Employer Resources from April 29, 2020 webinar Leading Through COVID-19 (Big picture considerations for employers as they reopen their workplaces)

Big picture considerations for employers as they re-open their workplaces.

1. Review and update employment policies.  Before returning to work, employers should review their employment policies with respect to sick leave, family and medical leave, employee leaves of absences, teleworking, vacation, and paid time off to ensure both compliance with applicable law and practicability in the post-COVID-19 workplace.
   1. Create a Pandemic Policy Resource.  Employers may consider creating a COVID-19-specific addendum to their employee handbook for use during the pendency of the crisis.  Policies to consider include requiring employees to report illness, workforce contact tracing, and special accommodations for vulnerable employees (even if not otherwise disabled).
      1. Below is a sample remote work policy and remote work agreement. 
      2. The Chamber of Commerce resource can be useful as well.
   2. Review Employee Leave Requests and Tracking Procedures.  Employers should also ensure that their employee leave policies clearly state the process by which employees may request time off so that any grants or denials of such requests are made in accordance with applicable law and that any time off is tracked.  Tracking time off is particularly important with respect to time off taken under the Families First Coronavirus Response Act (FFCRA), for which employers may seek refundable tax credits from the Internal Revenue Service.
   3. Make sure employees know how to file complaints, report concerns, and request reasonable accommodations.  Employers should consider choosing a specific individual to receive COVID-19-related inquiries and complaints, in addition to making sure the new policies contain clear reporting instructions.

2. Conduct a Risk Assessment. The Occupational Safety and Health Act (the “OSH Act”) requires employers to provide employees with a workplace free from “recognized hazards that are causing or likely to cause death or serious physical harm.”  Employers should consider conducting a COVID-19-specific risk assessment of their physical work environments under OSHA’s Guidance on Preparing Workplaces for COVID-19.  When conducting the risk assessment, employers should classify the exposure risk level of the various roles in the workplace in accordance with the OSHA Guidance and take appropriate steps to protect workers with medium, high, and very high exposure risk jobs.
   1. Workplace Assessment.  The initial assessment should focus on whether and to what extent there is the possibility of frequent or close contact with other people.  This will vary greatly from business to business.
      1. Can you limit in-person interactions and physical contact?
      2. Can you close or modify common rooms and break rooms/cafeterias?
      3. Will you require personal protective equipment?
      4. The risk analysis and its related mitigation strategies should also include a cost-benefit analysis.  It is possible that prudent risk mitigation strategies make the costs of reopening the business at a point in time greater than the benefits.
   2. Review your insurance policy.  It’s likely that future interruptions to businesses will occur, so it’d be smart for an employer to be familiar with whether their policies expressly exclude coverage for losses due to a virus or pandemic.
   3. Review your contracts.  Business owners should likewise consider whether their written contracts adequately address the consequences of a pandemic like COVID-19.  As businesses reopen, many will negotiate new contracts or look for reasons to terminate existing contracts or excuse a lack of performance.  A review of existing and future contracts will help evaluate the level of protection they provide.

3. Decide whether you’ll conduct testing.  Employers should consider whether to conduct COVID-19 tests and if so, what type of test to conduct (i.e., blood, saliva, or nasal swab).  What type of test will you run?  Who will conduct the tests?  How will these personnel be trained?
   1. Establish clear and uniform standards.  If an employer chooses to monitor employee body temperatures, it should clearly communicate to employees in writing the temperature check procedure and screening threshold—and the consequences of failing a temperature check—in advance of implementing the policy.  Employers should similarly be prepared to perform such checks and screening of vendors and other visitors to their workplaces.
   2. Determine how you’re going to respond if an employee refuses to be tested.  If an employee refuses to undergo a temperature check or other COVID-related test, the employer may bar the employee from the workplace.  However, employers should ask about the reasons for the refusal in the event that there is a health-related or religious reason for the refusal or if more information or reassurances concerning confidentiality would be helpful.

4. How will you handle employee morale and fear, and mental health?  Expect that for a wide variety of reasons, employees may request to continue teleworking even as their workplace reopens.  An employer needs to consider the impacts on management, communication, and staffing as certain operations are on site while other employees continue to telework.
   1. Be Mindful of Employee Anxiety.  Employers should also be mindful of the health, safety, and security issues that employees and employees’ family members may be experiencing, and consider exercising flexibility to accommodate these issues.  To manage these types of intangible issues, employers may want to assess whether a work-from-home arrangement is feasible for a particular employee even after the workplace reopens and, if not, whether a leave of absence would be more appropriate.  Of course, these may not be the only available options, and employers should consider exercising creativity in determining reasonable and appropriate solutions.
   2. Employers who offer an Employee Assistance Program should remind employees that this resource is available to them.  And employers who haven’t historically offered an EAP may want to consider adding this to their employee benefits package, at least during these trying times.

APPENDIX A

COVID-19 Temporary Remote Work Policy Overview

As a part of THE COMPANY’S continued response to the novel coronavirus (COVID-19) pandemic, THE COMPANY may allow employees to temporarily telework (work remotely or work from home) during the time period between ____, 2020 and______, 2020. Under the temporary remote work policy, employees will perform essentially the same work that they would on-site in accordance with performance expectations and other terms determined by their supervisors.

THE COMPANY may support remote work arrangements for staff in some situations based on the individual’s request and THE COMPANY’S/DEPARTMENT’S ability to accommodate the request in accordance with a specific contingency plan. Remote work arrangements may not be feasible in all cases and requests should not compromise continuity of operations for members of THE COMPANY and the performance of essential functions of each office and department.

Remote Work Agreement: The temporary remote work request form is accessible via []. Once submitted, your direct supervisor may contact you for additional information and/or ask you to further explain (1) how you plan to fulfill work expectations remotely and (2) how you plan to communicate regularly with co-workers, supervisors, and members of THE COMPANY during regular work hours. If approved by [supervisor], a remote work agreement must be executed by the appropriate parties prior to beginning remote work.

Work performed remotely or from home is considered official COMPANY business; therefore, [DEPARTMENTS/GROUPS] may establish specific conditions that apply to employees engaged in remote work.

Termination of the Temporary Remote Work Agreement: THE COMPANY reserves the right to modify the temporary remote work arrangement at any time. Employees may be required to return to the central workplace if deemed as having performance or work conduct problems, or if THE COMPANY feels it is in the best interest of THE COMPANY and/or the employee to modify or suspend the arrangement, either permanently or temporarily.

Hours of Work: The amount of time and work hours that the employee is expected to work will not change due to participation in a temporary remote work agreement. Hours of work should remain the same unless specified in the agreement. The employee agrees to apply themselves to work and be available to communicate with their co-workers, supervisor(s), and members of THE COMPANY during work hours. Normal procedures will be followed for the approval of overtime and use of leave. Nonexempt employees are responsible for reporting all hours worked each week. Failure to report time, like failure to obtain approval for overtime, can result in the termination of the temporary remote work arrangement or other disciplinary action.

Compliance with COMPANY Policies: Employees must agree to comply with COMPANY rules, policies, handbooks, practices, and instructions and understand that violation of such may result in the termination of the temporary remote work arrangement and/or disciplinary action, up to and including dismissal.

Security of Information and Records: Employees must use secure remote access procedures and are responsible for the security of all documents and records in their possession while remote working and must adhere to THE COMPANY’S IT and other security procedures to ensure confidentiality and security of data. Employees working remotely agree not to share individual log-in passwords with anyone outside of THE COMPANY. Any use of restricted-access information or materials at an alternate work location must be approved and described in the remote work agreement, along with procedures for removing and returning those materials. Employees approved to telework agree that their access and connection to THE COMPANY’S network(s) may be monitored to record dates, times, and duration of access. If any unauthorized access or disclosure occurs, the employee must inform the direct supervisor immediately.

Equipment and Materials: Employees approved to telework must agree to use equipment provided by THE COMPANY and supplies for business purposes only and to notify the supervisor immediately of equipment malfunction in order to schedule repair or replacement. Please work with the [] at 555-555-5555 to address any of these issues. Any damage or theft of the equipment should immediately be reported to the supervisor. COMPANY-owned equipment used in the normal course of employment will be maintained and repaired by the COMPANY. Employees approved to telework must return all COMPANY-owned property when the remote work arrangement ends. When employees are authorized to use their own equipment, the department will not assume responsibility for costs of repairs, maintenance, or service.

Other Costs: Under this temporary policy, THE COMPANY is not responsible for operating costs (such as electric bills, internet, etc.), home maintenance, or other costs incurred by employees in the use of their homes as alternate work locations.

Liability: THE COMPANY assumes no responsibility for injuries occurring in the employee’s alternate work location outside the agreed-upon work hours, or for liability damages to employee’s real or personal property resulting from participation in the telework program. Workers’ compensation coverage is limited to designated work areas in employees’ homes or alternate work locations. Workers’ compensation does not apply to injuries of any third parties or members of the employee’s family on the employee’s premises. Employees agree to practice the same safety habits they would use in the workplace and maintain safe conditions in their alternate work locations. Employees must follow normal procedures for reporting illness or injury. Please contact Human Resources if you have any questions regarding this policy or if you have questions about teleworking that are not addressed in this policy.