By Rickard Jorgensen, FCII, ARM, ACIArb.
Staff and firms have been eager to get back to work but the reality is that the workplace has changed for ever. It is likely that this “new normal” will continue until there is a widely available and effective vaccine. This leaves firms in a state of limbo. The new day-to-day legal concerns and practical difficulties, such as enforcing proper social distancing and addressing refusals to return to work will have a significant impact on a firm’s ability to maintain productivity and profitability to keep the practice going.
Firms must undertake proactive advance planning so they can react thoughtfully – rather than impulsively – and provide the appropriate tools to remain vigilant and flexible.
The biggest challenges may be:
Ensuring staff health and safety.
This is really the crux of the challenges facing return to work for most firms while the number of COVID-19 cases continues to rise, largely based on spread by asymptomatic carriers. As a result, keeping the workplace safe once staff physically return (coupled with being transparent about precautions taken in order to alleviate staff concerns) is of paramount importance.
Firms need to be proactive about mitigating the risk of exposing staff to infection in order to slow the continued spread of COVID-19 and to prevent a second wave of cases once the first wave subsides. This includes engaging in the practices that have been discussed and written about for the past few months, such as making physical modifications in the workspace to reduce contact, changing work schedules to limit the number of staff physically present in the office at one time, encouraging social distancing, and continuing an enhanced cleaning regime while also providing staff with cleaning supplies (such as wipes and hand sanitizer) to allow for more frequent cleaning of high-touch surfaces.
Firms should continue to keep up to date on the current guidance issued by the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and applicable state and local governmental agencies, as the recommendations have changed throughout the pandemic and likely will continue to do so.
Firms must also be sure to document and communicate the precautions taken. Ensuring compliance with these guidelines and keeping records of what was done will be crucial for any member of staff faced with litigation or an agency inspection down the road, and for those operating in states that have passed (or will pass) laws limiting liability where the business has taken reasonable precautions in line with applicable guidance
Monitoring staff health.
Because of the highly contagious nature of COVID-19, firms subject to the Americans with Disabilities Act (ADA) have a little more leeway than usual when it comes to staff health. Firms may ask staff whether they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or a sore throat. Staff are also permitted to conduct daily health checks, such as taking staff members’ temperatures. But to comply with the ADA, firms must still maintain all such information as a confidential medical record.
Responding to staff illness.
In the event a staff member reports a confirmed or suspected case of COVID-19, the staff member should be sent home and should not return to the workplace until the staff member meets the CDC-recommended guidance for discontinuing isolation. There are symptom-based and test-based strategies for both symptomatic and asymptomatic persons, and since the guidance has changed during the pandemic, it is important to review current guidance when discussing return to work with any staff member following home isolation.
Notifying coworkers of potential exposure.
Upon learning of a staff member’s COVID-19 illness, the firm should immediately conduct an investigation. Start by asking the staff member how COVID-19 may have been contracted. While respecting staff member’s privacy, talk with the staff member about activities both at work and outside of work that could have led to the COVID-19 exposure.
Review the staff member’s work environment for potential exposure; this review should be informed by other instances of the staff member with COVID-19 at the site. Ask the staff member to identify others who worked within six feet of the staff memberfor 15 minutes or more (currently the standard for a “prolonged period of time”) within the 48 hours prior to the sick individual’s onset of symptoms. Those staff members should then be asked to stay home for at least 14 days because of their potential exposure to COVID-19.
Conducting an investigation.
OSHA requires firms to record COVID-19 exposure when the illness is a confirmed case of COVID-19, is work-related, and meets the general recording criteria (i.e., inpatient hospitalization or fatality). Because of the difficulty of determining work-relatedness, OSHA is exercising enforcement discretion to assess firms’ efforts in making these conclusions.
In evaluating whether a firm has complied with this obligation and made a reasonable determination, OSHA will look to the following: (1) the reasonableness of the firm’s investigation into work-relatedness, (2) the evidence available to the firm, and (3) the evidence that COVID-19 was contracted at the office. Make sure any investigation complies with OSHA’s recommendations in order to reduce the potential for a citation down the road.
Evaluating availability of leave.
When a staff member is sent home because of a suspected or confirmed case of COVID-19, another step in the process is determining whether the staff member is entitled to paid leave. The Families First Coronavirus Response Act (FFCRA) may not be as prevalent in the news as it previously was, but it is still in effect until the end of 2020.
The FFCRA requires certain firms to provide staff members with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions apply to certain public employers and to private employers with fewer than 500 employees (though small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability, but not for illness). So if any staff member needs time off after testing positive for COVID-19 (or for any of the other qualifying reasons), remember to determine whether the staff member is eligible for paid leave under the FFCRA and to check whether state law provides for additional paid leave.
Addressing refusals to return to work.
Thus far, refusals to return to work have come in many shapes and sizes, but for firms, the key question to ask when a staff member expresses a desire not to return is “Why?” How to proceed will depend on the answer.
If a staff member points to earning more on unemployment than he or she would earn by returning to work, this is not a legitimate reason to refuse to return. On the other hand, if a staff member expresses a fear of returning to work, this needs to be explored.
A generalized fear will not be enough to permit the staff member to continue working remotely (unless allowed by the firm), but a staff member who is scared and has been advised by a health care provider to isolate because the staff member is in a vulnerable category should be evaluated differently.
If, for example, a staff member expresses a concern about returning to work because the staff member relies on public transportation and fears it will be crowded, explore options with the staff member, such as a later start time.
Firms are encouraged to be flexible in responding to staff concerns where there is an easy and reasonable fix and ADA-covered firms certainly must dive deeper if an accommodation is requested due to a disability.
What if a firm knows a staff member suffers from a disability that makes the staff member more vulnerable to contracting COVID-19 and wants to require the staff member to continue working from home?
This is not permissible. A firm cannot unilaterally ban a staff member with an underlying condition from coming to work unless the staff member’s disability poses a direct threat to the staff member (which is a high burden).
And the same goes for pregnant staff members and staff members who fall into the higher-risk category based on age. Staff members must be permitted to make their own decisions about return to work and can ask for an accommodation if needed.
Completing Form I-9.
Of course, this is nothing new for firms, and the firm still must have a staff member complete Section 1 on or before the first day of work and complete Section 2 within three business days from the date of hire.
During the pandemic, though, firms may inspect Section 2 documents remotely, such as by email or video conference, and should note COVID-19 as the reason for the physical inspection delay in the field titled “Additional Information” in Section 2.
The key here, however, is what needs to happen when normal operations resume. Staff members hired using remote verification must report to the firm within three business days for in-person verification of identity and employment eligibility documents, and firms should then add “Documents physically examined” with the date of inspection in the “Additional Information” field or to Section 3 if the documents presented remotely have expired.
This requires firms to track when staff members are physically back at work to ensure presentation of the physical documents required by Form I-9, so putting a system in place to monitor staff return is critical.
Complying with wage and hour laws.
And finally, everyone’s favorite topic — wage and hour laws. Given the financial impact the pandemic and resulting shutdown have had on businesses, many firms have made or will make adjustments to staff members’ pay. When making reductions to a nonexempt staff member’s hourly rate or salary, it is crucial to ensure the staff member still receives at least minimum wage for each hour worked.
Similarly, if an exempt staff member’s salary has been or will be reduced, most firms must still make at least $684 per week to maintain the exemption. When revenues pick up, firms should also be careful when making favorable adjustments to staff members’ compensation. If a “make whole” payment or an incentive bonus is made to a nonexempt staff member, for example, it will have to be added back into the regular rate for calculation of overtime.
And, firms should avoid regularly changing salaries of exempt staff, as this starts to look like the salary was reduced due to the quantity of work performed (which is impermissible).
The more prudent path is to leave an exempt staff member’s salary as is for at least a quarter. The same goes for making changes to an staff member’s exemption status — which should be closely monitored to ensure exempt duties are still being performed, as job duties may be in flux during this time.
For example, if an exempt manager has been primarily performing the duties of a nonexempt staff member due to a reduction in force, the staff member may no longer qualify for the executive exemption. But if the manager is temporarily changed to nonexempt, be thoughtful about changing the classification back (and avoid doing so too quickly).
Put processes in place to address challenges before they occur
In light of all that is happening right now, firms have a lot on their plates. It is crucial to put solid processes in place for addressing the challenges discussed here (as well as the many other legal and practical considerations currently in play) to allow for a thoughtful response when one (or more) inevitably hits.
This requires staying up to date with regularly changing guidance from a variety of sources, communicating with staff and managers, and documenting precautions taken in the workplace — all on top of performing regular job duties. When this is too much to juggle, reach out to an employment lawyer for help so nothing is missed during this challenging time.
Inspired by an article by Maggie Spell a partner in Jones Walker LLP’s Labor & Employment Practice Group in New Orleans, LA. She helps clients resolve employment-related disputes and provides day-to-day compliance advice regarding workplace issues.
Jorgensen & Company are not attorneys and do not offer any form of legal advice. Consult with appropriately qualified local counsel for more assistance. Rickard Jorgensen is President and Chief Underwriting Officer for the CPAGold™ program and may be contacted at (201) 345 2440 or firstname.lastname@example.org.