By Justin Markel and Clayton Hearn

Over the last few weeks on RMWBH’s LinkedIn page, we have been sharing updates to frequently asked questions concerning employers, employees, and the COVID-19 pandemic. These updates were designed to quickly address topics of concern employers are facing. In this article, we will take a more in-depth look at ways employers can ensure they are prepared as the COVID-19 pandemic progresses.

Opening Offices During COVID-19

As employers look at reopening more of their offices and allowing more staff to return, there are a few things that should be kept in mind. Currently, Governor Abbott has mandated that offices can open to 75 percent of the total occupancy of the office. Abbott is also requiring all individuals to wear masks when it is not feasible to maintain 6 feet of social distance from others who are not a member of the individual’s household.

Orders from the Governor are not the only government mandates employers should keep in mind when reopening. Many of the major metropolitan counties in Texas require “commercial entities providing good or services to the public” to adopt a health and safety plan. The exact language of the requirements for the plans vary from county to county. Employers should reach out to their legal counsel for further guidance.

With cases of COVID-19 continuing to increase, it is still recommended that employers allow their employees to work remotely if possible and continue to follow CDC guidelines, to help prevent the spread of COVID-19.

Remote Work Policies

When considering whether to allow employees to work remotely, employers should think about the potential benefits, such as reduced overhead and possibly reducing the potential for the spread of COVID-19 between employees. But the benefits need to be weighed against the potential challenges, such as on-boarding and training, wage-and-hour issues and difficulties managing employee performance.

Employers should also consider whether to provide all, or only some, employees the option to work remotely. In making this decision, employers should start by examining the job duties of each employee to determine if it is feasible to carry the duties out at home. Then, determine on a department-by-department basis which departments are essential and necessary for the operations of a physical office. If it’s determined that a department is essential, all employees of that department should be required to work from the office, unless special circumstances apply.

When drafting policies to address the COVID-19 pandemic, employers should clearly address several topics in their remote-work policy including the following topics:

• Eligibility for remote work.
• Procedures for requesting to working remotely.
• Employee expectations for remote work, including expectations regarding employees’ work schedules, accessibility, performance standards, protection of confidential and proprietary information, and use of any company equipment they are allowed to use outside the office.
• If not addressed in other policies, employee expectations relating to common scenarios encountered by employers in the wake of the COVID crisis, including:
  • employees who have COVID-19 symptoms and need to self-quarantine;
  • employees who have been exposed to someone with COVID-19;
  • employees who request the ability to work remotely as an accommodation for a disability; and
  • employees who request the ability to work remotely to let them care for children whose schools are closed.

There is no “one size fits all” remote-work policy. The specific needs of each company are different and should be addressed on a case-by-case basis.

Employee Health and Safety While at the Office

In Texas, employers can generally require employees to report back to the office, except as otherwise provided by the government mandates we mentioned above. However, employees could understandably have concerns about the potential risk of exposure to COVID-19. To reassure concerned employees it is safe to return to work, employers should develop clear safety policies and procedures based on standards and recommendations from the CDC, OSHA, the Governor’s office and other relevant authorities. These policies and procedures should be clearly communicated to the employees. To show the employees the company is serious about their health and safety, the policies should be strictly enforced.

As a part of the policies, employers should consider implementing temperature checks following CDC recommendations. If an employer chooses to conduct temperature checks, employers should keep records of employee’s temperatures confidential, in the same way as employees’ medical information.

COVID-19 in the Workplace

As employees come back into the office and employers balance the safety of all employees, employers may be faced with sending employees home because they present signs of COVID-19 while at work. First and foremost, employers should send sick employees home, and the employee should not be allowed to return to work until they have consulted with a healthcare provider, and they have met the CDC’s recommendation on discontinuing home isolation. Currently, the CDC states that an individual can discontinue home isolation after (1) 10 days has passed since symptom onset; (2) at least 24 hours have passed since resolution of fever without the use of fever-reducing medications; and (3) other symptoms have improved.

If an employee is not showing symptoms but has presented the employer a recent positive test result, the CDC currently recommends that the individual stay home for 10 days after the positive test result. Although a 10-day waiting period is currently recommended, the CDC notes that some individuals may produce replication-competent virus beyond 10 days, which may warrant extending the isolation period to 20 days after symptom onset.

In addition to sending the sick employee home, the CDC currently recommends that if a sick employee was in the office within the 7 days before the employer learns of the employee’s positive diagnosis, then the employer should clean and disinfect all areas that the employee used. If the employer learns of the positive diagnosis more than 7 days after the fact, the CDC notes that additional cleaning and disinfecting is not necessary, but that the employer should continue cleaning and disinfecting high-touch surfaces per the CDC’s cleaning and disinfection recommendations.

If you have been following COVID-19 in the news, you have most likely heard the term “contact tracing” – the process of trying to determine who has come in close contact with a person who has tested positive for COVID-19. For employers, if an employee has tested positive for COVID-19 and was in the office within the 2 days before the symptom onset (or a positive test result if the employee is asymptomatic), the employer should similarly try to identify all employees who had close contact (within 2 feet for at least 15 minutes) with the sick employee within the 2-day period. The employer should notify these employees of their possible exposure to someone with COVID-19, without identifying the sick employee. Potentially exposed employees should stay home for 14 days or telework if possible, and self-monitor for symptoms. Employers in critical infrastructure businesses may allow employees to continue working despite possible exposure to COVID-19, so long as they remain symptom free and additional precautions are taken to protect them and the community.

If an employee believes he or she contracted COVID-19 at work, the employee may wish to pursue a claim for benefits under the employer’s workers’-compensation insurance policy. Although Texas workers’-compensation insurance policies cover occupational diseases, the term occupational disease does not normally include an “ordinary disease of life to which the general public is exposed outside of employment.” Coverage will largely depend on whether COVID-19 is considered an “ordinary disease of life,” or whether the nature of the work made contracting the disease more likely. If an employee believes he or she contracted COVID-19 at work, workers’- compensation subscribers would be well advised to tender the claim to the carrier, even if coverage is suspect.

If the employer does not subscribe to workers’-compensation insurance (it is a “non-subscriber”), the employee might pursue a claim for negligence against the employer for failing to maintain a safe workplace. Since a non-subscriber–employer would be legally precluded from raising the defense of comparative negligence by the employee, it is all the more important for such employers to try to prevent the spread of COVID-19 in the workplace through safety precautions in accordance with guidance from the CDC and other authorities. It is not clear how these kinds of cases will be resolved, as it may be difficult for an employee to prove that the employer’s acts or omissions caused the employee’s illness.

Employment Policies and Procedures in the Wake of COVID-19

As employers face employees going out for long-periods of illness, home quarantine, or the need to take care of a sick relative, employers should be aware of new sick-leave requirements and changes to the Family and Medical Leave Act. In response to the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA), which became effective April 1, 2020. The law applies to most employers with fewer than 500 employees, although certain employers with fewer than 50 employees may qualify for an exemption from some of the law’s leave requirements. Although not required, it is generally a good idea for employers to implement a policy covering leave entitlements under FFCRA. A FFCRA leave policy should cover both emergency paid sick leave and emergency family and medical leave.

One piece of the FFCRA is the Emergency Paid Sick Leave Act, which requires covered employers to provide an employee with two weeks of paid sick leave if the employee cannot work or telework because of certain reasons related to COVID-19. The qualifying reasons for leave are somewhat nuanced, and the employee is paid either 2/3rds or all of their normal pay, subject to caps, depending on the reason for leave. These details and others should be addressed in a FFCRA policy.

The other piece the FFCRA is the Emergency Family and Medical Leave Expansion Act. This law requires covered employers to provide an employee with 12 weeks of paid FMLA leave (2 of which are unpaid) if the employee cannot work or telework because the employee’s child’s school or place of care is closed, or if the child’s childcare provider is unavailable, due to COVID-19 reasons. If the employer already has a leave policy under the Family and Medical Leave Act, a FFCRA leave policy should clarify how this new leave entitlement affects traditional FMLA leave entitlements.

In addition to FFCRA leave policies, employers should revisit their sick leave policies and practices, to ensure they are consistent with public health guidance. Employers should also review their policies to ensure that employees will be able to abide by stay-at-home and shelter-in-place orders, as they arise, without violating company policy.

Employee Discipline During the COVID-19 Pandemic

The prospect of disciplining an employee during the COVID-19 pandemic may initially seem daunting, or perhaps even callous. But at the same time, employees should not be able to use the pandemic as a scapegoat to avoid their responsibilities. If done right, employers should be able to discipline employees in these uncertain times, while at the same time not appearing heartless. To do so, employers should attempt to ensure fairness in the discipline process—and thus reduce the risk of a potential legal liability and costs.

Before beginning the discipline process, an employer should ensure that it has clearly communicated its expectations of employees. This includes expectations about work performance, appropriate behavior, and rules to be followed. Regarding work performance, employers should clearly communicate to their employees what they will be expected to do, and what (if any) metrics they are expected to meet. To ensure clearly communicated expectations about behavior, employers should ensure their standard-of-conduct and conflicts-of-interest policies have been distributed and cultivate a culture that is conducive to compliance with those policies. Finally, if an employee is to be disciplined for a policy violation, ask whether the employee was made aware of the policy, and whether employee training may be necessary to ensure the employee and others do not make the same mistake.

Along these same lines and as mentioned above, expectations of remote workers should be set forth in remote-work policies. The main objective of these kinds of policies is to be clear and upfront about the employer’s expectations of employees, especially since supervision will be less direct than in person. These policies address a variety of issues, including how timekeeping policies apply to work outside the office, and what are proper (and improper) uses of company technology. These policies might also say that teleworking privileges can be taken away if an employee does not comply with company policy or proves unproductive working from home.

Once an employer has set forth its expectations of employees, it should consistently enforce the policies and rules in place. Remote employees should be held to the same standards and consequences as employees who come into the office. If a policy violation would result in a written warning at the office, it should result in the same consequence for a remote employee. Rather than counseling the employee in person, a videoconference could be scheduled.

A helpful tool that can be useful to document an employee’s deficiencies to lend support for a termination if things don’t improve is a Performance Improvement Plan (PIP). In defending against a claim of discrimination or retaliation, employers often rely on PIPs and other written warnings to make the case that the termination decision was made because of nondiscriminatory reasons. However, employers should remember that PIPs are also a mechanism to provide feedback to employees so that hopefully they will improve their performance or behavior. In leading up to a PIP and afterwards, examine whether the employee is being given enough feedback on the conduct at issue. Whether the issue is behavioral or performance-related, review whether the employee could benefit from additional training.

Conclusion

The COVID-19 pandemic has been a long-lasting event that no one could anticipate. We will very likely be dealing with this new normal for months, if not years, to come. Employers should take special care as they continue to address and respond to the changes in government recommendations and policies related to the pandemic. Now is the time to reexamine your internal policies and either adapt or adopt new policies to the changing work environment. As an employer, if you have questions on what your company should be doing to respond to the government health and safety policies, or if you need assistance drafting remote-work policies, or changing your employee handbook to respond to changes related to COVID-19, please reach out to an employment law attorney for assistance.