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By The HR Team at East Coast Risk Management

coronavirusHere are some of the most common questions we get from our clients on how the coronavirus, also known as COVID-19, affects the workplace.  Below each question, we have provided an answer.  If you have additional questions, please feel free to call us at 855-873-0374 or email us at hrhelpline@eastcoastrm.com.

  1. What should we do if one of our employees has COVID-19 symptoms or tests positive for COVID-19?
  • Employers should send the employee home and require them to stay home until they are able to return under CDC guidance. It is important to note that return to work standards and time frames may be different depending on circumstances.  Employers should review the CDC’s website for guidance. If an employee tests positive, the employer should also consider notifying other employees who may have been exposed at work, but maintain the confidentiality of the employee who tested positive. A good CDC reference for employers can be found here:  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

  1. What should we do if one of our employees has had contact with a person with COVD-19 symptoms or someone that has tested positive for COVID-19?
  • Employers should review the risk categories established by the CDC and develop a response based on that guidance. This CDC guidance ultimately puts employees into a risk category based on symptoms, travel, and level of contact with a symptomatic individual.  If there is a risk that the employee’s contact with another person put them at risk of contracting COVID-19, the employer should send the employee home and require them to stay home until they are able to return under CDC guidance.  The CDC risk assessment guidance can be found here: https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html

  1. What is the process to return an employee to work that after they either had COVID-19 symptoms or tested positive for COVID-19?
  • An employer can require an employee to provide a return to work note or remain symptom free for a specific amount of time before retuning to work. If a return to work note is required, employers should consider that the healthcare system may be overwhelmed during this period of time making it difficult for employees to get them.  Return to work standards may be different for an employee who tests positive for COVID-19. A best practice would be follow CDC guidance and instructions from public health authorities.

  1. What do I do if one of my employees is afraid to come to work for fear of contracting COVID-19?
  • Since each employee’s circumstances are different, employers should review all facts before taking any action. If the employer and its employees are following all CDC recommended guidance, including those pertaining to hygiene, disinfecting regularly touched surfaces and maintaining social distancing, the employer may want to go over those procedures with the employee to attempt to ease any anxiety. If that doesn’t work, the employer and employee may talk about the employee working from home, if that is possible, or the employee taking leave of absence. We have also been asked if the employer could terminate the employee if they didn’t want to come to work out of fear.  The answer will depend on the circumstances, but if the fear is reasonable, termination could be a risk.

  1. Should I ask older employees or employees with prior existing health conditions not to come to work for fear that they may contract COVID-19?
  • An employer’s actions taken during the COVID-19 pandemic should be both consistent and uniform across the organization to avoid the risk of discrimination. Asking employees in high risk categories not to come to work could lead to discrimination claims.  A better approach is to make sure the company and its employees are following all CDC guidelines including hygiene, disinfecting regularly touched surfaces and maintaining social distancing.

  1. Can you explain the new Family First Coronavirus Response Act (FFCRA)?
  • The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These new laws are in effect from April 1, 2020 through December 31, 2020. For more detailed information, please go to: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.

  1. What is the difference between unemployment compensation benefits and the FFCRA?
  • Federal and state unemployment compensation programs work together to supply eligible employees with benefits when they lose their jobs. The money is paid to the IRS by employers and then distributed to employees when they are out of work through no fault of their own, including if their company is shut down by some state of local order. You can check with your state unemployment office for further details on who is eligible for unemployment compensation benefits.  The FFCRA provides a paid leave benefit when employees cannot work because they have to care for a child whose school or daycare is closed.  It also provides paid sick leave under certain circumstances.  In other words, the FFCRA provides a paid benefit to employees who cannot continue to work due to certain conditions outlined in the FFCRA law.  Those conditions can be found here:  https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.

  1. What type of documentation can I require under the FFCRA?
  • A number of questions about the FFCRA remain unanswered by the guidance provided by the Department of Labor (DOL) at this time, including what types of documentation you can require. The DOL states it will issue further guidance, including additional fact sheets and question-and-answer documents shortly.

  1. What do I do if I think employees are abusing sick time?
  • While recognizing there is a possibility for abuse by employees who would like to stay home for two weeks, it is suggested that employers communicate with their employee and try to resolve any issue. This is uncharted territory for everyone and employers should have compassion at this time. We suggest that any action you take in response to COVID-19 should be applied consistently and in a manner that does not discriminate against a protected class. Here is a link with some helpful info from the Equal Employment Opportunity Commission’s (EEOC)’s website:
  • https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

  1. What type of cost savings measures could I implement with my employees if the company is experiencing economic hardships due to COVID-19?
  • There are several an employer could consider. They could reduce shifts, hours or pay, implement furlorn ughs or a reduction in force. Before making any of these decisions, employers should first be able to establish and document a business need to do so. Employers should then consult with an experienced HR professional or employment attorney before executing any of these options to be sure the employer maintains compliance with all applicable collection bargaining agreements as well as any employment and benefit laws.

  1. What is the difference between a furlough, a lay off and reduction in force?
  • A furlough is a temporary suspension of employment for a specified period of time during which an employee does not receive any wages. There is often a pre-planned schedule for the employee to return to a working status. Layoffs are usually used when the employer does not plan to return the employee to a working status or is unsure when such may be possible.  The phrase “reduction in force” is used when an employer involuntarily separates more than one employee from employment.  It is similar to a lay off in that both are involuntary separations,  but different in the sense that the employer does not intend to call those selected for separation in a reduction in force back to work.

  1. If I choose a furlough, reduction in hours or reduction in pay for cost savings measures, how do I pay my employees that are exempt from overtime pay?
  • One of the most important things to remember with employees who are exempt from overtime pay is that they must be paid according to the salary basis rule. The federal salary basis rule requires that exempt employees receive a guaranteed salary of at least $684 a week.  If you choose a furlough, the exempt employee must not work at all for a whole work week if the employer does not want to pay them their pre-determined salary for that week.  If hours or pay is reduced, the employer cannot take the employee’s  salary below $684 a week.  Employers should also be sure to comply with any state law that may have salary basis requirements.  Please note state law may require written notice be provided before any change in an employee’s pay.

 

  1. What happens with group health benefits if I furlough or reduce hours of my employees to save money?
  • Employers should review all plan documents to determine this answer. These actions may cause the employee to become ineligible for benefits under the plan in which case the employer would then need to timely place the employee on COBRA or mini-COBRA.

 

 

If you are an employer that has questions on any issue relating to human resources, safety, or workers’ compensation, contact East Coast Risk Management by calling 724-864-8745 or emailing us at hrhelpline@eastcoastrm.com.

DisclaimerThe information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.