With some states cautiously reopening non-essential businesses before the COVID-19 national emergency has been officially declared over, it’s crucial for the owners and managers of those businesses to get reopening right from a wellness and employee/public protection standpoint.
If we as a business community can execute this properly, then we’ll be bringing what normal looks like after COVID-19 to employees and the public at large, stimulating the reemergence of our strong American economy. However, we desperately need to talk about what reopening “right” actually looks like.
This is why Launchways created our Complete Return to Work Toolkit, a resource any business can use to plan for a successful return built on best practices and up-to-date information.
Moving forward, we’ll explore some of the concepts from the toolkit including:
Key policy & procedural concerns related to screening employees & visitors for COVID-19
Crucial questions about expectations for personal protective equipment that must be addressed before employees return to the office
Modifications you need to make to your physical workspace and way of fostering collegial collaboration in order to reopen safely
Health Screenings
The most important aspect of a proper reopen is getting your team members back in their traditional workplace in a way that ensures talent is returning to the building without introducing the spread of COVID-19 within your workforce.
Here are a few examples of questions you need to be able to answer regarding health screenings before you can plan to reopen:
What screening questions will you ask employees before they return to the office?
What screening questions will you ask customers/clients/office guests before anticipated visits to your facility?
What communication system will you use to transmit and manage screening questions?
Who will be in charge of reading/assessing eligibility to return based on screening responses?
What screening questions will you ask customers/clients/office guests before anticipated visits to your facility?
Will you carry out temperature checks as people arrive to work?
Where will you carry out temperature checks?
Who will carry out temperature checks?
What will be the temperature threshold for denying admittance to the workplace?
What are next steps for employees for are denied entry because of failing a screening?
How will you transition them toward leave?
How can you enable work-from-home for those who insist they can work?
What are next steps for customers/clients/office guests who fail a screening?
What parameters must a COVID-19 positive employee meet before returning to the workplace (for example 14 days from diagnosis, or 72 hours without experiencing a fever)
Personal Protective Equipment (PPE)
Given that COVID-19 is often spread by asymptomatic carriers, PPE is essential to minimizing the spread of coronavirus, even between people who do not feel or appear to be sick. The use of PPE among the public is currently inconsistent, so you need to set clear expectations for usage in your workplace.
Here are just a few different questions you need clear answers to before you recall your workforce and reopen your facility:
What PPE will public-facing employees use?
What PPE will back-office employees use?
Will you be issuing PPE or expecting employees to bring their own? (if employees must provide their own, will they be reimbursed?)
How often will you expect employees to change/sanitize PPE?
What cleaners or approaches will you approve for sanitizing PPE?
How/where will employees dispose of soiled PPE?
Will you require PPE for clients/customers/office guests?
Will you make PPE available to clients/customers/office guests?
How will you address refusal to comply with your PPE policy?
For employees?
For clients/customers/guests?
Social Distancing
Maintaining six feet or two meters of distance between all people remains a best practice until the official end of the outbreak period.
Here are some examples of baseline social distancing concerns you absolutely must have plans and policies in place for as you reopen:
How will you modify the physical space of public-facing areas to enable distancing for employees and customers/clients/guests?
How will you modify your back-office space to enable distancing for employees and guests?
How will you create sensible traffic patterns that allow people to get around the office in ways that support distancing and prevent anybody from “squeezing past” each other in the halls? (for example, some offices are transitioning their layout to use only ‘one-way’ hallways)
What kind of signage will you create to provide distancing reminders and where will you put it?
How will you enable meetings, brainstorming sessions, and other collaborative group work in ways that support distancing?
How will you address distancing with regard to the use of common spaces (kitchens, bathrooms, etc.)?
How will you address refusal to comply with your social distancing policy?
For employees?
For clients/customers/guests?
How to Learn More
If you’re a business leader hoping to reopen your business or transition remote workers back to the traditional office in the coming days and weeks, be sure to download Launchways’ Complete Return to Work Toolkit!
The toolkit covers:
How to Determine Who Should Return to Work & When
Preparing & Modifying Your Physical Workspace
Protocols for Employee Re-Entry & Health Screenings
Building and Enforcing Social Distancing & COVID-Specific Employee Protocols
How to Address Workforce Anxiety About Returning to Work
Sample Return to Work Survey for Employees
How to Identify & Correctly Update Effected Company Policies
Roadmap for a Return-to-Work Communications Strategy
The COVID-19 outbreak is changing nearly everything about how we work and do business. And if changing work conditions weren’t enough for employees to deal with, they also have to navigate a host of new federal policies including temporarily expanded sick leave and FMLA family leave. But, they don’t have to do it alone. Employers can help their team members work more effectively while achieving a healthy work-life balance by setting clear leave policies.
The Families First Coronavirus Response Act established Emergency Paid Sick Leave and drastically, albeit temporarily, expanded the scope of the Family Medical Leave Act. But it also left it up to employers to set the terms of how employees can use that leave. That means that employers must educate themselves on how their team members can take advantage of the leave to protect themselves and their families while staying productive, and then provide clear guidelines for their teams.
This can be particularly useful for employees who don’t want to take time off of work but have to take care of children who are now home from school or childcare. These employees are entitled to paid leave if they decide not to work. But they may not know how to take paid leave for time spent caring for their children while working part-time. That’s where employers can help employees navigate the situation so that they can work as much as possible while simultaneously taking care of their other obligations.
In this article, we’ll provide an overview of how employers can set flexible leave policies and help their team members navigate the new leave policies including:
Employees’ leave coverage under the Families First Coronavirus Response Act
How to expand the leave policies to help your team members work more effectively during the outbreak and as businesses begin returning to work
Employees’ Rights Under the Act
The Families First Coronavirus Response Act implemented several employee leave expansions that went into effect at the beginning of April. We wrote a full overview that you can read here, but here is a quick overview of what your employees are entitled to from the FFCRA if you have fewer than 500 employees:
2 weeks full paid sick leave if they are unable to work due to COVID-19 illness, quarantined due to exposure, or are experiencing symptoms and waiting for a diagnosis
Paid sick leave is available to employees who are quarantined but not sick only if they cannot work remotely
2 weeks of paid family leave at 2/3 pay if they need to care for an individual subjected to quarantine or need to take care of minors whose schools or childcare facilities are closed due to the virus
10 weeks of extended family leave at 2/3 pay if employees need to take care of minors and have been with the company for at least 30 days
Notably, if your company has 49 or fewer employees, you can apply for a small business exemption. But unless you receive a small business exemption, you cannot prevent qualified employees from taking leave. Nor, given the current health crisis, should you aim to prevent employees from taking the leave they need. Your leave costs will likely be covered by tax credits under the new CARES Act. It’s often in your best interest to help your employees maximize their ability to leverage the leave policies, especially to discourage the spread of the virus amongst your workforce.
Expanding Leave Policies for More Effective Work
Under the FFCRA, employees may not be eligible for leave if they are healthy, do not have to care for minors, and can work remotely. While on the other end of the scale, employees who have to take care of minors may be eligible for a full 12 weeks of leave, paid at 2/3 their normal rate. However, many employees who do qualify for leave to take care of minors, but can work remotely, will not want to take three months away from their work. And many employees may be concerned about keeping some of that time in reserve, since no one knows how long the outbreak will last. That’s where employers can help their employees make the most of their paid leave while simultaneously minimizing the disruption to their business.
You have the right to force employees to either work full time or go on leave. But it is often in both of your best interests to work out an arrangement where employees with family obligations work as much as they can while taking leave when they cannot. And the FFCRA gives employers a lot of leeway in allowing employees to take sporadic or intermittent paid leave.
Employers can allow employees to take paid leave in increments anywhere from week-to-week, day-to-day, or even hour-to-hour. That means you could allow your team members to take paid leave to homeschool their children every other day while working full time on the other days. Or they can take a few hours of paid leave every day to take care of their family obligations and work for the rest of the work day. And this does not just apply to remote employees: you can allow employees who have to come into the workplace to work a partial schedule while taking paid leave on their days off.
It’s important to remember that employers are not obligated to provide this kind of flexibility. But it can often be in your best interest to work with employees to find the best arrangement for both parties. Not only will it allow you to retain key employees, on a partial basis, who would otherwise go on full-time leave, thus reducing the disruption to your business from COVID-19, but it can also have a lasting impact on employee relations. Employees will remember it if you work to help them juggle their work and non-work obligations, increasing loyalty and productivity in the long-term. On the other hand, they will also remember if you took an all-or-nothing approach that adhered to the bare minimum requirements of the FFCRA. It’s crucial to consider the optics of your approach to leave during COVID and as employees begin transitioning back to work.
To recap, you are allowed but not required under the FFCRA to let your team members take emergency paid sick leave or family medical leave:
On a day-by-day basis while working a partial schedule either remotely or in-person
On an hourly basis to allow for reduced hours per day, either around a shorter shift or to allow for breaks to care for family
On a weekly or monthly basis
At your discretion, within the limitations of the FFCRA (you can prevent employees from working until they come back from leave but you cannot prevent them from taking continuous leave while they qualify for it)
You should decide which of these arrangements, if any, will work for your business and then set a clear leave policy. Then, inform your entire staff of that policy and work with each employee to help them set up the arrangement that works best for them, within the limits set in your policy. Clarity and flexibility will help your business run smoothly and help your employees balance their work with their other obligations.
Key Takeaways
With the COVID-19 outbreak continuing to disrupt every part of life and business as we know it, we can all benefit from working together to find solutions. The FFCRA requires that employers offer 2-12 weeks of paid leave for qualifying employees at either full or 2/3 pay and you should take responsibility for that obligation. If you create flexible leave policies that enable employees to work as much as they can while taking only as much leave as they need, you can minimize disruptions to your business. Setting clear and flexible leave policies and helping employees take advantage of those policies is truly a win-win strategy. Just remember that:
Healthy employees who do not need to care for minors or sick family members may not be eligible for any expanded leave and can be required to work full time if they can work remotely
Employers are allowed to decide whether and how their employees can take intermittent sick or family medical leave
If they chose to, employers can let their employees take their expanded leave on an hourly, daily, or weekly basis
For more on the Families First Coronavirus Relief Act and running a business during the COVID-19 outbreak, check out Launchways’ comprehensive resources on our COVID-19 Emergency Resource Center.
The COVID-19 outbreak is changing how companies operate. While it is having a profound impact on supply chains and the nature of demand, the most direct impact is the fact that most people are confined to their homes. Many companies are now working fully remote, including some that had never had remote work policies in the past.
There are many considerations around the transition to remote work. The first ones that come to most employers’ minds are generally how to maintain productivity, communication, and morale while team members are working in isolation.
But working remotely also comes with significant cybersecurity risk ramifications. Company networks are inherently spread thin and ultimately rely on employees’ home network security to keep company data safe. Many companies’ cybersecurity practices just aren’t built around remote work and they will have to adapt to keep themselves safe.
Luckily, just a few additional measures can greatly mitigate your cybersecurity risks during the COVID-19 outbreak. Let’s take a look at the risks and how to tackle them, including:
Why the outbreak creates openings for cyberattacks
How to mitigate your company’s risks
Protecting employees and their devices
Business insurance coverage for cyberattacks against remote networks
Why COVID-19 Creates Opportunities for Cyberattacks
The main reason why the COVID-19 outbreak is changing the nature of cybersecurity is that just about everyone that can is now working remotely. Instead of operating as a closed system, companies’ networks now include each employee’s home networks and devices. And a distributed network is inherently harder to protect: you can’t just throw a firewall around it. Not to mention, most existing strategies and policies are focused around protecting the company networks and do not work for distributed or bridged networks.
Employees’ home networks are the most significant gap in your cyber protections. Unfortunately, VPNs and other standard protective measures only cover communications between home devices and company networks. They do not protect the home devices themselves or home networks. That means any company data stored on the devices is much more easily compromised by cyberattacks.
But on top of the technological challenges posed by the COVID-19 outbreak, the coronavirus is also creating opportunities for successful cyberattacks that rely upon the fear, isolation, and ignorance of people amid the outbreak. Phishing attacks related to the virus have increased more than six-fold in the past month and tens of thousands of people have clicked on malicious links that used the topic of the virus as bait. As a result, the total number of hits on malicious links nearly tripled from February to March.
What this means is that your employees are simply more likely to fall victim to malware, eCommerce fraud, or other cyberattacks thanks to the COVID-19 outbreak. And when they do they may inadvertently compromise their devices and your company data.
Minimize Your Risk
Cybersecurity risk management is a multi-tiered process that starts with avoiding and defending against attacks. If that fails, then you need to mitigate the damage from successful attacks and transfer the risk away from the company. While it is always better to stop an attack from being successful in the first place, you should still have plans and processes in place to handle the situation in the case it occurs.
So, how do you stop cyberattacks from compromising your remote work operations? The first step is to implement strong endpoint protection on all employee devices that will be used for work. Endpoint protection software is a bit like antivirus software evolved and takes a more comprehensive and proactive approach to threat prevention, detection, and defense.
Next, you need to educate employees and set standards for their home networks. Employees should use networks secured by a strong and unique password. Then, you should make sure that only authorized IP addresses can access your data and networks. IP blacklists, multi-factor identification, and identity management solutions can go a long way towards protecting your data during the outbreak. Finally, make sure that all of your standard protection measures are also in place and up-to-date. This includes VPNs and firewalls that protect your company networks from any attacks.
But if these measures fail, it’s time to mitigate the damage. That means implementing effective intrusion detection to discover a breach and start addressing it as quickly as possible. Ideally, these systems will tell you not just that there has been a breach but what systems were accessed. That can help you diagnose the damage and formulate your response. Another option is a managed detection and response system that combines software with hands-on attention from security experts for added protection.
It is just as important to minimize disruption to your systems and workflow. Many attacks try to damage or destroy data not just steal it. So, regularly back up all data in multiple locations to ensure that you don’t lose anything.
Finally, transfer the risks through business insurance coverage. As we’ll explore in detail later in this post, your business insurance will likely cover the damage from a successful cyberattack even if the attack was against an employee’s device or happened while the employee was working remotely.
Protect Your Employees
As we discussed earlier, remote work is not the only driver of cybercrime during the COVID-19 outbreak. Most attacks have to do with the virus itself, using outbreak-related lures to get people to click malicious links or even taking advantage of CARES Act stimulus payments to steal information and money from susceptible businesses.
While many of these attacks will target the individuals themselves – trying to gain access to their bank accounts or vital identity information – employers should still do everything they can to protect employees from falling victim to such attacks. Not only is it the right thing to do to take care of your team members, but the attacks can also compromise employees’ work devices and present cybersecurity risks. Just because an attacker planned to go after an employee’s bank account doesn’t mean that won’t pick up some valuable company data along the way, especially if it is low-hanging fruit.
So what can you do to protect your employees? In addition to providing powerful antivirus software, you need to educate and reassure. COVID-19 cyber-attacks feed on fear, isolation, and misinformation. Providing support and correct information about both the COVID-19 outbreak and common scams is the best countermeasure once your technology solutions are all sound and in place.
Work with your IT team, business insurance broker, HR consultants, and any other stakeholders to put together resources to inform employees about how to identify possible scams or malware attacks, and what to do if they think they may have clicked a malicious link or compromised their device. And work with your HR advisor to create outbreak-related resources that will fill the COVID-19 information gap so that employees are less likely to click the links in the first place. Finally, do everything that you can to minimize fear and isolation by keeping employees connected, engaged, and healthy in mind and body during the quarantine. Not only will this help minimize cybersecurity risks, but it will help your remote team work more effectively as well.
Know Your Business Insurance Coverage
If things do go wrong, will your business insurance protect you from the damages?
By and large, the answer is yes. There are several “triggers” that will cause your business insurance to kick in and which apply in the case of a cybersecurity breach from a remote employee.
A privacy insuring agreement may cover any damages if the attack results in the following privacy triggers. First, illegal access to company information is likely covered because your company will have been the victim of a crime. Secondly, if company information is compromised due to a cyberattack on an employee’s device that may count as violating an NDA, a common privacy trigger in business insurance policies.
But a security insuring agreement will often also apply. When someone is working from home, their computer and network will generally count as the company’s computer and network and thus be covered if attacked. This is especially true if they use a company device while working from home.
Keep in mind, though, that some insurers require a formal “Bring Your Own Device” policy with employees for them to cover the damages. This policy needs to outline safety measures and proper conduct that employees have to follow when using their device. So it is a good idea to have your employees sign such an agreement now that they are working remotely.
When in doubt, ask your insurer and business insurance broker about your cyber insurance to find out the details of your coverage. But if you have the correct policies in place, there is a good chance that you will be covered if your security measures fail.
Key Takeaways
There are many considerations when it comes to protecting company data, networks, and devices during the COVID-19 outbreak. Hopefully this article has given you a solid roadmap to start formulating your defense strategy and helped you figure out the right questions to ask your IT and business insurance providers. Just remember:
Remote work means a distributed network for added security risks and possible entry points for attacks
The outbreak has many people scared and looking for help, creating opportunities for attacks
Educating employees about proper security measures, real information about the outbreak, and how to avoid falling victim to cybercrime goes a long way to protecting their data and the company’s data
IT considerations to protect against cyberattacks during the outbreak include endpoint protection, intrusion detection, regular backups, home network security, and up-to-date antivirus, firewalls, and VPNs
Working with your business insurance broker to ensure you have the correct cyber liability policies in place is crucial during this time
Filling out form I-9 is a standard onboarding procedure for any new hire. The new employee fills out Section 1 and provides supporting documentation of their identification and work-eligible status; then an HR professional makes copies of that documentation, completes Sections 2 and 3 (as applicable), and retains the form.
Generally speaking, it’s expected that the I-9 is completed in person, with the new hire and a HR professional exchanging physical documentation and verifying information face-to-face.
However, given the CDC’s social distancing guidance for COVID-19, that procedure obviously isn’t appropriate for this moment. In order to enable strong businesses to continue hiring and providing meaningful work for new employees, the Department of Homeland Security (DHS) has temporarily deferred in-person I-9 verification.
Moving forward, we’ll explore:
Hiring/operating procedures during the current COVID-19 I-9 deferral period
The term of the deferral
Compliance expectations at the end of the deferral
The value of this deferral period for businesses
Modified Procedures for COVID-19
The DHS has temporarily suspended the need for in-person I-9 verification. That means businesses can continue to hire and onboarding new employees remotely during this time without fear of non-compliance.
For now, documents pertaining to identity verification and employment eligibility can be submitted and reviewed remotely (i.e. by scanning and attaching documents to an email or submitting through an HR portal). Copies of those files should be retained in your internal HR records.
DHS’ verification deferral has also loosened up the time window for I-9 completion. Temporarily, employers have three working days to complete the paperwork and confirm documentation instead of just one day.
How Long Will This Deferral Last?
The I-9 verification deferral period will end either sixty (60) days from March 20, 2020 or three (3) days after the end of the COVID-19 national emergency has been announced, whichever comes first.
What Do We Need to Do to Comply When This is Over?
Once the deferral period ends (as described above), employers have three business days to complete standard in-person I-9 verifications for any employees they have hired and onboarded during the deferral.
Under “Additional Information” on Section 2 of form I-9, the employer must note that COVID-19 temporarily prevented them from a detailed physical review of the original documentation and provide the date they physically examined the documents. From there, the forms can be filed and retained as usual.
Why is This Deferral Good for Business?
In-person I-9 verification would prevent many businesses from filling the holes in their depth chart created by COVID-19, as employees must take leave for their own health, to care for a family member, or to supervise children. By enabling streamlined remote hiring, the DHS is providing support to businesses who are doing their best to continue the work and provide paychecks to their teams during this time.
Furthermore, remote hiring has the potential to connect great talent with jobs where they can be impactful faster than ever, fighting back record unemployment to help jumpstart the economy once again.
Takeaways
The Department of Homeland Security is deferring in-person I-9 verification during COVID-19-related social distancing. This is a great opportunity for businesses to fill out their teams and keep the work going without slipping into noncompliance, but it’s important to remember:
The deferral window will end on May 19 or 3 days after the national emergency is declared to be over
Employers still need to review digital versions of identification/eligibility documents within three days of hire
When the deferral period ends, employers will have 3 days to complete traditional in-person I-9 verification
The COVID-19 outbreak is changing the way that America works. Even companies that had never had a work-from-home policy are now going fully remote. And companies with flexible work policies are having to expand those policies dramatically. Whether you have always allowed some remote work or you are new to this way of work, odds are that you are having to reinvent just about every aspect of your operations.
And with the virus taking a heavy toll on growing businesses, the stakes have never been higher to get remote work right.
That’s why Launchways gathered a panel of experts to help growing businesses transition to remote working effectively. Our panelists drew upon their experience to outline clear best-practices that any business can implement to help their company run more smoothly in the era of COVID-19 quarantines and fully remote work. If you missed the original webinar, you can still stream it on demand. The hour-long webinar covered important topics that included:
How and why companies should put together remote work agreements
General best practices and pitfalls of remote workforce management
Why communication is more important now than ever and how to get it right
How to support your managers in their new role managing a remote team
How to interview and onboard new hires remotely
How to maintain your company culture while remote
Webinar Overview
Our panelists shared best-practices and pitfalls in setting up and managing a remote workforce. They started by stressing the importance of updating company policies to help remote work run smoothly from the get-go. That includes both creating an explicit remote-work agreement with each remote employee and the key considerations in creating remote work practices, including:
Expectations for work hours, communication, availability, and overtime
Approved and required channels of communication and work
Workflow and accountability systems
Throughout the webinar, the message from all five panelists was clear. In every aspect of remote management, employers need to:
Set clear expectations in advance and establish accountability for those expectations
Communicate clearly, explicitly, and more proactively than ever before
Prioritize employee engagement and connection
Since so much relies on effective communication when teams are working remotely, the panelists addressed how to set up the proper communication channels and routines before exploring the specifics of managing a remote team.
Communicating for Effective Remote Work
Perhaps the biggest risk when transitioning to remote work is how easy it is to lose track of projects, employees, and team progress. Without the routines and casual connections of the workplace, it’s very easy for teams and productivity to stagnate and for damaging miscommunications to arise. When working remotely, it’s more difficult to get a read on how things are going in general.
Our panelists especially stressed the risks of allowing gaps in communication that employees will naturally fill. For example, if an employee is not getting feedback and input on their progress while working from home, they are very likely to interpret it one of two ways: either that the project is not very important and their work is simply adequate or conversely, that they are underperforming. Either scenario will result in reduced productivity and morale.
In addition to exploring the communication risks inherent to remote work, our panelists laid out easy best practices to minimize those risks and maximizing productivity and collaboration, including:
Prioritizing synchronous communication such as phone calls and video meetings over asynchronous communication including emails and texts which carry a higher risk of miscommunication
Implementing and utilizing an integrated chat system such as Slack or Microsoft Teams
Using project management software to maintain and track workflows
Establishing a consistent meeting cadence including team-wide and one-on-one meetings
Always being proactive rather than reactive in your communications strategy
Other Top Topics for Remote Work
After addressing overall remote work strategy and effective communications, our panelists explored several common areas of concern when transitioning to remote work. The first of these was how to properly support front-line managers during the COVID-19 crisis. Employers face the difficult task of creating business and workforce strategies that will get their companies through the current crisis. It can be easy to forget that your managers face equally daunting and uncharted territory navigating their teams through the outbreak and the transition to remote work. They can easily become lost, which can be crippling to team morale and productivity. Leadership needs to work as closely as possible with managers to create a cohesive approach to remote work, provide necessary resources and feedback, and simply let them know that they aren’t going through this alone.
Next, the panel tackled the topic of interviewing and onboarding new hires in the era of remote work and quarantine. While some businesses have frozen hiring, others are continuing to grow and hire. But fully-remote hiring and onboarding isn’t something that most managers have vast experience with. For both processes, our panelists emphasized the importance of replicating the in-person experience as closely as possible. That means being truly present in video interviews and making “eye-contact” with the camera. More importantly, it means being as personal and hands-on during onboarding as possible. Get the paperwork and IT setup out of the way in advance as much as possible and focus on integrating new hires into the company culture and their teams by creating interpersonal connections within the digital realm. Set up one-on-one and group meetings with key stakeholders, including more casual hangouts and virtual lunches or happy hours to help new teammates integrate.
Finally, the panel explored how to keep your team connected and engaged while working remotely. Largely, this means fostering the social connections that make a workplace alive by creating spaces for people to interact digitally. Schedule digital coffee breaks, all-team lunches, happy hours, and team activities. Many employers are also encouraging interaction by calling on employees to share pictures of their home offices, pets, culinary creations, and more. The panel also explored the importance of deliberate and compassionate leadership during this difficult time and providing actionable strategies for leaders to craft their management approach during COVID-19.
Stream the Full Webinar Today
We have barely scratched the surface of all the insights our panel shared on the complete 60-minute webinar. Luckily, we recorded the webinar for you to stream on-demand. Stream the complete webinar now.
As our nation prepares to cautiously re-open the economy in the wake of COVID-19, there are still many reasonable questions about what “business as usual” will look like for the near future. The interpretation of the Americans with Disabilities Act (ADA) moving forward is one area in which business owners and employees with disabilities and pre-existing conditions need more information on as this situation continues to unfold.
Last Friday, the EEOC updated their Q&A guidance regarding COVID-19 and the ADA. You can read the full text, but we wanted to provide a quick breakdown and explanation of the new guidance the EEOC has released.
Moving forward, we’ll explore:
The expansion of COVID-19 symptoms you can discuss with employees
Modifications to guidance regarding confidential medical information
Specific guidance about providing reasonable accommodations during this time
Reinforcement of the discriminatory status of pandemic-related harassment
The EEOC’s reminder about discrimination claims due to furloughs & layoffs
Guidance for transitioning employees back to work
Expansion of Symptoms
Although employers are generally discouraged from asking employees detailed questions about symptoms when they call out sick or request short-term medical leave, the EEOC has clearly established that it is acceptable to ask employees to disclose if they are experiencing specific COVID-19 symptoms.
The EEOC’s most recent guide clarifies that the following symptoms are associated with COVID-19 and that employers may ask about/discuss these with their employees:
Fever
Cough
Loss of smell or taste
Gastrointestinal problems
Nausea
Diarrhea
Vomiting
Additional symptoms may be added to this list in the coming weeks and months, as the virus becomes better understood.
Communicating Confidential Medical Information
Employers are still forbidden from revealing employees’ confidential medical information or comingling medical information with personnel records. However, given the current circumstances, EEOC has clarified that employers may share information related to COVID-19 among their employees with local public health agencies.
Furthermore, a temporary staffing agency may notify an employer to reveal if a contractor has been diagnosed with or exposed to COVID-19 in order for the employer to measure exposure within their workplace or among their team.
Providing Reasonable Accommodations Under the ADA
As we approach the re-opening of the economy, individuals who are especially vulnerable to COVID-19 may require reasonable accommodations for the foreseeable future. The EEOC went out of its way in the new guidance to establish that the current situation could easily exacerbate many mental health conditions like anxiety, depression, PTSD, etc., so employers in all industries must be open-minded about accommodations.
With that said, the EEOC also established that employees still require documentation from their doctors to receive accommodations, and employers can still choose not to provide those accommodations in the event they cause undue hardship.
The new guidance also explained that the current situation can create new need for accommodations, eliminate the need for prior accommodations, or alter the effectiveness of existing accommodations. That means it’s important to assess the state of ADA accommodations across your organization and reevaluate them to ensure they are still relevant and useful.
Pandemic-Related Harassment
The EEOC explicitly established that discriminating during this time on the basis of race, national origin, etc. will not be tolerated. Stigmatizing or discriminating against employees, prospective employees, or customers because they are perceived as being part of a group or from a place highly impacted by COVID-19 is forbidden under the EEOC guidelines.
Regarding Discrimination Claims Due to Furloughs & Layoffs
The EEOC clarified that special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. The full text of that new guidance and the special rules can be found here.
Transitioning Back Toward Work
As traditional offices and workplaces begin to reopen, many employers are wondering what ADA-compliant steps they can take to protect their business and workforce.
The biggest question many employers have is, “Can we force employees who are sick or may be sick to stay away and use paid time/temporary disability benefits?” Based on clarifications from the EEOC, employers may exclude employees with a health condition that would cause a direct threat to health and safety – that includes COVID-19.
On the other hand, it’s crucial that employers do not do anything during this time that could be construed as discriminatory or unlawful disparate treatment based on protected characteristics (race, color, national original, religion, age, sex/gender, sexual orientation, or physical or mental disability).
Understanding exactly who poses a “direct threat” will likely be an evolving target in the coming months as doctors and scientists begin to understand COVID-19 better. The EEOC stresses that employers should regularly check the FDA and CDC for updated guidance with regard to how to manage their workforces and what best practices to employ to keep everybody safe and healthy.
The new guidance also establishes that employers may require employees to use personal protective equipment (PPE) upon returning to work and observe established infection control procedures, but modifications must still be provided as possible for employees with identified disabilities under the ADA (for example, clear masks or face shields that allow workers who are hard-of-hearing to read lips) unless those accommodations are infeasible or would cause undue hardship to the employer’s business.
Key Takeaways
The EEOC’s new ADA/COVID-19 guidance has clarified some aspects of the road back to work for employers and professionals across the U.S. As we return to some semblance of normalcy, it will be crucial to maintain vigilance about COVID-19 and lead in a thoughtful, compliant manner.
Remember:
The EEOC has expanded official COVID-19 symptoms employers can ask employees about, adding loss of taste or smell and gastrointestinal problems to the list
Employers may communicate information related to employees with COVID-19 to local public health agencies
Temp agencies may discuss exposures related to independent contractors with employers
Employers need to be open-minded about accommodations for a variety of physical and mental health needs during this time
Discrimination or harassment related to COVID-19 and any protected group unfairly associated with COVID-19 is strictly prohibited
Special rules apply for severance packages releasing employers from discrimination claims during this time
As we transition back to work, employers must balance keeping everybody safe and getting as much information as they can while still avoiding discrimination and respecting private medical information
