As stay-at-home orders are lifted and businesses re-open, employees all across the country are headed back to work. As business resumes, business owners and employers are now forced to navigate a global pandemic’s uncharted waters to balance their business objectives with employee safety.
Now more than ever, it is important to review your company’s policies and procedures and prepare for COVID-19. The reality seems to be that it is not IF the virus will affect your business, it’s WHEN. As an employer, perhaps now more than ever it is imperative to : STAY INFORMED, PLAN, AND EXECUTE YOUR PLAN CONSISTENTLY.
The struggle however, is that COVID-19 recommendations and regulations are fluid, subject to change, and often unclear and confusing. Therefore, you may feel like you are constantly shooting arrows at a moving target. Because our country has never experienced this type of pandemic, law makers and agencies are releasing guidance, but constantly changing that guidance.
Therefore, although nothing is certain or set in stone, there are still resources available and things you can do as an employer to help you sail through these uncharted waters, operate your business, and protect your employees.
GET TO KNOW THE COVID-19 GUIDANCE AND REGULATIONS
Knowledge is power, and COVID-19 is no exception. As a business owner and employer, you must educate yourself on the guidance and regulations currently governing the pandemic. The CDC has enacted “Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019”. This is an important document to bookmark, save, and repeatedly review.
Get help if you need it. If you need assistance in navigating the terrain, reach out to your local SBDC, which often provide no cost, confidential, professional business advice to entrepreneurs and business owners. The site here in Iowa is located HERE.
Build a data resource bank and consistently check back for changes. When enacting your policies and businesses practices there are several resources every employer should have at their side. These include:
This list is not meant to be exhaustive, but will give you a good start to building your knowledge base on employment issues during COVID-19.
DESIGNATE YOUR PANDEMIC COORDINATOR OR TEAM
The government recommends that a business designate an individual tor team with defined roles and responsibilities for response planning. This coordinator should be responsible for keeping up with local, state, and federal guidance as well as EEOC, OSHA, and ADA guidance. This individual should review the office to look for ways to minimize exposure. This individual could be designated to handle leave requests, requests for accommodation, or other COVID 19 related issues. Employees should be informed of the individual(s) serving in this role.
KEEP YOUR EMPLOYEES INFORMED
The CDC advises that this coordinator should seek up to date information and provide the same to employees. Businesses should monitor, federal, state, and local public health communications about COVID-19. Ensure your employees have access to the most up to date information. Consider newsletters or emails to employees with this information. Make sure your employees are familiar with the CDC guidelines to keep employees safe, and also their leave options under the FFCRA.
Post DOL posters and handouts related to leave requirements: Click HERE
ENACT A BUSINESS RESPONSE PLAN TO COVID-19
After you gain your knowledge, it is time to prepare the plan. Businesses are encouraged to enact COVID-19 response plans to reasonably balance their business objectives with employee safety. As a business, you need to enact a plan for how you will handle positive cases, how you protect your employees to limit exposure, how you will handle leave requests, and how you will conduct your daily business in the pandemic.
The hard part in enacting your plan is that there is no “one size fits all” situation. Reach out to your legal counsel or HR professional for assistance in your policies and procedures. Because each business should enact a plan that is unique to the concerns and needs of that business and its employees, it is difficult to provide a “standard” form.
REMEMBER THE EEOC AND ADA STILL EXIST IN THE PANDEMIC
In deciding how the plan will be enacted, be mindful that the EEOC and ADA are still present and enforceable. The U.S. Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA). Make sure you are up to date with your knowledge of COVID-19 and the ADA and EEOC.
The Americans with Disabilities Act (ADA) is relevant to a business’s preparation for COVID 19 in three major ways. First, the ADA regulates an employer’s inquiries and medical examinations of their employees during this time. Second, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health and safety reasons unless they pose a “direct threat”. Third, the ADA requires reasonable accommodations for individuals with disabilities during the pandemic.
Under the ADA there are certain things you can and can’t do in regard to COVID-19:
YOU CAN’T ask an employee if they have chronic health conditions that make them more susceptible to COVID-19 complications. The ADA prohibits an employer from asking an employee to disclose if he or she has a compromised immune system or chronic health condition that would make them more susceptible to COVID-19.
YOU CAN make inquiries about whether employees have the current symptoms of COVID-19. Current guidance recommends doing this in “yes” or “no” questions. The CDC has suggestions of “screeners” you can use in your business if you desire. Click HERE.
YOU CAN AND MUST enact procedures for confidentiality of employee medical files including COVID-19 information. The ADA requires all medical information to be stored separately from the employee’s personnel file, thus limiting access to confidential information. An employer may keep all medical information related to COVID-19 in existing medical files. This would include any questionnaires on symptoms, or temperature monitoring. Although confidentiality is hard in smaller businesses, it is required.
YOU CAN AND MUST make reasonable accommodations for high risk employees if requested and if it does not cause an undue hardship to the business. This includes making reasonable accommodations that could protect individuals who have an increased risk for COVID-19. Changes in work environment such as designating one-way aisles, using plexiglass barriers, modifying work schedules, and telework have all been found to be reasonable accommodations.
YOU CAN AND SHOULD enact an anti-harassment policy, or review your anti-harassment policy due to underlying fears of COVID-19. The EEOC prohibits harassment in the workplace based on national origin, race, or other protected characteristics. An employer should remind all employees that it is against federal and state laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age, disability, or genetic information. An employer should make it clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.
YOU CAN make your employees go home if they have symptoms of COVID-19. The ADA prohibits employers from excluding individuals with disabilities from the workplace for health and safety reasons unless they pose a “direct threat”. A direct threat is defined by the ADA as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”. Current guidance (which was released in March 2020) has held that the COVID-19 pandemic meets the direct threat standard.
YOU CAN implement flexible sick leave and supportive policies and practices. The EEOC, CDC, and Department of Labor all encourage employees to be as flexible as possible with their leave policies during COVID-19. You can enact non-punitive sick leave provisions. Remember to review your requirements for paid leave under the FFCRA if you are a qualifying business. Employers should not require a COVID-19 test or a healthcare provider’s note for employees who are sick to validate their illness, or qualify for sick leave.
YOU CAN implement procedures for employees to request leave under the FFCRA. Because the FFCRA leave is exhausted after it is used, it is important to inform your employees how they can request the leave within your business.
YOU CAN set up procedures for employees who call in sick. If an employee calls in sick, an employer can ask “yes” or “no” questions to determine if the employee has or had COVID-19. For example, an employee can be asked if they are exhibiting symptoms of “fever, chills, cough, shortness of breath, or sore throat”.
YOU CAN take temperatures of employees before they come in to the office. Because the CDC has acknowledged community spread of COVID 19, as of March 2020, an employer can measure an employees’ body temperature. As with all medical information, this information would have to be held confidential. You would want to do this office wide to make sure it is equally required.
YOU CAN adopt infection control practices, such as regular hand washing, etc.
YOU CAN require employees to wear face masks, gloves, and gowns. The ADA states that an employer may require employees to wear personal protective equipment during the pandemic. However, where an employee with a disability needs a related reasonable accommodation, such as non-latex gloves, or certain gowns, the employer should provide these, absent undue hardship.
YOU CAN’T require employees to get influenza vaccines.
YOU CAN require a doctor’s note certifying fitness for duty after COVID-19. The EEOC has provided that you can require a doctor’s note for an employee to return following COVID-19, but should be mindful that because doctors and health care professionals are busy, the term “doctor” should be more flexible and include local clinic stamps, e-mails, etc.
ENACT A PROCEDURE FOR WHEN AN EMPLOYEE TESTS POSITIVE AND COMMUNICATE THE PLAN TO EMPLOYEES
Once you are made aware of a positive COVID-19 test, check local, state, and CDC guidance. Under current CDC guidance, in most cases you do not need to shut down your facility, but this will depend on your business. If it has been less than 7 days since the sick employee has been in the facility, close off any areas used by the sick person.
Wait 24 hours before cleaning and disinfecting and follow CDC guidelines to properly clean.
Determine which employees have been exposed to the sick employee. Inform those employees of their possible exposure, but remember to maintain confidentiality regarding the person’s identity. Follow the Public Health Recommendations for Community Related Exposure and instruct potentially exposed employees to stay home for 14 days, telework if possible, and self-monitor.
After you enact your plan for how you will handle an infected employee, it is important to inform your employees of this plan so they know that they will be quarantined if exposed, can request the leave, use sick time, etc.
Although these are ever-changing times, the more prepared you are as a business owner, the less stressed you will be when these issues arise at your door. Stay informed, plan, and execute your policies and procedures as written and equally amongst your employees.
This post was written by Amanda M. Richards. Ms. Richards has been practicing in the area of civil litigation and employment law since 2005.
This post was written on August 27, 2020 and is based on current guidance listed at that time. This post does not constitute legal advice. Please consult with your legal counsel for more information on these topics.