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HR Laws and Issues Related to The Pandemic

The Coronavirus started out in China and has made its way to the United States, infecting thousands. This airborne virus is exceptionally severe, and there are still no known treatments or vaccines to control the issue. Because of this, people are being forced to quarantine to help stop the spread. With the entire world on lockdown, one thing for sure is how much of an impact this pandemic has had on essential businesses and its employees. Due to the prevalent disaster and rising concerns regarding workplace safety, there have been new COVID-19 inspired HR laws that businesses must follow to comply with employment regulations.

Equal Employment Opportunity Commission - Temperature Reading

Under Equal Employment Opportunity Commission (EEOC), employees can be involuntarily sent home if they are experiencing any of the COVID-19 symptoms. In fact, this law was established back in 2009 for common flu issues but has come to light recently with this new pandemic. Employees can either go home as a non-disability related action or under ADA if they are experiencing serious illness. In order to reduce lawsuit claims due to this HR law implementation, it is highly suggested that employees who have fevers to be sent home with pay if your business can afford it.

Something new to note is that with the rise of COVID-19, employers are now allowed to confidentially take employee temperatures to ensure the safety of the workplace. Employees who have a fever of over 100.4 degrees will need to be sent home as they could be a direct threat for infecting others. EEOC states that employers can also take the temperatures of applicants as well as part of the post-offer/pre-employment medical examination process. If the applicant shows COVID-19 signs, then they will not be allowed to enter the workplace, and the employer has the right to withdraw the job offer.

Sick Employees Returning to Work

If you have an employee who seems sick, ADA allows you to ask that person if they are experiencing COVID-19 symptoms, such as a fever, chills, cough, and shortness of breath. If you do ask, make sure that it is strictly COVID-19 related, and everything you discuss is confidential and compliant with ADA. Now let’s say that one of your employees is exhibiting sickness and does not have COVID-19. If this is the case, then per CDC guidelines, they can be allowed to return back to work no less than 24 hours after their symptoms go away.

For employees who have been diagnosed with COVID-19, the work standards and time period may be different for each person. Because of this, you should consult with the CDC and any other public health authorities for further guidance. You may also want to consider implementing your own business policies on returning to work (with the help of legal counsel) during this pandemic that stems beyond CDC regulations. For instance, you could make it mandatory to have a doctor sign off a note indicating that a person is ready to return back to work after experiencing COVID-19.

Working From Home Guidelines For Asymptomatic Employees

One of the biggest concerns is the people who are infected with COVID-19 may not start showing symptoms until nearly two weeks after they have come in contact with someone. This is an alarming issue, and in order to moderate exposure, follow CDC guidelines. CDC states people who are currently showing no signs, but have come in contact or were in close proximity of an infected person (such as on an airplane or bus) may be excluded from the workplace until further notice. As for alternative measures to keep business running, if the employee's job allows for telecommunication, opting for this route is ideal for preventing COVID-19 spread while still running your business effectively.

If you are an employer who is considering taking measures beyond the CDC guidance, such as allowing employees to work from home, then you should consult with a HR professional to understand the basis of the working from home requirements. For example, under FLSA, you are generally required to only pay your employees for the hours they actually work, both in the office and at home. Whether there is a viral pandemic or not, you will need to pay at least minimum wage for nonexempt employees and at least 1.5 of their primary rate for anything over 40 hours worked in a week. As for salary employees, they must still receive their full weekly pay regardless of the work they perform. If telecommuting causes an expenses for your employees then make sure they are receiving at least minimum wage after deducting those expenses.

As a final thought on this, if your employees are being sent home with no telecommunication work available, think about substituting their PTO due to missed work or compensating them under a wage-continuation plan. If your employees have no choice but to use their PTO, then allow them to run negative for the time being and replenish that borrowed balance when they can finally return to work. It is not fair to force people to use their year’s worth of PTO with no means of restoring at least part of it due to the inability to work in the office or at home.

However, though it would be great to offer more PTO without intruding on your employees to have to pay for it or make it up, sometimes business cannot handle that financial stress. If you can, then that is great! If you own a business with under 500 employees and cannot afford to repay PTO balance without your business suffering, then there is another option you can be eligible for, The Families First Coronavirus Response Act.

Families First Coronavirus Response Act

Taken effect as of March 18, 2020, President Trump signed the FFCRA, which any employer with less than 500 employees should review. This act provides emergency paid sick leave for employees who are affected by COVID-19 and the impacts from it (such as job layoffs). It lessens the burden on both employees and small business because the amount that will be paid to the employees is 100 percent reimbursable with tax credits. Under this act, it is broken out into different emergency funds:

· Emergency Family and Medical Leave Expansion Act - Legislation provides 12 weeks of paid leave and job protection for employees who cannot work due to this

pandemic. After ten days of inability to work, employees will be paid two-thirds of their regular rate, capped at $200 a day, and not exceeding $10,000 total.

· Emergency Paid Sick Leave Act - Full-time employees will be able to obtain 80 hours of paid sick leave due to not being able to work. Part-time employees are still eligible, but they are only able to get the number of hours in sick leave as they work each week. For example, if someone works 25 hours each week, that is the amount of paid sick time they will obtain.

It is undoubtedly a scary time to be in right now, as there is no cure for COVID-19 yet. Without knowing how much longer this will last, all we can do is take this pandemic seriously and follow the guidelines and recommendations to do our part in fighting back until it dwindles down. With that being said, these HR laws and social distancing implementations will be able to help reduce the spread. If you are a business owner, ensure you are following the necessary laws and protocols to keep you, your business, and your employees as safe as possible during this time until we can finally resume back to a healthy business rhythm.

Download the HR Toolkit which includes a Communicable Diseases in the Workplace Checklist and additional information on federal laws and regulations.

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