In the last seven weeks during the Shelter In Place (SIP) orders, most of us have gone through a wide range of emotions, whether from losing loved ones or trying to entertain small children. I am one of the lucky ones who can do all of my work from home and I have continued to be quite busy advising clients and conducting investigations via videoconference.
As the SIP orders are relaxed and (hopefully soon) lifted, employees will be returning to the workplace. There are a myriad of issues for employers to address in their Return to Work Plans. The following are some tips, considerations and resources.
Be Compassionate: We Have All Been Through a Lot
As much as we would like to treat this SIP period of time as simply a pause in our usual business operations, employers ought to take into account the emotional toll it has likely had on employees when they return to work.
Stress and grief physically manifest themselves in a variety of ways, all of which can impact an employee’s ability to perform at their best. Many mental health professionals have described that people are experiencing feelings of grief during this pandemic period. This is not only grief that one has when someone dies but grief as to other losses and challenges, such as losing one’s income stream, being unable to celebrate life events like graduations, missing the camaraderie of friends and co-workers, and the list goes on.
Employee Assistance Programs (EAP) are more important than ever. These programs provide employees with confidential access to mental health professionals.
Employers should also consider providing employees with mental health resources available through their group health insurance plans. Beyond that, we can all practice compassion towards others, whether within or outside the workplace.
Be Prepared for Employees Needing Time Off
After employees return to work, employers may see an uptick in employees calling in sick or requesting time off for reasons which may not seem like they are Covid-19 related but are due to stress. Employers with “unlimited” Paid Time Off programs may also experience an increase in absenteeism for these reasons. Managers would be well-advised to refrain from overly quick judgments about why an employee may not be at 100 percent while we continue to be in the midst of very uncertain times.
What if an employee doesn’t report to work because she feels that the work environment is unsafe, despite the employer observing the applicable government agency safety guidelines? This scenario will be unique to each employer. Employers will need to explore why the employee feels this way, which could be that the employee is in the defined “vulnerable population” (for example, the employee may have underlying medical issues) and accommodations must be evaluated. Even if this is not the case, consider whether it makes sense to explore alternatives such as teleworking, an unpaid leave of absence or extra safety measures. It may be that other employees are equally uncomfortable and there is a quick fix. Employers need to ensure that they do not engage in retaliatory actions based on complaints regarding work conditions or safety concerns.
Employees who cannot work because of their own or a family member’s illness will need to be evaluated under the employer’s applicable Paid Sick Leave (PSL) and Paid Time Off (PTO) policies and laws such as the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).
Screening employees for symptoms (described below) may result in employees unexpectedly being sent home and tested for Covid-19 resulting in additional time off. Certain Covid-19 related absences may be covered by the federal Emergency Paid Sick Leave Act (enacted as part of the Families First Coronavirus Response Act on April 1, 2020) which extends through December 31, 2020.
The Emergency PSL Act applies to employers with less than 500 employees (although various local ordinances, including in San Francisco, require employers with more than 500 employees to provide the same benefits). Covered employers must provide 80 hours of Paid Sick Leave for full-time employees and a pro-rata amount for part-time employees for the purposes described below. All employees are covered regardless of length of service.
This PSL is to be provided when:
- Employees are subject to a federal, state or local quarantine or isolation order related to Covid-19.
- Employees have been advised by a health care provider to self-quarantine due to concerns related to Covid-19.
- Employees are experiencing symptoms of Covid-19 and seeking a medical diagnosis.
- Employees are caring for an individual who is subject to a government quarantine or isolation order or has been advised to self-quarantine.
- Employees are caring for a son or daughter if the school or place of care is closed or child care is unavailable due to Covid-19 precautions.
- Employees are experiencing a substantially similar condition as Covid-19.
The rate of payout of this emergency PSL has a cap, depending on the employee’s regular rate of pay. For reasons #1-3 above, the cap is $511 per day with a $5,110 aggregate (thus, if someone’s regular rate of pay is above this amount, this cap is the legal obligation). There is a different cap for reasons #4-6 which is two-thirds of the employee’s regular pay subject to a cap of $200 per day with a $2,000 aggregate.
Time off for child care due to school closures or child care provider unavailability due to Covid-19 of up to 12 work weeks is provided under the Emergency Family and Medical Leave Expansion Act. This law also covers most employers with less than 500 employees. Eligible employees are those who have worked for 30 calendar days.
The first 10 days of the leave is unpaid and employees can substitute their PTO or sick leave (including the Emergency Paid Sick Leave) if they wish to do so. The remaining 10 weeks is to be paid at two-thirds the employee’s regular rate of pay, subject to a cap of $200 per day with a $10,000 aggregate.
Employers will receive a refundable tax credit equal to 100 percent of qualified sick leave wages paid, up to certain limits. The tax credit is allowed against the employer portion of payroll taxes, and any paid leave costs that exceed the amount of payroll taxes owed will be refundable to the employer at the end of each quarter.
There is a limited “small business exemption” for employers with less than 50 employees for both the Emergency PSL and the Emergency FMLA requirements for paid leave; however, it requires establishing that the business would jeopardize its viability as a going concern and meet specified criteria. Given the payroll tax credit, this may prove quite difficult. The job protection/restoration requirement of 12 work weeks is not required for employers with less than 25 employees, provided certain criteria are met, including a reasonable effort to reinstate. There are also exceptions for layoffs or business circumstances which prevent the employee’s return to work.
Employee Relations Issues Will Continue
Although employees may be thrilled to get out of their homes and reunite with their co-workers, that assumes that a utopian workplace existed before the pandemic. Employees who did not get along before the SIP order are not likely to suddenly get along when they return to work. Similarly, employees who had performance problems will likely continue to have them. Front-line managers will need to be prepared to jump back into the fray.
Managers will likely need support for any number of new scenarios given that this pandemic is unprecedented as well as unpredictable with life or death consequences. Although most employees will fully cooperate with social distancing, mask-wearing and cleaning requirements, there are likely to be those who do not take it seriously or even chastise those who do. We can expect Human Resources professionals to be busy for some time.
Follow All Safety Guidelines, At a Minimum, and Listen to Employee Feedback
Employers have always had a legal obligation to provide a safe workplace and some types of industries have more physically risky jobs than others. The SIP orders and guidance from the federal Centers for Disease Control and the Occupational Safety and Health Administration, as well as state agencies, have addressed safety measures for Covid-19 that must be closely reviewed and applicable items implemented before employees return to work. Here are some helpful resources:
CDC Interim Guidance for Businesses
OHSA Guidance on Preparing Workplaces for Covid-19
The San Francisco Bay Area SIP orders, updated April 29, include a fairly extensive list of Social Distancing Protocols for employers, including screening employeees for symptoms before they begin working. Construction projects have additional required protocols. Cal-OSHA has published a variety of specific Safety and Health Guidances for different industries, including employee screening protocols. Even if these protocols do not apply to an employer due to their geographic location or otherwise, they provide a good roadmap for safety planning.
Before employees return to the workplace, employers will need to determine how work will be performed to observe social distancing. Shared offices, open space work areas, conference rooms and the like present challenges to be addressed. Employees’ work hours may need to be staggered and it may not be possible for employees to work a full-time schedule for some period.
The Equal Employment Opportunity Commission and California’s Department of Fair Employment and Housing have provided helpful guidance on screening employees for symptoms. For example, employers may take employees’ temperatures and inquire about specific symptoms before allowing employees to work. (See the EEOC’s Pandemic Preparedness in the Workplace and DFEH’s Employment Information on Covid-19.).
Employers need to ensure that screening measures and records comply with medical information confidentiality requirements. Those conducting the screening must be properly trained.
Other resources for workplace safety relating to Covid-19 include UL’s Covid-19 Support and Services.
Employers should have a written policy in place prior to employees returning to the workplace regarding social distancing, safety measures and symptom screening protocols.
From a practical perspective, when employees do not feel that their workplace is safe, productivity will suffer. Employers will be well-served by considering safety protocol measures that go beyond the guidelines and SIP orders. If employees express concerns or have suggestions for making the workplace more safe and comfortable, listen to them.
Employers will continue to grapple with these issues and myriad others during this very uncertain time. For more information or assistance with employment law compliance matters, please contact me at topliff@joblaw.com.
