Businesses are mobilizing to respond to employee and management concerns regarding the 2019 novel coronavirus (COVID-19). Employers want to know the first thing they should be doing to prepare. The answer from Godfrey & Kahn’s Labor, Employment & Immigration Law attorneys: Assemble your rapid response team now.
Who should be on your rapid response team?
While team makeup will vary based on sector and company size, a team should consist of employees with knowledge of safety compliance, employee policies and procedures, employee benefits, and operations. Key executives charged with reviewing and approving the plan and its implementation are also essential. These individuals should provide leadership as well as expertise in areas that directly impact key employment laws and regulations, such as Occupational Safety and Health Administration (OSHA) regulations, workers’ compensation, Fair Labor Standards Act (FLSA), Title VII nondiscrimination and the Americans with Disabilities Act (ADA).
The rapid response plan
First, it is important to know that the U.S. Centers for Disease Control and Prevention’s (CDC’s) current interim guidance to employers has not yet been updated in response to the World Health Organization’s (WHO) recent pandemic declaration. It’s possible the CDC’s employer guidance won’t change.
Using the CDC’s current recommendations as a base, here are 6 critical legal considerations for your rapid response plan:
1. OSHA: Identify internal and external potential sources of exposure to workers. Develop policies and procedures for prompt identification and isolation of employees who self-report symptoms and illnesses.
2. FLSA: Clearly identify expectations of hourly employees who temporarily work from home. For example:
- Is there a cap on hours worked?
- How should they record their time?
- What are expectations of their productivity?
Also, remind employees that working from home is not a substitute for leave and how to request paid time off and/or FMLA consistent with your policies when they are unable to work from home due to illness or for personal reasons. Employers should determine whether to extend, modify or adjust paid time off policies to provide additional paid time benefits to employees on a temporary basis.
3. Title VII: There is potential for racial and national origin profiling and comments among employees, particularly towards those individuals perceived or believed to be from countries where COVID-19 originated. It is important to remind employees not to engage in inappropriate discussions or rumors about coworkers and to restate your expectations for maintaining a respectful workplace.
4. ADA: Determine the essential functions of job positions, whether they are conducive to working from home. Remind key managers of the dangers of concluding an employee who exhibits common symptoms has COVID-19 from a “regarded as” disabled stand point.
5. FMLA: Review possible scenarios that would require unexpected employee leaves and whether the leave is Family and Medical Leave Act (FMLA) and/or Wisconsin Family and Medical Leave Act (WFMLA) covered. For example, while staying home with a sick child or spouse may be FMLA/WFMLA covered, a school closing unrelated to an illness of a covered family member likely is not covered. Prepare FMLA/WFMLA certifications forms now and/or touch base with your FMLA/WFMLA provider to ensure they are ready for an influx in requests.
6. Workers’ Compensation: Consult with your workers’ compensation insurance administrator to determine when COVID-19 is a work-related injury that needs to be reported.