If you’re struggling with how best to respond to the coronavirus pandemic, it’s time to activate your crisis management plan. Central to any strong leadership response plan is communication. Maintaining clear and regular communication with your employees is essential. If you don’t have a plan in place already to communicate effectively with employees during a crisis, consider the following:

• Identify your key employees and assemble a crisis management team.

• Do employees with disabilities or special needs need any additional assistance? Ask them.

• What needs to be communicated to employees? How often, and via what channels? In addition to regular methods such as phone, video calls (Zoom, Google Hangouts), and email, think about how you can utilize your newsletter, intranet, and text messaging. The most pressing concerns employees have right now are along these lines:
  1) Will I be laid off?
  2) How will this affect my schedule and for how long?
  3) What benefits apply? Can I still get sick leave or vacation time? Will I lose any?
  4) What assistance is the government supplying?

• Ensure communication is prompt and honest, but also work to calm employees’ anxiety and fear. Keep them appraised as your plans and policies change, and make sure they know who their COVID-19 contact person is (if you haven’t already, appoint one now).

If you need help communicating with your team, contact us. We can tailor advice and services to suit your particular needs and budget.

Responding to this crisis will necessitate many changes in how you deal with your employees. Encourage sick workers to stay home by adjusting your leave and PTO policies now. Use the information below to create a plan and reach out to us for help; we are ready and waiting to guide you through this crisis.

ADA still applies

• The ADA prohibits discrimination against individuals with a disability.

• It also prohibits employers from making disability-related inquiries and requiring medical examinations unless
  the employer can show that the inquiry or exam is job-related and consistent with business necessity, or
  the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

• You can ask an employee how they are feeling, and you should encourage employees with flulike or respiratory illness such as fever, sweating, and coughing symptoms to seek medical attention and instruct them to stay home until symptom-free.

• An employee diagnosed with COVID-19 should stay home for the 14-day incubation period, or until their doctor releases them to return to work.

• According to CDC guidance, if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as to who is positive as required by the ADA.

• Employers should not identify or explain to other employees the reason an employee is not at work.

OSHA

• OSHA requires that all employers provide employees with a workplace free from “recognized hazards” that cause or are likely to cause death or serious physical harm (general duty clause).

• The Occupational Safety and Health Administration guidance states that all workers with reasonably anticipated occupational exposure to COVID-19, should be trained about the sources of exposure to the virus, the hazards associated with that exposure and appropriate workplace protocols to prevent or reduce the likelihood of exposure.

• Employees are generally only entitled to refuse to work if they believe they are in “imminent danger.”

• OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions.

• Coronavirus is a recordable illness when a worker is infected on the job.

FMLA & NYS Paid Family Leave Acts

• An employee who is sick, or whose family members are sick, in the State of New York and if the recent House bill passes to all states are entitled to leave under the FMLA. The FMLA entitles eligible employees. Please meld these 2 laws.

• Any individual employed by an employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. [Note: This is now the only qualifying need for. Effective April 2, 2020

• The first 10 days of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. Effective April 2, 2020

• After the 10-day period, the employer must generally pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. Effective April 2, 2020

• The new Act now limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee. Effective April 2, 2020

• Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon return to work.

• Employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA. [Note: This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.]

• Employers will be required to provide new FMLA notices to their employees through postings and policies

FLSA

Non-exempt (hourly) Employees:

❖Must be paid for all hours worked. Options for partial pay:
• Substitute PTO/vacation/sick leave for missed work
• Compensate employees at a reduced rate
• Reduce hours
• Use NYS Shared Work Unemployment program

Exempt (salaried) Employees:

❖ Must receive a salary of at least $684 per week for any workweek in which any work is performed.

❖ If NO work is performed in a week, then the employer does not have to pay salary.

❖ 7 situations for permissible deductions:

▪ When an employee is absent from work for one or more full days for personal reasons other than sickness or disability;
▪ For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
▪ To offset amounts employees receive as jury or witness fees, or for temporary military duty pay Moving Onward with Coronavirus
▪ For penalties imposed in good faith for infractions of safety rules of major significance;
▪ For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;
▪ In the employee's initial or terminal week of employment if the employee does not work the full week, or
▪ For unpaid leave taken by the employee under the Federal Family and Medical Leave Act

Explain expectations and responsibilities for working at home:

• must record all hours of work and comply with meal and rest break laws.

• consider including agreed-upon hours of work during this time period and refrain from emailing or calling these employees outside of the agreed-upon hours to avoid claims for overtime compensation

• Evaluate insurance/liability issues.

Unemployment Insurance

• On March 12, the U.S. Department of Labor gave states the flexibility to amend their laws to provide unemployment benefits in events related to the coronavirus.

• States can pay benefits in cases of temporary unemployment because the coronavirus is preventing employees from coming to work.

• Individuals quarantined with the expectation of returning to work after the quarantine is over can also receive unemployment benefits as well as those leaving employment due to a risk of exposure or infection or to care for a family member. More on this here.

Workers’ Compensation

Employees may be eligible for state workers’ compensation if they contract the virus while at work.

Paid Sick Leave NYS

• NYS BILL HAS PASSED AND IS EFFECTIVE IMMEDIATELY!!

• For Employers with 1-10 employees: Employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 will receive unpaid sick days until the termination of the mandatory order. During the term of the order, employees have the ability to qualify for paid family leave and temporary disability benefits.

• For Employers with 11-99 employees or 1-10 employees with net income of at least $1 million: Employees subject to a mandatory or precautionary order of quarantine or isolation due to Moving Onward with Coronavirus COVID-19 will receive 5 paid sick days and then unpaid days until the termination of the mandatory order. After the 5 paid sick days and until the termination of the order, employees have the ability to qualify for paid family leave and temporary disability benefits.

• For Employers with 100 or more employees: Employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 will receive 14 paid sick days.

• Employees are guaranteed job protection if they return to work after the order is terminated.

• If employees are subject to a mandatory or precautionary quarantine or isolation because the employees traveled to countries where the CDC had a level 2 or 3 restriction and the travel was not taken for work or at the employer’s direction, those employees will not receive any paid benefits.

• A summary of the bill can be found here

If you need help determining your Employee Assistance Program (EAP) coverage, FMLA and ADA requirements, or the status of your medical insurance coverage, we can provide assistance. New information is coming in daily, so bookmark our information page to access the latest updates and guidelines. If you have questions or need help with any aspect of human resources management, please don’t hesitate to contact us.