As a follow-up to our blog of April 16, we offer HR professionals and employers considerations to keep in mind as they begin to bring employees back to the physical workplace. There are three main themes throughout:
Step up communication: a key to reducing anxiety and uncertainty is to keep employees knowledgeable about call-back plans, specific sanitation/hygiene steps, and how social distancing will be maintained as they return. Communicate the why around decisions and seek to understand employees’ concerns. Ask employees for feedback around the “how” in this new world. Strategic communication efforts will keep employees engaged.
Embrace flexibility: we are in uncharted territory and it is incumbent upon employers to remain patient and flexible during these uncertain times as unique questions and scenarios arise. While we may have done things a certain way before COVID-19, we have learned a great deal in the last eight weeks. Focus on business goals and the results and be flexible to retain talent.
Document decisions and how they were made: organizations will be making a variety of decisions around bringing employees back to the office, cleaning and sanitizing the physical space and how business will be conducted. Documenting all of these processes and decisions will help leaders remain consistent and answer the tough questions they will be asked. Documentation and transparency will build trust in your organization.
Potential employee concerns
Q. “Why am I required to return to the office?”
A. While the best practice for office-based businesses is to continue with remote work, some departments or specific employees may need to return to the physical workplace to ensure continuity. Document your business reasons for your call-back plan should you need to defend your actions at a later date. These may include tenure, nature of the work, employee skill sets, performance or a combination of these factors. Be prepared to respond to questions about the process. Employers should assure that they are not inadvertently discriminating by excluding any particular class of employees. For example, employers cannot choose to NOT call back their employees over age 65 since they are in a higher risk for medical conditions.
Q. “I’m not comfortable returning to the office and would like to continue working from home.”
A. While you may believe that some jobs can’t be done from home, embrace flexibility and give some thought as to whether working remotely could be a possibility with accommodations. Think outside the box. Perhaps virtual work can be done. Document the steps of what options were considered and whether or not the solution could be implemented. It is incumbent upon the employer to show that a good faith attempt to alleviate the concern was considered.
Q. “I don’t feel safe returning to the workplace.”
A. Distribute written communication to all employees documenting what you have done to make the workplace safe and that you are following CDC guidelines– social distancing, masks at work, frequent sanitizing and cleaning, etc.
Find out the reason for the reluctance and whether this is an ADA issue. Have a conversation with the employee to see if reasonable accommodations can be made to alleviate their stress (can an empty office be utilized so that the employee is away from others temporarily). In some instances, there may be nothing else the employer can do.
It’s too early to tell whether the Department of Labor will award unemployment compensation in these situations and it remains to be seen whether benefits will be granted. Note: the CDC requires employers to actively discourage sick employees from coming back to work.
Q. “I’m making more money on unemployment than I was when working.”
A. If the employer has a job available and the employee refuses to come back because it pays less than unemployment, guidance (Department of Labor and Unemployment Compensation) is clear- the employee has essentially abandoned the job and will likely be ineligible for unemployment benefits.
Q. “I don’t have childcare for my children so I can’t come back to the office.”
A. Some daycare facilities may be closed or operating under different circumstances and/or the employee’s financial situation may not allow them to afford daycare. Unfortunately, the employee may not have the ability to return to work in these situations, and you might need to fill the position with someone who has more flexibility. We suggest that you do leave the door open for potential re-employment once childcare becomes available. Note: employees in these situations will likely be eligible for paid benefits under the Families First Coronavirus Response Act (FFCRA).
Q. “I’m not comfortable wearing a mask.”
A. Engage in a dialogue to learn the reasons why. Simple refusal without any other explanation could warrant disciplinary action, but not necessarily. Refusal for other reasons (religious, medical) need to be addressed via the interactive process and handled as you would with any other ADA situation. Note: Masks are part of the safety plan and the employer should address when and how they are to be worn, along with other safety training as employees come back to work.
Additional returning to work considerations
If employees need to travel for work, review the CDC guidelines and be prepared to make changes. Employers should reduce travel as much as possible and stay up-to-date on each state’s travel guidelines. For necessary local travel that may cross state lines, employers should consider writing a letter on company letterhead for essential workers to keep in their car. The letter should indicate the reasons that travel is necessary.
In place of travel, use web-based meeting platforms – Zoom, Skype, WebEx, etc. Work with your clients or vendors to ensure that they are following CDC guidelines to keep your employees safe while at their location. Consider asking for confirmation or via documentation stating that your vendor or client is following safety and hygiene practices. Note: Consider what to do if the employee willingly travels out of state to an affected area for personal reasons.
Employee Benefits and Paid Time Off
Review your employment policies to see how gaps in employment have been handled, and review the Summary Plan Documents for each of your benefits– medical, dental, retirement, etc. Use the expertise of your insurance broker. Was the employee furloughed or laid off? How long was the separation of employment? These factors must be investigated to answer whether the employer should require another physical or drug screen.
Employers also need to address whether tenure, where it is used to determine paid time off, bonuses and other plans, should be considered after a gap in employment. Again, flexibility may be needed. For example, if all paid time off is exhausted, will the employer allow sanctioned unpaid (or partially funded) time-off for vacations or sick days later in the year?
Medical Insurance and Flexible Spending Accounts
Employers should be aware of the new guidance released by the IRS (Form 2020-29 PDF) with respect to COBRA, and to elections for health insurance plans and Flexible Spending Accounts. Deadlines have been relaxed, postponed, or removed. Mid-year elections allowing an employee to enroll into these plans, reduce or increase their FSA contributions, or leave these plans are all now being allowed for the time being, removing the previous requirement to demonstrate a qualifying life event change. These guidelines should be followed until an end date has been established. The current date is listed as “60 days after New COBRA forms have been issued”.
Employers should document the return of employment in an updated offer letter to the employee, so as to minimize any misunderstandings. This offer letter would confirm the amount of pay upon return (even if it didn’t change), the job title, the hours, the date of rehire, eligibility for benefits and a spot for the employees signature where they accept the rehire. Employers may want to consider adding a “pledge”, where the employee attests that they are not currently experiencing any symptoms of COVID-19 or are caring for someone with symptoms or are positive for COVID-19 upon their return to work.
Drug Screens, I-9s and New Employee Reporting
Connecticut employers should be aware that our state’s drug testing statute addresses testing prospective employees. Therefore, employees who were laid off and recalled within 12 months are not considered prospective employees according to the statute and should not be subject to another drug test. Details here. Note: this does not cover CDL licensed drivers who may have special requirements. Also, the Connecticut DOL does not need to be notified again of a rehired employee if they were recalled within 60 days. Details here.
Mitigating the risk of COVID-19 in the workplace
Cleaning and Sanitizing
Employers are required to develop guidelines and train employees around cleaning and disinfecting, per the CDC. Determine who is responsible for the cleaning or sanitizing and the frequency (daily, between shifts)– an outside vendor, or will employees all have some of this responsibility. Document and communicate new safety procedures to all employees and have the employees sign-off to indicate their acknowledgment and compliance. Ensure there are enough masks and sanitizing products available and that supplies are fully stocked in order to comply with employer policies.
Connecticut employers are not allowed to re-open if their employees do not have proper PPE. Employers should train employees on the use of PPE, including what type of masks or face coverings are acceptable and that both the nose and mouth must be covered. Visitors must not be allowed on the employer’s premise if they do not have masks or face coverings or the employer cannot provide them.
Maintaining Social Distancing
How will the workplace be reconfigured to allow for distancing? Shifts should be staggered to limit contact between groups of employees. For organizations with common lunch times, think about rearranging the schedule so that large numbers of employees are not all jockeying for use of the refrigerator, microwave and sink. Will you continue to offer coffee, tea, water, or other types of break refreshments? Consider limiting, or even banning in-person meetings. Remember, groups of greater than five are not allowed under current Connecticut guidelines.
Monitoring Employees for COVID-19
The CDC requires employers to actively encourage sick employees to stay home. Their website offers very specific guidelines on a variety of issues and specific steps to take. We recommend bookmarking the CDC website and checking back frequently for updates. Guidelines include how to handle an employee that becomes infected with COVID-19, or suspects that they may have it, and how to conduct a confidential investigation to find out who may have had contact with the employee.
Connecticut’s new May 20 Reopening Guidelines require certain employers (office based businesses, retail establishments, restaurants and personal care services*) to monitor their employees’ health daily to confirm that the employees are not currently experiencing CDC defined symptoms of COVID-19. This can be done via a simple Q&A where the employee attests they are not experiencing the specific symptoms (employers should keep documentation of this). There are also mobile-based apps that can be purchased for this purpose. Employers may also choose to incorporate daily temperature checks. As a reminder, office-based businesses should still encourage their employees to work from home, wherever possible. In addition, best practices and EEOC guidance allows employers to require a physician’s return-to-work authorization before allowing an employee who has recovered from COVID-19 to re-enter the workplace.
The guidelines further recommend keeping a log of all employees on premises each day, implementing the required safety training, limiting visitors and eliminating or reducing the need to share equipment. Businesses must self-certify their actions through the DECD website and receive a digital Reopen Connecticut badge for social media purposes and to enhance customer confidence.
*For all other employers, the Reopening Guidelines are recommended, but not required.
We also recommend that employers develop guidelines around handling leaves of absence (paid or unpaid) for COVID-19 situations. Key among this will be to review the Employer Paid Leave Requirements under the FFCRA, and the standard Family Medical Leave guidelines.
Developing your organization’s strategy to bring the workforce back to the office will take considerable thought and require input from leaders and employees. KardasLarson has the expertise to help you craft a working plan. Contact us to learn how we can help you maximize your performance.