Category: Commentary & Opinion

Posted on

Phishing attacks are yet another COVID-19 issue that needs to be on your radar

According to the Detroit Free Press, cybercriminals are exploiting the COVID-19 pandemic to try to access people’s computers and steal their data.
The scheme?

Cyber criminals are targeting employees who are working remotely with fraudulent termination phishing emails and invites to video teleconference meetings, according to federal authorities. As part of the phishing email or text, you might be asked to click on a link to receive more information about a severance package. If you fall for it, and click on a link, you might end up downloading malicious code onto your computer to allow the hacker to create a backdoor to access information. … One area of particular concern going forward involves fraud relating to scammers who are attempting to impersonate contact tracers who will alert you to the possibility that you were near someone who tested positive for COVID-19.

The criminals are hoping that the urgent nature of the emails tied to issues of importance related to the pandemic will cause people to click that link before they realize they made a dangerous mistake.
What can you do to protect your employees and your corporate information on their WFH and other devices? Now is the time to reinforce the importance of cybersecurity awareness for your employees. The tips that I’ve previously shared here are still as relevant as ever.
Posted on

COVID-19 and protected concerted activity

employment law, labor law, overtime records

Let’s suppose you’re a health care organization that terminates an employee after the employee refuses to wear a shared isolation gown and after the employee starts a group discussion with co-workers about the risks and dangers of shared gowns.

If that employee files an unfair labor practice charge with the National Labor Relations Board alleging that the termination unlawfully violate his right to engage in protected concerted activity under Section 7 of the National Labor Relations Act, do you win or lose the case?
According to this recent Advice Memo [pdf] published by the NLRB, the employer wins and the employee loses.
Although Charging Party discussed the gown issue with Charging Party on March 30, 2020, prior to drafting letter to the Employer, there is no evidence that the object of the conversation was initiating or inducing or preparing for group action in the interest of employees, as opposed to simply discussing that the nurses now had to share gowns. Further, Charging Party letter is solely focused on personal disgust at the notion of sharing gowns and fear for own and family’s safety, which believed to be at risk. …
Even if we credit Charging Party that a group discussion and plan of action to not share gowns that evening occurred, there is no evidence that the plan went any further than that.… [T]he employees here never took their concerns to management as a group. And, although Charging Party spoke to Charging Party about discharge which appears to have motivated Charging Party to take a stand that evening during shift, there is no evidence that they formed a plan of action together. Nor is there evidence the Employer considered Charging Party’s solo speech and refusal to work to have been concerted.
Furthermore, although Charging Party discussed the gown sharing issue with coworkers on March 30, Charging Party alone confronted management regarding the issue on March 29 and 30 and did not claim on those dates to be speaking on behalf of anyone. While Charging Party invited two employees in the parking lot to join a protest that evening, Charging Party informed them that it … would move forward with or without them. Nor is there evidence that any other employee formed a plan with Charging Party to refuse to work.… No employee requested Charging Party to act on their behalf or authorized to do so; simply decided on their own to represent coworkers.
These conclusions are consistent with the Board’s latest statements on lone-wolf activity, that a “lone wolf” can only engage in concerted activity, that “the totality of the circumstances … support[s] a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action.”
That said, employers should tread very carefully before terminating an employee for raising safety-related issues related to the current pandemic (or otherwise). The termination could violate OSHA. It could violate state law. And, in the correct circumstances, it could violate the NLRA (this case notwithstanding). It also sends the wrong message to your employees—that you don’t care about their safety, which is the absolutely wrong message to send while we are living with COVID-19.
Posted on

Elevator anxiety may be a rising concern among workers returning to the office

Has COVID-19 caused you to have elevator anxiety, as in a fear of being inside of a 7′ x 5′ box with other people? According to a not-quite scientific Twitter poll with over 4,000 responses, more than six in 10 workers will not use an elevator to get to their office.

These results beg the question, are elevators safe despite our apparent (and in my mind perceived justified) reluctance to use them

Believe it or not, the answer is that despite their small size and cramped quarters, given what we currently know about COVID-19 and its transmission, elevators should be safe in most instances.

According to Axios, most elevators are well ventilated, and we’re not inside of them long enough to worry about viral exposure.

Still, if you want employees to feel safe and comfortable riding in an elevator to travel to and from work, you should (or your landlord should) implement some basic coronavirus protocols:

  • Limit capacity based on the size of the elevator car.
  • Mark designated and distanced standing spaces on the floor.
  • Require masks or facial coverings inside the elevator car.
  • Encourage standing with one’s face to the walls and not the door (or the other passengers).
  • Discourage speaking.
  • Install hand sanitizer dispensers outside and inside elevator cars, make sure they stay filled, and encourage their use before pressing buttons.
  • Stagger shift, break, and lunch times to avoid long elevator queues or crowded cars.
My current office (i.e., home) lacks an elevator. But, if I had to go back to my office office, I’m “Team Stairs” all the way until the pandemic ends.
Posted on

States should follow Illinois’ lead in making it a felony to assault an employee over a mask rule

essential workers; workers' compensation, mask

Elmo, Big Bird, Cookie Monster … and assault?

Sesame Place is the latest employer to have an employee assaulted for trying to enforce a mask rule. It joins more likely suspects such as Target, WalMart (which has said that for the protection of its employees it will not require them to enforce mask rules), and McDonald’s (of which 44% of its employees report being physically of verbally assaulted by a non-mask-wearing customer).

Illinois is now the first state to enact a law targeted at this abhorrent behavior.

The law amends the definition of “aggravated battery” to specifically include an offense targeted at an employee who is “performing his or her duties, including, but not limited to, relaying directions for healthcare or safety from his or her supervisor or employer or relaying health or safety guidelines, recommendations, regulations, or rules from a federal, State, or local public health agency.” In layman’s terms, a customer who attacks an employee because that employee is trying to enforce a COVID-19 mask or other safety rule faces two to five years in prison.

According to a statement put out by the office of Illinois Governor J.B. Pritzker, “This provision sends the message that it’s vitally important for workers to be both respected and protected while serving on the front lines.”

Other states should follow Illinois’ lead and enact similar legislation. Employees need protection from these dangerous reactions to basic health and safety rules. I don’t believe your employees should be your front-line enforcers or mask and other safety rules. As I wrote three months ago, employers shouldn’t “leave it up to untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence.” Instead, employers should “deploy trained personnel (ideally security, but at least someone at management level) to enforce a mandatory mask rule in your business, and also train all other employees not to engage and instead to summon a designated responder.”

Still, even in the best of circumstances an employee may be put in harm’s way by an irrationally dangerous customer. No employee should face the risk of bodily injury just for telling someone to wear a mask. Laws like that enacted by Illinois send the message that this special brand of misbehavior should not and will not be tolerated.
Posted on

Quarantine of Indians’ pitcher is a teachable moment in handling irresponsible employees during this pandemic

COVID-19, coronavirus, public health crisis

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.

Posted on

Time is money, but not all time is created equal

time clock, workforce management, scheduling, time and attendance

We’ve all heard the saying time is money, but as many employers and HR directors have witnessed, an employee’s time can be used in vastly different ways.

One hour of work for employee A could equate to three hours of work for employee B for the same project, even when employee A turns out better quality work in less time.

As roughly 51 percent of employees report being disengaged or actively disengaged at work, workforce absenteeism is costing U.S. companies around $550 billion a year in lost revenue.

In the 21st century, we live in a world full of distractions, stressors and vastly changing technology that has never existed before, placing our 40,000-year-old brain into new and unforeseen territory. Are we surprised that employee engagement has decreased as a result of this change?

The standard eight-hour workday resulted from Henry Ford’s efforts to attract better workers to his Ford Motor Co., eventually paving the way for unions to demand changes in how business was conducted during the Industrial Revolution. While the eight-hour day has been the set standard over the last century, the workplace has vastly changed since those times.

Is it possible for an employee to put in an eight-hour workday by working fewer hours with greater prioritization of time and focused effort?

After looking at the data, all signs point to a resounding yes.

According to McKinsey and Co., the average business professional spends 28 percent of their workday checking e-mail and answering messages, which can amount to nearly 2.6 hours per day, and roughly 120 messages exchanged between correspondents. Since email is the lifeblood of communication between businesses and their customers, these statistics may seem difficult to change, but they aren’t.

The average employee checks their email 15 times a day, which is alarming, considering it takes an estimated 23 minutes and 15 seconds to reach the appropriate level of resumed concentration to return to the previous state of work. Taking these statistics into consideration, it makes sense why some people struggle to put in an eight- to 10-hour day with few results to show.

Even more alarming is the fact that the average amount of time someone spends on a given task without being interrupted is about 3 minutes and 5 seconds, which decreases to 2 minutes and 11 seconds when using an electronic device such as a computer or phone. Interruptions are bound to happen at work, especially for those stuck in a managerial position, yet 44 percent of the interruptions that occur throughout the day are self-induced.

In the 2020 workplace, we must minimize distractions to maximize our time and overall productivity. And what if we don’t need a 40-hour workweek to achieve maximal results?

In 2019, Microsoft Japan implemented a four-day workweek “Work-Life Choice Challenge” to test a new model of workplace efficiency, which showed some very promising preliminary findings. Their data showed a 40 percent increase in workers’ productivity, with a 23 percent drop in electricity costs and a 60 percent drop in the amount of paper being printed, all while providing a three-day weekend.

Although these outcomes are still in the early stages of adoption, they show promising results and further support the notion that time is relative to the focused efforts placed onto it. And as Parkinson’s Law states, work expands to fill the time allotted.

Limiting the amount of time spent on a project may have the potential to increase performance and productivity vastly, pending that the work performed isn’t truly constricted based on time (i.e., baking goods, laboratory testing, etc.).

These factors are vitally important because they all support many underlying principles held in cognitive neuropsychology and behavioral economics. The recurring trait that all of these statistics hold in common is that they all deal with people.

In order to truly maximize our business outcomes, we must help our employees maximize their brainpower and subsequent use of time. Working smarter doesn’t mean we have to work harder. We merely need to utilize the power of time management to minimize distractions and help our employees optimize their brain to maximize their results.

Posted on

Who pays for employer mandated COVID-19 tests?

flu season coronavirus, fever
The inevitable has happened. One of your employees has tested positive for COVID-19.
You do what you’re supposed to do. You clean and sanitize your workplace.
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.
Posted on

How have employers responded to COVID-19?

A recent survey of businesses reveals a variety of trends about COVID-19 in the workplace.
    • Nearly 6 out of every 10 employers has had an employee test positive for COVID-19 (double the number from April).
    • 92 percent require on-site employees to wear masks in common areas and mandate physical distancing.
    • 93 percent have enhanced cleaning protocols.
    • More than 1 in 2 are taking employees’ temperatures and performing other daily health screenings, while only 2 percent are requiring (legal but impractical) COVID-19 diagnostic testing and 1 percent (illegal) COVID-19 antibody testing.
    • 73 percent are allowing employees to work from home based on a fear of contracting COVID-19 without any risk factors.
    • 20 percent are discouraging domestic travel, and nearly 45 percent are requiring employees to work remotely or take a leave of absence for a 14-day quarantine upon their return.
    • Despite all of these measures, 21 percent of employers have received a COVID-19 related complaint from employees.
What has your experience been? On track with this survey? Or different? Please share in the comments below.
Posted on

SAFE TO WORK Act would offer employers a significant shield from employee COVID-19 lawsuits

COVID-19, coronavirus, public health crisis
Earlier this week, Senate Republican introduced their $1 trillion COVID-19 economic stimulus package. Among other proposals the bill contains the SAFE TO WORK Act [pdf], which would provide employers a significant shield from liability for lawsuits related to coronavirus exposure by requiring gross negligence or willful misconduct that actually causes a personal injury before liability could attach.
Employers would receive significant protections from employment-related COVID-19 lawsuits brought by employees.
If passed, the law would provide significant protections to employers under OSHA, the FLSA, the WARN Act, Title VII, the ADEA, the ADA, and GINA.
Generally, in any action, proceeding, or investigation resulting from or related to an actual, alleged, feared, or potential exposure to coronavirus, or a change in working conditions caused by a law, rule, declaration, or order related to coronavirus, an employer would not be subject to any enforcement proceeding or liability if the employer—
  • Was relying on and generally following applicable government standards and guidance
  • Knew of the obligation under the relevant provision; and
  • Attempted to satisfy any such obligation by: (i) exploring options to comply with such obligations and with the applicable government standards and guidance (such as through the use of virtual training or remote communication strategies); (ii) implementing interim alternative protections or procedures; or (iii) following guidance issued by the relevant agency with jurisdiction with respect to any exemptions from such obligation.
The law would also provide liability for any workplace coronavirus testing, except for personal injuries caused by the gross negligence or intentional misconduct of the employer or another person.
The law would prohibit a finding of joint employment status or of an employment relationship under any of the above noted statutes and the NLRA, ERISA, and the FMLA, if an employer provides or requires—
  • Coronavirus-related policies, procedures, or training
  • Personal protective equipment or training for the use of such equipment
  • Cleaning or disinfecting services or the means for such cleaning or disinfecting.
  • Workplace testing for coronavirus.
  • Temporary assistance due to coronavirus, including financial assistance or other health and safety benefits.
Finally, the law would amend the WARN Act to make clear that employers are not required to provide WARN notices for shutdowns or mass layoffs that are “a result of the COVID–19 national emergency.”
This law will put a premium on employers understanding, implementing, and enforcing required and recommended COVID-19 safety rules and protections. If you don’t already have these in place your workplace, (1) why not, (2) what are you waiting for, (3) you now have quite the incentive to do so, and (4) you really shouldn’t need this economic incentive to protect the health and safety of your employees.
Posted on

If your employee treats COVID-19 like a hoax

terminate firing

At the always fabulous Ask a Manager, Alison Green posts the following question:

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.