Coronavirus – Page 9

March 17, 2020June 29, 2023

An important collaboration: CHROs and legal confront crisis management

There has been exponential growth in the field of crisis management over the last several years. Crises are understood to have the long-term potential to change the way an organization operates, sometimes threatening its survival or fundamentally changing its stakeholder relationships.

Also read: How Business Leaders Should Respond During Crises

Crisis management, accordingly, helps organizations survive these events. Gone are the days when crises were limited to emergencies and disasters that left a physical impact on an organization. Now included are so-called “soft crises” that may not result in physical damage but nonetheless have a lasting impact on a company’s brand, reputation and employee morale. Here are ways that the chief human resources officer and legal counsel work together to see crises to successful ends.

Crises are typically unplanned, are hard to manage and unpredictable. Experienced leaders, including CHROs, know they will happen, but the who, what, where, why and when are normally unknown. Consider how your organization would deal with these events (all based on real crises):

1. Your chief executive officer, who has overseen a period of marked profitability, is caught in a consensual relationship with an employee that reports to her. Your company has a policy that prohibits such relationships.

2. In the wake of a New York Times story about your company paying millions of dollars in exit packages to male executives accused of sexual harassment, thousands of your employees around the world walk off the job in protest.

3. Two of your employees who are responsible for preparing fast food upload a video on social media showing one of them doing vile things to the food in one of your kitchens.

Events like these pressure-test an employer’s crisis management readiness. They pose serious risks, such as loss of consumer, retailer and investor confidence; government fines and sanctions; recalls, litigation and claims; loss of employee morale and focus; and in some cases, high turnover. The value of crisis management is to minimize these and other negative outcomes. The end goal is business sustainability.

Also read: A Leader’s Guide to Effective Communication Under Pressure

Managed effectively, crises require leadership teams to do several things carefully and with deliberate speed:

1. Detect that the incident has reached crisis status, determine its severity, and communicate quickly and transparently with stakeholders, both external and internal.

2. Investigate the matter thoroughly to understand the cause, disclosure obligations, and other responsibilities the organization may have.

3. Take steps to contain the damage from the crisis and prevent its immediate recurrence;

4. Start the process of business recovery.

5. Learn how to prevent the next crisis of this type — stakeholders may forgive the company’s first crisis but they rarely forgive the second of a similar nature.

So, what roles should CHROs play in this process? During the detection and initial response phase, if a crisis is by nature an HR issue, CHROs should work closely with the company’s counsel. Together, they will understand how a problem impacts internal stakeholders, know the policies that are intended to address the problem and be the most familiar with how those policies have been enforced enterprise-wide. Hopefully, they will have helped establish and refine the HR component of the company’s crisis management plan, including identifying triggers that turn an incident into a real crisis, giving the company a helpful head-start when the crisis hits.

Also read: Repairing the Downed Lines of Workplace Communications

Even if the issue is not an HR problem, CHROs are needed to provide an initial response to employees, as they will know the most effective ways to reach hundreds or thousands of employees at or near the same time.

For crises that are triggered by events like a government subpoena or pre-dawn raid, preparation is key. Working with company counsel, CHROs will know what can and cannot be ethically communicated to employees in the initial response phase.

For example, while companies can never tell employees to refrain from speaking with the government, they should always inform employees about their rights if the government approaches them for a voluntary interview. Understanding the difference between the two is important.

During the investigation phase, if the crisis is primarily an HR issue, the CHRO should work with the company’s crisis management team leader (often the CEO or COO) and its counsel to quickly understand the problem — how it happened, who is responsible, and whether any company protocols or controls were bypassed. If the problem is the result of the actions of one employee or a small group of employees, the CHRO and legal team must assess supervisor and managerial responsibility — did they know about the employee’s actions, did they profit from them, and, if they didn’t know about them, should they have known?

In the containment and damage control phase, CHROs will play a pivotal role in deciding employee corrective actions and working on extended internal communications with employees. When the crisis is especially severe, CHROs are also central in retaining talent and helping employees who are facing hardships because their jobs are impacted. This phase may require CHROs to work with the company’s legal team to manage employee litigation and respond to regulator scrutiny.

During business recovery, many employees may experience a range of emotions, including fear, shock, panic, anger, hopelessness and trauma. They will need help getting back on their feet and CHROs have an important role in helping them get there. CHROs can facilitate internal discussions addressing employee sentiment, creating safe spaces where employees can openly express their feelings and still go back to remaining productive employees. In this phase, CHROs will also serve as stewards over needed cultural improvements.

Lastly, in the learning phase, CHROs should play a leading role in determining how to prevent similar HR crises in the future. Here, a deeper root cause analysis is important. How did the problem happen, did the controls work as the company intended, and if not, why not?

Even if the crisis was not an HR problem, CHROs should still lead the assessment of how to mitigate the effects of future crises on the company’s employees.

March 16, 2020June 29, 2023

Answering the 6 most common questions about the Families First Coronavirus Response Act

COVID-19, coronavirus, public health crisis

In the past 48 hours, I’ve received a lot of emails and other correspondence asking questions about the Families First Coronavirus Response Act. Most of them fall into one of six categories.

1. I am a small business, and if I have to pay family and sick leave for my employees, I’ll go out of business. What am I supposed to do?

2. I work for a [large employer]. They don’t provide any paid time off. What am I supposed to do if I get sick, or a family member gets sick?

3. How does the interaction between the FFCRA’s paid family leave and paid sick leave work?

4. I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?

5. What about self-employed people? What relief is there for us?

6. If a business is forced to close because of COVID-19, what relief is there for its employees who lose their jobs, either temporarily or permanently?

Let me try to answer each as best as I can, understanding that there are no clear answers to any of this, and these issues are difficult and quickly developing and changing.

1. Small Businesses

There is no doubt that paid family and sick leave will impose a huge burden on the smallest of employers, especially since the only financial relief in the bill, the 100% tax credit for sick leave wages paid, is not a dollar-for-dollar match and only offers deferred relief.There is one provision in the bill, however, that may offer some help in the most extreme of circumstances.

The Secretary of Labor shall have the authority to issue regulations to exempt small businesses with fewer than 50 employees from the requirements of section 102(a)(1)(F) when the imposition of such requirements would jeopardize the viability of the business as a going concern.

This means that if the Secretary of Labor takes this up, he could issue regulations that would permit the smallest of businesses (under 50 employees) to claim an exemption if paid leave “would jeopardize the viability of the business as a going concern.”

Also note that under the same provisions, the Secretary of Labor could also pass regulations “to exclude certain health care providers and emergency responders,” meaning that these vital employees might not receive any paid FMLA or paid sick leave.

Stay tuned to see if this happens once this bill passes.

Finally, late last night, the Treasury Secretary announced that employers will be able to use cash deposited with the IRS to pay sick-leave wages, and for businesses without sufficient taxes from which to draw, the Treasury would make advances available.

2. Employees of Large Employers.

One of the most curious of the decisions this bill makes is to exempt employers with 500 or more employees. Here’s the editorial board of The New York Times, taking this decision to task.

Paying sick workers to stay at home is both good policy and good politics. Why not pass a bill that required all employers to provide paid sick leave and then force Republicans to explain their objections to the public?

The bill does require some employers to provide full-time workers with up to 10 days of paid leave. But the requirement does not apply to the nation’s largest employers — companies with 500 or more workers, who together employ roughly 54 percent of all workers.

All I can say is stay tuned. This coverage choice could be altered by the Senate when they take up this bill early this week, or it could be fixed by an entirely different piece of legislation. Or it can remain as-is, making the policy decision that large employers should offer these benefits without a government mandate. As the op-ed points out, according to federal statistics approximately 86 percent of employees at big companies already receive get some kind of paid sick leave. What I’d like to hear from Congress is why this 500-employee line was drawn? Was it a policy choice, the result of big-business lobbying, or with the knowledge that other legislation is on the way to close this loophole?

3. Paid FMLA vs. Paid Sick Leave.

There is a lot of uncertainly as to how the FFCRA’s paid-leave provisions interact with each other, but here’s my best read. The paid sick leave provision provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees) for COVID-19-related absences. The paid FMLA provision provides paid leave at two-thirds of an employee’s regular rate of pay for the number of hours the employee otherwise would have worked for the duration of a COVID-19-related FMLA leave, but the first 14 days of such leave can be unpaid. I’d expect most to substitute and run concurrently the paid sick leave during the initial unpaid portion of FMLA. Thus, the first 10 days of a COVID-19 leave will be paid at 100 percent of the employee’s regular rate as paid sick leave, and the remaining 10 weeks will be paid a two-thirds of an employee’s regular rate as paid FMLA. When an employer drafts or revises FMLA and paid sick leave policies, it should account for this overlap. Finally, please don’t forget about paid sick leave laws in your state or locality, which also might have something to add on this issue.

4. Non-profits.

I actually have some good news to share here. The tax credit offered by the FFCRA is against social security taxes, which, unless I misunderstand (and I’m not a tax lawyer), non-profits still pay on their employees. So, the tax credit provision will still off non-profit employers some future relief.

5. The self-employed.

This is, perhaps, the biggest issue. While the number varies wildly, there are anywhere between 50 million and 75 million gig workers. That’s a whole lot of self-employed people that this bill does not touch. What are they supposed to do? How are they supposed to earn if the economy shuts down? I wish I had the answer, but I have no idea. It’s a huge gap and huge problem, and absent specific government relief, these people are really going to be struggling, probably for a long time. That said, the tax-relief provisions also seem to apply to the self-employed. So that’s something.

6. Closures.

If a company is forced to shut its doors because of COVID-19, the Worker Adjustment and Retraining Notification (WARN) Act might apply if your business is large enough. It applies to employers with 100 or more employees. It mandates 60 days’ advance written notice (or if no notice is given or can be given, 60 days’ pay in lieu of such notice) before a “plant closing” or “mass layoff.” Please note, though, that a mass layoff does not occur, and therefore WARN does not apply, if the layoff is expected to be for less than six months. Because most expect this crisis to subside in less than six months, WARN likely will not apply to coronavirus-related layoffs. It will still apply to a plant closure if your business is large enough to meet the 100-employee threshold.

Also, keep in mind that some states have their own mini-WARN laws (California, Illinois, Maryland, New Jersey, New York, Tennessee, and Wisconsin, for example) that provide greater coverage. Ohio does not.

Finally, state unemployment compensation is available to employees who suffer coronavirus-related job losses. Ohio, for example, Governor DeWine is issuing an executive order so that unemployment insurance immediately covers workers who are displaced, even temporarily, by coronavirus, which will include a waiver any waiting periods to qualify and of the requirement that an individual seek work to collect benefits.

These issues are quickly evolving. I’m doing my best to stay on top of them and get everyone information as quickly as I can. Stay tuned. It’s going to a difficult time for everyone between now and when this crisis ends.

If your business needs FMLA or sick leave policies drafted, reviewed, or revised for anticipated FFCRA compliance, please let me know.

Also read: COVID-19 the role of businesses in a public health crisis?

March 9, 2020June 29, 2023

FMLA obligations during the coronavirus outbreak

COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our platform for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will gladly provide a personal, online walkthrough of our platform to help you get started.

Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.

The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).

Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”

Brede, a full-time member of Apple’s Genius Team at one of its Apple Stores, claimed that Apple fired him because he sought FMLA leave as in loco parentis to care for his niece and nephew because of his sister’s serious health condition. According to the court, Brede’s leave was not FMLA-covered.

The flaw in Brede’s FMLA claims on both theories is that … his requested leave to care for those children was not FMLA-qualifying. Brede does not allege that any of the minor children (who would be considered his daughter and sons under in loco parentis) are experiencing a “serious health condition” that requires his care. It is Brede’s sister that has the serious health condition. Even if Brede’s care of the children could be seen, by extension, as care for his sick sister (and Brede cites no legal authority for that proposition), the FMLA does not entitle an employee to take leave to care for a sibling with a serious health condition.

The Brede court got this issue 100% legally correct. Because the FMLA does not provide leave to care for siblings, it also does not provide leave to care for an ill sibling’s children.

In this time international medical crisis, however, let’s not lose sight of the fact that the FMLA is a floor, not a ceiling. Just because the law doesn’t require you to grant a leave of absence to an employee to care for the children of an ill sibling doesn’t mean that you can’t choose to offer such leave. As COVID-19 cases spread, employers are going to have to be nimble and flexible in their responses. The hypothetical spun from the Brede case is but one example of this necessary flexibility.

Also read: Is coronavirus the thing that will finally make paid sick leave a national reality?

Also read: COVID-19 and the role of businesses in a public health crisis

March 4, 2020June 29, 2023

What employers need to know about coronavirus and the workplace

The United States Center for Disease Control and Prevention has been closely monitoring the spread of coronavirus, a respiratory illness first detected in Wuhan, China. Now that the coronavirus has taken a deadly turn in the United States, many employers are looking for guidance as to how they may protect employees while continuing to adhere to their legal obligations in the workplace.

Here are some suggestions that employers may take to protect themselves and their employees.

Allow employees to work from home as a precaution

In January, the CDC confirmed that the virus may be spread through person-to-person contact. In light of this information and the understanding that the incubation period is between two and 14 days, employers should consider allowing employees concerned about possible exposure to work from home, to the extent practicable.

If remote work is not possible, employers could alternatively consider providing paid leave during that incubation period.

Consider alternatives to business trips

At the time of this publication, the CDC has issued a level 3 health travel notice — recommending that individuals avoid all unnecessary travel to China, Iran, South Korea and Italy. For those employers with employees traveling to any of these areas for business purposes, consider whether postponing or moving the location of the trip is a suitable alternative. Other options may include telephone and/or video conferencing.

Similarly, if an employee expresses concern about business travel to other affected areas, employers should consider reasonable alternatives, mindful of OSHA’s requirement that employers provide “a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to . . . employees.”

Assess risk on a case-by-case basis

With regard to those employees showing what could be early-stage coronavirus symptoms — which are similar to that of a cold — there is a risk of overreaction and business disruption if employers take a one-size-fits-all approach, requiring all employees with those types of symptoms to stay home.

Instead, employers should assess risk on a case-by-case basis and encourage employees to seek and follow professional medical advice in a manner consistent with the employer’s usual sick leave policies.

Similarly, employers should broach the topic of employees’ symptoms carefully as state and federal anti-discrimination laws limit medical inquiries by employers if doing so may reveal an employee’s disability. In light of these limitations, we recommend employers do what they can to ensure a healthy, safe working environment by encouraging any employees showing symptoms of the coronavirus to follow public health guidance and professional medical advice and by reminding employees about applicable human resources policies and procedures.

Also read: Can an employer require an employee with a serious health condition to take FMLA leave?

Take care to avoid discriminatory behavior or actions

An employer must be mindful of all its legal obligations, balancing the requirement to ensure a healthy and safe working environment with its concurrent obligation to maintain a working environment that is free from unlawful discrimination. For example, an employer should seek to avoid any stereotyping behavior by employees, such as inquiries related to the coronavirus that can be linked to an employee’s national origin. Such inquiries could result in claims of unlawful discrimination.

Also read: COVID-19 and the role of businesses in a public health crisis

As another example, if an employee discloses their diagnosis with the virus, employers should work with them to determine what steps to take to prevent the spread to other employees in the workplace, as well as to enable the employee to recover and return to work. Options may include a remote work arrangement, paid or unpaid sick leave or another form of leave of absence.

Importantly, employers should ensure supervisors are trained to avoid overreaction and are informed about the applicable laws that restrict inquiries into the health status of employees. They should also be trained on the importance of adhering to company anti-discrimination policies (including avoiding stereotyping based on race, ethnicity, and national origin).

Communicate regularly

By regularly communicating with employees as to current policies and procedures for managing the virus, employers will be best equipped to balance their legal obligations. If, in accordance with CDC or local health official guidance, an employer decides that any employee showing symptoms of the virus will be encouraged to stay home until they are fever free, this should be communicated to all employees uniformly.

If an employee approaches management with specific questions, the employer should proceed with caution and avoid asking questions that may lead to the disclosure of an employee’s disability. Instead, the employer should focus on the employee’s job duties and what adjustments, if any, can be made to enable the employee to perform those duties.

Balance safety and legal compliance

Employers cannot prioritize OSHA health and safety requirements over state and federal privacy and anti-discrimination laws. The threat of the virus does not excuse the employer from its other legal obligations, and claims are bound to arise if an employer lets one of its responsibilities slip.

Please note that the above information is based upon what is presently known about the coronavirus. This is an ongoing issue and employers should remain informed of further updates from the CDC and other local public health officials.

March 3, 2020June 29, 2023

Can an employer require an employee with a serious health condition to take FMLA leave?

Yesterday, in response to my post about coronavirus and paid sick leave, a commenter on LinkedIn asked whether an employer can force a sick employee to take FMLA leave.

The answer is a qualified “yes.”

Conventional FMLA wisdom had always been that if an eligible employee gave notice of a need for an FMLA-qualifying leave, the employer was required to designate the time off as FMLA. That wisdom changed, however, with the 9th Circuit’s 2014 decision in Escriba v. Foster Poultry Farms. Escriba held that the FMLA permits an employee to decline to take FMLA leave, even when the need is for an FMLA-qualified reason. No other circuit has followed Escriba (although the Northern District of Ohio did in 2015). Last year the Department of Labor published an opinion letter [pdf] that expressly rejected Escriba, restating the historically prevailing view that an employer cannot delay designating qualifying leave as FMLA leave, even if an employee asks it to do so.

Practically speaking, the denial of an FMLA-qualifying leave as FMLA-designed leave might be a no-harm/no-foul, as long as the employee does not lose any other rights in the process. If the employer permits the employee to take the leave as unpaid, restores the employee to the same or substantially similar job at the end of the unpaid leave, otherwise treats the employee as if they were on an FMLA leave, and does not retaliate against the employee, a refusal to designate qualifying leave as FMLA leave should not cause any legal issues. It’s no different than having a leave policy more generous than what the FMLA requires … it just grants extra leave on the front end instead of the back end.

Also read: COVID-19 and the role of businesses in a public health crisis