As the number of reported cases of the coronavirus (COVID-19) continues to rise, many employers are left wondering, “What do I do now?” Below we have outlined the Frequently Asked Questions (FAQ) that our clients are asking as well as Coronavirus (COVID-19) Resources for Employers. Please keep in mind that different or additional facts can impact how the situation should be handled.

HRK COVID-19 Web Series

Join us for our webinar series on responding to COVID-19. In this series we will discuss the challenges that businesses have increasingly been facing over the past few weeks and will continue to face. Our aim with this series is to answer the myriad of questions our clients have been asking, as well as, give you some insight on how to effectively lead and manage during this crisis.

Click on the link below to register!

COVID-19: Webinar Series

Maintaining a Safe Working Environment


Question: What are the best practices for maintaining a safe work environment for our employees?

Answer: Communication is key! Keeping your staff well informed about personal and workplace hygiene during this time will help lessen the tension at work. Signs should be posted in all public areas with reminders to wash hands after touching any surfaces, as well as before and after entering and exiting the workplace.

Keeping your employees informed can be done through different forms of media. A member of the management team should be appointed to provide updates as needed. We suggest updating internal communication tools such as flyers and employee portals on your website and emails. Using these communication tools effectively should allow you to provide updates to employees on the work-site, working remotely, and on leave of absence.

Occupational Safety and Health Act (“OSHA”) has published Guidance on Preparing Workplaces for COVID-19 to ensure they are providing a safe work environment for employees. Employers should:

  • Educate employees on how to maintain a safe work environment*
  • Actively encourage sick employees to stay home
  • Designate a point person to stay on top of developments, manage the communication process, and receive and address employee concerns
  • Consider relevant laws and regulations before implementing changes to policies or employment conditions

*CDC website has COVID-19 printable fact sheets, handouts and posters in multiple languages.


Question: What are the symptoms of coronavirus?

Answer: According to the Centers for Disease Control and Prevention (CDC) common coronaviruses typically cause mild to moderate upper-respiratory tract illness, and those affected exhibit cold-like symptoms. The following symptoms may appear 2-14 days after exposure:

  • Cough
  • Fever
  • Shortness of Breath

Some cases of Coronavirus can be more severe, and individuals may experience more serious lower-respiratory tract illnesses like bronchitis and pneumonia. For the elderly, infants and those with weakened immune systems, Coronavirus can be even more dangerous.


Question: What do we do if an employee is coughing and sniffling and appears sick? Can we send them home?

Answer: Yes, the CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath, etc.) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately.

Question: Can we test employee's temperatures as they enter the office?

Answer: The ADA prohibits employee medical exams unless they are job related and consistent with business necessity. Taking employees temperature is entering into medical exam territory.  While there is no law prohibiting employers from doing this, we would really caution employers from taking this drastic of a measure and take the following into consideration before doing so:

  1. Who will be trained to take the temperatures?
  2. How will you protect the employee’s private medical information,  in adherence to HIPAA guidelines?
  3. Will hourly employees be paid while waiting to have their temperature taken?

Question: If we learn an employee tests positive for COVID-19 what are our obligations as an organization?

Answer: Each situation is different, so it is best to handle them individually depending on whether you have a confirmed case of COVID-19 or just an employee with concerning symptoms. The best thing is to have your employee continue to communicate with their manager about their symptoms and discuss when it is best for them to return.

If an employee is just feeling sick and goes home, they may not get tested for COVID-19 and simply self-treat at home. If they do get tested and are proven to have the COVID-19 virus, then they most likely will be in quarantine. For COVID-19, the period of quarantine is 14 days from the last date of exposure, because 14 days is the longest incubation period seen for similar coronaviruses.

Once you become aware of a workplace hazard you are required to remedy the hazard.  If an employee tests positive for COVID-19 you will need to quickly take some important steps:

  • Send the diagnosed employee home immediately if you have not done so already.
  • Contact your local Department of Public Health to report the diagnosis and request their guidance on next steps.
  • Identify any and all employees who may have been directly exposed to the diagnosed employee (keep the employees’ identity undisclosed) and have those employees self-quarantine for 14 days.
  • According to the CDC COVID-19 is thought to mainly be spread from person-to-person however it may also be spread by touching a surface or object that has the virus on it and then touching one’s mouth, nose, or possibly eyes. To reduce this risk, you will want to clean & disinfect the workplace thoroughly. It is recommended to use a cleaning company with HAZMAT experience as personal protective equipment should be used during the cleaning process. You may also want to consider closing your workplace for 14 days and requiring employees to telecommute to limit the possibility of additional exposure.

Paid Time Off/Leaves of Absence


Question: We are telling people to exhaust their Paid Time Off (PTO) banks, but what about if folks have no more leave and need it? How do we grant this?

Answer: Employers may provide additional leave to their employees as long as that additional leave is available to any/all employees who would need it. Ideally, you should determine in advance how much additional time you are able and willing to provide so that the information may be communicated with your staff. Setting appropriate expectations is the best way to ensure your employees know what to expect and how to plan. It would be wise to track additional time provided separately, so that you can differentiate between employees’ standard PTO hours and those provided/used due to COVID-19. You also want to ensure that the additional hours are not counted against the employee during performance evaluations in the future and that additional hours used do not reflect negatively on an individual. The key is to be consistent, fair, and unbiased in how you distribute additional PTO hours to avoid any potential discrimination. 

Question: Can we allow staff to take unpaid time off to save their Paid Time Off (PTO) time?

Answer: Allowing employees to take unpaid time off versus paid time off is up to the employer. While we understand companies do not like to stray away from their current policies about attendance and PTO/Sick Time, the CDC is asking companies to be more lenient as these circumstances are unusual and a first for the majority of the world. If your company allows a temporary suspension or change to your current policies and procedures, a temporary procedure should be communicated in writing to your employees so that they are clear on what the expectations are during and after the current COVID-19 outbreak.

Question: What leave laws will my employee be eligible for if they contract COVID-19?

Answer: That depends on a number of factors. It is possible that your employees would be eligible for leave under a number of leave programs.

  • Family and Medical Leave (FMLA): The U.S. Department of Labor (DOL) has issued Q&As on the federal Family and Medical Leave Act in the context of COVID-19 and other public health emergencies. Under the FMLA, covered employers must provide eligible employees with up to 12 weeks of job-protected, unpaid leave for specified family and medical reasons. This may include the fly in cases where complications arise. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same terms as before they took leave. The Q&As include the following key points, among others:
    • The FMLA provides leave for an employee’s serious health condition or to care for a family member’s serious health condition.
    • The FMLA does not provide leave for avoiding the workplace out of fear of contracting a disease.
    • The FMLA does not provide leave for employees caring for dependents who have been dismissed from school or childcare, unless the child had a “serious illness” and the employee was caring for that child.
    • Employers requiring a doctor’s note should consider that healthcare resources may be overwhelmed during a pandemic, making it difficult for employees to obtain appointments or verification that they are no longer contagious.
  • State Leave Programs: Many states and localities also have employee leave laws that could apply in a situation where the employee or their family member contracts COVID-19. Some of these laws require employees to be given paid time off, while other laws require unpaid leave. Employers should become familiar with the laws in their jurisdiction to ensure that they are compliant. Some employees may wish to stay home from work out of fear of becoming ill. Whether employers must accommodate these requests will depend on whether there is evidence that the employee may be at risk of contracting the disease. A refusal to work may violate an employer’s attendance policy, but employers should consult with either HR Knowledge or legal counsel prior to disciplining such an employee. A number of states, such as California and Colorado, have recently issued guidance on the coronavirus as it relates to paid sick leave and other leave programs. We anticipate that other states will follow suit and begin to provide guidance in these uncharted waters,
  • Americans with Disabilities (ADA): In general, most employees will not be eligible for leave under the ADA. This is due to the fact that most cases of the COVID-19 coronavirus is a transitory condition. However if the pandemic seems likely to result in serious and long-lasting health consequences for individuals, according to local, state, or federal health officials, ADA-covered employers may have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19. Only then may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to determine which employees are at a higher risk of complications.
  • Worker’s Compensation (WC):  This depends. If an employee is a health care worker or first responder, they might be eligible for Worker’s Compensation. However, for other employees, the answer is not so straight forward. Workers’ Compensation is a “no-fault system”, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work. Where this becomes fuzzy is the COVID-19 is a virus not an “injury”. For it to be covered under WC the employee would need to establish that the virus was an “occupational disease” meaning that it arose out of employment; and currently there is no specific legislation addressing if employees seeking workers’ compensation benefits for a coronavirus infection would have enough medical evidence to support the claim. This will be an evolving issue, and we believe that we will see more legislation from states in the near future.

Question: Does someone being self-quarantined make them FMLA eligible?

Answer: The FMLA does not provide leave for avoiding the workplace out of fear of contracting a disease.

Question: Can we require a doctor's note before someone comes back to the office?

Answer: It is the employer’s responsibility to ensure a safe and healthy work environment for their employees. However, during a pandemic, it may be administratively challenging for healthcare providers to have the time to provide fitness for duty certificated and the CDC has asked employers to relax their policies on this issue. Therefore, it is recommended you limit requesting doctor’s notes from only those employees who had or were presumed to have had COVID-19. It is important to keep in mind that individual state and local laws limit requiring a doctor’s note depending on the number of days an employee is out.

Question: Does my company need to offer our employees Emergency Paid Sick Leave

Answer: The Act requires 80 hours of paid sick leave for government workers and employees of companies with fewer than 500 employees. Leave must be made available to workers who are symptomatic or are under an order or advice to quarantine or self-isolate, who have to care for a family member under such an order or advice, or who have a child whose school or child care provider or facility has closed or is unavailable due to the coronavirus.  Small businesses with fewer than 50 employees may apply for an exemption from the paid sick leave requirement. Health care providers and emergency responders may be excluded from both types of leave benefits. Read more here .

Question: Is my company subject to the Emergency Family and Medical Leave Act?

Answer: The Act provides FMLA rights for some employees of companies with fewer than 500 employees, requiring partially paid leave after 10 days when an employee is unable to work or telework due to school or child care closures related to the coronavirus. Read more here.

Communication


Question: Do you have a letter that we can distribute to our employees about the Coronavirus, stating that we are aware of the situation and actively preparing?

Answer: Since each client we work with handles things differently based on their employee population, as well as how their business runs, we do not typically recommend using template communications. However, we have some general guidance for what you could include in a company-wide communication:

  • “[Company name] is actively monitoring these fast-moving developments and will take all necessary steps to protect employees”
  • Add information that has been provided by the CDC such as coughing and sneezing into tissues and throwing them away, washing hands frequently for 20 seconds (the length of time it takes to sing happy birthday twice) and ensuring that work spaces are clean/cleaned such as wiping surfaces with disinfectant wipes. You can also provide links to the CDC website and the WHO website, as well as general best practice guidelines on how to reduce transmission within an office environment
  • Include guidance around what to do if an employee feels unwell. For example, if your business has established a policy that all employees who feel unwell are to stay at home, you should specify this information as well.
  • Include any travel guidance if you have employees who travel for business
  • If you are planning on providing employees with certain supplies, such as hand sanitizer, wipes, and tissues, you could add something like: “[Company name] will increase stocks of hand sanitizer and tissues, as well as provide wipes for employees to use to clean their work-space.”
  • Ensure that employees will be regularly updated and be sure to follow through with keeping employees up to speed on any policy changes. Clearly communicate whom they are to speak to if they have questions or concerns.

In any communication to your employees, it is essential that you are clear on what is expected of them from the Company’s perspective. This includes any additional information regarding pay for employees who cannot work from home, addressing both exempt and non-exempt. You should also specify whether or not you will pay employees for the 14-day self-isolation/quarantine period, whether is its mandated or voluntary. You want to be clear in all communication, and we suggest that you establish one point person in your organization to be responsible for those communications. This should be someone who understands the compliance complexities, which are evolving and ever-changing.


Question: I looked through our handbook, and didn't see anything other than to stay at home when you are sick, should we be adding anything else in regard to an epidemic sickness like the coronavirus?

Answer: It is often beneficial to provide additional guidance in the form of a policy to address unique situations, such as a communicable disease or epidemic sickness policy. COVID-19 is a new and evolving issue for all employers. If you are going to put together a general epidemic sickness policy, it would be our recommendation not to narrow the scope of your policy, by tailoring it specifically to Coronavirus. Rather, we would suggest having a more general policy that addresses any widespread illness or sickness that might potentially cause disruption to your business and impact your staff. This policy should clearly state how the company expects employees to communicate their illness and what actions the employer will take to continue to maintain a safe work environment. This response will be specific to your organization, but should factor in the use of paid time off and whether any additional leave may be available, such as personal leave or FMLA. Your policy should give you the flexibility to respond more specifically to an individual illness, keeping in mind that different viruses may present unique challenges, as COVID-19 has.

Furlough, Layoffs and Reduced Hours


Question: If a public health emergency is declared, and employees can't come into work, must we as the employer keep paying them?

Answer: It depends. Non-exempt employees are required to be paid only for the number of hours they work. The exception to this is that non-exempt employees paid on a “fluctuating-workweek” basis generally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work.

Employers are required to pay an exempt employee’s full salary for a week in which they perform any work. Employers may require employees to use available accrued and unused paid leave time.

Employers should review their employment contracts and collective bargaining agreement as well as their particular state laws before making any decisions regarding their specific employees.

Given the far-reaching impact of COVID-19, employers should consider the big picture perspective when making decisions regarding paying or not paying your employees.


Question: Do you have advice for clients regarding workplace preparation in case of a shutdown (perhaps outside of Company control) due to COVID-19?

Answer: Areas to consider when preparing for a company shut-down would be:

  • Ensuring payroll is set so you don’t miss making your normal payroll
  • Ensure your team knows whom to communicate with in the event that they are sick
  • If the office is to close – who will communicate, how, and to whom?
  • Can you put something into place to allow staff (some/all) to work from home to ensure business continuity and function?
  • Perhaps preparing communication to clients/vendors in the event you need to close down or work a reduced schedule due to employees being remote, out due to illness, etc.
  • In the event that a quarantine is needed for one or all of your employees, deciding whether you will pay them during the time that they are unable to work (if not able to work from home)

Another piece to consider is whether your company should have a policy in place that addresses communicable diseases in general. That policy can be used as a reference in the future if another situation like this one arises. That way, your company and employees will be prepared and know what is expected of them and what procedures to follow. Make sure any policies or processes implemented are the same for every employee regardless of role or position within the company.


Answer: As we outlined above, in general, exempt employees must receive their regular weekly salary for a workweek in which they perform any work, regardless of the number of hours worked or the employer jeopardizes that employee’s exempt status.


Question: What happens if we need to furlough or temporarily lay off our staff?

Answer: Many employers are considering the possibility of furloughs, temporary closings, and short-term layoffs. We will address each one of these considerations separately.

Furlough: A furlough involves reducing the days or weeks that an employee may work. Employers generally can schedule non-exempt employees for fewer days or hours without liability. Employers do not need to pay non-exempt employees for time not worked. Exempt employees, however, must receive their entire salary for any workweek, in which that employee does any work, or the employer jeopardizes that employee’s exempt status. If an employer furloughs an exempt employee for an entire workweek, then no salary is owed for that full week and the employee’s status is not affected. Certain types of furloughs may involve changes to pay practices. For example, it may be possible for an employer to reduce an exempt employee’s salary and adjust schedules as a mechanism to address business disruption as long as the reduction/adjustment is for a substantial period of time, generally three months or more. Please note that state law may require specific periods for advance notice and may limit changes to particular types of pay. Research any relevant state labor laws or reach out to qualified HR or legal professionals before taking any action.

Short-Term Layoff: A layoff involves terminating employees. A layoff can be temporary or permanent. Depending on the size of the organization there are a number of challenges to consider before moving forward with a layoff. For example, employers may be obligated to observe specific notice periods under the federal Worker Adjustment and Retraining Notification (WARN) or related state mini-WARN Acts.

Reducing Hours: An alternative to a furlough, which is a reduction of whole days or weeks, or a layoff could be reducing the daily hours of some employees or employee groups. Employers generally can schedule non-exempt employees for fewer days or hours without liability concerns. Employers do not need to pay non-exempt employees for time not worked. A few states may require compensation if an employee reports to work and is sent home, but otherwise time off for non-exempt employees’ does not need to be compensated.



Question: Are furloughed employees entitled to unemployment?

Answer: Unemployment benefits will vary by state, and some states, such as Massachusetts and Rhode Island have work-sharing programs that allow employees with reduced hours to receive unemployment benefits even if they do not meet the standard requirements for unemployment eligibility. Due to limited resources in most government offices, employees should be directed to file for benefits online and not to call on the phone. To apply for benefits, go to: www.mass.gov/dua

Current Unemployment Claims


Question: What are the new guidelines for paying unemployment benefits to employees?

Answer:The new guidelines set forth by the Department of Labor (DOL) instructs state agencies to apply flexibility to existing laws; under the DOL guidance, DUA may now pay unemployment benefits to:

  • Employees who are ordered to quarantine by a civil authority or medical professional.
  • Employees unable to work due to reasonable risk of exposure or infection.
  • Employees needs to care for a family member and does not intend to return to work or is not allowed to return to work.

Please note that each state administers a separate unemployment insurance program, but all states follow the same guidelines established by federal law. For more information regarding rules in your state, contact with your state’s unemployment insurance program.



Question: What is the waiting period for employees to collect unemployment benefits?

Answer: Usually the waiting period is one week. However, the waiting period for individuals unable to work or who have been impacted by COVID-19 has been waived. This should allow for new claims to be processed and paid out quicker.


Question: Do Employees need a medical note to apply for unemployment benefits related to the above three bullets?

Answer: Employees do not need to provide medical documentation and need only be available for work when and as able, as per typical unemployment benefit requirements.


Question: Our office will be closing for an extended period of time due to the stay-at-home guidance issued by Massachusetts; will our employees be able to collect unemployment?

Answer: The Executive Office of Labor and Workforce Development (EOLWD) and the Department of Unemployment Assistance (DUA), in coordination with the US Department of Labor (USDOL) are filing emergency regulations that will allow people impacted by COVID-19 to collect unemployment if their workplace is shut down and expects to reopen in four or fewer weeks. An employer may extend the period of the shut-down to eight weeks, after the initial period, and the employees will remain eligible for the longer period under the same conditions described above. If necessary, DUA may extend these time periods.


Question: If I’m collecting unemployment benefits, do I need to look for other employment? I know this is usually a requirement while collecting.

Answer: Employees need to stay in contact with their employer and be available for any work their employer may have available. Employees do not otherwise need to be actively looking for work to maintain your unemployment benefits.

Remote Workforce


Question: What should we consider as we move to a remote workforce?

Answer: Consider if employees can be fully productive at home and set reasonable expectations regarding working schedules, response time, output, prompt communication, etc. Consider implementing collaboration tools such as additional virtual meeting accounts and other technology to maintain productivity in a remote environment. 

Question: We are moving to a remote workforce; however, we have some non-exempt employees', how do we manage this?

Answer: It can be difficult to manage for non-exempt employees working remotely. Non-exempt employees should be required to record their time worked, and they should be informed, in writing, of how many hours they are authorized and permitted to work each day and week. Employers also should ensure that required meal and break times are accounted for. Keep in mind, non-exempt employees paid on a “fluctuating-workweek” basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work.

Medical and Short-Term Disability Benefits


Question: Can an employee get STD (Short term disability) for being out?

Answer: The majority of the carriers will treat this like any other claim, but do not consider self-quarantine a disability nor would it count towards an elimination period. We have provided resources on our website which can be accessed here. For any specific questions please reach out to your individual benefit carrier or broker who can provide you with additional information for that carrier. 

Question: How are medical carriers handling COVID-19?

Answer: The majority of medical carriers have put policies in place to ensure coverage for COVID-19 related to testing and treatment. These coverage policies are based on the public health recommendations and industry guidelines which have been informed by the best data and medical evidence available. We have provided resources on our website which can be accessed here. For any specific questions please reach out to your individual benefit carrier or broker who can provide you additional information for that carrier.

Question: If my employees are no longer working, are they still entitled to group health plan coverage?

Answer: If your plan is fully-insured, you’ll need to check your certificate of coverage or ask your carrier to determine how long employees who are not actively working may remain covered by your plan, and whether that provision is being amended (or can be amended at your request) in light of current circumstances.

 

If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage because they are not actively at work.


Question: If we continue coverage during a temporary closing, how do employees pay their share of premiums?

Answer: For employees who wish to maintain coverage while on leave, you can specify one or more arrangements that can be made for the payment of your employees’ share of the premiums during leave. You can require employees whose coverage will be maintained during a leave to pay their share of premiums in any of the following ways:

  1. “Pre-pay” option: each employee pays the contributions that will be due during the leave before the leave begins, from his or her final pre-leave paycheck . This option may not be the sole option offered to employees on leave.
  2. “Pay-as-you-go” option: each employee pays his or her share of the cost of coverage in installments during the leave. You may specify that payments be made at the same frequency as your payroll (e.g., weekly, bi-weekly, semi-monthly) or on the same schedule that premiums would be paid under COBRA (i.e., monthly). The contributions would be paid with after-tax dollars, unless the employee receives compensation (such as PTO) during the leave, in which case the deductions can be made pre-tax.
  3. “Catch-up” option:  the employer advances payment of the employees’ share of the cost of coverage during the leave, which the employee will repay via payroll deduction when he or she returns to work.

Question: If we do not continue coverage during a temporary closing, do we have to offer COBRA?

Answer: To the extent there is a loss of coverage as a result of a business closure – for example, due to a termination of employment or a reduction in hours – then the impacted employees should be provided with the required COBRA notice. Small employers that are not subject to COBRA should also be mindful of any mini-COBRA obligations in their state.

 

As always, please contact your Benefit Advisor with questions. HR Knowledge will continue to closely monitor the situation, including the coronavirus relief bill currently being considered by the U.S. Senate, and update you as developments warrant.

This content is provided with the understanding that HR Knowledge is not rendering legal advice. While every effort is made to provide current information, the law changes regularly and laws may vary depending on the state or municipality. The material is made available for informational purposes only and is not a substitute for legal advice or your professional judgment. You should review applicable laws in your jurisdiction and consult experienced counsel for legal advice. If you have any questions regarding this content, please contact HR Knowledge.