institute COVID-19 waivers to your returning workforce, you should develop return-to-work plans including steps to train employees on any exposure danger, how to eliminate those dangers, and best practices to stay safe.
Customer Waivers
Waivers for your customers may limit your company’s liability associated with COVID-19, but they may also hurt your business. Employers must carefully decide if the benefits of liability waivers for customers outweigh their drawbacks for their business. Some positives aspects of customer waivers include that they:
However, customer waivers have downsides too, as they:
Evaluating how a waiver will affect your business requires you to look at your industry, business, and geographic area, as well as how your customers or the public will react. Customers generally do not expect to sign a waiver before shopping or dining in a restaurant. But waivers are common in potentially dangerous activities, like extreme sports, where adding a COVID-19 clause may go unnoticed. Overall, customer waivers could impact businesses in more ways than simply mitigating their liability, so businesses must first consider potential unintended consequences.
Other Strategies: Notices And Questionnaires
Alternate routes to limiting liability may be more beneficial than waivers for many businesses. Businesses may avoid the potentially ominous effect of forcing customers to sign waivers by using questionnaires or notices.
A questionnaire asks entrants to the premises questions about whether they have any of the symptoms of COVID-19 or were exposed to it. A questionnaire could also communicate the employer’s reasonable actions to comply with government guidelines for sanitation, social distancing, mask wearing, and other efforts that the employer uses to keep their guests and employees safe. This strategy could allow the employer to show it took affirmative steps to exclude sick people from its workplace.
But businesses still need to consider how their customers will react to such a questionnaire. Implementing a questionnaire may deter some customers who find it an impediment or feel it invades their privacy, while others may feel safer coming to your business because you screen everyone who enters.
Notices provide a more streamlined approach, communicating the same information as a questionnaire about the business’ steps to keep its premises safe, without requiring the individual to physically sign away any perceived rights. Communicating the rules and restrictions without asking questions or for a signature, notices require fewer steps from employers and customers than waivers and questionnaires.
Either approach requires employers to provide a handout or post signage at all entrances to the building that broadcast safety information and reasonable actions and prohibit sick or exposed persons from entering the building. These strategies allow people to feel safer and accept the risks when they enter the workplace.
Choosing A Strategy
Waivers have limited but potentially valuable benefits if enforceable. Employers should weigh those benefits against the potential impact on their business and carefully consider all their options, such as questionnaires or notices that communicate information and allow guests to assume risk.
No strategy can eliminate a company’s obligation to take reasonable actions to protect its employees and customers. The CDC, OSHA, and state or local authorities publish guidelines and guidance that businesses should follow. Demonstrating you followed such guidance will be the best proof your company acted reasonably in responding to COVID-19 risks.
Whether an employer institutes employee or customer waivers, they should develop written plans to reopen that include training for their employees on these guidelines and that document their efforts to comply. Ignoring these guidelines will make workplaces less safe and potentially expose employers to civil suits and government enforcement actions.
What Should Employers Do?
As you begin the process of reopening, you should familiarize yourself with several alerts from a national labor law firm: 5 Steps To Reopen Your Workplace, According To CDC’s Latest Guidance. You should also keep handy the 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens in the event you learn of a positive case at your workplace. For a more thorough analysis of the many issues you may encounter from a labor and employment perspective, we recommend you review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.
Perhaps the most challenging aspect of encountering a suspected or confirmed case of COVID-19 among your employees as you reopen your business is identifying those employees who worked near the infected worker – and thus must also be quarantined. Luckily, there is a simple numerical sequence you can remember that will enable you to follow the CDC contact tracing guidelines for general businesses: 6-15-48.
You will need infected employees to identify others who worked within 6 feet of them, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, or later.
Remembering these three numbers will offer you an easy way to navigate the CDC’s often complex and confusing guidance.
Determine Who Worked Within 6 Feet Of The Infected Employee
The first step requires you to inquire with the infected employee about those who worked within close proximity of them. The CDC generally defines a direct exposure to COVID-19 as an individual who is a household member with an infected person, intimate partner with an infected person, or an individual who has had close contact (< 6 feet) for a prolonged period of time with an infected individual.
For Those Who Worked Within 6 Feet, Was It For 15 Minutes Or More?
Another challenge for employers during this pandemic has been the constantly changing guidance from government agencies on how to address various workplace topics. The CDC’s definition of “prolonged period of time” is no exception. The current CDC guidance on this issue states that “recommendations vary on the length of time of exposure, but 15 minutes of close exposure can be used as an operational definition.” Thus, after identifying the employees who worked within six feet of the individual worker, you should determine if any remained within that proximity of the sick employee for 15 minutes or more.
Was The Direct Exposure For A Prolonged Period Of Time During The 48 Hours Before The Infected Employee Exhibit Symptoms Or Later?
The CDC defines the key period of time for determining if an employee was exposed to an infected worker as the “period from 48 hours before symptoms onset until” the infected employee is cleared to discontinue self-isolation. For purposes of contact tracing, the key here is to look at the 48 hours before the sick employee had symptoms and was still working in the workplace. If a sick employee worked on Monday and Tuesday, started showing symptoms at 8:00 a.m. on Wednesday, and immediately left the workplace, you should look for employees working near them starting at 8:00 a.m. on Monday.
Ask The 6-15-48 Employees To Remain Home For At Least 14 Days
After following the above three steps, you have identified the 6-15-48 employees. Although asking the sick employee to identify these workers is likely the best contact tracing tool, you may want to check video surveillance to confirm the accuracy of the 6-15-48 employees the sick worker identifies.
Once identified, the CDC guidance for non-critical businesses provides that the 6-15-48 employees should take the following steps:
If your company is part of the nation’s critical infrastructure, you may follow different CDC guidelines in lieu of quarantining 6-15-48 employees who are asymptomatic. However, all companies can use the guidance above to identify exposed, or 6-15-48, workers.
Conclusion
As orders allowing businesses to reopen continue to be issued, you will face new legal and practical challenges in the workplace. Addressing confirmed COVID-19 cases in your workplace will unfortunately become reality for many employers. Now is the time to prepare for such an event. This a constantly evolving area, with new guidance being issued nearly every day.
The COVID-19 pandemic has had an unprecedented impact on the workforce, shuttering businesses, prompting mass layoffs, and compelling speedy transitions to remote work. If your company has rushed to implement a temporary remote work practice to accommodate the sudden need for social distancing, or if you have seen the benefits of telework and now choose to maintain what was initially intended as a temporary remote work plan, this article will provide you guidance on the long-term maintenance of remote work plans. Specifically, this article discusses whether work can be performed remotely, the value of up-to-date remote work policies, hours worked considerations, and how to effectively manage remote employee performance and remote worksites.
1. Which Positions Are Appropriate For Remote Work?
You can measure the viability of remote work in a position by evaluating the feasibility of (a) performing all job functions remotely; (b) modifying the position to exclude non-remote job functions; or (c) modifying the position to be partially remote. In making this determination, and in addition to weighing the health and safety of employees and the community in the current circumstances, you may consider:
Once you decide whether remote work is appropriate and for what period, you should clearly articulate the type of telework arrangement that is acceptable (long-term, short-term, or partial). In partial telework-eligible positions, you should clearly define which job duties may be performed remotely and which require an employee to report in person. Maintaining clear rules and expectations is essential to managing remote workers for pay, leave, and discipline purposes, discussed in more detail below.
2. Do You Need To Institute Or Update Your Remote Work Policy?
You would would be well-served to have an up-to-date remote work policy. A clear, written policy is a great way to set remote work expectations for your employees and keep them up to date on your company’s official policies and procedures established in response to the COVID-19 pandemic. If you instituted a remote work policy specifically for COVID-19 and intended it for short-term use, or if you utilized an existing telework policy that did not specifically contemplate COVID-19, your policy may need tweaking.
A remote work policy should specify required work hours, meal/rest periods, time and attendance records, and whether employees must obtain permission prior to working outside of work hours (or working overtime), and how that permission should be obtained. It is important to fully consider all your needs and options when instituting a remote policy, so you should contact legal counsel before drafting or updating yours.
3. How Should You Track Time Of Remote Workers?
In order to track the working time of your remote workers, it is key to have a defined process to ensure accurate records. For example, you may require that employees have an established schedule, keep track of their own hours, and request from management permission to deviate from the established schedule for any reason. Such flexible work schedules may be difficult to manage and require a detailed analysis of the employee’s time and the employee’s leave to determine an employer’s obligations on any given day. Thus, it is important to emphasize to employees that they should be diligent with adhering to established schedules, but there should be an open dialogue for addressing deviations.
You should also properly determine what kind of time is compensable. It is not always obvious when an employee’s time must be included as hours worked. The following examples represent a few scenarios where the answer could require a more fact-specific analysis:
You should choose one method for tracking time and apply it uniformly across employees to the extent possible. Inevitably though, because there is no one best method for tracking employee time in all situations, the process will vary by employer, and even by position. Additionally, there might be some flexibility with respect to teleworking employees interrupted for COVID-19 reasons. Accordingly, you should consult with counsel if you have specific questions regarding what constitutes compensable time or the best methods to track compensable time in a given situation.
4. How Do You Manage Employee Performance Remotely?
Successful managers are consistent in applying policies and maintaining open communication with their employees. Specifically, you should ensure that you regularly:
You should diligently document any departures from established policy, timekeeping or otherwise, at the time the violation occurs or is discovered. You should also not fear pursuing discipline just because an employee is remote – you discourage misconduct by consistently disciplining employees who abuse telework and deviate from established policies. Conversely, employees who request accommodations in their work schedules for COVID-19 related or other protected reasons should be accommodated to the extent possible.
5. How Do You Maintain Remote Worksites?
You may be liable for injuries on the job even if they occur at a remote worksite. It is therefore important to ensure that teleworkers’ remote worksites are safe and suitable for a productive workday. Employees who are responsible for setting up their own worksites may fail to anticipate safety hazards or may not be concerned about safety risks. This could result in worksite arrangements that are prone to injury, including wire tripping hazards and non-ergonomic workstations.
Accordingly, it is prudent to establish remote worksite guidelines in your remote work policies that indicate your expectations of employee worksite set up and maintenance. You may also ask your managers to conduct periodic checks on an employee’s remote workspace by phone or video conference to ascertain whether they are complying with your expectations. These checks are also useful in discerning whether employees need any technological assistance or tools that would allow them to perform their job functions more efficiently, and whether any business expenses call for reimbursement. If you discover policy violations, you can correct the violations and, if necessary, impose discipline to deter future infractions.
Conclusion
Not every position is perfect for remote work. However, with careful consideration of work needs and position functions, you can take advantage of the many technological tools available and maintain a productive remote workforce. By diligently maintaining two-way discourse with remote employees and educating employees with clear, written, and up-to-date policies, you can ensure that your company is using remote work to its full potential.