Employers are facing an unprecedented challenge navigating COVID-19. As the virus spreads, it is generating fear and uncertainty. Employers need clear answers they can trust. They want to know how they can protect their employees, what their obligations are under the law, and what steps they may need to take if the situation gets worse.
Under these extraordinary circumstances, the team at ThinkHR believes it’s our duty to help all employers, whether or not they are ThinkHR clients. That’s why we’ve put together this FAQ based on the questions our clients have been asking us. We hope that it helps business owners everywhere manage this challenge and adapt to the circumstances ahead. [Questions updated in light of the FFCRA.]
1. Can we tell employees who travel to stay home and quarantine, even if they don’t have symptoms?
Our recommendation is to follow guidance from the Centers for Disease Control and Prevention (CDC)—see Tables 1 and 2 in the CDC’s Interim US Guidance for a Risk Assessment guide.
2. Can we send employees home if they are symptomatic?
Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 (e.g., cough, shortness of breath) should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute.
Note: Nonexempt employees may be entitled to a few extra hours of pay if you’re in a state with reporting time pay, but this cost will be well worth it to maintain the safety of the workplace.
3. What if my employee discloses that their family member or roommate has COVID-19?
Our recommendation is to follow guidance from the Centers for Disease Control and Prevention (CDC). Employers should ask employees who live with someone confirmed to have COVID-19 to notify a designated HR representative or their supervisor as soon as possible. The employer and employee should then refer to CDC guidance to assess risk and determine next steps — see Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management.
4. What is the Families First Coronavirus Response Act?
Effective April 1, 2020, the Families First Coronavirus Response Act (FFCRA) is a federal law that will require employers to facilitate two major benefits. Under the new law, employees must be given:
- Up to two weeks of emergency paid sick leave (EPSL) for illness, quarantine, or school closures related to COVID-19.
- Up to 12 weeks of emergency Family and Medical Leave Act (EFMLA) leave for care of their children during school closures related to COVID-19, most of which must be paid. A few exceptions apply.
5. If an employee is out of the office due to sickness, can we ask them about their symptoms?
Yes, but there’s a right way to do it and a wrong way to do it. In most circumstances, employers shouldn’t ask about an employee’s symptoms, as that could be construed as a disability-related inquiry. Under the circumstances, however — and in line with an employer’s responsibility to provide a safe workplace — we recommend asking specifically about the symptoms of COVID-19 and making it clear that this is the extent of the information you’re looking for.
Here’s a suggested communication: “Thank you for staying home while sick. In the interest of keeping all employees as safe as possible, we’d like to know if you are having any of the symptoms of COVID-19. Are you experiencing a fever, cough, and/or shortness of breath?”
Remember that medical information must be kept confidential as required by the Americans with Disabilities Act (ADA). If the employee does reveal that they have symptoms of COVID-19, or has a confirmed case, you should see the CDC’s Interim Guidance to determine next steps. Tables 1 and 2 will help you assess risk and determine what steps, if any, should be taken.
6. How are we supposed to pay for 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.
If the nature of the employee’s position does not allow telecommuting, and there is no legitimate threat, reiterate the steps they can take to keep themselves safe from contracting the virus and explain the proactive steps you are taking to keep infection risk low in the workplace.
We know that for many of our clients, business slowdowns related to the spread of COVID-19 have made it hard to imagine how they could bear any additional expenses. 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. Including the information in the link, this is all we currently know about the payroll tax credit under the FFCRA and how to access or administer it.
7. Can we require or allow certain groups of employees, but not others, to work from home?
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.
8. How do I make a telecommuting policy?
Although some employers will be comfortable sending everyone home with their laptop and saying “go forth and be productive,” most will want to be a little more specific. A good telecommuting policy will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses.
For instance, your policy might require that employees are available by phone and messaging app during their regular in-office hours, that they meet all deadlines and maintain client contacts per usual, and that they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.
You’ll also want to specify how expenses related to working from home will be dealt with. If you don’t expect there to be any additional expenses involved, communicate this. You don’t want employees thinking this is their chance to purchase a standing desk and fancy ergonomic chair on your dime. That said, you should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses, but it’s a good practice to cover such costs even if it’s not required by law.
9. Our business is suffering. We can’t afford to pay people and may need to close. What do we do?
This is understandably a very difficult situation for employers and their employees.
There are three basic options when it comes to keeping employees or letting them go: furlough (temporary reduction in hours of work or weeks of work); temporary layoffs (layoff with the intention of rehire, generally within six months); or permanent layoffs (layoff with no anticipated rehire date). In all situations, it’s best to be very clear in written communications about your decision and work with an attorney.
Employees who are furloughed can still receive unemployment insurance benefits, so employers shouldn’t feel like they have to terminate everyone just so they can receive unemployment insurance.
10. I’m concerned about the costs unemployment insurance as well as how to advise employees about it. Any help?
Remember that you don’t pay unemployment insurance (UI) claims directly. They are paid by the state, and the state gets funds for that from unemployment insurance taxes that employers pay into regularly. Some employers are concerned that their UI tax rate will increase due to current layoffs, but it appears that many states will essentially be forgiving COVID-19-related terminations with respect to future increases in UI tax rates.
Most employees who experience reduced hours, furloughs, or layoffs will be eligible for at least some unemployment insurance. Exactly how much will depend on a number of factors. Employees should be encouraged to file as soon as possible and to research rules, benefits, and options themselves to ensure they get the best benefit possible. We recommend that both employers and employees visit their state’s unemployment insurance department website and track local and state news, as departments across the country are updating their rules to facilitate displaced workers during this time.