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:

  • Follow federal, state, and local orders related to public safety;
  • Create a council or committee which should include at least one senior member of management to take the lead on specific tasks associated with planning and executing the reopening strategy;
  • Communicate reopening plans and expectations to employees, while also informing the staff of operational changes made necessary by the pandemic;
  • Prepare the worksite by disinfecting;
  • Ensure employees can remain at a safe distance from one another;
  • Limit the number of employees who gather in common areas; and
  • Provide employees with access to PPE where possible.

Returning to work amid a global healthcare crisis can be a scary proposition.  Thus, it is natural for some employees to be apprehensive about coming back to work. As an employer, you should do your best to ease employee fears by establishing safety protocols and implementing procedures that significantly reduce health risks faced by employees if they return to work. Employers should also be flexible with their attendance policies and be open to allowing employees to continue working remotely where feasible. If an employee is adamant about not returning to work, even after the employer has reasonably addressed all health and safety issues, then the employer may take that refusal as evidence of job abandonment and accept the refusal report as a resignation.  Please contact your Engage HR Consultant for further guidance on a case by case basis.   

Also see question below regarding what to do if an employee does not want to return to work because of Coronavirus concerns.

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.

Given that employees and their families are being impacted by the COVID-19 crisis in a variety of ways, employers should be empathetic and understanding in how they deal with those employees facing unique challenges. By being flexible with attendance policies, providing more flex-time opportunities, or even letting their employees know how much they are appreciated, organizations can help ease the stress this crisis is placing upon their staff.

The decision regarding who to rehire should be rooted in the needs of the business and conducted in a  non-discriminatory manner.   

Employers should develop a set of criteria to determine which employees will be the first to return to work. The criteria should be based on several factors including, but not limited to: if the employee performs an essential function, seniority, past performance and employee availability.  The criteria should:

  • Establish guidelines for necessary conditions and a timeline to allow the return of those employees not immediately returning;
  • Determine who will make the decisions on the timing of employee returns based on the criteria established; and
  • Ensure the criteria is applied fairly and equally.

Documentation is critical to serve as proof of your attempts to bring an employee back to work to protect your organization against future EEOC claims. Please remember to reference Engage’s Forms Library for templates, including Return to Work Letters.

Before making any rehiring decisions, Engage clients should contact their HR Consultant to review potential discrimination claims risks.

In addition, if your business has received a Paycheck Protection Program loan (PPP loan) please consult with your CPA or tax consultant as not rehiring all employees could negatively impact the amount of the loan than can be forgiven.  

Most likely. The EEOC has issued guidance supporting pre-employment screening.  As guidance, the courts are not required to follow it but generally provide it significant weight. However, such screening should not occur until after making a conditional job offer. This post-offer screen must be done for all applicants in the same job classification.

Furthermore, in some situations delay or withdrawal of a job offer may be appropriate but should not be done without consulting your HR Consultant as there can be significant risk with such actions.

For more on this topic, see the question below regarding when you can take the temperatures of employees when they return to work.

Whether Paid Time Off (PTO) needs to be restarted depends on how the employee was previously treated. If they were on an unpaid leave of absence and did not exhaust their PTO during that time, then their accrued and unused balances should be available to the employee upon their return.

However, if the individual was separated from the company in a layoff or termination, accruals would restart upon rehire.

Please consult with your HR Consultant regarding state-specific Sick Time rules because in certain situations balances need to be refreshed if the person has returned to work within a specific time period.

The department of Homeland Security announced that it will defer the physical presence requirements associated with Employment Eligibility Verification. Therefore, employers who are hiring telecommuters or other not physically present new hires  due to COVID-19 physical proximity precautions will not be required to review employees’ identity and employment authorization documents in their physical presence.

The requirement to inspect I-9 Section 2 documents is still in effect, albeit remotely (e.g., over video link, fax or email, etc.).  Employers still must obtain, inspect, and retain copies of the documents within three business days to complete Section 2.

Employers should enter COVID-19 as the reason for the physical inspection delay in Section 2’s Additional Information field once physical inspection takes place after normal operations resume. When the new normal resumes and documents have been physically inspected, the employer should add “documents physically examined” with the inspection date to Section 2’s additional information field or to Section 3 as appropriate.

This discretion remains in effect until May 19, 2020 (unless extended) OR within 3 business days after the termination of the National Emergency, whichever comes first.

Employers verify remotely must provide documentation of their remote onboarding and telework policy for each employee.

This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.

 

Employers can use Section 3 to reverify a rehire if the employee was laid off or terminated from the Company. Employees who were terminated or rehired due to COVID-19 should write “COVID-19 EXT” in the margin or annotate in the additional information field. Do not forget to provide the I-9 instructions to the employee.

With the caveats regarding virtual inspection, new hires should complete new I-9s. Remember to provide the I-9 instructions to the new employee.

According to the Occupational Safety and Health Administration (OSHA), employees can refuse to engage in “dangerous work” if certain conditions are met, including that the employee has a genuine belief that imminent danger exists in the workplace and a reasonable person would agree that there is a real danger of death or serious injury in the workplace.  Employers can remind their employees that the employer is operating in accordance with state and local safety and health guidelines.

If the employee still refuses to come to work, employers can consider whether or not containment measures at the workplace (such as separate workstations or partitions between workstations) can address the issue, or whether the employee can telework.  Employers who allow their employees to take paid time off will need to consistently implement their paid time off policies. Additionally, employers may want to offer unpaid leave.

If the employee is immune compromised, in a high-risk category, or otherwise has a disability, the employee may qualify for an accommodation under the Americans With Disabilities Act. Thus, employers are strongly encouraged to engage in the interactive process to determine whether the employer can reasonably accommodate the employee.  Additionally, there may be certain federal, state, or local leave entitlements for employees who are told to self-quarantine by a health care provider or governmental authority because of vulnerability to COVID-19.

Also reference the question below regarding what happens if employees refuse to report to work in other instances.

Under the Occupation Safety and Health Act (OSH Act), employees are only entitled to refuse to work if they believe they are in imminent danger. According to §13(a) of OSHA, “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, clients should discuss all facts and circumstances on a case-by-case basis with their HR Consultant when confronted with these issues.

On the other hand, situations where an employee is requesting a leave or other accommodation (such as the ability to telework) because they have a disability which puts them at an increased risk if they contracted the virus, they may be entitled to stay out of the workplace as a reasonable accommodation under the Americans with Disabilities Act (ADA).

Yes. The Centers for Disease Control and Prevention (CDC) has updated their guidance on the issue. Employers can measure employees’ body temperatures so long as the medical test of employees is "job related and consistent with business necessity."  This means that employers may test employees prior to entering the workplace to determine if the employee has the COVID-19 related symptoms. 

To be consistent with the Americans With Disabilities Act, tests must be reliable and accurate. Employers are encouraged to review guidance from the U.S. Food and Drug Administration and the CDC about what may or may not be considered safe and accurate testing. 

Employers should notify their employees of temperature screening measures in advance of returning to work and inform the employees that the purpose of temperature screening is solely to protect the employees by keeping individuals with symptoms consistent with COVID-19 offsite and not to determine if an employee has any other illness, impairment, or disability. Employers should also make clear that screening is not intended to be a clinical diagnosis.  Finally, employers should still require employees to observe social distancing, regular handwashing, and other infection control measures in the workplace to prevent COVID-19 transmission.

Per the EEOC’s June 17, 2020 guidance, employers cannot require employees to undergo an antibody test as a prerequisite to return to work.

The EEOC explained that antibody testing is a distinctly different medical examination from COVID-19 testing, which detects the presence of the virus.  As noted in a prior FAQ, employers can administer COVID-19 testing on employees before they return to work, per the EEOC’s April 23, 2020 guidance.

Employees who test positive for COVID-19 should be excused from work immediately and should self-quarantine. They should contact their healthcare provider as soon as possible.

In addition, clients should contact their local health department to determine if the case needs to be reported and should take all necessary measures to clean and/or sanitize the workplace to make any contact areas safe. Clients should also reach out to Engage’s Workers’ Compensation team (wc@engagepeo.com) and notify their HR Consultant for further guidance.

Medical and health information of employees must remain confidential, and employers should notify other co-workers who may have been in contact with the individual that possible exposure has occurred without providing any identifying information about the employee who tested positive.

Presumptive positive cases (where the individual exhibits symptoms of COVID-19, but has not received a negative test result to clear them), and cases where an employee discloses that they have been in close contact with a person who tested positive, should be treated the same as if they have tested positive. Therefore, they may be excused from work and asked to self-quarantine. Employers are permitted to require that an employee who has been exposed to the virus self-quarantine.

Similarly, employees returning from countries that have a Level 3 Travel Health Notice from the Center for Disease Control (CDC) should also self-quarantine upon their return to the United States.  

First and foremost, it is important to reassure all employees that proper protocols will be observed to ensure employee safety as the business reopens. It’s a difficult situation when an employee has someone at home who is particularly vulnerable since the fact that they are particularly vulnerable alone does not qualify for any protected leave under the Families First Coronavirus Response Act (FFCRA). If the employee’s loved one has been advised by a health care provider to self-quarantine and the employee needs to care for them, the employee might qualify for Emergency Paid Sick Leave (EPSL) under reason number 4 for two (2) weeks of paid/protected leave at two-thirds rate.

That would likely be the extent of the covered leave. If the employee wanted to try and take unpaid leave under traditional FMLA, they could apply through Engage’s FMLA department, but the employee would still be required to meet all of the criteria for eligibility, including that the loved one is a parent, spouse, or child, and provide medical documentation that the loved one has a serious health condition and requires care. If that is the route the employee chooses to take, it’s best to apply through Engage’s FMLA department, provide the required medical documentation, then the FMLA Department will issue the appropriate paperwork, including a denial if applicable.

If it is determined that the employee does not qualify for any type of protected leave, the employer should determine whether they will allow an unprotected, unpaid leave of absence (LOA).  Alternatively,  if the employee continues to refuse to report to work,  the employer can consider the employee to have voluntarily resigned  and decide if the employee is eligible to reapply later. Keep in mind that decisions such as these may set a precedent for how to handle these issues going forward.  

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on protected classes, which include age, race, color, or country of national origin, among other protected classes.  Individual states, and many cities and counties also have laws and local ordinances that address discrimination and harassment in the workplace.  When considering rehiring furloughed or laid off employees or hiring new employees, employers can still keep diversity efforts on track and ensure a more equitable hiring process by being aware of the kinds of biases COVID-19 may expose, and make sure that fear of the COVID-19 pandemic not be misdirected against individuals because of a protected characteristic. Despite all the virus-related distractions, employers should reiterate that blame or harassment of any ethnic or national origin group violates their anti-discrimination workplace policies and reiterate to policies they have promulgated for addressing discrimination and harassment in the workplace.

You may change an employee’s status from exempt to non-exempt, even if the position is eligible for an exemption under the Fair Labor Standards Act (FLSA). But before you make the change there are a few considerations.

  • You must track all of the non-exempt employee’s hours worked. This will be a change for most exempt employees, so you may have to remind the employee of the new timekeeping procedures.
  • You must pay a non-exempt employee overtime for all hours worked over 40 in a workweek.
  • You should review your leave policies and make any adjustments needed and determine how the non-exempt employee’s vacation and leave time accrual will be handled moving forward.
  • Notify the employee if the change results in any change in the employee’s rate of pay.
  • Consider any state-specific requirements for changing an employee’s status. It is generally recommended that an employee be notified in writing of a change to his or her exemption status or rate of pay with at least one pay period of advance notice. 
  • Changes cannot be retroactive.

Note that if you are making the opposite change – changing an employee from non-exempt to exempt; there are other considerations. For example, an exempt employee must meet certain requirements, including job duty and salary requirements, to be eligible, and there are limits on docking the pay of an exempt, salaried employee. It is important to discuss this with your HR Consultant in advance of any changes as there can be stiff penalties for improper exempt status.

Please also see the Department of Labor’s answers to frequently asked questions about COVID-19 at https://www.dol.gov/agencies/whd/flsa/pandemic.

As you rehire employees, clearly written job descriptions are  important. A well-written job description helps you evaluate an employee’s skills for the role, determine if the employee should be classified as exempt or non-exempt, and help the job holder understand the responsibilities of the role.

First, evaluate the role. Next, determine who will draft the description. That person should outline the responsibilities of the role and use the checklist that we have developed to assist with the process. Upper management job descriptions will also outline details like authority and hierarchical relationships, while lower-level job descriptions will focus more on day-to-day activities.

The description should include the job’s essential functions to ensure equal opportunities for all during the application process.

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance.

Once the description is developed, there should be an approval process to ensure that the description is accurate and non-discriminatory. Engage is available to assist with questions about developing job descriptions and classifying employees. You can access the job description checklist here.

 

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.  The ability to telework also may reduce the availability of COVID-19 emergency sick pay at the federal and state levels.

Basic information, such as dates of leave, reasons for leave, rate of pay, etc. should be documented. Engage has prepared forms capturing this information that can be completed when an employee is requesting either EPSLA or EFMLA under the FFCRA.  Depending on the reason for the  leave, employees might be required to provide additional information such as their health care provider’s name, name of the school or childcare facility that has been interrupted due to COVID-19, and other related information.

The Department of Labor’s regulations do not require an employee to provide a doctor’s note or official medical documentation, but they also do not preclude the employer from asking for such documents. Rather, the regulations indicate that the employee should provide documentation of the name of the medical provider, name of the school that has been closed, name of the government entity that issued the isolation order, etc. This is due to the difficulty some employees may face in obtaining written doctor’s notes during the pandemic.

However, the IRS  regulations allow employers to require employees to provide any other necessary documentation support the employer’s claim for FFCRA tax credits. Thus, if an employer legitimately questions the employee’s need for leave and is concerned that they may be paying for leave under the FFCRA when the employee  is otherwise ineligible, they could require additional documentation (such as a doctor’s note). Nevertheless, employers should their need for leave verification with the flexibility in understanding that many employees may have difficulty procuring a doctor’s note during the pandemic. Employers should also make sure that they are not discriminating against employees by requiring doctor’s notes for some groups, but not others. Any differential treatment between required documentation for different employees must be based on non-discriminatory, legitimate business reasons.  

New York and Colorado prohibit employers from taking adverse action based on an employee’s lawful activity that occurs away from the employer’s premises.  However, employers may still take other measures to help prevent the spread of the virus - as outlined in the questions, below.

Sometimes, while some states have off-duty conduct laws that keep employers from prohibiting employees from traveling, the employer may instruct employees to inform the employer of past or future travel plans to allow the employer to evaluate the risk to other employees.  If the employer chooses to take this preventive measure, it is important to apply this procedure uniformly and consistently to all employees.

Yes, the EEOC specifically allows employers to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.  Note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. (The EEOC allows a viral test to test for the active presence of COVID-19 but prohibits an antibody test for the prior presence of COVID-19).

Yes, 14 days is the general CDC recommendation.  Consider allowing the employee to telework if that option is available.

Additional measures can be taken, such as onsite temperature screenings.

Remember, such a preventive measure  can also trigger the Family First Coronavirus Response Act (FFCRA) for employers under 500 employees, and possibly state or local leave laws.  Some states are requiring individuals traveling from certain other states to quarantine for 14 days or be documented as COVID-19 free before traveling freely in the state.  New York has taken this a step farther by denying employees New York COVID-19 Paid Sick Leave benefits if they take vacation travel to some states (a “high risk state”) with high prevalence of positive test rates.

While an employer mandated quarantine would not be sufficient to trigger the application of the Emergency Paid Sick Leave (EPSLA) under the FFCRA, employees may be placed in quarantine by a healthcare professional.

As previously noted, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

In addition, employers should let their employees know about the COVID-19 Travel Recommendations by Country, which are found on the CDC’s homepage.  The CDC currently mandates that individuals returning to the U.S. from any international travel self-quarantine for 14 days.

To help employees make a well informed decision about whether to travel, the CDC created this document, https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html