During this unprecedented time, so many of us are experiencing an extreme convergence of work and the rest of our life. To help you navigate through the extraordinary amount of information that is available to advise and guide all of us, we have created the RealHR Toolkit. Our goal is to provide you with curated information to highlight for your organization tools that will be helpful in answering workplace questions as well as keeping you and your employees supported throughout this difficult and complicated crisis.
A – If an employee is afraid to come to work, the most important thing you as an employer can do is to talk with your employee about their concerns and do whatever you can to accommodate them. If your employee has a preexisting condition that increases vulnerability to infection, they may be entitled to an accommodation under the Americans with Disabilities Act (ADA) and potentially FFCRA. If a health care provider directs or advises the employee to stay home because they may be susceptible to COVID-19 because of an underlying medical condition, an employee is eligible for paid sick leave under FFCRA. However, an employee is not eligible for paid sick leave where the employee unilaterally decides to self-quarantine without ever seeking medical advice to self-quarantine, even if the employee exhibits COVID-19 symptoms. The decision must be supported by a health care provider.
A – Be aware of potential discrimination and privacy implications. If an employer wishes to ask about recent travels, there should be guidance in place that ensures that all employees disclose when they or family members have been in areas the CDC or state or local public health officials consider high-risk.
If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time following their return from these locations, an employer reserves the right to ask whether employees are returning from these locations, even if the travel was personal.
An employer generally may not prohibit legal activity, such as travel by an employee; a variety of jurisdictions protect legal off-duty activities. Employers may provide information to their employees about the dangers of travel and certain restrictions that may occur when the come home regarding quarantine and testing requirements.
A – Under the CDC’s new definition, a close contact is someone who was within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated. Individual exposures are added together over a 24-hour period (for example, three 5-minute exposures would result in a total of 15 minutes’ exposure).
Previously, the definition made no mention of cumulative exposure, so close contact was presumed to require 15 minutes of consecutive exposure.
If an employer allows employees to work from their homes in states that differ from the state to which they normally report, or in which they normally perform work for their employer, the employer must determine whether income tax nexus has been triggered with the employees’ home states if the employer did not already have nexus with those states.
In general, when employees work from home for an employer located in another state, the home offices are usually sufficient to establish nexus – that is, substantial business presence or links with the state for income tax purposes. When an employer establishes nexus with a state, the employer is required to register as a withholding agent in that state and to withhold that state’s income taxes from the pay of employees working in that state. Income tax nexus may also cause an employer to be subject to other business tax types as well (i.e., corporate, franchise and/or excise taxes).
However, during the COVID-19 crisis, many states have temporarily waived the nexus requirement or issued related guidance.
A – Although measuring an employee’s body temperature is considered a medical examination, and is generally not allowed under the Americans with Disabilities Act (ADA), the CDC and state and local health authorities have acknowledged community spread of COVID-19. As a result, the guidance in the EEOC’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act provides that employers may have the discretion to perform temperature checks prior to entry to your business and to deny admittance to any employee whose temperature is above 100.4° F or higher.
If you choose to take employees’ temperatures, certain measures should be taken:
A – While you are not required by law to provide paid time off generally the terms of PTO benefit are outlined in your company handbook. Most employer’s policies state that PTO does not accrue during unpaid leaves of absence however if your terms do not specify this, you reserve the right to suspend accruals during furlough periods.
A – Encourage employees to make their workstation as ergonomic as possible to reduce injury. Employees should sit with a balanced head and wrist position, shoulders relaxed and feet flat on the floor or footrest. Employees should have adequate lower back support and a computer screen at a comfortable height.
Remind employees to take regular breaks throughout the day for a variety of reasons. Taking even a microbreak of two minutes can help avoid mental and physical fatigue, lower risks of aches and pains, and increase blood and oxygen circulation.
A – It depends. Employers with any non-remote workers (i.e., those with employees physically present at a work location) must still meet their obligations for verifying employment authorization, which requires an in-person examination of documents. However, if newly hired or existing employees are subject to a COVID-19 quarantine or lockdown protocols, such situations will be reviewed by the DHS on a case-by-case basis.
Where employers are seeking to limit in-person meetings, this presents special concerns and steps should be taken to educate employees on health and safety, prior to the meeting.
This Q&A was created in collaboration with Jules Halpern Associates LLC, a boutique employment law firm.
We have created this document to inform employers of their rights and responsibilities during this difficult time. These issues are incredibly fact-specific, and impacts on employers will, in many cases, require individualized answers. Please note this document is for informational purposes only and is not intended to be legal advice.
According to the CDC, a person’s mental health can negatively affect their job performance, productivity, engagement, communication and daily function. While stress can help you meet regular demands and/or challenges, it’s intended to be a short-term response that lasts for minutes or hours, not days or weeks. Here are a few resources that might be helpful.