As business leaders balance the decision to safely return to the workplace with their efforts to keep the organization running smoothly, there are several employment practice areas that can easily be overlooked. In addition, a resurgence of COVID-19 cases in numerous areas of the country has caused increased tensions and uneasiness among some workers about returning to the workplace for various reasons.
This combination can make conditions ripe for potential employee claims in the areas of employee leave, wages and hours, workplace safety and discrimination. How can employers mitigate the pitfalls and safeguard their recovery? Following are some best practices for business leaders to consider:
REVIEW EMPLOYMENT LEGISLATION
Remaining abreast of employment laws, statutes, regulations and agency guidelines from the Centers for Disease Control and Prevention, Occupational Safety and Health Administration, Department of Labor and the Equal Employment Opportunity commission is always important, but it’s even more critical now because legislation is constantly changing as the government continues to manage the pandemic. For example, within the last six months the Families First Coronavirus Response Act was enacted, along with the Coronavirus Aid, Relief, and Economic Security Act, while other laws, such as the Americans with Disabilities Act were amended to include provisions for the coronavirus. Business owners should proactively determine their responsibilities under relevant federal and state laws.
REVISE EMPLOYEE HANDBOOKS
Based on new legislation, employee handbooks should be updated to reflect the federal paid sick leave mandate, as part of the FFCRA, as well as any other potential changes to federal and state laws. In addition, telecommuting and return-to-work policies should also be clearly communicated and revised as appropriate.
REMAIN IN COMPLIANCE WITH EMPLOYEE LEAVE REQUESTS
Employee leave requests will increase as the pandemic continues to unfold. The FFCRA, which passed in March, is the first-ever federal paid sick time mandate. It requires employers with less than 500 workers to provide employees with 12 weeks of paid time off for various reasons related to COVID-19, including if they become ill or are unable to work or because they have to care for a child whose school has closed. It is also important to note that some states have implemented sick laws specifically related to COVID-19 that cover employers with more than 500 employees.
Covered employers should be vigilant about complying with their obligations under the FFCRA, FMLA (if the employee is sick) and state or local equivalent and paid sick laws. If employers deny requested leave, miscalculate employees’ pay, request improper documentation or retaliate against employees requesting leave, they are at risk for employee allegations. To help avoid these pitfalls, business owners should determine their obligations and provide employees with protected paid leave as appropriate.
SET CLEAR EXPECTATIONS ABOUT WAGES AND HOURS
With more employees telecommuting, companies should ensure that workers are properly classified as exempt or nonexempt, which affects how they are paid, including overtime hours.
Nonexempt employees should still seek approval before working overtime. Managers should set clear expectations with employees about hours worked, conduct regular check-ins and promptly address any wage and hour issues. As employees return to work, employers may make additional adjustments to the terms and conditions of their employment, including changes to hours and pay. They should ensure proper documentation of these changes and provide employees with required notices under federal and state law. Employers should also review any restructured positions to ensure they are properly classified,
ADDRESS WORKPLACE SAFETY
COVID-19 has expanded the scope of safety in the workplace, as employers consider how to decrease the spread, reduce the impact in their workplace and maintain a healthy work environment. The CDC offers general employer guidance about safety during the pandemic and OSHA provides safety recommendations for certain industries. In addition, all states and most localities have orders regarding mandatory safety precautions. Under OSHA reporting requirements, COVID-19 is a recordable illness and employers face potential risks for failure to comply with recording/reporting requirements. And the DOL reminds employers that it is illegal to retaliate against workers for reporting unsafe and unhealthy working conditions during the coronavirus pandemic. Workers’ compensation claims are also on the rise as many employees claim to have contracted the coronavirus on the job.
Employers have a significant responsibility to provide a safe workplace; however, the pandemic offers a great opportunity to become creative with the way precautions are taken. Some examples include designating one-way aisles or hallways; limiting the number of people on elevators; installing Plexiglas dividers; wearing masks; and taking temperatures. It might even be a good idea to ask employees for suggestions, which could make them feel more positive about a safe return.
BEWARE OF UNINTENTIONAL DISCRIMINATION
It is important to remember that ADA, which prohibits employee discrimination based on certain criteria, still applies during a pandemic. Discrimination claims will likely rise as employers across the nation contemplate return-to-work protocols and layoffs. To minimize potential discrimination claims, any personnel actions should be made based on legitimate, non-discriminatory business reasons. Do not use current circumstances to terminate poor-performing employees.
In addition, many workers may be reluctant to return, especially those who may be pregnant; have preexisting conditions; those who have a spouse or child with a condition that puts them at risk if they contract COVID-19; or those with children who cannot return to the classroom. Some states have orders that require employers to provide reasonable accommodation to, and prohibits employers from discriminating against, employee,s who show symptoms of COVID-19 or have been in contact with a known positive case of COVID-19. Because orders vary from state to state, employers should understand these types of requirements in all locations in which they operate.
Although the pandemic has caused many business challenges, it has provided companies with an opportunity to evaluate employment practices, processes and procedures and make any necessary improvements resulting in a stronger organization.
With numerous areas for concern and the ongoing responsibilities of operating a business, especially during challenging times, it behooves employers to seek assistance from a human resources professional or an employment attorney to remain compliant and avoid the pitfalls associated with COVID-19.
Fred Lovingier is a district manager with Insperity, a leading provider of human resources and business performance solutions. For more information about Insperity, call 800-465-3800 or visit www.insperity.com.
