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Medicare Part D Notices – An Overview for Employers

by | Oct 7, 2020 | Compliance, Employee Benefits

Employers and their group health plan sponsors will want to mark October 15, 2020 on their calendars. This is the deadline for plan sponsors to disclose to individuals who are eligible for Medicare Part D and to the Centers for Medicare and Medicaid Services (CMS) whether the health plan’s prescription drug coverage is creditable.

Although this responsibility primarily falls on group health plan sponsors, there are several important things that employers should be aware of that we’ll cover in this post:

  • What is Medicare Part D?
  • Where can resources and model notices can be found?
  • Other timing and delivery rules to be aware of

What Exactly Does “Creditable Coverage” Mean, and How Is It Related to Medicare Part D?

“Creditable Coverage” is a term that involves two simple words, but most people have a hard time understanding what exactly it means in the world of Medicare.

A notice of creditable coverage is simply an official document given to an employee from their employer (or union) that states whether their prescription drug coverage plan is equal to or better than the prescription drug coverage provided through Medicare.

This notice helps the employee make decisions related to their benefits, as remaining under their employer’s prescription drug plan might be very advantageous for them as they approach retirement. For plans that are not creditable, employees should generally move to Medicare as this will save them money from future late-enrollment penalties in the future. Medicare allows employees who choose to stay on plans that are creditable to avoid these penalties should they choose to enroll later on.

In order for CMS to have an official record of an employer’s or union’s status as creditable or non-creditable, employers must disclose that status both to their Medicare Part D eligible employees as well as the CMS. Employers should work with their group health plan sponsors to send this notice, and it must be done by October 15th.

What Resources and Model Disclosures Exist?

Fortunately, the CMS has provided two model notices that employers can use:

  1. A model notice of creditable coverage when the health plan’s prescription drug coverage IS creditable. (click here to access this model).
  2. A model notice of non-creditable coverage when the health plan’s prescription drug coverage IS NOT creditable (click here to access this model).

Technically, employers do not have to use these model notices. However, if the models are not used, the notices still must include certain information. These requirements include a disclosure about whether the plan’s coverage is creditable, explanations of what creditable coverage means, and an explanation of why employees should take their coverage decisions seriously.

Employers and their group health care sponsor should strongly consider using these models. It’s the simplest way to make the disclosures and ensure that the required language is used. Another best practice is for employers and their group health plan sponsors to provide this notice to all plan participants, even to those that might not be qualified for Medicare Part D. This way, the employer can ensure that they “cover all their bases” and that they educate employees who will have to make this decision several years in the future.

What Other Rules Should You Be Aware of?

Employers should not that the most important time of year to deliver Part D Notices is prior to the Medicare Part D annual election period, which goes from October 15th to December 7th each year. However, there are other situations in which an employer or their group health plan sponsor must give this notice to an employee:

  • Whenever a beneficiary requests the notice
  • Whenever there is a change in an employer’s health plan that changes whether the plan is creditable or non-creditable
  • Before the effective date of coverage for any Medicare-eligible individual who joins the plan

As we stated in the previous section, it’s not a bad idea to provide Part D notices at multiple times throughout the employment life cycle. Part D notices can even be included in new enrollment materials for employees.

It is important for employers to understand the rules about printed notices and electronic notices. A single printed notice may be delivered to an address, even if multiple beneficiaries of the plan live at that address. However, if it is known that a beneficiary of the plan lives at a separate address, a second printed notice must be sent to that address. Electronic notices can be compliant as well, assuming the employee has regular access to the electronic documents at their regular place of work.

From an official perspective, the Department of Labor (DOL) has three requirements for electronic delivery of Part D Notices:

  1. The plan administrator uses appropriate and reasonable means to ensure that the system for furnishing documents results in actual receipt of transmitted information.
  2. Notice is provided to each recipient, at the time the electronic document is furnished, of the significance of the document.
  3. A paper version of the document is available on request.

As we stated very early in this post, a notice must also be sent to the CMS in addition to the beneficiaries of the plan. This disclosure to the CMS must be delivered on an annual basis, and the following timeline requirements apply – the notice must be provided:

  1. Within 60 days after the beginning date of the plan year for which the entity is providing the form.
  2. Within 30 days after the termination of the prescription drug plan.
  3. Within 30 days after any change in the creditable coverage status of the prescription drug plan.

Key Takeaways

Part D Notices, or notices of “Creditable Coverage,” are simply an official document given to an employee from their employer (or union) that states whether their prescription drug coverage plan is equal to or better than the prescription drug coverage provided through Medicare. The purposes of these notices is to help beneficiaries of the plan make the best decision for their prescription health coverage moving forward.

Here are additional key takeaways related to these notices:

  • The Centers for Medicare and Medicaid Services (CMS) provide sample notices that employers should consider using.
  • Employers should work with their group health plan sponsors to ensure that these notices are delivered at the right time – which might end up being more frequently than you think.
  • The notices can be provided electronically under certain circumstances.

COVID-19 Vaccine Considerations for Employers

by | Sep 30, 2020 | COVID-19 Resources, Return to Work

Individuals, economies, and health care systems around the globe have been anxiously waiting for a COVID-19 vaccine. Fortunately, news from the vaccine developers is promising, and most reliable medical professionals agree that a vaccine will become widely available in the foreseeable future.

As exciting as this news is, employers might find themselves scrambling for answers if they are not prepared to handle the logistics and legality of providing the vaccine to their employees.

In this post, we’ll cover some key considerations for employers related to the COVID-19 vaccine:

  • What governmental guidance has been (or will be) provided
  • Legal and safety considerations
  • Sorting out logistics of vaccine administration

Governmental Guidance

Guidance has been issued by the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) in the past, although it hasn’t specifically addressed a COVID-19 vaccine. However, employers can still find value in this guidance.

OSHA Guidance

In some cases, employers can require that their employees get vaccines. According to OSHA, employers can require that employees be vaccinated for influenza. However, employers must properly inform employees of “the benefits of vaccinations.” Further, OSHA states that employees can refuse to get a vaccination due to a reasonable belief that they have an underlying health condition that creates a real danger of serious illness or death.

It has not yet been determined if this same precedent will apply to a COVID-19 vaccine, but employers will want to keep an eye on this as more OSHA guidance is released.

EEOC Guidance

The EEOC is more commonly known for enforcing the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). However, the EEOC has also issued guidance regarding vaccines in the employment context. In March of 2020 around the time that COVID-19 started being widely spread in the United States, the EEOC addressed whether employers covered by the ADA and Title VII can compel employees to receive the influenza vaccine. In this guidance, it was acknowledged that there was not a COVID-19 vaccine yet and more information would be needed before specific guidance could be provided.

However, the EEOC explained that an employee may be entitled to an exemption from an employer’s vaccine requirement based on a preexisting disability that prevents the employee from taking the vaccine. This would be considered a reasonable accommodation, and the employer would be required to grant the accommodation. If an employer believes that this causes undue hardship, they can dispute the exemption. According to the ADA, undue hardship can be defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation. However, you should always consult with legal counsel before taking this route.

Under Title VII, the EEOC also states that employees with sincerely held religious beliefs may be entitled to an exemption from a mandatory vaccination, which is considered a reasonable accommodation, unless it creates an undue hardship for the employer. Title VII defines undue hardship as a “request that results in more than a de minimis cost to the operation of the employer’s business.” It’s important to note that this is a much lower standard than under the ADA.

As a general rule of thumb, employers should do their best to encourage vaccination rather than mandating it. There are clear risks associated by mandating employees to receive any vaccine

Safety and Legal Concerns

Employers will be challenged to find the balance between determining how much risk to accept by allowing employees to not get vaccinated, and how much risk to accept by mandating the vaccine despite the exceptions that employees may try to claim. Allowing employees to go without the vaccine poses a safety burden to their coworkers. Trying to mandate a vaccine to employees who may claim a religious or health exemption carries the risk of lawsuits if not handled properly.

When trying to find this balance, employers will need to decide whether there are other precautions that can be put into place to protect employees, which may include social distancing protocols, requiring employees to wear masks at work, and leveraging telecommuting arrangements

If you as an employer decide to mandate employees to get a COVID-19 vaccine, you will need to be prepared for the challenge of determining if exemptions to that mandate are legitimate under ADA or Title VII. Of course, this should not be done without the advice of your legal counsel. Be prepared to make these decisions on a case-by-case basis.

You need to consider the possibility that legal claims may arise if an employee has an adverse reaction to the COVID-19 vaccine. Have a plan in place for this possibility before any employees receive the vaccine.  

Sorting Out the Logistics of Vaccine Administration

Whether you decide to mandate that your employees get a COVID-19 vaccine or simply encourage them to do so, you’ll need to ask yourself the following questions:

  • Will you hold on-site vaccination clinics? If so, where will you set up? What will the hours be? Who will administer the vaccines? What costs are associated with these decisions?
  • Assuming that multiple versions of the COVID-19 vaccine will be available, which one will be used? Who will ultimately make that decision?
  • Who will pay for the vaccine? Will it be covered by your company’s health plan?
  • Will the company require or cover the costs of vaccination for the employee’s family?
  • How long after the vaccine becomes available must employees receive the vaccine, if vaccination is mandated? This will be impacted based on vaccine availability.

Key Takeaways

Employers must navigate the inherent legal risks and logistics of mandating or encouraging employees to receive the COVID-19 vaccine. Some key considerations include:

  • Understanding that the government allows vaccine mandates in certain circumstances, but also allows certain religious or health exemptions.
  • Employers will need to weigh the pros and cons of vaccine mandates and the risks involved.
  • The logistics of vaccine administration should be determined long before you implement a vaccination. Because it’s been stated that a vaccine will be available within the next several months, employers should start making these plans now.

We hope that this guidance has been helpful for you. As is the case with any complex health mandate for your employees, always have a qualified attorney review your plan to implement or encourage the COVID-19 vaccine to your employees.

How to Have a Successful Open Enrollment in 2020

by | Sep 24, 2020 | Employee Benefits, Open Enrollment

Open Enrollment is one of the trickiest things to figure out as an HR professional. As the people behind the coordination of the open enrollment process, it’s easy to think that employees will take full advantage of the opportunity to add new benefits, update beneficiaries, or are the very least, learn more about what the company has to offer. Unfortunately, all too often, this isn’t the case at most companies.

As an HR professional, you know how things really tend to go. You spend hours upon hours preparing pamphlets, presentations, and meetings to teach your employees about open enrollment. But by the end of the open enrollment period, you realize that your efforts have been in vain because most of your employees seemed to take little or no action.

Do things really have to be like this? At Launchways, we strongly believe that open enrollment can and should be better than the all-to-common example that we shared above. Based on successful examples that we’ve observed in the companies we work with and within our own expertise conducting hands-on open enrollments for our clients, we have some advice for how to have a successful open enrollment in 2020.

In this post, we’ll cover:

  • Understand the employee point of view
  • Make benefits information exciting and unique
  • Take your responsibility to communicate seriously

Information Overload – Understand Your Employees’ Point of View

Take a moment to think about all the information your employees process every day – not only in their professional lives, but in their personal lives too. From emails to social media feeds to flyers to billboards to podcasts, your employees are constantly being bombarded with information. We didn’t even mention the advertisements that are embedded in most of those mediums, which are designed specifically to trap the attention of your employee.

If you want your employees to care about open enrollment, you are going to have to think of ways to breach this wall of information overload. We’ll talk more about strategies to do that later on in this post.

Research shows that most employees in most companies rush through their open enrollment actions. Employees generally spend less than one hour reviewing their current benefits and making decisions about any changes.

Put yourself in the shoes of your average employee. You have the obvious work and home responsibilities. However, with COVID-19 now impacting most people’s work and personal lives, things just got a lot more complicated. Now more than ever, employees might be so overwhelmed that open enrollment is the last thing in the world they’re worried about.

Now that we’ve talked about things you should consider from the perspective of your employees, let’s cover what you can do about these hurdles.

How to Make the Information Stick

You must learn how to make your open enrollment communications stick. To do this, you’ll need to deliberately differentiate your communications from anything else that your employees might be processing with their minds. In other words, you can’t expect to send a standard email and expect a high level of employee engagement. Your employees likely receive dozens, if not hundreds, of similar emails each day. Here are some strategies you can use to deliberately differentiate your communications:

  • Establish an internal communications brand that is used in all communication about open enrollment. Determine which colors, fonts, and imagery you will use. This brand will need to be unique, so be bold with those design choices!
  • Have a variety of opportunities for employees to learn about and participate in open enrollment. Leverage an HRIS platform that can handle the logistics of employee benefits decisions during open enrollment, but also go beyond digital platforms to provide more hands-on education.
  • You should have in-person (or Zoom call) Q&A sessions, virtual workshops, and both prerecorded and live presentations available. You can also leverage a combination of printed materials as well as digital communications. In other words, cast a wide net! Every employee will learn things in different was, so the more diverse you can be, the more likely you are to find a strategy that connects with each employee.
  • Be creative by having games, competitions, trivia, etc. related to open enrollment. Don’t forget the prizes! Your employees may enjoy the chance to get away from their typical responsibilities for an hour to compete with each other while learning about open enrollment.

Some of these recommendations may be challenging in the year 2020, especially if many of your employees are telecommuting due to COVID-19. For example, in-person Q&A sessions might not be practical indoors. If this is the case for your company, consider holding them outdoors or limiting the size of the group and having extra sessions (or transitioning to entirely virtual engagements).

Encourage Employees to Take Open Enrollment Seriously

The most important advice we can offer in this post is that you MUST take open enrollment seriously if you except your employees to take it seriously. As an organization, be willing to invest to improve employee understanding of open enrollment processes. Also, understanding the crucial role of modern benefits administration technology and leveraging an effective platform is key.

Make your marketing, communications, and public relations employees a core part of the open enrollment process. While HR professionals are fantastic at working on the people side of the business, they may not have a strong background in marketing or communications. Use the experts that you have available to you to make sure you implement the strategies we recommended in the previous section. Remember to brand your open enrollment messaging, differentiate the communications from other information that your employees will be processing, be creative, and cast a wide net.

Work With the Right Benefits Broker

The right employee benefits broker won’t leave you on the hook to figure out open enrollment. At Launchways, we conduct open enrollment on behalf of all our clients. We provide the highest caliber of employee education, so team members can select the right plan for them and their family. If you’re interested in learning more about what it’s like to work with Launchways as your broker, learn more today.

Key Takeaways

The basics of making open enrollment successful are the same in 2020 as they always have been. However, because employees are dealing with so many things in their professional and personal lives, employers will need to go above and beyond to make sure open enrollment communications and instructions motivate employees to act.

Here are some key takeaways from this post:

  • Take time to visualize your open enrollment communication materials from the perspective of your employees. While visualizing, do you care about the information? If not, why? Use your findings from that thought exercise to guide your open enrollment communication strategy.
  • Develop an internal communications brand that is incorporated into your open enrollment materials.
  • Be creative and innovative with your open enrollment strategies. Remember, you are competing with “information overload” to connect with them.
  • Take your preparation and strategy behind open enrollment very seriously. If you don’t, you’ll never have a successful open enrollment.
  • Working with the right employee benefits broker can be a game-changer at open enrollment time.

11 Ways to Make Remote Onboarding Successful

by | Sep 18, 2020 | Human Resources, Onboarding

With the COVID-19 pandemic in full force, more people are working remotely than ever before. Companies of all sizes are being tasked with the challenges of having an ever-increasing number of employees work in a virtual and remote environment. During this crisis, companies like Zoom upped their game to show the world that advances in technology can reshape the way business is done.

And long after COVID-19 no longer poses an existential threat to the world, these changes will continue to transform the corporate landscape. That’s because as more enterprises are forced by the pandemic to do more work remotely, they discover all the extraordinary advantages of doing work this way.

These advantages include:

  • Saving money
  • More flexibility for team members
  • Reduced carbon footprint

However, remote work is not without its challenges. Two of the difficulties that raise their ugly head whenever any company tries to move to remote work is that it makes collaboration more complicated and increases technological glitches.

The Importance Of Onboarding

A significant challenge is onboarding remote employees. Although it’s harder to do from afar, it can be and should be done, and in the right way to ensure a smooth and impactful process for your new team members.

Onboarding plays a critical role in your new hire’s success and happiness. It also helps your new recruit get acclimated to a brand-new environment. For an employer, it’s a chance to introduce the new employee to the values, policies, and processes the company holds dear. 

Onboarding remote employees is particularly critical since they don’t have the opportunity to naturally assimilate into your organization’s culture.

According to a Wynhurst Group study, employees are 58% more likely to stay with a company if they go through a formal onboarding process. Having a quality onboarding process increases employee retention and saves your business money in the long-term.

Here are some tips to make things easier:

1. Create Policies That Make Remote Onboarding Safer

 Even when using company-owned equipment, your employee isn’t going to be immune from cyber threats. That’s why you need to come up with robust procedures that’ll help minimize the danger of cyber threats.

If you don’t do anything to safeguard your business’ data, it could be susceptible to unauthorized access. A breach in cybersecurity can lead to problems through tactics such as:

  • Installing spyware that allows a thief to track internet activity
  • Phishing emails that deceive recipients into disclosing their personal information
  • Spam emails that trick recipients into handing over access to their computer
  • Hijacking the company website and rerouting users to a fraudulent look-alike site where they steal your information

Here are some things you can do to make remote onboarding safer:

  • Make sure all company-used computers have anti-virus and anti-spyware software
  • Require individual user accounts for every employee
  • Limit employee access to data and information
  • Mandate that strict security procedures be adhered to with strong passwords to access the network
  • Limit access to data for employees who don’t require it to for their particular job

Issues with BYOD

BYOD, or “Bring Your Own Device,” is terrific for attracting younger employees. They are already technologically savvy and have a strong preference for using their own equipment.  You can also provide your employees with a “technology stipend” to reduce the financial stress of acquiring new technology.  

For example, you could give your employees $1,500 every three years to buy a device they can use for personal and work purposes. This money covers the cost of the device, business productivity applications, and anti-virus software.

You need to have a written and signed BYOD policy, so you’re covered if something goes wrong. The following are a few things to consider when creating one:

  •  IT SUPPORT: Decide what IT support will be available to the employee and how it will be delivered. This could mean that the employee must take the device to an employee supplied third-party support provider if the employee is getting a technological stipend.
  • REMOVAL OF SENSITIVE INFORMATION:  Because you’ll want to permanently erase company-specific data from devices once its use is no longer required (such as when an employee leaves the organization), you’ll need to have a policy for this.
  • LIST OF APPROVED DEVICES: A device might not meet your company’s security requirements, so it’s essential that your IT department come up with a list of approved ones.  
  • VIRTUAL PRIVATE NETWORK (VPN): To protect your sensitive information, ensure employees use a virtual private network (VPN). You can establish a company VPN for use on the employee’s broadband network. 

Consult with a lawyer to make sure your BYOD policy is legally acceptable.

2. Consider Meeting at The Office

If your new employee is local, and no laws are violated (such as COVID restrictions or mandates), consider meeting them at the office for a more personal introduction.

Just make sure you practice social distancing. This is an excellent opportunity to give them their new equipment and ensure that it works properly.

3. Make Sure Your New Hire Understands Their Role

One of the most common errors companies make with onboarding is not making their expectations clear enough. Because you’re doing your onboarding virtually and not face-to-face, it becomes so much more important to establish crystal clear expectations.

That’s why you need to make sure that your new hire understands their job role inside and out. This can help you retain employees since confusion or uncertainty can often lead to turnover later down the line. 

4. Try “Preboarding”

You can also significantly alleviate first-day jitters by “preboarding” or sending an employee information they’ll find useful before starting work.

Here’s what you can send: 

  • A welcome letter or email
  • A detailed schedule for the employee’s first week
  • Links for virtual meetings
  • Passwords and credentials for initial login
  • Fun cultural items such as a company T-shirt or mug

5. Plan Out Your Employee’s Schedule

When an employee is working remotely, it’s easy to get distracted and disorganized.  That’s why creating a plan and setting up a schedule can be helpful. 

It can also be a great stress reliever—especially when the new recruit starts to feel overwhelmed.  

Create an exact blueprint for the new recruit’s first 30, 60, and 90 days, so there’s no confusion with the new job responsibilities.

6. Make Sure You Cover All The Important Stuff

An exceptional onboarding experience will provide information that not only captures an employee’s attention but will also be illuminating.

You’ll want to offer an insightful perspective on the company’s history, objectives, and values, while also helping the new hire get acclimated to their role within the business.

Although you want onboarding to be informative, make sure it’s not so jam-packed with details that your new recruit gets overwhelmed with information overload.

7. Introduce Your New Recruit To The Rest Of The Team

Don’t leave your new hires alone during the onboarding process—have them make connections with others.  Ask members of your team to reach out to new hires and introduce themselves during the first week.

This can be done through a videoconferencing platform such as Zoom. This will help the new hire to feel welcomed, and they’ll start to make the connections that could lead to a feeling of fitting into the company’s culture.

You could even have your new hires write a short letter of introduction that you post on your team’s chatboard such as Teams or Slack.  Or, assign them a project within the first two weeks that demands collaboration with other cross-functional team members as a team-building exercise.

8. Schedule Daily Video Calls

It’s challenging to build an emotional connection with a new team, especially when you’re not in the same physical space. This can cause a new hire to feel isolated. Try scheduling a daily video check-in with your new hire to ensure they feel connected and like they have someone to turn to with any questions or concerns.

9. Make Remote Onboarding Exciting

Listening to video lectures and online training modules all day long can quickly become tedious. It’s important to incorporate elements of fun, excitement, and culture into your remote onboarding process. Give the newest member of your team a resounding welcome with fun ice breakers that’ll provide a delightful counterpoint to your work meetings.

For example, you can play a virtual game of “Jeopardy” where every question is about your company. You can also quiz new employees on the subject matter at hand to encourage active listening and participation.   

Another idea that can help keep things interesting is learning new skills through roleplay. One way you can do this is by having someone play the role of an angry customer while another pretends he’s the customer service agent. This method also works great for training news salespeople on how to have conversations with potential customers. This is experiential learning, which makes it easier to internalize new information while also being more engaging.

10. Cultivate A Sense Of Mission

It’s often difficult for remote employees to feel connected. That’s why it’s crucial to share company goals with new hires. This reinforces the fact that they’re part of a larger team, working towards an overarching mission.

This will also help your workforce to feel engaged. According to a Gallup poll, only 30% of the U.S. workforce feels a sense of engagement. Disengaged workers aren’t productive, bring down morale, and have higher rates of absenteeism.

New recruits need to know that what they’re doing is making a difference. This will help them feel engaged. Creating opportunities for small accomplishments during their first few days of employment also helps employees to feel energized about their work.

11. Refine Your Process

If you’re not used to running remote teams, there might be bumps in the road before everything runs smoothly. Ask each new hire what about the onboarding process worked and what didn’t, in their opinion. That way, you can refine your processes and procedures moving forward.

Key Takeaways

Remote onboarding is more complicated than onboarding an employee who occupies the same physical space as you, but it can be done well with a thoughtful approach.

In this case, you have to be sensitive to the emotional isolation that a new employee feels, and counteract it by helping them feel like part of the team.

You can also help your new recruit assimilate into the company’s culture by giving them a schedule for the first several weeks, establishing clear expectations, and assigning them a project that requires collaboration.

Which strategy do you think you’ll try first?

Let us know in the comments!

Experts Share Thoughts on Building a Return to Work Plan on Launchways Webinar

by | May 22, 2020 | COVID-19 Resources, Return to Work

Many businesses are preparing to transition to return to work in a continuously COVID-impacted world. Many states are starting to loosen COVID-19 related restrictions and open back up, and others are sure to follow suit.

Whether you already have a start-date in mind or do not know when it will be safe to bring employees back into the workplace, it is important to develop a return to work plan now to prepare your business for the inevitable reopening.

To help our clients and our community get back to work safely and effectively, Launchways held a comprehensive webinar on May 15, “Everything You Need to Know to Build a Return to Work Plan”. Our panel included experts in commercial real estate, human resources, executive management, and labor laws. They spoke for over an hour, addressing a staggering range of topics that employers will need to address to get back to work.

Luckily, we recorded the webinar and it is available to stream on-demand. We’ll share the link at the end of the article, but in the meantime, let’s take a look at each topic that our panelists addressed to get you started down the path to business as usual during the new normal.

Meet the Panel

Each of our panelists brought decades of valuable industry experience to the presentation. We were extremely lucky to field such an experienced panel, which included:

Bill Sheehy, Executive Vice President, CBRE: Bill is an experienced Executive Vice President at CBRE with a demonstrated history of being a top producing broker for almost two decades. Bill specializes in helping his clients through acquisitions, dispositions, lease negotiations, and more.

Heather Bailey, Partner and COVID-19 Task Force Member at SmithAmundsen’s: Heather Bailey is a partner in SmithAmundsen’s Labor & Employment Practice Group. For 18 years, Heather has concentrated her practice in employment and labor counseling and litigation, including discrimination and trade secret/non-compete lawsuits, FLSA class actions, labor negotiations and arbitrations, affirmative action, OFCCP/DOL audits and FINRA issues. She counsels on day-to-day operations, human resources, and management decisions regarding employees, practices, and policies.

Jim Taylor, Founder and President, Launchways: Jim is the CEO and Founder of Launchways. At Launchways, Jim focuses on bridging the gap between Finance and HR. He helps Finance leaders take a data-driven approach to Human Resources and Employee Benefits, allowing them to have more productive relationships with their HR team members. Jim is passionate about helping fast-growing businesses approach the people side of their business strategically.

Building a Return to Work Plan

Create a Cross-Functioning Steering Committee

The first step in building your return to work plan is to assemble your team. That means putting together a cross-functioning steering committee headed by a program lead who will engage the individual players and keep the ball rolling. While the whole leadership team needs to be involved in the decision-making process, giving one member ownership over the project will help keep your efforts focused and productive.

Next, get everyone involved in your organization: business leadership, finance, HR, IT, operations, and management. Not only will their voices be useful in developing an effective plan, but you will need their involvement to implement that plan.

Finally, engage your key partners including your corporate real estate partner, third-party providers for any outsource functions, as well as HR and benefits partners. Your property manager or building owner is a very most important partner to engage in your planning process as facility readiness is a key part of the reopening process.

Once you have everyone at the table, it’s time to put together your plan.

Facility Readiness

Before you bring your team members back into the workplace, you have to make sure that it is a safe environment free of the risk of infection. Jim and Bill explored how you can get your facilities ready for your team to return to work.

Your facility readiness responsibilities begin as soon as your employees walk through the front door. Work with your commercial real estate partner to establish shared policies for common areas of your building including elevators and entrances to the building and your offices. Elevators are going to be a particular pain point that you will have to figure out before opening.

Next, assess the cleaning requirements for different spaces in your office. Some may need more, or different, attention than others. Consider which areas are high-traffic or high-touch. These areas may need daytime cleaning, which you will have to work into your budget.

Finally, establish a space configuration plan that meets enterprise distancing standards. This plan should include:

  • Desk policies
  • Conference room policies
  • Gathering space policies (break rooms, kitchens, etc)
  • Access and traffic flow policies

Allowing Employees to Return to Work

After the space is ready to receive them, it’s time to start bringing employees back into the workplace. As part of your Return to Work Plan, you will need to determine who will come back into work and when. This depends partially on the state’s phase of reopening as well as federal guidelines.

When establishing this plan, employers need to differentiate between essential and non-essential workers, particularly when it comes to in-person work at a non-essential business. For example, in Illinois, non-essential businesses are required to maintain a remote work policy for everyone except for “Minimum Basic Operations” staff. You should also consider protective measures for those at higher risk, including telework and tasks that minimize contact.

Heather also explored the legal issues around requiring employees to return to work. The short version is that businesses that have been authorized to reopen and are implementing proper safety precautions can require their employees to return to the workplace. She also reminded employers that employees who choose not to risk losing their unemployment benefits. If employers are struggling with employees resisting returning to work rather than collecting unemployment, they can report those employees to the unemployment office. However, you must maintain a safe workplace to assert these rights.

That is why it is important to train your employees on proper distancing, cleaning, and safety best practices. You must also provide employees who will not be able to maintain 6-foot distancing with appropriate PPE, at your cost. And be ready to make accommodations for individual employees or customers who will not or cannot use PPE because of a disability or religious belief. There may not be a reasonable accommodation that you can make but you have to go through the process to protect your legal interests.

Heather also explored additional concerns including transportation and childcare. While employers are not responsible for employee’s transportation to and from work, they should do what they can to minimize the risk and assuage fears through proper education and scheduling. Employers also need to be prepared to respond to requests for remote work or time off to take care of children, including extending remote work or offering flexible scheduling or a leave of absence. Bearing in mind that employees who refuse to return to work because of childcare requirements may be eligible for benefits under the federal CARES Act, including unemployment.

The bottom line was that employers should try to be creative and think of possible solutions to each of these issues before they open up because these issues will come up.

Employee Health Screenings

Heather explored the legal and practical aspects of employee health screenings, a key area of concern for many employers considering their return to work plan.

She started by laying out the legal protections for employee health screenings. The EEOC has issued guidance on temperature and symptom checks before letting employees return to work. In the era of COVID-19, temperature checks also fall under “job related and consistent with business necessity” mandatory employee medical testing as allowed under the Americans with Disabilities Act.

That being said, it is important to notify your employees of temperature and symptom screening measures in advance. It’s also important to emphasize that the purpose of the screenings is solely to protect employees from exposure to COVID-19 and not to detect any other illness, impairment, or disability. Finally, make it clear that it is not meant to be, nor is it, a substitute for a medical diagnosis.

Keep in mind that the laws and guidelines around testing may change over time, so plan to keep up-to-date and revise your policies as necessary. And as always, be prepared for requests to be exempted from screening due to medical or faith-based reasons. You may also have to compensate employees for time spent getting screened or waiting to be screened. While federal law likely does not require compensation, state laws may and employees are already filing lawsuits against their employers seeking compensation for time spent on screening.

Lastly, make sure that you have the equipment, personnel, and protocols in place before you start opening up. You should equip your team members who will be conducting the screenings with proper training and protective equipment. They are going to be on the front lines, protecting your workplace and team from exposure and risking exposure themselves in return, and should be treated as such. And you should minimize the risk of spreading the virus through screening. Meaning that touch-free thermometers and other safety measures are a must.

Establish a Timeline

Once you know how you are going to ensure that your employees return to work safely, it’s time to set a timeline for the transition back to work. This should be a week-to-week plan starting when the criteria for reopening are met. Bill presented a sample 90-day timeline based on CBRE’s 55-page reopening playbook:

  • Opening Criteria Met: the clock starts as soon as the community readiness criteria are met and reopening plans are in place
  • Week 1: “Readiness Teams” return to make final preparations
  • Week 2: Employees who can work remotely continue to do so, while those who cannot start to return to the workplace
  • Weeks 3-4: Select teams/employees return to the office, continued guidance to work from home if possible, return to the office is not mandatory
  • Week 5: Refine approach based on employee return levels and ability to maintain safe distancing and other safety practices
  • Recurring Status Review: Recurring 30-45 day status review process, updating guidance and processes as necessary

Other Topics

Our panel explored a range of further topics that employers will have to consider when allowing their employees to return to work. These topics included:

Potential discrimination concerns when it comes to implementing and enforcing new policies. Policies tend to be framed relatively loosely which leaves room for often-unintentional discriminatory enforcement. Furthermore, remind employees that it is illegal to harass or discriminate against coworkers based on race, national origin, color, sex, religion, age, disability, or genetic information. There continues to be xenophobia and discrimination directed towards Asian Americans due to COVID-19 and it is your responsibility to advise supervisors and managers of their role in watching for, stopping, and reporting any harassment.

Issues around hiring including your rights to delay the start date or withdraw the job offer for a new hire who tests positive for the virus and cannot safely enter the workplace. However, being a high-risk individual is not grounds for postponing the start date or withdrawing a job offer.

Potential lawsuits and the current state of workers compensation, particularly recent developments in the Illinois Workers’ Compensation Commission rules. Industry associations successfully got the Commission to withdraw its emergency rule that allowed any employee who tested positive to receive worker’s compensation. But employees can still receive worker’s compensation if they show that they were exposed to the virus through their work. Luckily, Heather outlined a Worker’s Compensation Questionnaire that will help employers protect themselves from fraudulent claims.

Stream the Webinar

Believe it or not, but we have barely scratched the surface of the wealth of information that our panelists shared during the webinar. That’s why we recorded the webinar and made it available to stream anytime you want. Stream the webinar on-demand now.