Q&A with Our HR Hero BLR Expert Celeste Duke
WHAT ARE THE BIGGEST CHALLENGES EMPLOYERS HAVE FACED IN BRINGING THEIR EMPLOYEES BACK INTO THE WORKPLACE?
As employers bring their employees back to the workplace, they’re facing a dual challenge: new legal issues, and employees who are experiencing increasing anxiety and burnout.
On the legal front, employers are facing new COVID-19-related laws on the federal and state levels. Most notably, the federal Families First Coronavirus Response Act (FFCRA) offers certain employees both emergency family leave and paid emergency sick leave, and states have enacted laws that expand unemployment insurance, leave laws, and liability protections. In addition to understanding and properly implementing these new laws, employers must figure out how they work with longstanding laws like the federal Family and Medical Leave Act, as well as any applicable state laws; and any employers bringing back employees from layoffs must ensure that’s done in a way that doesn’t violate discrimination laws.
On top of that legal headache, many of the employees returning to the workplace are now feeling stressed and anxious like never before. Stresses of the pandemic include worries about layoffs and other job losses, health concerns, isolation and loneliness, childcare and schooling difficulties, and living with the uncertainty of how long it will last and what will happen next. Add to that a particularly contentious political climate, where elements of the pandemic have been politicized, and tensions are running high in many workplaces.
WHAT ARE THE ELEMENTS THAT KEEP A WORKPLACE SAFE AND HEALTHY IN THE ERA OF COVID-19?
It’s important to address two aspects here: physical health and mental health.
To keep employees healthy and reduce COVID-19’s spread in your workplace, employees who are or may be sick must stay home. To ensure that, health inquiries and exams (e.g., temperature checks) are needed—but employers must ensure they aren’t running afoul of the Americans with Disabilities Act when doing so, and must handle any documentation very carefully.
To try to ease employees’ anxiety, some employers have offered increased mental-health resources and reminders about employee-assistance program (EAP) resources, as well as telehealth coverage for both mental and physical health. Another way employers can support positive mental health in the workplace is to be as flexible as possible in helping employees deal with the unusual personal challenges they’re facing during the pandemic. If an employee has a child who must attend online school from 11 a.m. to 3 p.m. every day, is it possible to only schedule her for meetings outside of that timeframe? If an employee is caring for an immunocompromised person at home, is it possible to extend his work-at-home arrangement or find a space in the workplace where interactions with others are minimized and include safety precautions like masks, social distancing, and disinfection?
WHAT PITFALLS OR MISSTEPS SHOULD BE AVOIDED?
Many businesses are concerned that paid leave, implemented in accordance with the FFCRA and state laws, will incentivize abuse by employees who see it as an easy way to get out of work. But the reality is that paid leave protects your workforce, and employees should be encouraged to use it when applicable. Employees who don’t have access to paid leave are more likely to come to work sick, leading to a much larger impact on business continuity.
With that in mind, frame leave requests in a positive light and create a corporate culture that encourages individuals to take care of their own health, so all members of the workforce are kept safe. Also, if you choose to perform COVID-19 viral tests, temperature checks, or other symptom screening at your workplace, both the Equal Employment Opportunity Commission and OSHA make clear that these processes must be conducted on a nondiscriminatory and nonretaliatory basis.
WHAT ARE THE LIABILITY AND LEGAL CONSIDERATIONS, ESPECIALLY IN ENVIRONMENTS WHERE EMPLOYEES INTERFACE WITH THE GENERAL PUBLIC?
So far, the prevailing trends in coronavirus-related labor and employment litigation related to bringing employees back include WARN and mini-WARN Act litigation, wrongful termination, and discrimination claims. Now more than ever, employers should be examining employment decisions to be sure they are consistent with company policy and past practices, and that they’re executed in a nondiscriminatory way.
Liability issues are likely to focus on employees who got sick while at work. In apparently the first lawsuit of its kind, the attorneys for an Illinois retail worker who died of complications from COVID-19 recently blamed the death on the employer’s failure to follow social-distancing guidelines. The lawsuit faulted the employer for allegedly not doing enough to clean and sterilize the workplace, not providing protective equipment for staff, and failing to provide adequate warnings. Accordingly, when fighting over whether injuries are compensable under workers’-comp schemes or through traditional lawsuits, litigators and courts alike are going to be asking questions like, “Did the employer follow state, federal, or health authorities’ safety guidelines? Did they limit the number of guests in the store at a time? Did they make antibacterial soap or face masks available for staff?”
Many businesses have developed creative solutions to keep their doors open during the crisis. That same creativity should also be used to think about safety—not only around basic pandemic procedures, but also taking into account specialized guidance or concerns raised by industry and trade associations, unions and employee advocates, and employees themselves. Make sure employees are aware of any paid/unpaid sick time and personal-leave policies. Be flexible with work from-home policies for employees who are sick or staying home to care for a sick family member. If possible, arrange for health screenings to ensure symptomatic people don’t enter the workplace. For employees who must interface with the public, consider constructing physical barriers to protect workers and requiring both employees and customers to wear face masks. For some, face coverings have become a political symbol in the clash between those who see wearing them as a moral responsibility and those who view them as an infringement on their freedom. Consequently, employers who establish a face-covering policy can expect resistance, including the potential for aggression and violence—so before taking action, you should plan carefully, and prep employees on how to respond if a customer or coworker refuses to wear a mask.