Every business, large or small, encounters employment and management issues that must be addressed to keep the organization running smoothly. It may be safe to say, however, that most businesses have never had a more challenging issue than the one presented by the current COVID-19-pandemic.
Here, Lexington-based human resources expert Karen Hawkins talks about how the coronavirus has affected businesses and answers questions about how to navigate a whole new set of employment issues.
What is the difference between a furlough and a lay-off?
A furlough is an employer-mandated, temporary unpaid leave from work, which employers typically resort to as a cost-saving measure. During this leave, employees may retain their health insurance benefits, though that’s not guaranteed or required.
A layoff means an employee is no longer employed and the employer is not holding that person’s job upon return. Benefits are typically terminated the last day or month of employment.
Under both circumstances, individuals in these conditions currently qualify for unemployment.
Do you think the interviewing process is going to change after the virus?
We are seeing more “virtual onsite interviews” through Microsoft Teams, Zoom or Skype. These are much better than phone interviews in that everyone can see each other and interact more naturally than just a phone call. However, actual in-person interviews are still occurring. I must say, seeing the chemistry, body language and tone of a candidate is critical to placing the right person for the job. Face-to-face interviews are being conducted in conference rooms with participants sitting in every other chair. Tables are wiped down prior to and after meetings. No handshakes are allowed. It’s very interesting to realize how the American culture of handshaking makes us feel so much more connected to people. It feels unnatural to not greet someone in that manner, but that, along with altered methods of communication, is a necessary change during these times.
Can an employer require an employee to stay home, if they believe they are sick?
Yes, employers are permitted to ask employees to seek medical attention and get tested for COVID-19. The CDC (Centers for Disease Control and Prevention) states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. The Equal Employment Opportunity Commission (EEOC) confirmed that advising workers to go home is permissible and not considered disability-related if the symptoms present are akin to COVID-19 or the flu. Policies should be in place and communicated to address potential health concerns during this time.
Can I file for FMLA due to the virus?
The Families First Coronavirus Response Act (FFCRA) has allowed FMLA to be expanded to address special circumstances caused by the pandemic; this expanded FMLA (EFMLA) is in effect from April 1 to Dec. 31, 2020. Under the FFCRA, an employee qualifies for EFMLA if the employee is caring for a child whose school or place of care is closed (or child care is unavailable) for reasons related to COVID-19.
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Normally, FMLA is allowed for employees who have worked at least one year and a minimum of 1,250 hours in the 12 months prior to leave. The EFMLA allows employees who have been employed a minimum of 30 days to be eligible. Regular FMLA applies only to employers with 50 employees or more. EFMLA applies to all private employers and certain public employers with under 500 employees. Small businesses with fewer than 50 employees may qualify for exemption to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as an ongoing concern.
If an employee tests positive for COVID-19 or is caring for a qualified family member with the same condition, an employee may also use FMLA per regular FMLA guidelines. These links from the Department of Labor give very good direction related to EFMLA: dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave and dol.gov/agencies/whd/pandemic/ffcra-questions#12.
When employees start to return, is there anything on the human resources side employers should do?
Policies related to the virus and state-mandated/suggested guidelines need to be in writing and communicated to all employees. I recommend employers post these policies in very visible areas such as break rooms and restrooms to ensure everyone understands expectations.
HR should work with top leadership to accelerate cleaning regimens throughout the facility. It is advisable for companies to provide masks, sanitizer and hand-washing instructions as well. This link provides guidance from OSHA on preparing the workplace for COVID-19: osha.gov/Publications/OSHA3990.pdf.
Of course, telework should continue to be offered whenever it is feasible. As of May 11, all businesses in Kentucky are to require their employees to wear masks while working outside of their homes. This applies to any type of business from my understanding.
It is critical that employees are kept 6 feet apart when at all possible. This may include moving workstations or desks to maintain the proper distancing. Break areas (inside and outside) tend to be places where employees congregate. It should be clear that employees are to remain 6 feet apart during break times as well, so break areas may need to be altered to allow only a few in the space at a time. Work schedules, break times and lunches can be staggered to offer more distance between individuals.
It is extremely important for HR and leadership to make expectations clear, take all measures to ensure compliance, including consistent enforcement of the policies. Being available for questions from employees and their managers is HR’s responsibility. Being the hub of information and providing consistent employee treatment is central to HR’s function in our daily work activities but now more than ever.
How should employers handle employees who do not feel comfortable returning to work after shelter-in-place has been lifted?
This is a very difficult question, possibly the most difficult question with regard to employees during the pandemic and business re-opening phases. There are many gray areas to navigate.
Employers should put all precautions in place per guidelines set forth by health and state officials. This includes ensuring employees are at least 6 feet apart and when not possible, special accommodations are made to lessen contact/risk such as installing plexiglass or plastic dividers between workers.
Where this issue becomes gray is the definition of “imminent danger” and an employee’s right to refuse to work due to such a condition. Would potential exposure to COVID-19 meet the definition of “imminent danger”? The answer is: maybe. Imminent dangers as defined by OSHA are “any conditions or practices in any place of employment such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Because so much is unknown and not clearly detected with COVID-19, it could be interpreted that being around others at work could cause imminent danger or harm.
I caution employers to be very careful with disciplinary or termination decisions in relation to this. Sometimes, employees will use this as an excuse to be away from work. In other cases, there may be true fear of someone who could be in a ‘higher risk’ category. Generally, I tend to lean in the employee’s favor if the person is in a higher risk category or has valid reasons for concern. There is a tricky balance of setting a precedent and then having a large part of the workforce off work, causing businesses to idle due to lack of workers.
In any case, expectations must be communicated and enforced consistently. HR should be available for employees to express their concerns and address them immediately. Mitigation is key to allaying employee fears while continuing to successfully and safely run a business. ■