Engage PEO continues to closely monitor COVID-19 issues and provide our clients with immediate HR support and best practice guidance to manage the crisis, keep their businesses on track, and prepare to reopen.
This information should not be considered legal advice.
Based on current information - as of 5/12/2020
Proper planning and preparation are critical to ensuring as smooth of a reopening of operations as possible. Of course, there will be hiccups, but having a detailed plan will help to reduce missteps and mitigate health risks for employees. A solid reopening plan should:
Unpaid Leave of Absence- Any employee who was placed on a furlough/unpaid leave of absence should not be treated as a new hire. An employee leave will be considered a furlough/unpaid leave of absence if the company continued to pay their portion of the employee’s benefit premiums and the time spent on leave was less than six months. For those employees whose work authorization requires reverification, employers should reverify employees whose reverification date occurred during the unpaid leave of absence.
Layoff- If employees were notified that they were laid off or were outright terminated, they will be considered terminated. In cases of termination, employees will need to be “rehired” by the organization. The onboarding documentation originally completed by the employee and collected by the company must be obtained once again, including Section 3 of the I-9. Onboarding documentation can include background checks, employment authorization documents, and pre-employment drug screens. Employers must be consistent in their rehire practices. For example, either all rehired employees should be background checked or none.
The employee should be offered time off under FFCRA if they are are subject to a federal, state, or local COVID-19 quarantine or isolation order; have been advised by a health care provider to self-quarantine for a COVID-19 reason; or are experiencing symptoms of COVID-19 and seeking a medical diagnosis. If an employee is diagnosed with COVID-19 they may also qualify for leave under the new federal emergency sick time laws and potentially local state law.
In addition, if the person has a serious health condition they may be eligible for time off may under the Family Medical Leave Act (“FMLA”) and/or as a “reasonable accommodation” under the American’s with Disabilities Act (ADA). Employers should note that time off under these federal laws is unpaid but includes job protection, meaning the employee will be able to return to their same or similar position at the expiration of the leave.
Under OSHA rules, employees are only entitled to refuse to work if they believe they are in imminent danger. "Imminent danger” is defined as “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Therefore, an employee must believe that death or serious physical harm could occur within a short timeframe for the threat to be considered immediate or imminent.
For example, a workplace where employees may regularly be exposed to COVID-19 may rise to this threshold, but absent that, most work conditions in the U.S. likely do not. Nevertheless, employers should discuss all facts and circumstances on a case-by-case basis with their HR consultant or employment safety advisor when confronted with these issues.
Because of the unique circumstances after a state or local health authority deems a public health concern to be a “pandemic,” the EEOC has issued guidance that employers are permitted to take workers’ temperatures. At all other times, this practice remains prohibited as discriminatory and a violation of privacy.
Employers considering implementing a temperature check are encouraged to first discuss this practice in more detail with their HR advisor.
No, you are not required to allow employees to telework unless they are entitled to it as a reasonable accommodation under the ADA. Nevertheless, telecommuting or telework may be a practical measure that employers can take to reduce the spread and potential exposure of the virus to their employees.
Companies continuing operations as normal or remotely should follow any new state mandates in place for sick time or family leave due to COVID-19, as well as the new federal rules under the Families First Coronavirus Response Act (FFCRA). The FFCRA includes the framework to manage paid sick leave and family leave related to COVID-19 - the EPSLA (Emergency Paid Sick Leave Act) and EFMLEA (Emergency Family and Medical Leave Expansion Act).
See COVID-19 sick time laws by state here.
To assist with the goal of social distancing and meeting economic challenges at this time, Staggered Shifts and Reduced Hour Shifts may work well in the workplace. The key will be ensuring that decisions as to who is affected by the reduced hours or changing shifts is determined in a non-discriminatory way.
Employers should discuss these options with their HR consultant to create and execute a plan.
Yes. In many situations this may be permitted as long as the reduction in rate of pay only applies to hours worked going forward. Wage rate reductions generally cannot apply retroactively to hours already worked. Be sure to review any state laws requiring notice of reduction in wages or other state mandated requirements with your HR consultant.
Where a state or local government has issued a shelter in place order, meaning that there is an executive order requiring a shutdown of 100% of all non-essential businesses and non-for-profit entities, all workers are strongly encouraged to stay home and indoors. Employees should be permitted to telework where possible.
In the event of a layoff, be sure to consult with your HR consultant to ensure that proper procedures regarding final pay, cash out of vacation/PTO, and other termination requirements are being followed.
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