Below we have outlined the questions and answers from the webinar, “Managing Through the Coronavirus.”
Thank you for submitting your coronavirus questions! We have grouped them together by topic for easier reading.
In most cases, there is no formal documentation required for presentation to commute to and from an essential business. Some state and federal agencies have produced template letters on their websites for workers to utilize. The most important thing is for employees to listen to any law enforcement officer stopping them for information. If the officer tells the employee to go home, the employee should go home and should have an employer number to call for assistance.
The likelihood of being stopped is low, unless there is a hot spot of COVID-19 transmission with low levels of stay at home compliance. You will need to watch the progression in your own communities. It certainly wouldn’t hurt to have a letter or badge showing the employee’s name, place of work, and industry.
How “essential business” is defined varies slightly state by state, but there is much alignment on what is “non-essential” – movie theaters, bowling alleys, museums, malls, etc. For more insights, see https://www.natlawreview.com/article/shelter-place-orders-are-you-essential-business.
FFCRA Applies to: Employers with 500 or fewer employees, and all government agencies. Employers with 50 or fewer employers may be exempt from compliance if it threatens the financial viability of the business.
Effective Dates: April 2- December 31, 2020
Eligibility: Employees with 30 or more calendar days of employment; the Fair Labor Standards Act definition of employee is leveraged for the purposes of the FFCRA which means that full time, part time, and temporary employees are covered. 1099 contractors are considered self-employed and are eligible to file for the refundable tax credits on their own accord.
Workplace Posters: We wanted to let you know that the Department of Labor just released the poster that employers need to post regarding employee rights. The Families First Coronavirus Response Act (FFCRA) requires certain public employers and private employers with fewer than 500 employees to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. These provisions will apply from April 1, 2020, through December 31, 2020. Posters found here.
Emergency Sick Pay
80 hours sick leave IN ADDITION to company policy – no carryover to 2021
Emergency Family Leave Pay
Extends FMLA to employees with at least 30 days of tenure who are caring for child because of school or childcare closure/availability due to COVID emergency
Employer Tax Credits
Employer Tax Credits – refundable credits for employer portion of OASDI – 6.2% employer portion of social security tax
Employee Choices: Employees choosing to work from home or not work due to opting for a self-quarantine, when there is no “shelter in place” order and don’t qualify for leave under the new FFCRA provisions, may be required by employers to take PTO or other leave.
Work policy pertaining to travel and quarantine: Employers have a general duty under OSHA to provide a work place free from known harms. Allowing employees traveling to hot spots without a quarantine may violate that duty. As with any policy, it needs to be applied consistently to similarly situated individuals. If you have several employees traveling, it would be less likely to be discriminatory if there was a blanket policy and application of the same – anyone traveling for any reason is required to WFH for 14 days following return. If they are not able to work from home, either due to the nature of the work or because they become ill, then the FFRCA may apply.
Ways to protect pay: The Federal Government has relaxed Unemployment Insurance requirements at the federal level and has provided guidance that each state may do the same. Because the UI requirements live at the state level, you will need to review the changes made by your state.
Monitoring employee and candidate health: Many employers are concerned about how to maintain safety in the workplace during the time of this COVID-19 pandemic. Fever is often one of the first symptoms of the virus. Taking temperatures is acceptable provided that the information is confidential and used consistently for non-discriminatory purposes. The training recommended for taking a temperature should include how to maintain privacy and what to do when an employee has a fever, and how to practice hygiene to prevent any transmission. Companies are using no-touch thermometers to reduce that risk.
Inquiring about health and risk: Normally, inquiring about health unless directly job related isn’t permitted. However, these are not normal times. The EEOC has provided guidance stating that taking temperatures may be permissible. For more information see https://www.shrm.org/resources/andtools/legal/-and-compliance/employment-law/pages/eeoc-coronavirus-temperature.aspx.
Different treatment for different segments of our workforce (culture clash): Transparency and communication can be effective in maintaining culture, especially when you have to treat people differently. Identifying the defining characteristics of the populations (office, retail, support, etc), helps to show that you are differentiating based upon duties and work environment for the purposes of maintaining essential work operations.
Providing rewards, incentives, or perks for those having to continue to work during this time, as well as assuring them that you are taking steps to ensure their safety is advisable.
As you build out your plans for next steps and consider role eliminations or temporary furloughs, it will be important to have clear criteria that can be applied, communicated, and understood. Uncertainty is a difficult thing to manage and depending upon the culture of your organization, it may be helpful to say that you are working through alternative plans, and that you will provide additional information by a certain date.
Eligibility: Employees with at least 30 days of tenure, regardless of hours worked, are eligible for emergency family leave under the FFCRA.
Notice: Employers are required to post the policies and requirements as provided by the government.
Documentation: Employers should have a policy and procedure for foreseeable and unforeseeable leaves. General guidance about how to manage FMLA is provided by the DOL at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf.
Offer letters and start dates: For those that are continuing to hire new employees, being open about any softness during the conversation and documenting that in the offer letter is probably a good practice. Additionally, having a point of view about how you will handle pay for new hires in the event that their start date moves would be a good idea.
On boarding: For companies that have moved to 100% remote, it’s recommended that sending hardware to the new hire’s home rather than having them come into the office will help support physical distancing guidance. Additionally, leveraging video conferencing and social platforms to introduce teams and support will help to create a more positive experience. Zoom, Skype, Teams, Slack, and more help to maintain team cohesion.
I-9 verification relief: For employers that are 100% remote, the requirement for in person verification is deferred. If an employer has some on location operations, the deferral may not apply. The U.S. Department of Homeland Security (DHS) announced that it will defer the requirements for employers to review Form I-9 documents in-person with new employees. Read more.
Most companies are creating separate policies to address the COVID-19 situation since there are many changes in addition to the FFCRA. This will make it easier to roll back any temporary changes. References to existing policies are made in the new COVID policy.
The exemption is for new federal contractors supporting the COVID-19 response and states that for a period of three months, such contractors are exempt from posting requirements. A copy of the national interest exemption memorandum can be found here: https://www.dol.gov/sites/dolgov/files/OFCCP/National-Interest-Exemption-Memo-Coronavirus-Relief-Efforts.pdf
As new information becomes available, and as laws changes, please continue to monitor developments to determine how they apply to you and your business. We are adding information and answering questions in our LinkedIn Group as well.