Employee Issues and COVID-19

**NOTE: This is a fast moving situation and with new legislation just passed and new legislation to be passed, we will do our best to provide updated information as quickly as possible. If you are a TEXAS employer, please see pertinent and very important information on my next blog post HERE on possible alternatives to layoffs.

With the COVID-19 pandemic rapidly changing so many aspects of our lives, many business leaders and managers are feeling overwhelmed and uncertain about how best to deal with the slew of issues that arise from trying to manage their employees in a fair and equitable way. This communication sets out to provide a framework for dealing with many of the major issues that employers face in this difficult time. As this communication is intended primarily to highlight some broader considerations, it will not cover specific situations that your company may be facing. Every company is different and every situation is different. Context is everything, so feel free to reach out with specific questions about your company’s specific context and challenges. Of course, if your company is currently shuttered due to the virus and because of the nature of your business, planning now for your next steps in an ever-changing environment will be important as well.

Below are a few bullet points of items that are most pertinent for you and your team to keep in mind during this crisis:

WHAT THINGS NEED TO BE DONE NOW

• PLAN

  If it has not already been done, it is time to develop a plan of the steps your company is going to take to minimize the spread of COVID-19 among your employees and their communities.

  • A key consideration underlying this plan should be to encourage employee action that is good for the workplace and the greater community without fear that it will negatively harm them regarding work considerations.

  • Establish a policy to boost chances that your employees will self-report conditions that may indicate a higher change of infection. They should self-report:

    • Any personal health symptoms such as fever, coughing or flu-like symptoms

    • Travel in the last two weeks to a high-risk area (including domestic travel where the virus has hit especially hard, e.g. the State of Washington)

    • A household member either being infected or exposed to COVID-19

  • Determine what social distancing strategies will and can be implemented effectively for your company’s work conditions:

    • Remote work should be made available when the positions’ duties do not require on-site physical presence.

    • Since not all employees’ duties can be done remotely, another strategy may be to establish a work schedule that reduces the number of people present at the worksite each day. A rotation of employees for different days in the office is helpful in this instance.

    • Be sure to establish clear and strict guidelines for any interaction amongst employees that will continue to be in the workplace (for e.g., proper spacing between people at desks and cubicles, etc. See section on “PROTECT” below).

  • Adopt temporary emergency paid leave policy that addresses the conditions for use in situations that COVID-19 is causing:

    • Who is eligible to use and under what conditions can employees use “sick” leave when taking care of non-sick children whose school has been closed.

    • Legal requirements have changed this week as a result of the “Families First Coronavirus Response Act” (H.R. 6201), which establishes 2 weeks of unpaid sick leave and up to 3 months of FMLA leave for employees of companies with less than 500 employees and new conditions for which employees can use such leave.

• PROTECT

  Another important step for business leaders to take at this time is to implement practices that make for a safer workplace.

  • Both in word and by example, encourage compliance with the Center for Disease Controls’ guidance about proper personal practices, such as regular and thorough hand-washing and social distancing.

  • More regularly clean and sanitize worksite surfaces with which individuals will have contact, such as doorknobs, office equipment, machine handles and tabletops.

  • Limit who can be at the worksite to only those who need to be there. Even if non-employee family members have been allowed or even encouraged to be on the premises before, such practice should be suspended for the present circumstances. Those non-employees who are allowed on site (e.g., delivery persons, vendors) should be required to register and identify with which employee they had contact.

• COMMUNICATE

  Even if you have not yet finalized planning, it is important to address the concerns your employees have. Almost everyone is anxious about all the uncertainties that the COVID-19 outbreak is causing, and information that shows that planning is being done will help alleviate those fears.

  • Communication from leadership should be in a medium that all employees have access to: for most companies, this will likely be done by e-mail, but ic an also be done via a group chat or intra-company website. Also keep in mind that management needs to ensure it has up-to-date contact information for all its personnel, in case some do not have access to company e-mail away from the worksite.

  • The communications must be candid and honest with regards to the potential effects of the pandemic and what steps the employer is willing to take, neither under-promising or over-promising what can be done. The tone of the communications needs to also match the seriousness of the situation and reflect sensitivity to the reasonable concerns that employees may have.

  • Be sure to convey the management’s concern for the safety and well-being of all employees and that it is making its best efforts to consider the concerns of all. You should also reinforce the value of shared sacrifice and request sensitivity to colleagues who are fearful and anxious.

EMPLOYMENT LAW ISSUES RAISED

Businesses’ decisions to address the changing workplace landscape and the situation itself will inevitably implicate various employment laws. Below are the employment laws that will likely need to be considered as your business decides on which changes to make. I’ll also share a few examples of situations that raise the law’s concerns. Because context, again, is everything, you will need to think through how these issues may or may not affect your particular business and you may need to speak with counsel in order to navigate the best way forward. You will need to consider the following:

• FAIR LABOR STANDARDS ACT (“FLSA”) AND STATE WAGE & HOUR LAWS

  • Changes in work schedule causes reduction in number of hours worked, which raises questions about differences between reductions in pay for exempt and non-exempt employees and proper classification

  • Employer record-keeping requirements when employees are working remotely

  • Time spent in mandatory temperature screening will expand compensable time

• AMERICANS WITH DISABILITIES ACT (“ADA”) AND SIMILAR STATE LAW PROTECTIONS

  • Screening employees from coming to work who are demonstrating symptoms of possibly having COVID-19

  • Request for accommodation for those whose health condition puts them at greater risk of contracting COVID-19

• FAMILY MEDICAL LEAVE ACT (“FMLA”) AND NEWLY PASSED FMLA EXPANSION UNDER THE FAMILIES FIRST EMERGENCY RECOVERY ACT (H.B. 6201)

  • Request by key employee to take leave due to need to care for family members who may have been exposed to COVID-19

  • Employer with less than 50 employees receiving requests to take leave to care for children whose schools have been closed in response to COVID-19 concerns

• TITLE VII AND NON-DISCRIMINATION LAWS

  • Perception of more favorable treatment of employees in certain protected work groups (e.g. females, Caucasians) when requesting accommodations for changes in work schedules or leave

  • Decisions to treat at-risk employees being made solely on employees’ ages

• OSHA

  • Consideration of ensuring that work conditions do not place at-risk employees in unsafe environments

  • Employee complaint that business has not taken enough action to mitigate exposure to COVID-19

Though trying to navigate all of the workplace issues stemming from COVID-19 can feel daunting, it is important to remember that doing your best during these unprecedented circumstances will go a long way in demonstrating leadership and maintaining the good faith of your employees. You are all in this together. Words of encouragement at this point are hard to come up with as we live life in these uncharted waters. It’s hard and difficult and frustrating all at the same time. In the end, we are all pulling for each other - your employees are pulling for you, you are pulling for your employees, your networks and vendors are pulling for you and you for them. We are all together hoping that these dark days will be behind us soon.

If you are a TEXAS employer, please see pertinent and very important information on my next blog post HERE on possible alternatives to layoffs.

Here to work with you,

David Quan

DISCLAIMER: The Law Office of David J. Quan provides this communication for general information only. This communication does not, nor does it intend to, provide legal advice or create an attorney-client relationship. Each legal problem is unique, and past performance does not guarantee future results. Persons with legal issues should consult their attorney for specific advice regarding their individual situations.