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.
Business Toolkit – What You Need to Know
Q&A
Q: One of our employees is afraid to work despite no known cases in our workplace. We need this essential worker to perform maintenance work during this period. Must we accommodate them?
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.
Q: During the COVID-19 pandemic, may an employer require employees to disclose their recent travel locations or prohibit employees from traveling out of state on their personal time?
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.
Q: One of our employees tested positive for COVID-19. We are now trying to determine which employees had “close” contact with them during their contagious period. How do we determine who should quarantine?
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.
Q: What are the income tax implications of allowing employees to work from home in another state due to the COVID-19 pandemic?
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.
Q: We are working on our return to work plan and want to take the temperature of our employee’s before they enter the office. Are we allowed to do this?
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:
- Refrain from taking an employee’s temperature in a public setting;
- Make sure that all screenings are conducted in a nondiscriminatory manner. A best practice would be to test all employees and individuals entering the establishment.
- Train and educate personnel on measuring body temperatures, including how to protect themselves and those being screened during the process;
- Provide prior notice to those who will be screened;
- Urge employees to self-monitor for symptoms and not to come to the workplace if experiencing any; and
- Prepare a plan for handling the results (e.g., documenting results and sending ill employees home immediately).
- Ensure compliance with the Fair Labor Standards Act and similar state and local laws and pay employees for the time spent for both the time waiting to be screened and the screening itself.
- Any documentation or details recorded relating to an employee’s temperature check must be confidentially stored in accordance with the ADA and all other applicable privacy laws.
- Remember that some people with COVID-19 do not have a fever, and some people with a fever do not have COVID-19.
Q: What happens to PTO accrual when an employee is on furlough due to COVID-19?
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.
Q: While our employees are while working from home due to COVID-19, what guidance should we give our employees on setting up their workspace?
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.
Q: If our workforce is only partially remote can we still verify a new hire's Form I-9 documents remotely during the COVID-19 pandemic?
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.
Personal and Professional Toolkit – Good to Know…and to share with your employees
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.
