Returning Employees To Work Following Unemployment Requires A Tailored 10-Step Plan Of Action

As businesses gradually begin to ramp up and bring employees back to work, you may soon need to figure out what to do when employees who are receiving unemployment benefits refuse to return to work. After all, they may be reluctant or disincentivized to return to the job, especially if they can turn down your offer and still collect robust unemployment benefits.

As with all unemployment issues, the solution may differ from state to state – and employee to employee. But while the answers will vary depending on your workplace and individual employee circumstances, you can take steps now to put yourself in the best position to respond to such situations. We recommend an individualized 10-step plan of action to minimize your return-to-work headaches.   

The $600 Dilemma

With the enactment of the CARES Act, employees qualifying for unemployment benefits are in line to receive an additional $600 benefit payment over and above the regular unemployment payment. This benefit is courtesy of the federal government program and continues through July 31, 2020. In many situations, however, the additional $600 benefit has created a disincentive for employees to return to work. This phenomenon has caused a dilemma for many employers (and employees) as businesses start to reopen.

At the lower end of the economic scale, many workers are receiving more from unemployment than they would earn from their regular wages. However, to remain eligible for unemployment benefits in all but a few circumstances, individuals who have been placed on a temporary layoff related to the COVID-19 pandemic must return to work if called back. And since most state unemployment agencies require or request that you notify them when you call an employee receiving unemployment back to work, the agency will likely deny ongoing benefits unless the employee can demonstrate good cause for refusing the offer.  

“Good Cause” And High-Risk Employees

The determination as to what constitutes good cause for the job refusal, however, will be viewed in light of the COVID-19 pandemic and will be subject to agency review. The U.S. Department of Labor and many states have emphasized that an unreasonable fear over the risk of contracting the virus in the workplace is not enough to constitute good cause, and state agencies will likely deny unemployment claims if this is the only reason offered. 

Several states, however, including Washington, Colorado, Alaska, and Texas, have already adopted rules outlining when an employee’s refusal to return to work may rise to the level of good cause. These rules generally protect unemployment benefits for “high risk” or “vulnerable” employees, such as workers over 65 or with underlying medical conditions.

For example, Texas Governor Abbott has directed the Texas Workforce Commission to continue providing benefits even when the employee refuses an offer of suitable employment where (1) the employee is 65 or older or at higher risk for getting very sick from COVID-19; (2) the employee has a household member at high risk; (3) the employee or a household member has been diagnosed with COVID-19  (and not recovered); (4) the employee is under quarantine due to close contact or exposure to COVID-19; or (5) the employee has child care responsibilities and the school or daycare is closed (and employee has no available alternatives).  

10-Step Return-To-Work Plan To Minimize Unemployment Concerns

Given the complicated issues created by the COVID-19 pandemic, you should be careful to consider the best approach for your workplace and employees. A thoughtful and transparent return-to-work process will help ensure employee safety and boost morale. Here is a 10-point plan you should implement to ensure a smooth return-to-work for your organization.

1. In all cases, the first step is to develop a plan of action to reopen the workplace that provides a safe work environment for the returning employees. The plan should be consistent with guidelines for return to work developed by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC). OSHA requires employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The plan should include an assessment of risk based upon employee exposure levels to COVID-19 in the workplace, which will vary based upon the workplace and job. For example, a risk assessment will be different for an employee returning to an office setting (low risk) versus the risk to a worker on an assembly line (high risk). The risk assessment should also consider federal, state, and local laws to address high-risk or vulnerable employees.
2. Create and disseminate a return-to-work communication that outlines all the steps you are taking to comply with the recommended safety protocols, including policies to address high-risk and vulnerable employees.
3. As noted above, each state is approaching return-to-work situations differently. You should carefully assess the guidelines that apply to your operation before making any decisions regarding an employee’s refusal to return to work or continued employment.
4. Continue to permit alternative work, including telework or work at an alternative location where feasible, and providing partial employment and work share opportunities.
5. Clearly communicate the details of any return-to-work offer in writing (start date, hours to be worked, wages, job duties and location). 
6. If a return-to-work offer is rejected, develop a plan to address for-cause job refusals, including consideration of high-risk and vulnerable employees.
7. If required, report any refusal to return to work to your state unemployment agency.
8. Be sure to document an individual’s refusal of an offer to return to work. This is particularly important if you have taken out loans under the Paycheck Protection Program. The Treasury Department recently indicated that an employer’s loan forgiveness amount will not be reduced if the employer’s written offer to rehire is refused.
9. If an employee expresses concern about returning to work, keep the lines of communication open and try to determine and address any concerns, if possible. If applicable, engage in the interactive process to determine whether a reasonable accommodation can be made before requiring the employee to return to work.
10. Consider implementing a short-time compensation (STC) program, often called a shared work or workshare program, which allows employers to retain employees on a reduced schedule, while unemployment benefits make up some of the difference in income. 

What Else Should Employers Do?

As you begin the process of reopening, you may want to familiarize yourself with several alerts courtesy of Fisher Phillips LLP : 

• 5 Steps To Reopen Your Workplace According To CDC’s Latest Guidance.  
• 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens  
• FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers 

Special Enrollment / Qualifying Event Timeline Changes

Last week the Department of Health and Human Services, DOL and the IRS extended deadlines for multiple items related to health plan administration.  We don’t expect a huge influx of issues from the changes.  However, you should be aware so you don’t inadvertently misinform your employees.    

There were changes made regarding COBRA premium payments and election timeframes but since we have addressed those in a previous post, we won’t address it here.  COBRA administration is outsourced and those impacted are no longer employees so you can direct their questions to your COBRA administrator or to our office.  We’ll also skip the changes made to claims and appeals as that won’t apply to everyone.  That leaves the changes to your benefit program. 

As you are aware, most of the carriers have reduced or even eliminated the minimum number of hours a previously full-time employee must work to be covered by your plan.  Meaning, we can offer coverage to furloughed employees or those that have otherwise reduced hours to below the full-time requirements. 

In addition, the agencies, have decided to disregard the Outbreak Period (the time period between March 1^st and at least 60 days after the announced end of the COVID 19 National Emergency) when establishing a deadline to request enrollment in coverage for certain qualifying events.  Meaning, the agencies, added a “pause” to the time frame required for employees to notify you about special enrollment periods, such as marriage or birth of a child.  We are not able to determine the exact end date of the Outbreak Period yet as that is based on an end to the National Emergency (and that had yet to be determined). 

For our examples, we’ll assume the COVID 19 National Emergency ends for the country on June 30^th.  This would make the Outbreak Period March 1^st to August 29^th (60 days following June 30). 

Example 1 – Sally has a baby on March 3^rd.  Normally, she would have 30 days to notify us that she would like to add the baby.  However, you are being instructed to disregard the Outbreak Period, therefore she has until September 28^th (30 days from the end of the Outbreak Period) to let us know her desire to add her child.

Example 2 – Tom gets married June 1^st.  He will have until September 28^th to let us know if he intends to enroll his spouse. 

Under these examples, the dependents would be enrolled back to their original eligibility date and the employee would owe those back premiums.  I don’t expect this to become a big issue, however, depending on the employees circumstances it could.  The drawback to employers, other than the inconvenience, is this could have an impact on the group claims.  Normally Tom and Sally would only have 30 days to enroll their dependents.  With the extensions, employees have information about any issues or medical expenditures that have already happened along the way.  Carriers will be responsible to back up, enroll the dependent, and pay any claims incurred. 

Please let us know of any questions you have. 

6 Factors Employers Must Consider When Taking Employees’ Temperatures

Employers may be required to take the temperatures of employees when businesses begin to reopen in the coming days and weeks following the expiration of many states’ stay-at-home orders. Screening for fevers is a task never previously undertaken by many companies. Given that many states will require or highly recommend this practice, now is the time for to consider what precautions and procedures to undertake to implement this safety measure.

You should consider these six issues when contemplating whether to take temperatures at your workplace:

1. Do You Have To Do It?
   Unless required by a local or state order, taking temperatures is not required in most workplaces. Doing so will require extensive planning, training, and could even be quite expensive. In addition, many individuals infected with COVID-19 won’t exhibit any symptoms, and thus temperature screening likely won’t prevent all workers who can transmit the disease from entering your worksite.
   
   Although the CDC recommends screening employees for fevers of more than 100.4 degrees Fahrenheit, keep in mind some states make recommend different thresholds. If you decide to screen your employees, also plan to check the temperatures of guests, clients, vendors, and contractors to ensure a safe work environment.
   
   
2. Training And Personal Protective Equipment For Those Taking Temperatures
   The safety of all employees is paramount, but those administering temperature screenings will be especially vulnerable to hazards. If you require employees to be within six feet of any individual who may have COVID-19, the Occupational Safety and Health Administration (OSHA) recommends that they wear personal protective equipment (PPE) consisting of some combination of gloves, a gown, a face mask, and/or a face shield or goggles.
   
   The screening employees should also be trained on the required PPE under OSHA’s PPE standard. You should also prepare a job hazard assessment and PPE certification related to the screening. To the extent that screeners may also be exposed to bloodborne pathogens (BBP), such as mucous or saliva, you should ensure they are properly trained under OSHA’s BBP standard – which requires employers to prepare an exposure control plan.
   
   Keep in mind that, where not required by a local or state order, the CDC allows employers to screen employees for COVID-19 symptoms, including a fever, without ever touching or interacting with them. You can do so by standing more than six feet away and asking the employee to confirm they don’t have a temperature and making a visual inspection of the employee (e.g., looking for flushed cheeks or fatigue). Only under this method could the employee screener not be required to wear PPE.
   
   
3. Maintaining Social Distancing
   Not only should screening employees be protected, safety measures should also be taken for workers waiting in line to be screened. This includes ensuring employees stand six feet or more from each other while they wait to have their temperature taken.
   
   
4. Logistics
   You may have to screen 50 or more employees prior to the beginning of each shift. This likely will cause delays and create disruption to normal production activities. Be prepared to create outdoor waiting areas (e.g. tents and other temporary structures) where employees must be in lengthy lines prior to entering the facility. Employee privacy, especially where screening takes place and results are announced, should be accounted for during this time.
   
   
5. Privacy Concerns
   Employee privacy concerns will be prevalent during the employee screening process. The Equal Employment Opportunity Commission (EEOC) has cautioned that employers can ask employees if they are experiencing symptoms of COVID-19, including taking their temperatures, provided that all biomedical information is maintained as a confidential medical record, and separate from the employee’s personnel file. Some states, such as California, require employers to provide a notice to all employees prior to screening them for biomedical data.
   
   For many businesses, maintaining employee privacy can be challenging as you may not have the experience or knowledge to ensure compliance. To mitigate these issues, and if not required by a governmental order, avoid collecting or storing an employee’s biomedical information to the extent possible. Instead, use an instantaneous-reading thermometer and show the employee their temperature simultaneously with the screening.
   
   
6. Wage Issues
   Keep in mind that employees may claim that their time waiting in line or being screened for a fever before their shift is compensable and thus they should be paid for it. Although no case law or Department of Labor guidance on point currently exists on this topic, it is recommended that you err on the side of paying employees throughout the screening process. This also requires you to implement a system to have employees “clock in” when they get in line for screening and to document their time.

What Should Employers Do?

As you begin the process of reopening, you may want to familiarize yourself with several pieces of information: 

• 5 Steps To Reopen Your Workplace, According To CDC’s Latest Guidance

• 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  FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and FP Resource Center For Employers.

Florida Governor Amends Safer-At-Home Order And Announces Plan To Reopen State

Florida Governor Ron DeSantis just extended his Safer At Home Order for the State of Florida but announced his plan to gradually re-open the state pursuant to a new Order that will go into effect just after midnight (at 12:01 am) on the morning of May 4, 2020. The new Order initiates the first of three phases to re-open every county in Florida except for Miami-Dade, Broward and Palm Beach counties. Additionally, local governments in Florida will also be able to have more restrictive policies in place if they desire. What do Florida employers need to know?

Essential And Non-Essential Businesses Are Permitted To Operate Pursuant To CDC And OSHA Guidelines

The new Order permits all services and activities currently allowed under the previous Safer-at-Home Order. Any non-essential businesses that were not previously permitted to be open can reopen as long as they also follow CDC and OSHA guidelines. However, The Order contains the following industry specific restrictions:

• Schools: Schools will remain closed during Phase One and can continue conducting distance learning.
• Healthcare: Hospitals and senior living facilities are prohibited to have visitors, and those interacting with residents and patients must adhere to strict protocols regarding hygiene. However, elective surgeries can resume, as clinically appropriate at facilities that adhere to Centers for Medicare & Medicaid Services (CMS) guidelines. Additionally, any facility that performs elective procedures must be able to immediately convert for treatment of COVID-19 patients in a surge capacity situation, must have adequate PPE, has not sought government assistance regarding PPE supplies since resuming elective procedures, and has not refused to provide support to and proactively engage with skilled nursing facilities, assisted living facilities, and other long term care residential providers.
• Hospitality: Sit-down dining establishments can operate at 25% occupancy under strict physical distancing protocols. However, bars will remain closed.
• Retail: Storefronts may operate at no more than 25% of their building occupancy.
• Museums and libraries: Can operate at no more than 25% of their building occupancy if permitted by local government. Also, any interactive functions or exhibits including child play areas must remain closed.
• Miscellaneous: Gyms, movie theatres, and professional services (such as hair salons and barbershops) will remain closed.

Every business is required to continue to follow guidelines issued by the CDC and OSHA. These guidelines include:

• Promoting healthy hygiene practices;
• Intensifying cleaning, disinfection (e.g., small static groups, no large events);
• Avoiding non-essential travel, and encouraging alternative commuting and telework;
• Spacing out seating (more than 6 feet) and staggering gathering times;
• Restricting use of any shared items and spaces; and
• Training all staff in above safety-actions.

The CDC also recommends that businesses only reopen after they have implemented safeguards for the ongoing monitoring of employees, including:

• Encouraging employees who are sick to stay home;
• Establishing routine, daily employee health checks;
• Monitoring absenteeism and having flexible time off policies;
• Having an action plan if a staff member gets COVID-19;
• Creating and testing emergency communication channels for employees; and
• Establishing communication with state and local health authorities.

Senior Citizens And Individuals With Significant Underlying Medical Conditions

The Order strongly encourages individuals who are older than 65 and those with significant underlying medical conditions to stay at home. They should take all measures to limit the risk of exposure to COVID-19 such as wearing masks during face-to-face interactions. Additionally, the Order encourages individuals to avoid socializing in groups of more than 10.

Social Distancing And Other Guidelines

Additionally, all persons in Florida should practice social distancing, avoid nonessential travel, and adhere to guidelines from the CDC regarding isolation for 14 days following travel on a cruise or from any international destination and any area with significant presence of COVID-19. The Order also extends Governor DeSantis’ Orders regarding airport screening and isolation of individuals traveling to Florida. Notably, there is an exception for these orders for persons involved in military, emergency, health or infrastructure response or involved in commercial activity.

Criminal Penalties

A violation of the Order is a second-degree misdemeanor which is punishable by imprisonment not to exceed 60 days, a fine not to exceed $500.00 or both.

What Does This Mean For Employers?

Employers with operations in Florida should review the CISA guidance and Miami-Dade County Emergency Order 07-20, and its amendments, to determine if they are deemed essential or non-essential.  

Before reopening, you should have a thorough plan in place to establish a safe and healthy workplace and share that plan to provide employees peace of mind. You should also be prepared to address concerns from older employees and those with underlying significant health conditions regarding whether or not they must come in to work. You should also carefully assess the availability of telework for these employees.

As you begin the process of reopening, you should familiarize yourself with some useful info: 

• 5 Steps To Reopen Your Workplace, According To CDC’s Latest Guidance. 

• 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens 

10-Point Plan To Protect Your Business From Zoom-Bombs And Other Videoconferencing Privacy Concerns

The COVID-19 pandemic has caused many employers now operating remotely to conduct meetings via video conference – which has created a whole new set of various privacy and cybersecurity concerns. While these remote work tools have facilitated a more personal connection and interactive experience, their use is fraught with privacy concerns you may never have before considered. If your organization is weighing its options or unaware of the risks these services may create, this article provides a 10-point plan to protect your personal and confidential information and ensure you remain compliant with various federal and state privacy laws.  

The Risks of Video Conferencing       

Before diving into the blueprint for compliance, it is first helpful to understand the three main risks of video conferencing.

“Zoom-Bombing”

Since the start of the COVID-19 public health emergency, the FBI has noted a substantial increase in the number of businesses and schools reporting instances of video conference “hijackings” (also known as “Zoom-bombings”). During these hijackings — which generally occur where a video conference link is shared over social media or is not password-protected — uninvited participants have disrupted meetings by interjecting inappropriate language or displaying hateful or pornographic images into business meetings.

Aside from unwanted disruptions, uninvited interlopers pose a more serious threat. Those that choose to remain undetected could lead to the unauthorized disclosure of personal or confidential information.

Insufficient Or Non-Existent Encryption

Many video conferencing companies tout their services’ encryption capabilities. However, these claims should be closely scrutinized. By way of example, the video conferencing platform Zoom has indicated that hosts may “enable an end-to-end (E2E) encrypted meeting.” This was reportedly proven to be untrue. The company was supposedly able to access user data and video conferences in transit and it was reported that it could be compelled to provide access or information to the government if such a request was made.

Additionally, the storage of recorded video conferences creates other issues. Thousands of Zoom conference recordings were recently found on an unsecured online storage platform. Prior to Zoom restricting access to their storage location, anyone with an internet connection could access the private and confidential meetings of countless users. Likewise, if your business does not store its recorded conferences in a secure manner, there is a substantial possibility that an unauthorized individual may gain access to their contents.

Inadequate Privacy

Video conferencing raises privacy issues on two fronts. First, according to a recent California class action lawsuit, video conferencing providers may be improperly using their subscriber’s data. Specifically, as alleged in the suit, California’s privacy law and other state statutes may have been violated if users’ personal information was shared with Facebook without the users’ consent.

End-users may also create privacy issues. Among other things, confidential information may be mistakenly divulged if an employee shares their screen while such information is visible. If an end-user participates in a video conference in a public space, everything that is said and displayed during the conference is disclosed to those around them. Moreover, if an end-user records or takes screenshots of images displayed during the meeting, those items may be improperly disseminated.

Legal Consequences Of A Video Conferencing Breach

If you or your video conference provider has inadequate privacy and cybersecurity policies or procedures, your business may inadvertently run afoul of various federal and state laws. Among other laws, the unauthorized disclosure of your employees’ personal and confidential information may violate:

• The Health Insurance Portability and Accountability Act (HIPPA) (prohibiting the disclosure of sensitive patient health information without a patient’s knowledge or consent);
• California’s Consumer Privacy Act (CCPA) (regulating the access to, deletion of, and sharing of personal information collected by businesses); and
• The European Union’s General Data Protection Regulation (GDPR) (a wide-ranging law that governs how companies collect and manage data).

10-Point Plan To Prevent Video Conferencing Disasters

To avoid potential video conferencing related privacy or cybersecurity breaches when using Zoom or similar platforms, your business should consider employing the following practices:

1. Review your conference provider’s privacy policy and user agreement. Also ensure you have the most recent version of your video conference provider’s software before you launch a new meeting.
2. Ensure that your conferences are set as private, not public.
3. Require passwords for all meetings. And while this seems simplistic, do not post passwords (or meeting links) to social media.
4. If available, create a waiting room that allows the conference host to individually admit participants. Review all meeting attendees before starting the conference and remove uninvited participants who gain access to the meeting. Once all expected attendees have joined, lock the meeting.
5. Limit who may share their screen.
6. Disable cameras and/or mute non-presenting conference participants, and consider disabling private chat.
7. Prevent attendees from changing user names to conceal identities.
8. Ensure no confidential or personal information is visible before sharing your screen.
9. Instruct all participants to refrain from recording or screenshotting any information shared during the meeting.
10. Review (and if necessary, create or revise) your company telework and IT policies to ensure that employees are aware of the steps they must take to keep the personal and confidential information they possess secure.

Conclusion

In the wake of the COVID-19 pandemic, many employers are relying on video conferencing platforms to conduct meetings and providing remote educational instruction. While Zoom and other video conferencing platforms can provide a valuable interactive experience while social distancing, it is important to educate employees on potential privacy and cybersecurity risks. You must require them to adhere to best practices to ensure the security of remote meetings, protect the privacy of participants, and reduce the risk of intervention by unwanted participants.

Recording Available for AAG’s 2020 Education Seminar

The recorded presentation of AAG’s 2020 Educational Seminar on April 23, 2020 is now available for viewing.

Guest Speaker and attorney Keith Hammond, with Hammond Law Center, covered the impact of COVID-19 on businesses in relation to the Families First Coronavirus Response Act (FFCRA) as well as the Emergency Leave Act and CARES Act.

This seminar is also approved for 2 Professional Development Credits (PDCs) with SHRM for all attendees.

Please contact our office for the link to view the presentation or the Activity ID for the PDCs.

Notice & Documentation Requirements Under the New Paid Sick and FMLA Leave Law

Proper Timing for Requesting Leave

1. Employees name
2. Date of leave request
3. Qualifying reason, and
4. Oral or written statement that the employee is unable to work due to qualifying reason

What documentation must employee provide to prove need for leave?  

• Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order
• A health care provider advises an employee to self-quarantine: the name of the health care provider who advised the employee to self-quarantine.
• Employee caring for an individual subject to a quarantine order or been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the self-quarantine.

• Employee must provide the name of the child, name of the school, place of care or child care provider that has become unavailable (keep in mind this could be family or a friend), and a representation that “no other suitable person will be caring for the child during the period the employee is taking leave

Steps to Reopening Your Workplace

Yesterday, the CDC released guidance for assisting employers in making decisions to reopen (or reopen for high risk employees) during the COVID-19 pandemic.

Besides continuing to follow recommendations issued by the state and local health departments, you can consider these 5 steps: 

1. Preliminary Questions Before Reopening

According to the CDC guidance, you should consider three questions when deciding whether to reopen:

• Are you in a community no longer requiring significant mitigation?
• Will you be able to limit non-essential employees to those from the local geographic area?
• Do you have protective measures for employees at higher risk (e.g. teleworking, tasks that minimize contact)?

CDC states you should only consider reopening if you can answer “yes” to all three questions.

2. Take Recommended Safety Actions

Once you feel comfortable that your organization can satisfy the three preliminary questions, you should next adopt the CDC’s recommended safety actions. They include:

• Promoting healthy hygiene practices;
• Intensifying cleaning, disinfection
• Practice Social Distancing (e.g., small static groups, no large events);
• Canceling non-essential travel, and encouraging alternative commuting and telework;
• Spacing out seating (more than six feet) and staggering gathering times;
• Restricting use of any shared items (phones, tools, etc) and spaces; and
• Training all staff in the above safety actions

3. Implement Safeguards for Ongoing Monitoring Of Employees

Next, before reopening, you should implement safeguards for the ongoing monitoring of employees. They include:

• Encouraging employees who are sick to stay home;
• Establishing routine, daily employee health checks;
• Monitoring absenteeism and having flexible time off policies;
• Having an action plan if a staff member gets COVID-19; (we’ll have a blast next week to address this)
• Creating and testing emergency communication channels for employees; and
• Establishing communication with state and local health authorities.

4. Prepare Your Physical Workspace For Reopening

The final step before you reopen your doors involves preparing your location for the reentry of workers, customers, guests, and other visitors. The CDC has released guidance for cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes. Review this guidance when implementing cleaning procedures at your facilities after shelter-in-place orders are lifted. 

5. Maintain Vigilance

Your work is not done once you open your doors and welcome back your workers. The CDC recommends that you maintain routine cleaning and disinfection procedures after reopening to reduce the potential for exposure.