Metz Lewis Brodman Must O'Keefe

Metz Lewis Brodman Must O'Keefe

Posted on May 12, 2020

As more businesses resume operations in the coming weeks, employers have much to consider and plan for to ensure they are operating as safely as possible and in accordance with the myriad of new laws, regulations, and guidance that has resulted from COVID-19.

While the to-do list is undoubtedly long and challenging, below are five immediate actions that employers should take as they resume operations.

Make and Implement a Workplace Safety Plan

Employers are responsible for providing a safe and healthy workplace, so it is critical that they prepare and put into action a workplace safety plan that focuses on preventing and reducing the transmission of COVID-19 among employees. Such a plan should:

Actively encourage employees with COVID-19 symptoms to stay at home.

  • Remind employees of the importance of hygiene, including:
  • Wearing masks while on site;
  • Regularly washing their hands; and
  • No more handshaking.

Promote social distancing at the workplace that includes:

  • Implementing flexible work hours (rotating or staggered shifts to limit the number of employees on site at the same time);
  • Alternating break and lunch periods to reduce the number of employees in common areas;
  • Installing partitions between workstations where feasible;
  • Using signs or tape to indicate the appropriate 6 feet of separation; and
  • Shifting in-person meetings to virtual meetings.

Provide for the cleaning and disinfecting of offices, workspaces, and frequently touched surfaces.

Take action if an employee is suspected/confirmed to have COVID-19, including:

  • Shutting down the worksite, or at least the area where the affected employee worked;
  • Cleaning the worksite by following CDC-recommended procedures;
  • Notifying employees who were in close contact with the employee who has a suspected/confirmed case of COVID-19 (while maintaining confidentiality); and
  • Taking all employee temperatures before entering the workplace (employers may choose to do this even before a suspected/confirmed case of COVID-19).

In addition to guidance available from the CDC and OSHA, Governor Wolf has issued operating guidelines that businesses must follow.

Provide Formal Notice to Employees to Return to Work

The reality for many employers is that some employees do not want to return to work because they are currently earning more money through unemployment compensation benefits.   This can leave a company short on workers, and if the company has received a PPP loan, create issues for the loan’s forgiveness.

To combat these challenges, employers should send a formal return to work letter to each employee.  The return to work letter should include the employee’s return to work date, the time and place at which the employee should return to work, and the employee’s position and pay upon return.  The letter should also advise the employee that if he fails to return to work, he may lose certain benefits (such as healthcare benefits), have his employment terminated, and/or no longer be eligible for unemployment compensation.  The letter should conclude with a request for the employee to sign, date, and return the letter to the company.

If the employee then fails to return to work, without good reason, the employer may submit Form UC-1921 Refusal of Suitable Work to the Pennsylvania Unemployment Compensation Office within seven days to notify the Office that the employee refused suitable work.  The employer may include a copy of the return to work letter with the Form.

In addition, the Small Business Administration announced last week that an employer’s PPP loan forgiveness will not be reduced if an employee rejects a written, good faith offer, including the same salary and hours, to return to work, and the employer documents that offer and the employee’s rejection of the offer (meaning, his failure to report to work).  As such, employers should provide a written return to work letter to each employee to avoid the potential loss of loan forgiveness.

Communicate with Employees Who Report They Are Unable to Return to Work

While some employees may not want to return to work because their unemployment compensation benefits are higher than their wages, other employees will have good reason for not returning to work.  For example, an employee may not want to return to work because of an underlying health condition that leaves him particularly susceptible to COVID-19.  When responding to employees who report they are unable to return to work due to COVID-19 related health issues, employers should keep in mind the employee may be entitled to paid time off under the new federal law enacted in the wake COVID-19 (the Families First Coronavirus Response Act (“FFCRA”)) and/or be entitled to an accommodation under the Americans with Disabilities Act. Employers should proceed with caution and take these steps to minimize their exposure:

Take the reports seriously, and be respectful of the employee and his report;

  • Treat the report as if it were an ADA accommodation request;
  • Require the employee to submit the required supporting information and/or documentation from his healthcare provider;
  • Engage in the interactive process with the employee; and
  • Keep everything related to the initial report and all related documents as confidential and separate from personnel files.

Many are predicting that the COVID-19 pandemic and employers’ response to it could lead to an increase in employment-related lawsuits so employers should proceed with caution and contact legal counsel when issues arise.

Update the Company’s Policies and Procedures

Beyond updating workplace safety policies to adhere to the new laws, regulations, and guidance that has resulted from COVID-19, employers should update other employee policies and procedures.  First and foremost, if the company is required to provide paid leave under the FFCRA, the company should prepare a FFCRA policy and distribute the policy to employees.  The company should also review its attendance and other policies that provide for paid or unpaid leave to determine if changes to those policies are necessary.  The company should also review other workplace policies, such as telecommuting and business travel policies, and publish revised, interim policies to cover changes to the policies during COVID-19.

Continue to Monitor Laws and Guidance

State and federal laws, orders, and guidance that govern business operations and employee issues continue to change and are frequently updated.  As such, it is important for companies to stay informed about the most recent developments in the law and guidance to avoid compliance and liability issues down the road.

The Metz Lewis Employment Law Group can help your company handle all COVID-19 related employment issues from preparing workplace safety plans, advising you on returning employees to work, counseling on paid leave obligations, and updating your company’s policies and procedures.  Please reach out to us (Jim O’Connor, Rachel Felton and Justin Barron) for assistance.

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