Take a look at the following top 10 things you, as an employer, should know about your employees’ rights during the pandemic.
1. Providing a Safe Work Environment
You must keep your workplace and your employees’ workplace safe and free from hazards. According to the Occupational Safety and Health Administration (OSHA), employers are responsible for keeping employees safe. This includes “povid[ing] a workplace free from serious recognized hazards and complies with standards, rules, and regulations issued under the OSH Act.” If a workplace is not routinely clean[ed] and sanitized with the EPA’s approved disinfectants, it could be considered an OSHA violation and can open you to lawsuits.
At the end of 2020 a suit was brought against Tyson in Waterloo, Iowa, for not taking sufficient measures to protect workers. They did not enhance their cleaning procedures and encouraged sick people to stay on the job. There was also an instance of a worker vomiting on the production floor who was allowed to return to work the next day. While this incident may be extreme, you need to be extra diligent in keeping things safe for your employees.
2. Taking Temperatures
To help stop the spread of COVID-19, you may decide to take employees’ temperatures when they come in each day. While this is now allowed, you want to make sure you’re staying compliant with the ADA.
To comply, you must keep temperature information secure. The ADA requires that any medical information that an employer may learn about an employee remains confidential. If you decide to record temperature data, you must store it separately from the employee’s personnel file. This is to ensure there is limited access to that information.
3. Inquiring About Family Members
The Genetic Information Nondiscrimination Act (GINA) was created in 2008 to prohibit discrimination based on genetic information concerning health insurance and employment.
This act now applies to our current situation. It prohibits you from inquiring if an employee’s family member has been diagnosed with COVID or has any COVID symptoms. Asking a general “How’s your family?” is acceptable; asking an employee directly if their family members have any diagnosis, including COVID, is prohibited. No matter how good the intention may be, stay away from direct questions.
4. Requiring Vaccines
Do you plan on requiring the COVID-19 vaccine for your employees to come back and work in the office? The ADA does allow this, but if an employee cannot receive the vaccination due to a disability, it is up to you to determine what accommodations can be made, if any. And to ensure that this employee does not pose a threat to others in the workplace. You are not able to just let the employee go because they cannot be vaccinated.
It’s recommended that the employer and employee work together to help develop an accommodation that would not constitute an undue hardship (significant difficulty or expense) for the employer. This could be anything from allowing them to work from home to changing job duties to have less contact with other coworkers.
According to the Department of Labor: “In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations.”
5. Understanding the Family and Medical Leave Act (FMLA)
You might find that a lot of employees are requesting time off and citing the FMLA. It is important to understand what rights your employees do and do not have when it comes to FMLA.
FMLA helps protect eligible employees who are sick or incapacitated by a serious health condition or that need to care for a covered family member incapacitated by a serious health condition. An employee having or caring for someone who has COVID is considered a serious health condition and therefore covered by FMLA. If your employee is calling out of work to prevent exposure, this is not considered a serious illness and not FMLA eligible.
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6. Avoiding Discrimination, Harassment, and Retaliation
Avoiding discrimination, harassment, and retaliation is probably already at the forefront of your mind. You also need to make sure there is no appearance of these for an employee taking time off for COVID under the Families First Coronavirus Response Act (FFCRA) or under FMLA.
If you have to do any layoffs, you want to make sure you document the reasons and do it equally across all employees. While there are no known cases yet, you do not want to be the first and set precedent.
7. Paying Non-Exempt Employees
If you have any non-exempt (overtime eligible) employees, then per the Department of Labor, an employer must pay for all hours worked. This includes any and all work, including overtime, that is done from a home office. It is essential to take steps to ensure that non-exempt employees are not working off-the-clock at home.
To help with this, you should have a clearly defined system for your non-exempt employees to record their time. This will help everyone stay in compliance. This system should include ways to record when your employee clocks in and out for breaks, reports to work, and leaves for the day.
Take the time to remind employees of their schedules and expectations of hours worked each day to avoid unapproved overtime. It is also a great time to remind your employees that reading,
responding, or even just checking their work emails is considered “on the clock” so these should only take place within working hours.
8. Staying Within Exemption Guidelines
You may have had to make difficult decisions regarding employees’ salaries during the pandemic. If there was a need for any pay-cuts, you need to make sure that the wages are staying within the exemption rules and keeping employees above minimum wage.
On January 1, 2020, an employee’s minimum salary level to become exempt (non-overtime eligible) was increased to $684/week ($35,568 annually). You need to be sure that any pay-cuts did not fall below this threshold. If salaries did fall below this threshold, those employees become non-exempt and would be eligible for overtime.
Additionally, if you had to reduce the hourly wage you were paying, you want to make sure any hourly employee affected is not being paid below minimum wage. Federally, the minimum wage is $7.25/hour, but many states also have minimum wage laws. Check with your state’s department of labor to make sure you are still in compliance.
9. Providing Personal Protection Equipment (PPE)
OSHA states that “The employer shall not require an employee to provide or pay for his or her own PPE.” Therefore, if you require your employees to wear any PPE while on the job, you must provide and pay for the PPE materials. This includes masks, gloves, and face shields. It is also your responsibility to educate your employees on properly using and maintaining the PPE correctly and enforcing the correct and consistent usage.
10. Signing COVID Waivers
You may require your employees to sign liability waivers when they are coming back to the workplace. But you need to understand that this is not a blanket immunity for you or your business from lawsuits.
While waivers may limit some liability, like common negligence lawsuits, and it may highlight some of the risks employees take on by coming back into work, these waivers do not stop the intentional, wanton conduct or gross negligence claims. You must still take reasonable action described above to ensure your employees’ health and safety.
It’s Your Employees Who Will Help Keep Your Business Afloat
At the end of the day, it’s your employees who will help keep your business afloat as we adjust to our new normal. It’s essential to make sure that you’re respecting their rights and are not taking advantage of them. You can do this by staying in compliance with all local and federal regulations, and by making sure your employees are kept as healthy as possible by limiting their potential exposure to COVID-19.