Policies to Create or Update Before Employees Return to Work

By Donna K. Fisher

As businesses start to reopen, now is the time to review your employee handbooks to determine what new policies to create or update to address the impact of COVID-19.

Create a Safety Protocols Policy

While governmental authorities and local health departments will mandate many of the safety requirements, employers should develop their own written policy on safety protocols. These policies should address screening procedures, steps to take if an employee is symptomatic or tests positive for COVID-19, whether face coverings or personal protective equipment (PPE) will be required, and other controls implemented to reduce the risk of transmission among employees. Not only is it important to educate employees on the measures they can take to ensure a safe workplace, but it is also critical to inform employees of the steps the employer is taking to promote workplace safety.           

The policy should identify a COVID-19 coordinator or coordinators tasked with overseeing the implementation of the safety protocols, keeping up-to-date on federal, state and local requirements, and answering employees’ questions about the safety measures. In addition to the COVID-19 coordinator, the policy should inform employees to whom they may take any complaints or concerns about coronavirus safety. Communicating expectations and addressing employees’ concerns are powerful tools for risk avoidance during the COVID-19 crisis.   

Create a Temporary Policy on Paid Leave

Employers with fewer than 500 employees who are subject to the Families First Coronavirus Response Act (FFCRA) should create a temporary policy effective from April 1, 2020 to December 31, 2020 to address paid leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Both Acts apply to full-time and part-time employees. Employees are eligible for leave under EPSLA from the start of employment, but EFMLEA imposes a 30 calendar-day eligibility requirement.

Full-time employees may use up to 80 hours of EPSLA leave, while part-time employees may use the number of hours they work, on average, over a two-week period.  An employee is due 100% of the required rate of pay—capped at $511 per day or $5,110 in total—for leave hours taken because the employee:

• Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• Has been advised by a health care provider to self-quarantine related to COVID-19;
• Is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

An employee is due two-thirds of the required rate of pay—capped at $200 per day or $2,000 in total—for leave hours taken because the employee:

• Is caring for an individual subject to a federal, state, or local quarantine or isolation order related to COVID-19, or who has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
• Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Employees caring for a son or daughter whose school or place of care is closed (or child-care provider is unavailable) due to COVID-19 may be eligible for leave under both EPSLA and EFMLEA.  EFMLEA gives employees up to 12 workweeks of job-protected leave with continuation of health insurance. The initial two weeks of EFMLEA are unpaid, although employees may use applicable paid sick leave under EPSLA or accrued paid time under their employer benefits package. The remaining ten weeks are paid at two-thirds the employee’s regular rate of pay.  For employers covered under the Family & Medical Leave Act (FMLA), EFMLEA adds a new reason for leave under FMLA, not more weeks.  An employee who has already used 12 weeks of FMLA leave is not able to use EFMLEA leave.          

Temporary paid leave policies should include any employee notice requirements and the documentation required to support the need for leave. Policies should have a non-retaliation provision assuring employees there will be no retaliation for using leave under the FFCRA.

Update Your Americans With Disabilities Act Policy

Because COVID-19 symptoms are of short duration, it typically will not be considered a disability under the Americans With Disabilities Act (ADA), as amended.  Underlying health conditions and complications from COVID-19, however, may qualify as ADA disabilities. Guidance issued by the Equal Employment Opportunity Commission (EEOC) allows employers to screen employees entering the workforce for COVID-19 symptoms during this pandemic. If employees show symptoms, they may be sent home and required to present a fitness for duty note before returning to work.

If an employee requests an accommodation for a medical condition that is not obvious or already known but puts the employee at higher risk for severe illness from COVID-19, an employer may ask questions and request medical documentation to determine if the employee has a “disability” as defined by the ADA and whether the employee’s disability necessitates an accommodation. As with any request for accommodation, employers must engage in the interactive process.

If an employee does not request an accommodation, an employer cannot prevent the employee from working solely because the employee has a disability that the Centers for Disease Control and Prevention (CDC) has identified as placing someone at higher risk.  Under the ADA, employers cannot prohibit employees from working unless the employee’s disability poses a “direct threat” to the health of the employee that cannot be eliminated or reduced by reasonable accommodation (absent undue hardship), which is a high standard to meet.

Create or Update a Work from Home Policy

The coronavirus crisis has made working from home more acceptable to employers. If your business is conducive to telework, consider creating or updating a work from home policy. Decide whether the policy will be temporary in response to the pandemic or will offer an ongoing level of flexibility for employees. Whether temporary or long-term, work from home policies should contain provisions setting forth the eligibility requirements to work from home and the employer’s expectations for employees who work remotely.

Before allowing employees to work from home, employers must determine if the work can be performed from a remote location without jeopardizing the overall quality and quantity of the work.  Work from home policies should outline the conditions necessary to work from home, including such factors as operational and financial feasibility, the ability to access needed documents and equipment, and the ability to protect company data, trade secrets and confidential information.

Work from home policies must address measures to ensure cybersecurity. Most employee-owned personal computers lack important malware and encryption protections making them vulnerable to hacking. Employers must decide whether all work is to be performed only on company-owned equipment or whether personal devices may be used. If the latter, policies must protect the employer’s ability to remove all company data from personal devices.             

Allowing employees to work from home can be an accommodation for those employees with underlying health conditions who are at greater risks from COVID-19. As employers navigate the changed work environment, working from home may provide the best protection for employees as long as it does not adversely affect business operations.