The COVID-19 pandemic continues to present new changes and challenges for businesses and HR professionals daily. We understand that keeping up with the evolving legislation and the never-ending list of outstanding questions can feel impossible.
With help from the HR experts at ThinkHR, we wanted to highlight the top questions we’re receiving from HR professionals at mid-sized businesses—and provide their answers.
1. If employees don’t want to come in to work out of fear of COVID-19, can we require them to?
Typically, employees cannot refuse to work based only on a generalized fear of becoming ill if their fear is not based on objective evidence of possible exposure. However, in these unique circumstances where COVID-19 cases are on the rise and many states are implementing drastic measures to attempt to control the spread of the virus, it may be difficult to prove that employees have no valid reason to fear coming in to work.
This is especially true if your town or city has a “shelter-in-place” or “social distancing” rule in effect. In this case, it may be required to demonstrate to employees that your business is taking active steps to keep them safe. Some examples of this are modifying operations to better support social distancing and regularly disinfecting your office space.
2. Are we allowed to start taking temperatures of employees? If so, how do we go about this?
The Equal Employment Opportunity Commission (EEOC) now allows employers to take employees’ temperatures during the COVID-19 pandemic. It is important to note that some individuals can have COVID-19 without a fever, so other safety precautions should not be removed just because employees don’t have a fever upon arrival to work.
For a list of other symptoms, visit the Center for Disease Control and Prevention (CDC)’s website here.
If you do decide to screen employee temperatures at work, keep in mind that significant precautions should be taken so that you do not increase risk by reusing a tool that comes into contact with the hands and/or mouths of multiple employees.
3. Under the new Families First Coronavirus Response Act (FFRCA) do we need to provide the required sick leave under this law in addition to the sick leave we already provide?
Currently, there is nothing in the law stopping employers from creating one comprehensive policy that includes the sick leave required under the FFCRA as well as other sick leave an employer chooses or is required to provide. However, there is reason to be cautious in doing so for two main reasons:
- When combining policies that intend to meet multiple requirements, you need to make sure to include the most employee-friendly provisions from each; and
- Additional guidance may be given in the upcoming weeks to provide more details about how this leave should interact with existing leave policies.
4. How is our business supposed to afford the sick leave and FMLA leave mandated by the Families First Coronavirus Response Act?
On Friday, March 20, the U.S. Treasury, IRS, and U.S. Department of Labor announced their plans for making the paid leave provisions in the Families First Coronavirus Response Act (FFCRA) less burdensome for small businesses. Key points include:
- To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released next week.
- The Department of Labor will release “simple and clear” criteria for businesses with fewer than 50 employees to apply for exemptions from the leave provisions related to school and childcare closures; and
- There will be a 30-day non-enforcement period for businesses making a reasonable effort.
- We encourage anyone with these concerns to read the linked announcement carefully. The full announcement can be found here: Treasury, IRS, and Labor Announcement on FFCRA Implementation.
5. Can we have certain employees work from home, but not others?
Yes. Employers may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on nondiscriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. nonexempt), or location of the office or the employee. Employers should be able to support the business justification for allowing or requiring certain groups to telecommute.
6. How do I make sure we are paying people correctly when they work from home?
You will want to pay an employee that is working from home the same way you would pay someone who is working in the office. Have employees log their time as usual for payroll processing. Nonexempt employees should take all the same breaks at home that they are required to take in the workplace.
To ensure employees are actually doing work at home, you can set up regular check-ins to see that things are getting done or have them document and report work completed daily. You may also require that employees remain available online via a messaging app and are available by telephone or for video conferences during working hours.
7. If we close temporarily, will employees be able to file for unemployment insurance?
Depending on the length of the closure, employees may be able to file for unemployment insurance. Waiting periods range from 1–3 weeks and are determined by state law. Be prepared to respond to requests for verification or information from the state unemployment insurance department if you close for longer than the mandatory waiting period.
8. Can we reduce employee pay due to COVID-19?
Yes, you can reduce an employee’s rate of pay based on business or economic slowdown, as long as it is not done retroactively. For example, if you give employees notice that their pay will change on the 10th, and your payroll period runs from the 1st through the 15th, make sure that their next check still reflects the higher rate of pay for the first 9 days of the payroll period. Keep in mind new rates/salaries must still be at or above the federal or state minimum.
9. Can we reclassify exempt employees to nonexempt if their working hours will be greatly reduced?
If an exempt employee has so little work to do that it does not make sense to pay them the federal or state minimum (or you simply cannot afford to), they can be reclassified as nonexempt and be paid by the hour instead. However, this must not be done on a very short-term basis.
Although there are no hard and fast rules about how long you can reclassify someone, we would recommend not changing their classification unless you expect the slowdown to last for more than three weeks. Changing them back and forth frequently could cause you to lose their exemption retroactively and potentially owe years of overtime.
10. Do we still offer the same benefits during a furlough as we did before? What about a layoff or closure?
It is important to check with your benefits provider before you take action. Eligibility for benefits during a furlough or layoff will depend on the specifics of your plan. For health insurance, if an employee would lose their eligibility during a layoff or furlough, then federal COBRA or state mini-COBRA would apply.