COVID-19 – Page 11

June 25, 2020June 29, 2023

Keys to effectively managing a remote workforce

Today’s growing remote workforce has transformed our way of working and created a new normal that’s far from ordinary. This shift in how we work has created the need for new strategies and tactics for effectively reaching and engaging employees remotely.

As some companies claim remote working is here to stay, workforce leaders and business managers must develop and hone remote workforce management skills, identifying and refining ways to ensure employees feel supported and can continue working effectively outside the office.

Understand your employee base and communicate accordingly

Remote working isn’t a new concept, but the broader shift to remote working caused by the COVID-19 pandemic is unique. Employees who are accustomed to working from home or enjoy remote working will thrive during this time. Others will struggle to successfully navigate their new work environment.

Show grace to employees and colleagues who you know are struggling to adapt. As a workforce leader, it’s your job to ensure employees feel supported and are poised for success, regardless of their unique situation. Avoid taking a one-size-fits-all approach to communication.

Regardless of communication style and preferences, schedule regular video and/or phone check-ins with your team and employees. Face-to-face communication is more important now than ever before. Video conversations with employees you might not see face-to-face, whether that’s because you sit in different offices or your workstreams don’t frequently overlap, can help you forge strong relationships across your entire organization.

Provide resources to meet employee needs

Understand your team’s needs and put resources in place to help meet them. Host virtual town halls, consultation sessions and webinars on important issues impacting both your organization and the world. Whether that’s celebrating diversity to promote unity or offering support for working parents, do your best to provide the right resources for employees.

In addition to identifying specific needs, remaining cognizant of the work/life balance is crucial. Share what you’re doing to maintain a healthy work/life balance. Suggest outlets for your team to relieve stress and disconnect, whether that’s through exercising, meditating, reading, cooking, painting or volunteering.

Knowing they have your support in maintaining a definitive work/life balance — even if that means taking a break during working hours — is key to positively impacting your employees’ mental and emotional well-being. Although more employees are working from home and many travel restrictions are in place, you should also encourage your team to fully sign off by using their vacation days (as available and in line with company policy).

Maintain open lines of direct communication

When working remotely, it’s important for employees and colleagues to know that you’re available even though they can’t come to your office or meet in a conference room. Communicate the times of day you’re typically available and your preferred methods of virtual communication.

I’ve developed a system with my supervisor: If my boss sends me a text message, the ask needs to be addressed immediately, while an instant message is less urgent. If I want to schedule an ad-hoc meeting, it should be scheduled for early morning. Communicate to employees the best time and ways to reach you, and be virtually available when you say you will be.

This goes both ways. At a time when homes have become home offices, developing an understanding of your employees’ schedules and demonstrating your support will go a long way. Is there a window of time when their child is napping and that’s when they prefer to schedule meetings? Do they like to unplug in the afternoon, perhaps to take a walk with their dog?

Work to understand your employees’ schedules, and do your best to support them.

Employee management through effective communication

Managing a remote workforce effectively comes from truly knowing your employees and working hard to meet them where they are. During this tumultuous time, when possible, keep it light. Share a piece of good news, a poem, story or quote that’s meaningful to you. Look on the bright side and encourage employees and colleagues to do the same.

Being a constant in your employees’ lives, communicating with them, listening to them and building real connections is key to successful leadership today and every day.

June 22, 2020June 29, 2023

How to communicate when an employee tests positive for COVID-19

essential workers; workers' compensation, mask

Positive COVID-19 tests are sadly the reality of 2020 and likely at least part of 2021.

Nationally, 2.23 million of us have tested positive for coronavirus. If your employees have been fortunate enough so far to avoid the virus, the odds are good that before this pandemic is over one or more of your employees will test positive.

Before we discuss the right way to communicate a potential workplace exposure to your employees, let’s explore the wrong way, via one of my favorite punching bags, the WWE.

Via Deadspin:

As “Monday Night Raw” was wrapping up last night, reports started to leak out that a member of WWE’’s developmental program had tested positive for COVID-19.… It’s hard to pinpoint which is the more galling aspect: that the talent and crew of WWE found out about the positive test the same way the rest of us did, through social media and the internet last night, or that everyone showed up to work thinking they were safe, or however close to that word they felt by working for WWE, when in fact they weren’t.

If one of your employees tests positive for COVID-19, your other employees deserve to hear the news from you, not from a Facebook post, a tweet, a local news reporter or otherwise. You just have to make sure you are communicating the news legally.

The ADA’s confidentiality rules still apply to these communications, and an employee’s positive coronavirus test is still a confidential medical record. This means that you cannot divulge to anyone else the identity of the employee(s) who tested positive. It does not mean, however, that you can’t (and shouldn’t) communicate to employees that they might have been in contact with someone who has tested positive (or is displaying symptoms consistent with COVID-19) and that they should be diligent about monitoring their own health for potential symptoms.

Your only limit is disclosing the identity of the corona-positive employee. Otherwise, you are free to make any communication you want.

And you should. Your employees will resent you if they learn of the diagnosis of their potential exposure from anyone but you. Moreover, you can flip the story around into one focused on everything you are doing to protect the health and safety of your employees.

Dear Employees:

It saddens us to inform you that one of your co-workers has tested positive for COVID-19. The law prevents us from telling you the identity of that co-worker, but we want to assure you that we will continue to support this employee as your co-worker heals from this virus, and we will welcome them back to join you at work once it is safe to do so.

We are doing everything within our ability and resources to keep you as safe and healthy as possible at work. Still, with many cases of COVID-19 transmitted before anyone knows they have been exposed, and with you only being at work for a fraction of you day, we cannot 100 percent guarantee the virus won’t enter our workplace.

We continue to require that you self-assess daily for your own potential COVID-19 symptoms (fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea). If you have any of these symptoms, please let us know, and do not return to work until you have received a negative COVID-19 test, or you are symptom-free for at least 72 hours and at least seven days have passed since your first symptoms.

We are also continuing to take the following steps to help ensure, as best as possible, your health and safety here at work:

Employees are required to wear masks or other facial coverings at all times while at work, unless you granted a specific exception (such as for safety, a medical reason, or because you are working alone in a closed office).

employees are required to maintain six feet of social distance from others at all times.

Employees must diligently wash their hands and otherwise use hand sanitizer (which we are providing in intervals around the workplace).

Employee must self-assess their own health before reporting to work, and no employee is permitted to come to work if they have any of the known symptoms of COVID-19.

Lunch room and other common areas are closed until further notice.

Each employee is responsible for cleaning their own work station at the end of each shift.

We are deep cleaning the entire workplace on a weekly basis.

Additionally, because of the unfortunate positive test, we had the facility deep cleaned and sanitized prior to anyone being allowed to reenter after we learned of the positive test.

Our commitment to your health and safety is our top priority. If you have any questions or concerns, please contact ______________. Our door is always open.

June 19, 2020October 7, 2021

A midterm outlook on the future of the workplace

The COVID-19 pandemic is the first of its kind for virtually everyone living on this planet. We’ve survived SARS (Severe Acute Respiratory Syndrome) in 2003, MERS (Middle East Respiratory Syndrome) in 2012, Ebola around 2014, and even AIDS.

We’re still here, and yet this feels different. As of this writing, we still don’t know what we don’t know about this virus’s trajectory, its reinfection rate, or the longer-term ramifications to the health of those infected.

It’s difficult to speculate how and in what ways this health crisis will affect the workplace globally, but in the nearer term, it’s reasonable to predict certain outcomes with a fairly high degree of certainty. The phases of COVID-19 will likely follow a pattern of illness, mitigation, and control (where we are now), economic impact in terms of stock markets and unemployment, and anticipated litigation, especially in the areas of employment, wage and hour, and disability discrimination. Finally, a “new normal” of sorts will establish itself, but things many never be quite the same. We’ve lost a certain innocence about many of the things we take for granted.

For example, there will certainly be a gradual, staged reintegration of workers back into the workplace. Some nations, states and companies may lurch right back in, while others will be more cautious, prudent, and mindful about the upcoming reintegration. What’s for sure, though, is that we’ll gradually move back into a fully operational and integrated workplace.

Working remotely

Two changes, however, are likely: a smaller workforce at each company and a remote approach to working. To that latter point, Gen Z’s desire for more flexibility and greater work-life balance may dovetail nicely into this paradigm of remote telework. Technology creates new opportunities for face-to-face, real-time meetings, even if they aren’t in person. Likewise, a smaller, leaner workforce will likely be the new norm as organizations pare down corporate infrastructure and spans of control and retain only the strongest performers.

A practical impact of more remote work from smaller teams, however, may be the threat to managers’ exemption status. For example, in California, “concurrent duties” are permissible during emergencies. An exempt employee may perform both exempt and nonexempt duties, all the time qualifying as exempt.

However, outside of an emergency, exempt managers must spend 50 percent or more of their time engaging in “exempt” level duties, meaning responsibilities with a high degree of independent judgment, discretion, and decision-making. If remote managers in smaller organizations start doing more of the work their subordinates have typically done, their exemption status could be threatened. And if your managers’ exempt classification is in jeopardy, class action wage and hour lawsuits may result.

HR steps up

How can HR leaders step up? By predicting the natural reintegration curve that’s coming our way. Some workers may truly suffer from anxiety and depression as they return to work. Expect new medical diagnoses of “adjustment disorder with anxiety” and PTSD—pre-traumatic stress disorder—as workers experience a new paranoia about coming to work, their surroundings, and everything they touch and come into contact with.

Think about it: simply using public transportation to get to work may cause some to seek medical treatment for an invisible enemy that surrounds them. Employees may ask about “proximity alarms” and warning devises that trigger when coming within six feet of coworkers and customers. Partitions and barriers like the plexiglass windows seen at the grocery store may be at the top of certain employees’ wish lists, as may be requests for staggering arrival times to avoid overcrowding.

Likewise, as an employer, you may want to implement new rules on PPE (personal protective equipment), hand-washing and other sanitation standards. You may likewise look to introduce attestation language to your electronic timekeeping system when nonexempt workers clock out at the end of the day verifying that they have no COVID-19 symptoms.

Challenges ahead

Whatever this looks like in your particular organization, rest assured that change is coming in the form of predictable and unforeseeable challenges.

Be the wisdom. Lead and welcome the change. When in doubt, err on the side of compassion and leave judgment behind when supporting your workers through this.

There will likely be no greater opportunity for you to exercise selfless leadership than you’re getting right now at this very moment in your career. We’re at a point of pure creation, with few policies, precedents, or practices to fall back on or guide us. See this as an opportunity to excel, shine, and lead.

Teach what you choose to learn. Help your team members and employees know that you’re there for them and you’ve got their backs, no matter what challenges come your way next. This crisis is the making of inspirational leadership that will define you for the rest of your career.

Now, more than ever, you have an opportunity to demonstrate role model leadership and touch and inspire those around you. Never let a crisis go to waste.

June 12, 2020June 29, 2023

Employee scheduling after the COVID-19 pandemic

Employee scheduling was getting a facelift even before COVID-19, and in the aftermath of the pandemic, employers have even more to think about when it comes to scheduling employees.

The 2010s brought a number of state or local predictive scheduling laws into effect, giving employees much needed stability but complicating the scheduling process for managers. Meanwhile, the COVID-19 pandemic highlighted the lack of sick or paid leave for many hourly workers and the struggles employers go through when employees can’t come to work fo COVID-19-related reasons.

David Kopsch, principal consultant at Mercer, explained the major employee scheduling issues employers are encountering and ways to address those challenges.

Also read: Leave management should be as simple as submit, approve and hit the beach

Predictive scheduling laws across the United States

In a nutshell, these predictive scheduling laws require employers to notify employees in advance of what their schedules will be. Some cities require as low as 72 hours notice while others require as high as two weeks.

The goal is to reduce uncertainty in employees’ schedules so that they can plan for responsibilities like child care, school or other jobs.

Also read: How far in advance must a work schedule be posted?

The most frequently discussed part of these laws is the advance notice on schedule, Kopsch said, but they also contain many other provisions, like recordkeeping requirements and providing compensation for schedule changes.

Something else significant in these laws are rules that let employees have a certain amount of time off between the end of the last shift and the beginning of the next one, Kopsch said. For example, if an employee closes shop around 10 p.m., the same employee is not opening the site at 6 a.m. There are safety reasons for this, but these rules also exist to ensure that employees get enough sleep or rest between shifts.

While making the lives of employees easier, these laws have also added another layer of complexity for managers who must create schedules.

COVID-19 complications to employee scheduling

With the pandemic, hourly employees are facing a variety of situations in which they may not be able to come into work. They may be sick or suspect that they may have the coronavirus. They may face child care lapses due to school closures or other circumstances.

This can hurt employees’ wages and has the potential to impact their eligibility for bonuses, overtime or benefits, Kopsch said. Employers also face extra pressure when employees don’t come into work.

Some employers may need to adjust their staffing models due to COVID-19, Kopsch said. As businesses start reopening, one reality is that they may have to spend more time in the mornings cleaning and sanitizing the location. Perhaps the business will have to be open less hours during the day and run on a reduced schedule, which also has the impact of a reduced workforce or giving employees less hours.

Also read: Shift scheduling strategies can be improved through technology

Communication with payroll providers

Managers must ensure they are communicating with their payroll provider through this all.

“In these times of reduced schedules, there’s more interaction with payroll providers and technology to update the systems and adjust for the changes in how the workforce is working and coming to work,” Kopsch said.

For example, he noted a tactic some retailers are using in which they’re paying hourly workers slightly higher wages or offering some type of bonus to motivate and retain employees.

“If you introduce a new pay element, that’s one more item that you have to ensure [that you’re being] compliant. And that goes back to working with a payroll provider,” he said.

Also read: Shift schedule templates are a basic food group to workforce management

Communication with employees

Managers can also take on certain best practices to keep employees engaged and in the loop. Clearly communicating open and closing times is important. Also, make sure to be clear when employees should arrive for their shift. There may be extra precautions to take before their shift starts, like sanitizing or training.

Reopening a business after the pandemic is complicated, and clear communication can help simplify it.

Technology can also simplify the communication between employers and employees.

“We’re seeing technology as something being reviewed more and more by employers as a way to support employees as well as a way to communicate with them and help them understand what is available in terms of what schedules are available and getting and receiving communication.,” Kopsch said.

June 9, 2020October 7, 2021

Paycheck Protection Program Flexibility Act brings loan forgiveness changes

COVID-19, coronavirus, public health crisis

On June 5, 2020, President Trump signed into law the Paycheck Protection Program Flexibility Act of 2020. The PPPFA — as its name suggests — offers greater flexibility for employers receiving loans under the CARES Act’s Paycheck Protection Program (PPP) by extending time frames, expanding exemptions and modifying other PPP terms affecting potential loan forgiveness and repayment.

Here are the key provisions of the PPPFA:

Extended “Covered Period” for Using Loan Proceeds

Under the PPP, borrowers needed to spend PPP loan proceeds on approved expenses within a period of eight weeks to potentially qualify for loan forgiveness. The PPPFA expands this period so that borrowers may now spend their PPP loan funds (a) over a period of 24 weeks from the origination of the loan, or (b) by December 31, 2020, whichever is earlier.

Also read: How to reduce compliance risk

Borrowers are, of course, still free to use the original eight-week covered loan period in the PPP or “alternative payroll covered period” provided in the U.S. Small Business Administration (SBA) loan forgiveness guidance. (A link to the earlier client alert discussing SBA loan forgiveness guidance appears here.)

Reduced Percentage of Loan to be Spent on Payroll for Forgiveness

The PPPFA states that 60 percent of PPP loan proceeds need to be spent on payroll costs in order for a borrower to obtain forgiveness, leaving 40 percent which can be spent on qualifying non-payroll expenses.

Also read: Employers grapple with laws about work schedules

This is a reduction from the 75 percent/25 percent split which had come from the SBA guidance and should give employers some welcome flexibility to spend a greater amount of loan proceeds on rent, mortgage payments and other qualifying non-payroll expenses.

Employers should note, though, that the language of the PPPFA indicates that if an employer does not spend 60 percent of loan proceeds on payroll costs, it will not be eligible for forgiveness of any portion of the loan. As there have been questions as to whether such a significant change from the PPP was intended, Morgan, Brown & Joy will continue to monitor future developments in this area.

Expanded Exemptions from Loan Forgiveness Requirements

The PPP provided that an employer who had experienced a reduction in either employee headcount or employee salaries between February 15, 2020 and April 26, 2020 (30 days after enactment of the CARES Act) could receive forgiveness if it eliminated any reduction in headcount and salary by June 30, 2020. The PPPFA extends this June 30 date to December 31, 2020.

Employers should not, however, be lulled into thinking that they can simply restore salary levels and headcount in a single stroke on December 31 and achieve full forgiveness. The requirement of spending 60 percent of loan proceeds on payroll will require forethought about restoration of staff levels and timing of payroll costs incurred and paid.

The PPPFA also expands exemptions from the reduction to loan forgiveness corresponding to a reduction in the number of full-time equivalent employees. An employer who has experienced a reduction in FTE employees after February 15 will not see a reduction in loan forgiveness based on FTE count if it can in good faith document:

That it has been unable to rehire individuals who were employed by the business on February 15, 2020 and also unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020; or
That it is unable to return to the same level of business activity at which it was operating before February 15, 2020 due to compliance with requirements or guidance from the U.S. Secretary of Health and Human Services, CDC or OSHA between March 1 and December 31 relating to standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19.

Five-Year Repayment Period for New Loans

For PPP loans made on or after the effective date of the PPPFA (June 5), borrowers will have a period of at least five years to pay off the portion of any loan which is not forgiven. For loans made before the PPPFA effective date, lenders and borrowers may, but are not required to, mutually agree to modify the terms of an existing loan to include a minimum five-year period for repayment of any unforgiven amounts.

Extension of Loan Deferral Period

The PPPFA also expands the six-month loan deferral period created by the PPP. Repayment of a PPP loan (including principal, interest and fees) is now deferred until after the SBA has determined the borrower’s loan forgiveness amount and remitted that amount to the lender. For borrowers who do not apply for forgiveness within 10 months after the last day of the covered period, repayment of the loan begins at the expiration of that 10-month window.

Finally, in addition to the above, the PPPFA allows recipients of PPP loans to participate in the deferral of certain payroll taxes as provided by the CARES Act, which PPP borrowers had previously not been eligible to do.

The changing landscape of PPP guidance is only one of the many challenges employers face as businesses reopen and a greater number of employees return to work. Employers should consult their attorneys for assistance as legal concerns arise in workplaces in the COVD-19 era.

June 3, 2020June 29, 2023

Do Lake of the Ozarks employees sent home from work qualify for paid sick leave under FFCRA?

Last week I discussed how to handle employees who are not social distancing outside of work.

My thoughts were spurred by videos of employees partying over the Memorial Day weekend at Lake of the Ozarks and elsewhere around the country.

I said the following:

I would also place any employee who violated social distancing rules outside of work (whether the information is volunteered on a self-assessment or discovered through a viral video) on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment.

It looks like I might have a reader in Lincoln County, Missouri.

According to KSDK, employers are mandating unpaid leaves of absence and quarantines for employees who spent their holiday weekend amid the throngs at Lake of the Ozarks, The story also quotes an attorney who says that placing an employee on an unpaid leave of absence, under those circumstances, might violate the FFCRA’s requirements for paid sick leave for an employee “advised by a health care provider to self-quarantine due to concerns related to COVID-19.”

I completely disagree, and the Department of Labor has my back.

Take a look at Question 77 to the DOL’s FFCRA Questions and Answers:

May I take paid sick leave or expanded family and medical leave under the FFCRA if I am on an employer-approved leave of absence?

It depends on whether your leave of absence is voluntary or mandatory. If your leave of absence is voluntary, you may end your leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents you from being able to work (or telework). However, you may not take paid sick leave or expanded family and medical leave under the FFCRA if your leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents you from being able to work (or telework).

In other words, if an employee’s leave of absence is the employer’s choice, as is the case in the Lake of Ozarks example, then the employee does not qualify for FFCRA paid sick leave, because it’s not a COVID-19 medical recommendation or quarantine that’s preventing the employee from working but the leave of absence.

It’s no different from a furlough, for which employees also do not qualify for FFCRA paid leave. As long as you place an employee on leave before they tell you they’ve been advised by a health care provider to self-quarantine because of COVID-19 concerns, you shouldn’t have to worry about paying the employee for that leave under the FFCRA.

June 2, 2020June 29, 2023

Justice Department indicts employee for COVID-19 workplace fraud

In mid-April the FBI warned employers to be on the lookout for fake COVID-19 diagnoses, doctors’ notes, and other coronavirus-related documents from employees.

The Justice Department has now indicted the first employee for committing this new breed of fraud.

The Justice Department provides the details:

Santwon Antonio Davis has been charged with defrauding his employer by allegedly faking a positive COVID-19 medical excuse letter, causing the employer to stop business and sanitize the workplace. Davis has since admitted that he did not have COVID-19. …

According to the … charges and other information presented in court: The defendant, who was employed by a Fortune 500 company with a facility located in the Atlanta, Georgia area, falsely claimed to have contracted COVID-19 and submitted a falsified medical record to his employer. In concern for its employees and customers, the corporation closed its facility for cleaning and paid its employees during the shutdown. This caused a loss in excess of $100,000 to the corporation and the unnecessary quarantine of several of the defendant’s coworkers.

You can read the full affidavit submitted by the U.S. attorney in support of the criminal complaint here. (Disclaimer: Mr. David is presumed innocent until proven guilty.)

This is as good as time as any to remind you of the steps can you take if you think an employee is faking a coronavirus diagnosis.

Pay attention to inconsistencies on notes and other documents in fonts and spacing, or grammatical or spelling errors.
Look for computer-generated, versus hand signatures.
Compare legitimate medical excuse letters from health care providers to be aware of their typical format and structure.
Contact the medical provider to authenticate the document (after first providing the employee the opportunity to authenticate).

Be alert, because it’s fair to assume that as more employees return to work, more employees will try to take advantage.

May 28, 2020June 29, 2023

Is your business ready for the COVID-19 golden age of union organizing?

“Among the many lessons we will learn from the COVID-19 pandemic is its demonstration of the importance of union membership for essential workers.

“Of all the injustices exposed by the pandemic, the risks faced by non-union workers have become the most apparent. Non-union workers are being asked to risk their safety with little or no protections of their own.”

— Gary Perinar (executive secretary-treasurer of the Chicago Regional Council of Carpenters), The importance of unions is more obvious than ever during the COVID-19 pandemic, Chicago Sun-Times, Apr. 30, 2020

One of the unexpected byproducts of the COVID-19 pandemic is a corresponding rise in union organizing.

This crisis has magnified attention on key labor union agenda items and talking points such as worker safety and higher pay. Unions have been pressing these issues not only for current members but also more importantly for potential members.

The Teamsters is backing Amazon warehouse workers.
The UFCW is helping organize Instacart shoppers.
The SEIU is funding fast-food activists and Uber/Lyft drivers.

Indeed, according to Richard Berman, the founder of the Center for Union Facts, this union activity is part of a much larger trend:

This is the first time since the early 1980s where I sense significant interest by employees in “collective action” and “3rd party representation”.
Gallup polling in 2019 shows the 18-34 demographic has a 69% approval of unions. In 2017, 76% of those joining unions were younger than 35.
Employees who feel they will be exposed to co-workers or customers who have the virus are communicating on Facebook and other platforms about their jointly held concerns. Union organizers have access to these conversations and are making themselves available to help.
Most current HR professionals have no history in dealing with a partial workforce rebellion. This will most likely happen in individual companies or it could be a wider industry movement in a city or region.

That last point might be the one most important to your business. “Most current HR professionals have no history in dealing with a partial workforce rebellion.” What should your business be doing right now to best prepare itself in the event a union starts talking to your employees? The best defense is a good offense. I recommend that employers adopt the T.E.A.M. approach to union avoidance:

Train supervisors.
Educate employees.
Affirm the open door.
Modernize policies.

1. Train supervisors. If a union is organizing, supervisors are likely to be the first people to know. They will also be the people who rank-and-file employees will come to with questions or concerns. Thus, supervisors need to know how to report, monitor and legally respond to union activity.
2. Educate employees. Employees should not be told that the company is anti-union, but why it is anti-union – competitive wages and benefits; a strong commitment to worker safety and health; positive communication between management and employees; a history of peaceful employee/management relations; management’s openness to listen to employees and handle their concerns without an intermediary; and an unwillingness to permit a third-party to tell the company and employees how to do their jobs. Of course, if this is just lip service, you might as well not say it at all.
3. Affirm the open door. Management should routinely round its employees up to learn what is happening within the rank-and-file and what they are thinking about. Management should walk the floor on a daily basis. It should also hold regular meetings with employees, whether in small sessions with HR or large town hall-style meetings. And management’s door should always be open to listen to employees’ concerns, offer feedback and adopt positive change when feasible and practical.
4. Modernize policies. In an ideal world, employee handbooks and other corporate policies should be reviewed and updated annually. I’ve yet to come across a company that does so this frequently. Issues to consider and review? Do you have a written statement on unionization? An open-door policy? An issue resolution procedure? Peer review? An employee bulletin board? An electronic communications policy? Most importantly, do you have a no-solicitation policy? It is the single most important policy to help fight labor unions.

No avoidance program is foolproof. No matter what steps are taken and no matter the quality of employee relations, every company is at some risk for a union organizing campaign. Some, however, are more at risk than others.

All businesses should strive to be an employer of choice for employees and not an employer of opportunity for labor unions. The steps you take before that representation petition ever arrives will help define whether you remain a non-union employer.

May 26, 2020June 29, 2023

When an employee isn’t social distancing outside of work

How did you spend your Memorial Day weekend? Mine was way more mundane than years past.

I watched my nephew receive his high school diploma and pre-record his valedictory address in an individual, family-only ceremony. We walked the dogs a bunch. We went to Lowe’s, masks on faces (the first store in which I’ve been inside other than a grocery store in over two months). I barbecued for my wife and kids.

Other people chose less COVID-appropriate holiday weekend activities.

Scenes like this one were repeated all over the country. Will you be surprised when COVID-19 cells spring up in two weeks linked to these mass gatherings? Because they will.

Here’s my question. What do you do if you see one of your employees in one of these social-gathering viral videos? Do you welcome him or her back into the workplace today with open arms?

I would not. I’d screen employees for risky behaviors during the holiday weekend or otherwise. Ohio already requires all businesses, as a condition to reopening, to “conduct daily health assessments by employers and employees (self-evaluation) to determine if ‘fit for duty.’” With the country reopen and summer upon us, I’d recommend adding two questions to this self-assessment

Did you take part in a social gathering in which you were within 6 feet of others? Being within 6 feet of others who do increases your chances of getting infected and infecting others.
If you attended a social gathering, was everyone around you wearing a mask or facial covering? Others within six feet of you not wearing masks increases your chances of becoming infected.

I would also place any employee who violated social distancing rules outside of work on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment. (According to NBC News, the Kansas City health director has called for self-quarantine of all Lake of the Ozarks partiers.)

If an employee returns after being at one of these weekend parties and then tests positive, there is a really good chance that you will have to shut down your entire business (or at least a sizable part of it). Is this a risk you want to take? I wouldn’t, which is why I’d ask the questions and place anyone on an unpaid quarantine leave who answers “yes” or who I otherwise discover violated social distancing rules (such as if I see them on a viral video or photo.

We all have a social responsibility to help stop the spread of coronavirus. If an employee fails to play his or her part and chooses to act irresponsibly, I am not going to lose any sleep by sending them home for two weeks to protect the rest of my employees and their families, and my business and its continuing operations.

May 18, 2020June 29, 2023

House proposes significant expansions to paid leave under Families First Coronavirus Response Act

The House of Representatives on May 15 passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R.6800. Among other things, it proposes significant clarifications and expansions to the Emergency Family And Medical Leave and Emergency Paid Sick Leave provisions of the Families First Coronavirus Response Act.

What are these proposed changes?

Emergency Family And Medical Leave

Expands emergency FMLA coverage to all employers, not just those with less than 500 employees.
Expands the definition of “parent” to include foster parents, adoptive parents, stepparents, parents-in-law, a parent of a domestic partner, and someone who stood in loco parentis to an employee when the employee was a child.
Provides emergency FMLA to an employee who is —
- self-isolating because of the employee’s own COVID-19 diagnosis;
- obtaining a medical diagnosis or care if the employee is experiencing the symptoms of COVID–19;
- complying with a recommendation or order by a public official with jurisdiction or a health care provider to self-isolate on the basis that the physical presence of the employee on the job would jeopardize the employee’s health, the health of other employees, or the health of an individual in the household of the employee because of the possible exposure of the employee to COVID–19 or because of the exhibiting of symptoms of COVID–19 by the employee;
- caring for or assisting a family member (also defined in the amendments) because the family member is self-isolating because of a COVID–19 diagnosis, because the family member is experiencing symptoms of COVID–19 and needs to obtain medical diagnosis or care, or because a public official or health care provider makes a recommendation or order that the presence of the family member in the community would jeopardize the health of other individuals in the community because of the possible exposure of such family member to COVID–19 or exhibiting of symptoms of COVID–19; and
- caring for a family member who is incapable of self-care because of a mental or physical disability or is a senior citizen, if the place of care for such family member is closed or the direct care provider is unavailable due to COVID–19.
Permits an employee to elect, but an employer cannot require, the substitution of paid time off for emergency FMLA.
Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
Prohibits an employer from requiring certification by an employee in support of an emergency FMLA leave to not earlier than five weeks after the date on which the employee takes such leave
Extends the sunset date of emergency FMLA from 12/31/2020 until 12/31/2021.

Emergency Paid Sick Leave

Clarifies that paid sick leave under the FFCRA must be offered in addition to any paid leave offered by an employer, and prohibits an employer from changing its policies to avoid providing any additional paid leave.
Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
Prohibits an employer from requiring certification by an employee for the need for paid sick leave for leaves less than three consecutive days of paid sick time, and further prohibits an employer from requiring such certification earlier than seven workdays after an employee returns to work.
Provides for a new allotment of 80 hours of paid sick leave if an employee changes employers.
Requires restoration of an employee to the same or equivalent position at the end of a period of paid sick leave.
Extends the sunset date of paid sick leave from 12/31/2020 until 12/31/2021.

Sen. Mitch McConnell has already said that this bill is DOA in the Senate in its current form but it’s unclear if this statement specifically referenced the FFCRA amendments. Stay tuned to see if any of these proposed amendments gain any traction in the Senate. I’ll keep everyone updated as this bill progresses.