COVID-19 has cash strapped some employers. But best practices during the pandemic do not have to cost much to protect employers from employment discrimination claims.
COVID-19 caught everyone off guard. Smart businesses recognize how potentially deadly the virus is. Here is how they respond.
Be sincere and honest. You expect employees to be loyal to you. Treat them the same; with honesty. If you don’t know, say so.
Provide updates weekly, then less frequently. Tell employees when you learn new information but not to overload.
Don’t make promises you can’t keep. Most of us strive to be understanding and helpful but we can’t help everyone and you will not be able to either.
If your employee handbook does not address a potential benefit, don’t make one up. Cardinal Rule #1 is to treat everyone the same.
Don’t disclose PHI (personal health information). Even if someone tests positive you may not disclose that information to anyone excluding the owner(s) confidentially. Some may think they have been exposed to caronavirus but without testing for that specific virus no one knows for sure and you cannot presume them dangerous. If you are exposed you may not come down with symptoms. But that does not mean that you are incapable of transmitting the virus to others even if you are symptom free.
Suggestions for small employers and COVID-19 include requesting 6 foot barriers between employees or people at all times. It’s mutual respect. Most employees have not been tested. They are uncertain whether they might pass COVID-19 to others. And no employee can be certain that others are not carrying the virus.
Wash hands throughout the day with soap and warm water for 20 seconds or longer and dry them thoroughly.
Clean computer tops, phones, door handles, and other frequently touched surfaces, especially if transported. Do so daily.
Permit telecommuting if possible. The changes we make now may affect our lives into the foreseeable future so we may as well embrace them.
Make sure your information systems can handle extra remote connections and upgrade if possible.
Re-assess how you purchase supplies. Might it be more efficient or cost-effective and safe to purchase remotely? Now is the time and buying on-line might become an only choice for many.
Keep track of your employees’ work hours. It’s the law and even with exempt employees, if they are not highly paid executives or professionals, keeping track of their work hours should be a top priority!!! You do not want to underpay them. Hourly employees may be paid just for the hours they work but salaried ones must be paid for the entire week if they work during that week.
Upgrade your software if necessary. For small business during COVID-19 any upgrades to information systems are likely to far outlive the coronavirus. They are long-term investments. Artificial intelligence and technology might be the only things which save many.
Ask employees for suggestions. They will experience so many issues that neither you nor they previously thought about that you can learn from them. Incorporate changes in your employee handbooks if you agree to them. Following your handbooks provides an objective defense for employment discrimination.
Cancel non-essential travel immediately! Who needs it? Would you want to travel during the unknown? Neither will they. Why take chances? Home is everyone’s safe place.
If anyone does get sick PLEASE ask them to stay home. Some experts are recommending 72 hours after symptoms disappear, unmedicated, before an ill person ventures out again. Many of us have ventured out having taken cold medication and no one guessed we were sick. This is not the time to do so.
Employee handbooks or manuals maintain consistency. Follow them because you need consistency in order to maintain trust and trust is essential for genuine as opposed to fake loyalty.
We are all human. None of us are invincible. Pretending the opposite will make this worse. Don’t do it!
Don’t hide the ball. They say knowledge is power. This will hurt those who try to hide reality. Your business should not be part of that.
Record updated contact information for all employees. Cell phones, emails, alternate emails, physical location, alternate physical location and a current emergency contact or two? Employees, spouses, elderly parents and others may request help so keep track of where employees may be reachable. It will show you care about them and their loved ones.
Make sure your virus protection and mobile hotspot malware and secure browsing software is up to date for cell phones and computers.
On-line banking is almost a must once small employers have protected their devices. Install the apps and use them. Employees who are not online for payroll should take this time to do so. Encourage that although employers can not force it.
Limit visitors unless absolutely essential and that applies to making visits as well.
Electronic document filing has been the norm in federal courts for years. Make sure you, as a small employer, have high speed scanners and have a goal of minimizing or eliminating regular mail if possible by emailing almost everything. Of course have secured cloud backup for all.
Check your insurance policies and keep them in a secure place. Encourage workers to file claims if they believe a policy might cover COVID-19 coronavirus. Remember that all insurance companies like to know about potential claims ASAP. That way they investigate them promptly and mail notices sooner. Will workers compensation cover COVID-19 claims? Will other more general liability policies cover coronavirus claims? Each policy’s language is unique.
WARN Act notices are required for 50 or more employees when 25 or more being laid off at one site. Smaller businesses are not affected.
Discourage office gossip, fake news, and unsubstantiated rumors. The best way to do that is for small employers to maintain trust with their employees with regular updates and sincere and honest information.
When small employers make changes to policies notify everyone at the same time so the message is not distorted. Use your judgment. Not every message comes across well in emails. Texts are worse. Some messages require direct communication.
A luminary attorney recently suggested that “no comment” is the worst thing to say. That’s probably true for any small employer because it implies that the employer does not want to admit that it does not know or that it does know and would rather hide the truth. Don’t do it.
All of us want to feel safe. Those of us who have been paying attention question whether we truly are. Small employers can’t promise safety but they can relay what they are doing to try to make it safe and secure. Similarly, these small employers can’t promise income security but they can tell employees the steps they are taking to remain in business.
Always remind employees that all policies are subject to change at any time with or without notice. Sometimes employees believe that they can limit their job duties by having a small employer or its manager put those duties in writing. That is rarely the case and most small employers are free to change most employees’ job duties at any time and employees should be informed of same.
Prepare all employees for self quarantine if they are able to work remotely. Regard each day as the potential last in office day so that employees could begin working remotely at any time without returning to the office or business.
For now, sick and accrued leave pay are no different for small employers and COVID-19 than such leave would be for any other illness. Time will tell. However, quarantine time may or may not be considered compensable time under NYC’s or Westchester’s Earned Sick Leave Laws. New York’s Paid Family Benefits Leave Law covers leave for others but not leave for the employee themself.
If you have confirmed exposure in your business you may advise other employees but you may not disclose the identify of the person you believed caused the exposure. Notify government authorities.
Pay special attention to employees who are pregnant or with chronic medical conditions because you may have a duty to initiate the interactive process to explore reasonable accommodations, such as working from home, since employees may not yet know that they should be asking to work from home as an accommodation.
Given the strain on our healthcare system this is not the time to require medical notes or excuses. It was hard enough during normal times.
Line up back-up employees who can perform the job duties of those who may become ill or not be able to report for work. Cross-training is key.
This may be one of the rare times where you can ask employees if they pose known threats to others? Do they have coronavirus symptoms?
VIDEO TRANSCRIPT:
Hi, I’m Jonas Urba, I’m a New York employment lawyer here with Employment Law Reality Check. If you’re a business owner, you might be wondering, can you force your employees to get vaccinated from COVID? The short answer is, yes you can. You need to treat all of your employees the same way. If you make an accommodation for one employee you may have to make accommodations for every other employee. Chances are your employees might be working in public or in close proximity to other employees. You need to provide a reasonably safe workplace. OSHA guidelines require that. You’re probably going to insist that everyone be vaccinated but there may be times, when even under New York State’s Human Rights Law, you will have to accommodate employees. If an employee comes to you and they have a compromised immune system which is supported by a medical note which states that an employee should not be vaccinated you will likely have to go through more of an analysis, a step-by-step approach, to see whether there is some other way to accommodate this particular employee. Maybe you can isolate the employee if they don’t have to work with the public or other employees. Maybe they can work remotely. But you may not want to say, carte blanche, this employee is terminated without exploring possibilities. The New York State Human Rights Law applies to employees in New York. Another situation is where an employee has told you that they have some other disabling condition. You need to see whether there is some other accommodation which you should make for the employee. Maybe the vaccination issue will disappear all by itself. Best thing to do is to call employment lawyers. You can call me. I’m Jonas Urba and I serve the entire state of New York. I can be reached at (212) 731-4776. This is a public service message. Some attorneys may consider it Attorney Advertising. But either way, call many employment lawyers before you make a decision or set yourself up for a complaint or an EEOC charge.
For small employers and COVID-19 coronavirus much remains unknown since it is unprecedented for everyone across the globe. Time will tell what it becomes which will define what it was or what it may continue to be.
Call employment lawyers if you have questions. And stay tuned to federal and especially New York State government agencies for updates.
Urba Law PLLC helps small business and employees during COVID-19
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