The Covid-19 pandemic is running rampant worldwide. As workforce managers battle to keep organizations operating — oftentimes using creative approaches to navigate uncharted challenges — it is imperative to examine practices and review contracts while also complying with government rules and regulations.
CWS 3.0 spoke with some employment attorneys to gain insight on some possible best practices.
Hygiene protocols. By now, all organizations should have hygiene protocols in place and have communicated these practices to their contingent and non-contingent staff. In addition to the basics like encouraging cough etiquette, handwashing and staying home when sick, janitorial cleaning throughout the workplace should be increased. Other steps to consider include installing high-efficiency air filters, increasing ventilation rates and installing physical barriers such as clear plastic sneeze guards.
Communicate with your staffing provider regarding protocol and be sure you are both on the same page.
“You certainly don’t want to cause the spread of [Covid-19] by not having handled it appropriately, nor do you want to subject your temps to it,” said Diane J. Geller, partner at law firm Fox Rothschild LLP.
Divide and conquer. Divide up your essential vs. non-essential personnel and encourage workers who can work from home to do so. For those workers that must be on site, consider separating them into teams that work on different shifts; this way, the entire workforce won’t be exposed should one person test positive for Covid-19. And if your workers tend to use public transportation, revisit the time your staff clocks in and out to enable them to avoid peak travel times, and therefore increased possible exposure on the transit system.
Policy review. Consider modifying current or existing policies relative to both sick leave and mandatory illness reporting.
“Typically, there are a lot of strings and prohibitions on asking employees about their medical history or their current medical condition,” says Aaron Holt, labor and employment attorney with Cozen O’Connor. “That said, there are exceptions to that in the event there are direct threats to the workforce or to that employee.” Narrowly tailored medical questions and required medical exams are allowed but must be based upon a reasonable business justification — and a pandemic event qualifies, he explains.
For sick leave, examine the text of the policy and consider possibly altering it on a temporary basis; for example, employees might be able to take a negative PTO balance. Keep in mind that the US House of Representatives on March 14 passed the Families First Coronavirus Response Act, which includes paid sick leave for both full- and part-time workers. There are three provisions relating to employees being forced to miss work because of the Covid-19 outbreak, law firm Fisher Phillips explained in a blog post: an emergency expansion of the Family Medical Leave Act, a new federal paid sick leave law, and expanded unemployment insurance benefits. The Families First Coronavirus Response Act has not yet been passed by the Senate.
Mandatory temperature checks. Relevant medical information employers may require during a pandemic includes temperature checks at facilities. However, employers cannot discriminate against employees based on national origin, race or any other protected class. For example, an employer could lawfully require temperature checks for all employees, but not single out Asian employees, older workers, or those with underlying medical issues. As a best practice, don’t single out your contingent workers either.
Act of God. What happens if operations shut down because of the Covid-19 outbreak and the contracted workers are no longer needed? Attorney Janette Levey Frisch suggests ensuring that a force majeure clause is included in your contract. The provision excuses a party from not performing its contractual obligations that becomes impossible or impracticable, due to an event or effect that the parties could not have anticipated or controlled; in other words, an “Act of God.”
“If they have a force majeure clause, then I think it’s a good argument that [the Covid-19 pandemic] qualifies,” Levey Frisch said. “It would be hard for either side to win on a breach of contract claim.”
CWS Council members are invited to join SIA’s weekly Covid-19 Insights and Discussion Group where we will discuss trends, initiatives and best practices. In addition, SIA’s website has a list of relevant links for information relating to Covid-19 from reputable resources.
The Centers for Disease Control and Prevention has published Interim Guidance for Businesses and Employers to help companies respond to Covid-19. The guidance provides suggestions regarding employee communications, screening and monitoring sick employees, travel, environmental cleaning, the development of business continuity plans and other topics.