Most businesses are in the process of either reopening or making plans to return to an operational status as soon as possible. As many clients reopen their offices and businesses, it is an ideal time to review the employee handbook and update employment policies to address the post COVID-19 world in which we now live and work. Certain policies should be updated in light of federal legislation such as the Families First Coronavirus Response Act ("FFCRA"), and other policies to allow employers to better plan for the future.
Sick Leave Policies
First and foremost, employers and businesses should update their employee sick leave policies in the handbook. Under the FFCRA, the paid sick leave and expanded family and medical leave provisions of the FFCRA apply to public employers and private employers with fewer than 500 employees. Under the FFCRA, employees of these “covered employers” are eligible for:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Thus, many employers need to ensure that their policies are consistent with the new requirements of the FFCRA, which are in effect through December 31, 2020, and are enforced by the U.S. Department of Labor’s Wage and Hour Division.
In addition, many states such as New York have passed their own paid leave laws, which may impose additional requirements beyond those contained in the FFCRA. If an employer’s policy does not provide for paid sick leave, there should be a coronavirus exception added.
Vacation and Travel Policies
Other employee leave policies such as vacation policies or PTO should also be revisited.
Employers should consider limiting business travel to essential trips and, as part of pre-approving any international travel, consider whether the employee may telework on return while away from work.
Employers might want to consider having policies requiring employees to disclose any international travel or travel to a domestic COVID-19 “hot spot,” as well as any air travel. Many states prohibit employers from engaging in behavior alleged to constitute discrimination on the basis of an employee’s lawful off-duty conduct, such as personal travel. Employers should consider, in conjunction with counsel, whether applicable law and their travel and PTO policies allow them to counsel employees regarding optional and/or personal travel which may result in a recommended or required quarantine. Some questions to be asked include:
- Does state or local law permit the employer to restrict lawful off-duty conduct, such as personal travel?
- Do federal, state, or local anti-discrimination and anti-retaliation laws prohibit a restriction, including restrictions that prohibit discrimination based upon an employee’s exposure to COVID-19?
- Are broader personal travel restrictions or prohibitions legally or practically manageable given an employer’s workforce and the states in which the business operates?
Remote Work/Teleworking Policies
COVID-19 has brought to the forefront the necessity to have a thorough telework policy. These teleworking arrangements can make remote work contingent on a certain tenure with the company, as well as a satisfactory performance record with the company.
A telework policy should provide employers with flexibility to assess whether a remote working arrangement is suitable for a particular position, based upon, among other considerations, an employee’s job responsibilities, equipment needs, and any tax or legal implications based upon working out of a home-based office.
Telework policies should also make clear that employees should be actively working and productive during normal work hours. Employers should also make sure that hourly employees are not working unauthorized overtime. If an employer chooses to monitor its employees’ electronic devices to ensure they are actually working (or not working unauthorized overtime), that employer may need to provide notice of such monitoring.
Disaster Preparedness/Contingency Plans
Employers should put into place contingency plans in the event of a “second wave” of the COVID-19 pandemic, resulting in another state of emergency with governmental restrictions, or if an outbreak occurs at the place of business. This plan should take into account many of the other issues addressed above, such as remote working, as well as how the business will be cleaned in the event of an outbreak.
Employers should take affirmative steps to address and mitigate risks associated with a workplace COVID-19 outbreak. Depending on the nature of the place of business, this could include:
- Restrictions on office visitors (including nonessential and non-business purpose visitors)
- Designating certain areas as “employees only”
- Restrictions on employees coming and going from the place of business during the work day (such as lunch and breaks)
- Restrictions on personal mail or packages received at work.
Under the CDC’s interim guidance, common areas should be closed or restricted and travel minimized.
It is clear that the post-COVID-19 workplace will look incredibly different than prior to the pandemic. In order to ensure a safe, healthy, and productive transition, employers should consider planning ahead and revisiting their policies, procedures, and employee handbooks to account for the new work environment into which employees will return.