by Jim Taylor | Sep 1, 2020 | Compliance, COVID-19 Resources, Human Resources, Return to Work
As the COVID-19 situation continues to wear on, every school district in the country has been forced to make difficult decisions, many of which can easily be perceived as “lose-lose” due to the complexity of the ever-changing COVID regulations. Remote learning is certainly not ideal as it can force parents to stay home from work, and in-person learning comes with the obvious risks of exposing children and teachers to the virus.
Employers are caught in the middle of this issue as they try to understand the Families First Coronavirus Response Act (FFCRA or Act) and how it applies to their employees with school age children at home.
This post is designed to provide some guidance to the millions of employers who now face the dilemma of how to best approach this situation.
In this post, we’ll cover:
- What things CAN you do to better understand the situation that your employees find themselves in.
- What things you must NOT do while trying to make leave decisions because they violate the FFCRA or other regulations.
- Things to consider as you weigh the pros and cons of certain FFCRA-related decisions.
Green Light: Things You CAN Do
If you are an employer or HR administrator who is tasked with making FFCRA leave decisions for employees whose children are starting the school year, the first thing you need to do is understand the specific situation of each employee who submits an FFCRA leave request. Fortunately, there are some questions that you are allowed to ask and other pieces of information you are allowed to request from your employee:
- You are allowed to ask how old the employee’s child or children are. If the child or children are age 15 or older, you can and should require that the employee provide a statement or affirmation that there are special circumstances that cause the older child to need their care. If the employee is unable to make such a statement or affirmation, then you can deny their FFCRA leave if the children are over 15.
- You are allowed to request from your employee the name of their child or children’s school, place of care, or caregiver that is closed or unavailable due to COVID-19. In the case of a closed school, you can contact the school district to confirm plans that the school has made, whether it’s in-person learning, remote learning, or a hybrid option. Remember, FFCRA leave is not available for the parents of a child whose school is open for in-person attendance. If the child is home not because his or her school is closed, but because the parent has chosen for the child to remain home, the parent is not entitled to FFCRA paid leave.
- Some employees may ask about the possibility of bringing their children to the office with them. Depending on the nature of your workplace, this is a possibility that you may want to consider. However, you should consult with an attorney or trusted insurance broker that is familiar with the kind of licensing and insurance that would be required to do this.
Most importantly, try to keep an open channel of communication with your employees. If your employees can see that you are there to support them, they will be much more willing to discuss compromise and alternatives such as only requesting a few hours off each day in the morning or afternoon. Alternatives like this can still allow your employees to get significant work done – which can make a world of difference during these uncertain economic times.
Red Light: Things YOU CANNOT Do
Now let’s talk about the things you must NOT do while considering FFCRA leave decisions for your employees:
- You cannot ask an employee to look for different childcare if their usual provider is unavailable. An employee is entitled to leave if the child’s usual care provider is unavailable due to COVID-19 — they are under no obligation to look for alternatives, and any attempt on your part to require that would be an illegal interference with their right to leave.
- You cannot request FFCRA documentation from an employee until after the first workday of FFCRA leave.
- If an employee with children over the age of 15 provides a statement explaining that there are special circumstances that cause the older child to need their care, you are not allowed to dig any deeper into the situation.
- Independent sleuthing to verify what an employee tells you is not a good idea. Never do anything that might infringe upon your employees’ right to privacy.
Yellow Light: Weighing the Pros and Cons of FFCRA Leave Decisions
When making decisions about approving or denying employee FFCRA requests, always be sure to weight the pros and cons of your decisions.
In some instances, you may be tempted to terminate an employee if they are unable to work and do not qualify for FFCRA leave. Assuming that no other leave laws apply, termination may be an option. However, you may want to instead consider offering the employee an unpaid personal leave of absence or revisiting whether a flexible or part-time work schedule would be better than losing the employee entirely. Recruiting, hiring, and training are all expensive undertakings, so if there’s a way to keep an employee around — even if they need some time off — that is likely better for your bottom line.
Making the determination that a leave request is fraudulent is another situation in which you’ll want to spend considerable time thinking about your next steps. If you feel like you have enough evidence to believe a leave request is fraudulent, you have the option to deny it. However, there is significant risk in denying a request for FFCRA leave if an employee has provided the appropriate documentation. Further, you don’t want to discipline an employee who was acting in good faith and simply misunderstood the leave rules.
Key Takeaways
There are still many gray areas related to the FFCRA. The Department of Labor will be releasing more guidance in the coming days and weeks. Be sure to stop by our blog regularly as we will make future posts that highlight the most important things that employers need to know about the FFCRA.
However, there are things that you CAN do and things that you CANNOT do related to the FFCRA as we’ve discussed in this post.
- You CAN ask certain questions to ensure that your employees qualify for FFCRA leave.
- You CANNOT ask an employee to look for different childcare if their usual provider is unavailable. And never do anything that violates an employee’s privacy.
- As is the case in many aspects of managing your business, take time to weigh the pros and cons of FFCRA decisions. While you may be tempted to try to fight an employee leave request, consider the long-term costs and benefits of doing so.
by Jim Taylor | Jun 11, 2020 | COVID Healthcare Costs, COVID-19 Resources, Employee Benefits
Prior to the COVID-19 crisis unfolding, most US employers were anticipating healthcare cost increases in the range of 4-7%, based on trends in 2018 and 2019. However, COVID-19 has drastically altered the healthcare space and thus dismantled most employers’ previous predictions. While some are now anticipating decreased healthcare costs for 2020, this does not mean good news for employers. In fact, the monumental impact COVID-19 has had on the healthcare space could mean employers will be facing unprecedented cost increases in 2021 and 2022. These impacts are something employers must be preparing for now, rather than later.
In this post, we’ll explore the major ways COVID-19 has impacted the healthcare landscape. We’ll delve into what this means for businesses in the near-term (the duration of 2020), as well as crucial action steps employers must be taking now to prepare their businesses for 2021 and beyond.
How has COVID impacted healthcare costs?
Due to the COVID crisis, by late March 2020, many American businesses had temporarily ceased operations and closed their physical offices. The immediate impact of the virus was a significant surge in the demand for hospital space in markets with significant virus spread, such as New York. However, the most significant shift across the country was a stark decline in elective care.
For the most part, over the past few months no procedures or surgeries deemed as “nonessential” have been conducted, in order to preserve hospital space and supplies for those with COVID. The shutdown of nonessential medical services and procedures lead to the furloughs of tens of thousands of healthcare workers.
As a result of all these challenges, in the second financial quarter, Americans are receiving substantially less care than anyone could have ever predicted. This impact will result in an unprecedented $140B to $375B decrease in care costs (and this figure includes the costs of COVID-19 treatments).
However, this short-term cost decrease will do little to offset substantial future increases. Models predict that in 2021 and 2022, the trend of rising healthcare costs will reset at a higher lever with a higher slope indefinitely. Employers must be planning and preparing for these changes now by working hand-in-hand with their benefits broker to enact effective cost-control strategies.
What’s the bottom-line?
As an employer, it’s important to realize that COVID-19 has substantially altered the extent to which employees have been able to receive the care they need. Although this shift will result in short-term healthcare cost decreases, the long-term impact is grim. Employees will be driven to more expensive care settings as healthcare becomes available again, resulting in substantial costs increases in 2021 and 2022. Employers must begin preparing for these costs now, by working proactively with their broker on impactful cost-control methods.
by Carolyn Kick | 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.
by Carolyn Kick | May 15, 2020 | COVID-19 Resources
As many businesses begin to officially reopen, it’s more clear than ever that COVID-19 has changed the reality of our workspace. The constant but piecemeal flow of new guidance related to COVID-19 has become a business challenge unto itself – maybe the most important one of our time, and as businesses work to reopen, it’s easy to feel like we simply don’t have enough information to do the best possible job.
In this post we’ll explore:
- Why it’s so easy for the best and most well-meaning business & HR leaders to feel overwhelmed right now
- The variety of areas in which COVID-19 has created new responsibilities for employers
- How businesses can connect with resources to ease this transition into the new normal
The Growing Challenge of Staying Up to Date on Compliance
The federal government’s official response to COVID-19 began just two months ago on March 18 with the passing of the Families First Coronavirus Response Act (FFCRA), mandating the expansion of paid sick leave and FMLA leave.
Since then, a variety of government agencies, from the CDC and Department of Labor to OSHA and Homeland Security have published temporary policies, interim guidance, and regulatory FAQ sheets with an eye toward helping businesses and individual American employees weather this storm.
Unfortunately, the flood of guidance during a time where many organizations were maintaining skeletal operations teams has led to information overload across much of business. Everybody wants to comply with the new regulations and follow best practices to protect employees, defeat coronavirus, and restore the economy, but staying up to date on COVID-19 has become a major job unto itself.
Clarifying the Picture: What Businesses Need to Focus On
The current situation presents three specific needs businesses must address:
- Staying up to date on guidance as it is released
- Implementing guidance and best practices in a well-organized way
- Maintaining great documentation to ensure compliance and qualify for tax credits as applicable
If your business’ COVID-19 response and reopening strategy doesn’t have a comprehensive approach for those needs articulated, it’s a recipe for falling behind.
Staying up to Date on Guidance
An incredible variety of government agencies have published guidance or temporary policies to address the COVID-19 pandemic and economic reopening. It’s essential to know about the guidance currently on the books as well as each new piece of legislation or regulation as soon as it’s published.
This means monitoring the websites of relevant government agencies or signing up for alerts to get news about updates as soon as possible.
Implementation
Knowing COVID-19 guidance and policy is only the first part of the battle. You also have to bring those instructions and expectations to life in your workplace and among the members of your team.
You need to have specific plans in place to address all sorts of best practice implementation needs, including:
- Reconfiguring your workspace
- Providing & training employees on PPE
- Smooth internal processes for transitioning employees on and off of leave
- Temporary hiring procedures for team members who may have expired I-9 documentation
Maintaining Documentation
Federal payroll tax credits will be key to most businesses fully recovering from the financial effects of COVID-19. Thankfully, the CARES Act provides that relief, but ensuring your business gets that credits it deserves requires a strong approach to documentation.
In order to get the relief you deserve for providing your employees with paid leave, you need to provide specific documentation, and some of those requirements are only now being clarified. That means proactive recordkeeping and attention to detail are more important than ever for HR and payroll professionals.
Providing Powerful External Support to Core Business Function
Given all the new responsibilities we’ve discussed related to COVID-19, it’s easy to see why many business, finance, compliance, and HR leaders are feeling overwhelmed. One way to take pressure off your core team while also ensuring compliance is to start a relationship with a dedicated HR support partner.
With an outside specialist taking the lead on reviewing evolving guidance and breaking it down into executive summaries and actionable policy/procedural checklists for your leadership team, you can carry out a powerful reopening that’s backed by best practices without that effort subtracting from your ability to do business.
Takeaways
If you’re feeling overwhelmed from a business perspective because of the steady but disconnected flow of new guidance from various government agencies, you’re not alone! Remember:
- Keeping up to date with COVID-19 policies and legislation has grown into a job unto itself and is likely to stay that way for the foreseeable future
- It’s crucial that all businesses stay current on guidance, implement identified best practices in thoughtful ways, and maintain strong documentation in order to maximize tax credit opportunities
- A designated HR partner (like Launchways!) can pick up the slack on COVID-19 regulatory concerns, enabling your business to get back to doing what you do best
How to Learn More
At Launchways, we specialize in providing HR, payroll, business insurance, and employee benefit support to organizations so their leadership can make the most of their own time and expertise. We are proud to partner with some Chicago’s most innovative and forward-thinking businesses to strengthen the local business community and connect organizations with the knowledge, tools, and human support they need to do their jobs better than ever.
During this challenging time, we encourage all business leaders to access the resources on the Launchways COVID-19 Emergency Resource Center.
