As Indiana businesses continue to deal with COVID-19, it may be a good time to review your employee handbook and to update policies in an ongoing COVID-19 environment.
Employers should revisit their plans for working from this past Spring. These plans can be of great assistance in the event of a “second wave” of the COVID-19 pandemic and if new government restrictions are imposed, or if an outbreak occurs at the place of business. What is clear is that the employment environment is not the same as it was a year ago, and there is no certainty about when, or if, things will ever return to the status quo.
Understand Your Sick Leave Policies
Sick leave or paid time off policies should match an employer’s actual practices. Employers should understand whether they offer paid or unpaid time off, how the time is utilized and managed, and how to coordinate that time off with all benefits. Additionally, employers subject to the Family Medical Leave Act need to understand how their sick pay works in conjunction with traditional FMLA requirements.
The qualifier of “traditional” is used because the FMLA was supplemented this year by the Families First Coronavirus Recovery Act to include new paid sick leave benefits. These paid sick leave benefits apply to private sector employers with fewer than 500 employees as well as all public employers. Employers with fewer than 50 employees, who may not be covered by traditional FMLA, are still required to provide the additional sick leave benefits under the FFCRA. These sick leave benefits expire on December 31, 2020.
Employers should ensure that their policies are appropriate in current circumstances. The FFCRA benefits are in addition to any other benefits provided by the Employer. Employers need to understand and apply their policies consistently with the requirements of the FFCRA to avoid any claims of interference or impairment of these statutory rights.
Employers were advised to limit employee travel to essential business. With the availability of online meeting apps, many employees and employers have reconsidered their traditional approach to business travel and meetings.
If travel is still an essential part of a business, employers should require employees to disclose any international travel or travel to a domestic COVID-19 “hot spot.” Many states currently have travel restrictions for individuals coming in from sister states. https://ballotpedia.org/Travel_restrictions_issued_by_states_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020
If travel is necessary – either for personal or business reasons, the employer should tell employees what will happen upon their return. Many states, including Indiana, recommend that employees returning from international travel work from home for 14 days. Employees returning from other travel should plan to stay away from the office for at least 72 hours to confirm that they are fever and symptom free. Indiana’s travel guidelines can be found here: https://www.coronavirus.in.gov/files/IN_COVID-19_TravelGuidance_07.20.20.pdf
Remote Working Policies
In the Spring, many employers were faced with the necessity of arranging remote working conditions and assignments for employees. If COVID-19 cases continue to increase, certain industries may revisit or continue remote-working policies. Remote-working policies should provide employers with flexibility to decide if remote working is acceptable for a particular position. This would depend on the job responsibilities and equipment needs. Teleworking arrangements can make remote work contingent on a certain tenure with the company, as well as a satisfactory performance record with the company.
Working remotely does not mean barely working. Procedures should be in place to ensure that employees are working and productive. Employers should assess their exposure to unauthorized overtime and enact a policy to limit employee overtime. Tech device monitoring should also be announced or implemented to monitor use and hours worked.
While working from home, employees are still expected to complete their work assignments, be available during regular business hours and communicate with their supervisor and others as needed. Telecommuting may be considered a reasonable accommodation if a worker’s condition qualifies as a disability under the ADA and/or similar state laws.
Employees should follow company policies. They are responsible for maintaining the confidentiality of all work-related information and follow the company’s confidentiality policies, in conjunction with an IT department or officer.
Ideally, employees should telework on return from travel while away from work. But, the employer is the one who decides whether a remote-working arrangement is appropriate and for how long.
Working in the Office
Employers have a number of options to reduce the exposure to illness. Social distancing should continue to occur. Many industries – particularly in the service and professional industries – have professional guidelines and state-wide direction on how to reduce exposure. Employers may consider reducing visitor contacts to a single place of business, designating areas as “employees only,” and as part of social distancing requiring masks or face coverings. Indiana’s Governor announced his plans to require facial coverings in late July.
If employees are ill, the employer can send them home. Various sources list the symptoms of COVID-19 ranging from mild to severe respiratory illness with fever, cough, and shortness of breath, among other things. If employees show these symptoms, employers can ask them to go home and direct them to speak with their doctor.
If an employee announces that they have COVID-19, employers need to tell employees who may have been exposed, but keep as much information confidential as possible. The Center for Disease Control (CDC) continues to advise that if an employee is confirmed to have COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace. Employers need to decide who really needs to know and what in order to reduce disclosure of confidential medical information and mitigate risk of a claim. For example, while an employer may announce that a particular employee is working remotely, the employer should never say that the employee is sick. Employers should treat all information about an employee’s illness as a confidential medical record and keep it separate from the employee’s personnel file. Employers should also immediately contact local health officials for further guidance.
As a precautionary measure, an employer may want to consider asking all employees who worked closely with that employee to self-quarantine for 14 days to better ensure the virus does not spread. In addition, as a best practice, the employer may want to consider asking a cleaning company to complete a deep cleaning of its workspace. If a company works in a shared office building or area, then it may want to inform building management so necessary precautions can be taken.
In its interim guidance, the CDC has advised that employers should not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work. This is because healthcare providers and medical facilities may be extremely busy and unable to provide documentation in a timely fashion. Employers should consider accepting expedited forms of release (e.g., email). Any information employers collect must be kept confidential and separate from the employee’s personnel file.