Examining the Rules
Q: What are some of the workplace policies I need to consider in light of the COVID-19 crisis?
A: To respond to the legal and practical impacts of the COVID-19 pandemic, many associations will need to modify and add to their workplace policies. For example, the recently adopted Families First Coronavirus Relief Act requires employers with fewer than 500 employees (including associations) to provide their employees with paid sick leave under the Emergency Paid Sick Leave Act (Sick Leave Act) and paid family leave under the Emergency Family and Medical Leave Expansion Act (Family Leave Act) through Dec. 31, 2020. In addition, recent Occupational Safety and Health Administration (OSHA) recommendations and state and local stay-at-home orders have made it a practical necessity to implement policies outlining new workplace protocols and protections.
Adoption and implementation of the following policy revisions and additions should help associations meet their legal obligations as employers while providing their employees with the guidance they need to navigate the workplace changes brought on by the pandemic.
In addition to examining the adequacy of existing sick leave policies, associations with fewer than 500 employees should adopt policies that include the temporary paid leave benefits required by the new legislation. The Sick Leave Act requires employers to grant two weeks of emergency sick leave to employees who cannot work due to: (i) a COVID-19-related federal, state, or local quarantine or isolation order; (ii) self-quarantine upon the advice of a healthcare provider based on COVID-19 concerns; (iii) the existence of COVID-19 symptoms for which a medical diagnosis is being sought; (iv) an obligation to care for a family member for one of the aforementioned reasons; or (v) an obligation to care for a child whose school or childcare has closed or is unavailable because of COVID-19. Employees who take sick leave for their own illness or quarantine are eligible for up to 80 hours of leave at their regular rate of pay, but not more than $511/day or a total of $5,110. Those who take leave to care for a child or other family member are eligible for two-thirds of their regular rate of pay, up to a maximum of $200/day or a total of $2,000.
Adopted as a complement to the Sick Leave Act, the Family Leave Act requires associations to provide employees with up to 10 additional weeks (i.e., 12 total weeks) of paid leave due to COVID-19 issues. Employees are eligible for Family Leave Act benefits if they are unable to work because of a bona fide need to care for a child whose school or care provider is unavailable due to COVID-19. Under the Family Leave Act, employees taking leave receive two-thirds of their regular rate of pay, up to $200/day and a maximum of $10,000.
In limited circumstances, associations with fewer than 50 employees may be able to claim an exemption from the requirement to provide leave requested due to school closings or child care unavailability under the Sick Leave Act and/or Family Leave Act if the leave requirements would jeopardize the viability of the business as a growing concern. To do so, an authorized officer of the association must document that providing leave to an employee will (i) cause the association’s expenses and other financial obligations to exceed available business revenue and cause the organization to cease operating at a minimal capacity; (ii) pose a substantial risk to the organization’s finances or operational capacity because of the employee’s specialized skills, knowledge of the business or responsibilities; or (iii) place the association in a position in which it does not have sufficient other workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee requesting leave, and these services and labor are needed to operate at a minimal capacity. There is no affirmative duty to send such documentation to the Department of Labor (DOL), but associations that claim the exemption should carefully review the regulations to determine the specific records required to verify eligibility.
Statewide stay-at-home orders have forced associations, by necessity, to embrace broader — if not wholly new — work-from-home policies. Even as some employees have returned to offices over the past few months, large numbers continue to work remotely. In addition, a new surge in COVID-19 cases is possible and, with it, a new array of stay-at-home orders. Thus, associations should revisit existing work-from-home policies to ensure the terms provide clarity on eligibility, expectations, compensation, work hours, workspaces, equipment and services (including expense reimbursement), use of PTO, communication and evaluations. If not already included, it would be a good time to add an “emergency” provision that grants the association discretion to alter policy requirements temporarily (e.g., expanding work-from-home eligibility or providing “flex-time”).
Infectious Disease Prevention and Response Policies
Given the ease of transmission associated with COVID-19, associations should consider adopting an infectious disease policy designed to comply with OSHA’s General Duty Clause (i.e., the duty to provide a workplace free from recognized hazards). The policy should incorporate both local requirements (e.g., use of face masks and social distancing) and practical strategies (e.g., prohibiting in-person meetings) for preventing infectious disease transmission. Such policies also should establish measures for reducing transmission, identifying and isolating sick employees, and notifying employees and family members of a potential exposure (e.g., regular cleaning of frequently used surfaces, daily temperature-taking, maintaining current emergency contact information). One challenge with respect to these policies will be striking the appropriate balance between sharing important employee health information and maintaining employee privacy.
Associations also should review and revise their travel policies to confirm that they reserve the right, subject to guidance published by the U.S. Centers for Disease Control (CDC) or other governmental authority, to curtail or otherwise severely reduce employee business travel, including travel for professional development (e.g., conferences). In addition, travel policies should notify employees of the potential for additional personal restrictions, such as temporary work-from-home requirements following travel to or from certain regions. Finally, associations should consider providing guidance to their employees on their use of public transportation.
- Implement procedures to stay abreast of federal, state and local public health recommendations.
- Coordinate with benefit providers to advise employees about available resources (e.g., telemedicine options).
- Assess work level and schedule changes with tax professionals and legal counsel, as hour reductions and furloughs can affect employees’ insurance, compensation, benefits and even immigration status.
Associations should adopt workplace policies that not only provide flexibility in responding to the changing circumstances of COVID-19, but also comply with federal and state law and public health recommendations. Doing so will protect employees while limiting uncertainty and the risks of harm and/or liability. Remember to consult with counsel to ensure that policies are drafted and implemented in a nondiscriminatory manner consistent with applicable federal, state and local laws.