The Cleveland Indians have sent pitcher Zach Plesac back to Cleveland from their current run of road games for breaking the team’s COVID-19 protocols.
According to Cleveland.com, MLB security personnel caught the pitcher returning to the team’s hotel early Sunday morning after he had gone out with friends. The team has its own coronavirus code of conduct, which in part required Plesac to obtain permission before leaving the hotel. According to ESPN, the Indians hired a car service to return Plesac to Cleveland so that he would not share an airplane with his teammates and potentially place them at risk. The team’s management has said that he will remain quarantined until he receives two negative tests.
Bravo to the Indians for doing what they feel they have to do to keep their employees safe and the team playing games.
Your business may not be able to dictate how your employees spend their free time, but you can hold them to consequences if they choose to act irresponsibly when “off the clock.”
We are living through a pandemic. Every employee has a responsibility to their employer, their co-workers, and the business to make sure that they do what they can to avoid brining COVID-19 into the workplace, and every employer has the same responsibility to take reasonable steps to prevent an at-risk employee from entering the workplace when it’s discovered.
These are strange times for sure, and I will not fault any employer that errs on the side of caution in how it manages its employee respective to mitigating workplace coronavirus exposures. I’m not advocating for, or in favor of, employer monitoring of employee off-duty conduct. If, however, irresponsible, reckless or dangerous behavior comes to an employer’s attention, it shouldn’t ignore it in the name of privacy either.
You communicate with your other employees to let them know that you’ve had someone test positive. You reinforce all of your coronavirus safety rules, protocols and procedures. And you require the COVID-positive employee to isolate and not return to work per CDC guidelines.
Those guidelines recommend that a positive employee not return to work for either of: 1) being three days fever-free, respiratory symptoms have improved, and it’s been at least 10 days since symptoms first appeared; or 2) the receipt of two negative tests at least 24 hours apart. You opt for the latter, believing that negative tests will provide you and your employees better confidence that COVID-19 will not reenter your workplace when that employee returns.
Who pays for these coronavirus tests?
We have several of federal statutes, old and new, that guide the answer.
As to the cost of the testing itself, we look to the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act, and the Americans with Disabilities Act (ADA).
Both the FFCRA and the CARES Act contain requirements that group and individual health insurance plans cover COVID-19 diagnostic testing without cost-sharing, co-pays, or deductibles. This requirement not only includes the cost of the test itself, but also the cost of any related office, urgent care, emergency room, or telehealth visits.
Second, if for some reason an employee is not covered by applicable health insurance, EEOC guidance strongly suggests that the ADA requires employers to cover the costs of COVID-19 testing. The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA provides that an employer must pay for all medical-exam related costs when an employer requires the examination because the employer reasonably believes the employee poses a “direct threat.” According to the EEOC, “COVID-19 poses a direct threat.” Therefore, the ADA would require an employer to cover the costs of diagnostic testing related to keeping that direct threat out of the workplace.
What about compensation for taking a COVID test? Is the time an employee spends taking a COVID-19 test (including the time spent traveling to and from the testing site) “working time” such that it must be compensated? The answer to this question is likely “yes.” While there is little guidance on this issue, we can look to a 1997 opinion letter by the Department of Labor’s Wage and Hour Division, which states, “[A]ttendance by an employee at a meeting during or outside of working hours for the purpose of submitting to a mandatory drug test imposed by the employer would constitute hours worked for FLSA purposes, as would attendance at a licensing physical examination during or outside of normal working hours.” If time spent submitting to a mandatory drug test or a physical or examination counts as “hours worked” for which an employer must compensate an employee, then it’s safe to assume that a required COVID-19 test falls into the same category.
Simple questions, complex answer. Bottom line, pay for the testing if the employee lacks health insurance to cover it, and pay the employee for the time spent related to the testing. It’s not only the law, but it’s also just the right thing to do.
Like many companies Shawmut Design and Construction faced the dilemma of protecting the health and well-being of its employees as the COVID-19 pandemic tore through the U.S. workforce.
While the safety of its 900 employees was Shawmut’s top priority, no one-size-fits-all solution was evident. Shawmut’s staff includes in-office employees as well as workers in the field at sites across the country.
With a diverseportfolio of jobs including cultural and historic buildings, academic institutions, commercial properties, luxury homes and Major League Baseball stadiums, Shawmut’s executive team had to act quickly and decisively to assure that their workers could function safely while still productively maintaining their commitments to hundreds of clients.
Les Hiscoe, CEO, Shawmut Design and Construction
“We experienced added complexities on many projects that continued to work right through and were not impacted by shutdowns,” said Les Hiscoe, Shawmut’s CEO since 2015. “We had to make real-time adjustments on the fly to keep our people safe first and foremost and to make sure we continued to deliver for our clients.”
One of Shawmut’s core values even before the pandemic struck was “find a better way.” Company leaders realized early on during the pandemic that making decisions on the fly was not sustainable and determined the “better way” was developing solutions internally.
Initially partnering with trade unions, industry peer groups and other construction companies, Shawmut developed its COVID-19 safety plan to minimize coronavirus exposure and risk across all job sites. The company soon rolled out safety protocols as well as a COVID-19 risk assessment and response plan to project sites across the country, Hiscoe said.
Shawmut’s leadership looked inward to develop a technology-driven solution that addresses worker safety as well as on-site productivity. Built in-house, Shawmut’s IT, safety and marketing teams developed Shawmut Vitals, a custom technology platform designed to track COVID-19 symptoms and manage contact tracing to minimize and control infectious disease spread.
Implementing a vital technology solution
Shawmut staff quickly took the platform to market, transforming the idea from concept to rollout in under two weeks, Hiscoe said.
“The platform allows employees and subcontractors to self-certify daily health screenings by scanning a job-specific QR code that pulls up a health survey to fill out,” Hiscoe said. “If an individual is experiencing COVID-19 symptoms or has been exposed to someone who is either infected or at risk, the individual is flagged for further care and action.”
The platform reduces friction points as people enter a site. Shawmut Vitals alsofrees a site superintendent’s time since the data is integrated into Shawmut’s systems, resulting in thorough recordkeeping and generating reports that previously had been done by hand.
Virtual communication in the office and on site
Frequent communication played a huge role in Shawmut’s safety response andemployee engagement when offices began reopening, Hiscoe said.
“We held daily executive team huddles that begin with conversations around the best ways to keep our people safe, sharing successes and lessons learned across our job sites and regions,” Hiscoe said. “This also includes connecting with our Virtual Crisis Command Center, a COVID-19 crisis team that is constantly monitoring developments and helping to guide actions. We can provide constant guidance to our on-site client and office teams and ensure we are following all federal, state and CDC recommendations.”
Shawmut’s Future of Work Task Force also evolved out of their meetings.
Created to implement the best processes, systems and technology as employees began returning to the organization’s 10 offices, the task force is made up of cross-region, cross-department staff members.
The team meets virtually every week to develop thorough office-specific plans that adhere to Centers for Disease Control and Prevention, state and local government guidelines to keep everyone as safe as possible. Each office has a core team that examines the specific needs of that space and workforce to ensure every detail is taken into consideration, enabling staff to work safely and efficiently.
Hiscoe added that before entering the office, employees complete a health screening using Shawmut Vitals. This not only prevents those exhibiting COVID-19 symptoms or may have been exposed from coming into the office but also helps with contact tracing. Offices are also clearly marked with signs including traffic flow, conference room capacity limits and common-area closures.
Those who are not ready to come back to the office utilize Shawmut Flex, Hiscoe said, a flexible work program allowing teams to work remotely.
“Having flex options is rare in the construction industry so Shawmut was uniquely positioned to be able to transition to work from home arrangements,” he said.
Following the rules
The pandemic has had a significant effect on how Shawmut employees work together on their job sites, Hiscoe said. They identified several new requirements:
Self-awareness
“We encourage any individual who is feeling sick or who is presenting any symptoms of a cold, flu, or COVID-19 to stay home and/or seek medical attention. We enforce a 100 percent zero-tolerance policy that does not allow for anyone showing symptoms to be on the job site.”
Hygiene
All projects provide access to hand washing stations, which are spread at least 6 feet apart to maintain social distancing. Hand washing stations have corresponding signs with proper hand washing and hygiene techniques.
Personal protective equipment
All standard requirements apply. When two workers are operating near each other, face shields, safety glasses, hard hats and face masks are mandatory. PPE is disinfected before brought in personal vehicles or to homes.
Site safety requirements
A COVID-19 officer is on site 100 percent of the time to enforce all site safety rules, including the twice-daily cleaning of high-contact and common areas, pre-task planning meeting, health screenings, limiting of only essential personnel on the site and frequently cleaning high-traffic areas, equipment, and tools and devices.
Communication
The team hosts toolbox talks related to COVID-19, distributes regularly written communications on best practices to job-site teams and reinforces all messages with signs in English and Spanish.
Emergency procedures
In the event of possible COVID-19 exposure, Shawmut teams will strictly follow CDC regulations.
Hiscoe added there is no wiggle room with Shawmut’s procedures either in office or on a job site. “Alongside my executive leadership team and virtual crisis team, we’ve made our enhanced safety protocols mandatory for both our staff on site and in our offices,” he said. “We’ve shared our enhanced protocols virtually with our partners and any guests who may need to access our offices making them fully aware of our mandatory procedures.”
Keeping in contact with all employees
Hiscoe said the pandemic has severely disrupted his own schedule and halted all travel for him.
“As a quintessential extrovert, this has been a challenge in an age of social distancing, both professionally and personally. As a leader, I pride myself in making connections with our people, projects and partners.”
Hiscoe’s limited travel schedule established unforeseen ways to manage his stress.
“I made sure to regularly work out, which helped immensely. And during quarantine, I have really enjoyed being home with my family and having dinners together.”
Knowing who is where and when is crucial to their safety and well-being. With staff working in an office, remotely or in the field, automate how your employees clock in and out withWorkforce.com’s GPS-enabled time clock app that works everywhere in the world.
One of my employees has been vocal about the coronavirus being a hoax. I had to have a talk with him during our last few days in the office at the end of March because he was openly criticizing and mocking coworkers for “being afraid of the flu” and practicing social distancing. While the rest of us isolated and worked at home, he went on two different vacations out of the state and did not isolate upon returning as required.
We’re now phasing people back into the office, and he believes that all of the safety guidelines are violating his freedom. He still won’t practice social distancing without being told, he will not wear a mask without being told, and he even planned another vacation when the company has asked us not to travel except in the case of emergencies. …
I am at an absolute loss regarding how to get this employee to take these safety precautions seriously when he still sees the coronavirus as a political issue instead of a public health issue. I am very worried that he will bring the virus into the office and get others sick. Do you have any advice for handling this employee and protecting the rest of my staff?
Alison suggests that this employer “should be prepared to fire him.” I couldn’t agree more, and would go one step further and just say that this employer should fire him, period.
COVID-19 is not a hoax, it’s a public health emergency. There are rules businesses must follow as a condition to reopen and stay open during this pandemic, including the maintenance and enforcement of certain basic safety guidelines such as social distancing and face masks.
If an employee is refusing to follow these rules for any reason, that employee is putting the health and safety of the business’s employees, customers, other visitors, and their family members at risk. That employee has no place remaining employed. If you’ve counseled and warned and the behavior hasn’t changed, you’ve done all you can do.
If, as Alison suggests in her answer, you want to offer the employee one final warning, I’m okay with that. This employer, however, has done everything it can to secure compliance with its safety rules, and the employee has still failed to comply. If the employee genuinely believes that COVID-19 is a hoax and that safety rules are “violating his freedom,” nothing an employer says or does will change his mind or secure compliance. It will be a constant battle against an employee who refuses to believe science and do what is necessary to protect himself and others.
I see little choice other than pulling the plug, terminating the employee, and letting him take his backward and dangerous thinking elsewhere.
Of the 19 percent who has actually taken, or intend to take, paid FFCRA leave:
9 percent say they are using new leave protections for their own illness or isolation.
8 percent say they are using new leave protections due to a family member’s isolation/illness.
7 percent say they are using new leave protections to care for a child due to child care or school closure.
6 percent said they took leave, but not because of the new policy.
Yet, a higher number, more than one in four employees, have no idea that this paid leave even exists or are unsure if they will use it. Of this 28 percent of employees:
17 percent said they were unaware of the new protections.
11 percent are not sure if they will use the new protections.
These numbers seem low to me. So I’ve created my own poll, which you can take below.
There was a time in the very recent past when the biggest worry about a workplace time clock was whether the employee arrived on time to punch in and remembered to clock out when their shift was over.
That has changed in recent months. It is understandable that employees’ anxiety levels are high, and the thought of having to touch an unsanitary time clock adds some unnecessary concern. While the specter of returning to work among customers as well as co-workers frays the nerves of some employees, about the last thing they need on their minds is whether the time clock on the wall was sanitized after the previous employee punched in for their shift.
Ease their fears
There are obvious sanitary solutions for cleaning workstations and countertops. A mobile time clock app is a software solution that allows employees to bypass touching the grimy surface of a physical time clock.
Cleanliness should always be a concern in any workplace. Employers wouldn’t set out boxes of dirty tissues. So why should a time clock that’s constantly being touched be the lone option for employees to start and end their shift?
And don’t be fooled into thinking that a biometric time clock is a cleaner option. That fingerprint left by the previous employee? Do you know where that person’s digit was before tapping the pad?
It just makes sense to offer employees a mobile solution to cleanly and effortlessly clock in, safe in the knowledge that their employer is vigilant in maintaining a healthy workforce and concerned about accurate time management.
Safe, sanitary and simple
Automating how a staff clocks in and out is not only the sanitary option, it also is the simple solution to cutting back hours of burdensome administrative work each week. With such a keen focus onpredictive scheduling laws and regulations, an automated time clock system featuring a mobile app can communicate schedules that help companies remain in compliance. Employers can communicate scheduling in advance and explain the flexibility needs of the business at the same time, creating an open line of communication between employer and employee.
Employer advantages
Buddy punching has existed practically since the invention of time clocks. A time-clock mobile app assures that the correct person clocks in for the right shift through electronic photo verification and unique passcodes.
Automation eliminates repetitive processes that can lead to miscalculating payroll, which is among the fastest and easiest ways to get burned by a wage-and-hour lawsuit. According to Internal Revenue Service statistics,about one-third of employers make payroll errors. The American Payroll Association separately reported that such errors range between is up to 8 percent of total payroll.
A mobile clock-in solution also helps assure that staff is paid correctly according to time worked and is in compliance with local, state and federal laws.
Here are some advantages employers will find by using mobile clock-in software:
React immediately to curb or cut overtime.
Automation saves time and effort.
Save money as buddy punching is regulated.
Avoid costly lawsuits by complying with all regulations.
Employee advantages
Eliminating a physical time clock eases in-office cleanliness concerns. Companies with staff located in multiple locations who are working remotely allows them to clock in via a mobile app whenever and wherever they are. A time clock app is GPS-enabled and works everywhere in the world. Employees can:
Easily and simply clock in and out with one swipe on their phone and not touch a time clock.
Request time off remotely.
View current and past timesheets.
Communicate while on the go.
Ask yourself: Do you really want your employees touching the same time clock? It’s a cesspool of germs waiting to pollute your workforce with every touch. Clean up your physical workplace and tidy your workforce management processes by integrating the Workforce.comTime Clock App.
Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening that (subject to a few limited exceptions). The only rules are that the mask cover the employee’s nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.
One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear “Trump 2020” masks.
Worse, it’s firing employee who refuse.
Or at least that’s what Kris Hauser, a former waitress of the restaurant, claimed happened to her in her viral Facebook post describing her termination.
The owner then approached me again and stated I needed to wear my Trump 2020 mask. I responded and told him I would wear it, but I would wear it inside out (which a majority of employees had been doing already for the days prior).
The owner, Scott, told me “No, you will wear it with Trump 2020 facing out for people to see.”
I told him I would not do this and he said that I needed to leave.
Your first inclination might be to say, “Jon, Ohio, like every other state besides Montana, is an at-will state, meaning that an employer can fire any employee for any reason, good or bad. And just last Thursday you told us that there are only a few states that ban political opinion discrimination, and Ohio isn’t one of them. So while many will feel that Kris Hauser’s termination is morally and ethically reprehensible, I don’t see anything unlawful about it.”
While Ohio is an at-will state, it recognizes several key exceptions to employment-at-will, including a tort claim for wrongful discharge in violation of public policy. What does this mean? I’ll let the Ohio Supreme Court explain:
In order for a plaintiff to succeed on a wrongful-termination-in-violation-of-public-policy claim, a plaintiff must establish four elements: (1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law (“the clarity element”), (2) that dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (“the jeopardy element”), (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (“the causation element”), and (4) the employer lacked an overriding legitimate business justification for the dismissal (“the overriding-justification element”).
In other words, if a termination offends a clear public policy of the state, and the employee does not have any other remedy to redress the termination, the employee can sue in tort for the wrongful discharge.
In this case, Ohio has a clear public policy against employers influencing employees’ political opinions—Ohio Revised Code section 3599.05, which criminalizes employers that make expressed or implied threats “intended to influence the political opinions or votes of his or its employees.”
That’s exactly what The Village Inn did in imposing its “Trump 2020” mask requirement under threat of termination. And it’s not too far off the mark from Kunkle v. Q-Mark, Inc. (S.D. Ohio 6/28/13), which refused to dismiss a public policy claim based on section 3599.05, after the employer allegedly threatened employees with termination if President Obama won re-election, and allegedly fired the plaintiff after she stated she voted a “straight Democratic ticket.”
I’ve never been shy about calling out an employer that has wronged an employee. The Village Inn has wronged Kris Hauser. The internet has already spoken. I hope Ms. Hauser finds a lawyer to take her case and the courts have their say as well.
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.
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.
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.
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.
This video is on Snapchat in the Lake of the Ozarks? Unreal. What are we doing?
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.
