Tag: Coronavirus

How to Reopen a Business and Recall Employees

Published by Brett Holubeck on April 24, 2020

Image of a shop sign with the words "Yes, we are open" to show that the store reopened. — Photo by Artem Beliaikin on Unsplash

With COVID-19 still raging through the country and unemployment projected to hit 32% and affect 47 million people, recalling employees may seem to be one of the last things on employees’ minds right now. However, it is something that all companies need to seriously be concerned about.

Moreover, with President Trump’s plan to reopen the economy and Governor Abbott’s plan to reopen Texas it is something that all Texas employers need to start to consider. Governor Abbott stated that retail stores will be able to open under a retail-to-go plan on April 24, certain “nonessential” surgeries will be able to be performed, and state parks were opened on April 20. There will be additional announcements on April 27 and later as the plan to reopen Texas develops.

So, what should companies do when they reopen?

Issues that Companies Face When Reopening and Recalling Employees

There are a number of issues that employers face when they are trying to reopen. If you read my COVID-19 article, article on protecting essential workers, or the WARN article, then you understand some of the issues that companies must consider when they reopen and recall employees.

Here are some additional issues to consider:

Avoiding WARN Act Issues

If you temporarily laid off your employees and intended to bring them back (I hope you listed an intended date of return on your notice to them if WARN applied), then you need and ought to take certain steps. The most important step is recalling employees to ensure that you do not meet one of the thresholds where WARN would have been triggered. As a reminder, the DOL states that

[a] covered mass layoff occurs when 50 to 499 employees are affected during any 30-day period at a single employment site (or for certain multiple related layoffs, during a 90-day period), if these employees represent at least 33 percent of the employer’s workforce where the layoff will occur, and the layoff results in an employment loss for more than six months. If the layoff affects 500 or more workers, the 33 percent rule does not apply.

If you laid off employees temporarily and want to bring them back, you must be extremely careful and act quickly.

Keeping in Contact with Laid Off Employees

You should be in contact with your employees. Now is a time to show them that you actually care about them. If you had a temporary layoff or are now recalling employees that were permanently laid off, then you should do things that actually demonstrate that you meant you would like to bring them back and show that you care so that you get the employees back when that time comes.

Some simple things that you can do to show that you care and keep in contact is to:

Update the contact information (phone numbers, email addresses, and mailing addresses) for all employees
If you gave a date when you expected the closure to last until then consider reminding employees and checking in before that date to inform them of what they will need to do to return to work and whether the opening will proceed on that date.
Write and send letters of recommendation for former employees if they are applying for jobs.
Do not contest unemployment and consider filing for mass unemployment while they are not working for you.
When you contact employees you need to ask how they are doing. They are human. They are going through a lot. Businesses that show that they care about their employees are more likely to succeed.

Recalling Employees

Companies need to follow their protocols to recall employees.

If a company will rehire employees that were previously laid off or recall employees that were furloughed, then the most important thing a company needs is some form of objective criteria to determine which employees they will recall if they do not recall everyone. Typically, employers would first look at their employee handbook to see whether it outlines any return to work policy. Unionized companies must follow their collective bargaining agreement. If there is no policy in place, then employers should attempt to develop a policy that they will follow.

What criteria should you consider before you bring employees back when you are not bringing everyone back?

What jobs need to be brought back? Are there any jobs that do not need to be brought back?
Will any employees need to come back before other employees? For example, some machinery may require maintenance before it is able to operate again. You may need to recall your maintenance staff first so that they can get any machinery that has been turned off up and running again.
What skills do you need? Some employees may have cross-trained and be able to fill in other roles which could be important if less employees come back to work.
Will you use past evaluations to determine what employees should not be brought back in the same job? How will you measure performance?
Are you going to use seniority?
Are there any employees that you are not going to bring back? You should document why you are not bringing back certain employees.

The most important thing to do is to document the reasons that you are bringing back certain employees. While this may seem like an easy task, how you conduct a recall will have major implications on potential discrimination claims and morale issues, and potentially WARN Act issues if you fail to recall enough workers.

Special Recall Rules for Employers with Collective Bargaining Agreements

If you have a collective bargaining agreement, then you must follow the requirements within it to recall employees. Typically, a collective bargaining agreement requires that employers recall employees by seniority in each position. If everyone is not recalled, then there may be obligations to bargain with the union.

Age Discrimination Issues

Companies need to carefully review who they plan to recall and review whether any disparate impact occurs on employees. Sometimes companies choose to use salary as a factor for returning employees. This can cause a situation where the oldest employees, typically those that have worked for a company the longest and thus have the highest salary, are not recalled because the company is trying to save money. Companies must be careful to justify the reasons that they are bringing back certain employees and not others. This kind of situation could cause an age discrimination claim.

Families First Coronavirus Response Act Issues

Any employee that is recalled will be immediately eligible to take sick leave under the FFCRA. Employees are not eligible for expanded family leave until they have been an employee of the company and on the payroll for at least 30 days. Any recalled employee will be eligible to take sick leave under the FFCRA right away and the company will need to front the money to pay for it. This may be especially difficult for companies that have been closed for more than a month.

Preparing to Reopen Your Business

There are a ton of considerations before any business reopens. A lot of it is specific to the particular business. One issue is employee safety. Lear, a Fortune 500 company that produces automotive seating and automotive electrical systems, has put together a great guide that can help companies that are preparing to reopen their business.

There are a number of factors to consider when a business reopens:

Is there enough work? Can your business reopen, or should you file bankruptcy?
How much work is there? Does your business need to bring back only certain parts of the business that are likely to be the most profitable? Will you cut other parts of the business?
Are supply chains up and running and able to provide the business with the resources that you need to make your product or operate your business?
Are your customers operating? Is there a market for your product or business? Does the business need to wait for customers to reopen first?
Have you been keeping in touch with your employees as described above to ensure that you will be adequately staffed when you reopen? Some employees may not wish to come back especially if they are collecting more on unemployment. It is entirely possible that you may need to hire new/additional employees.
Have you updated your procedures and practices before you plan to reopen? Have you reviewed all the guidance from OSHA and the CDC that apply to your business? Implementing them to the extent possible at a business is critical to protect employees and avoid potential claims against the business for failing to provide a safe working environment, worker’s compensation claims if employees fall ill, and premise liability claims from customers that get sick?
Will you train your supervisors and cleaning staff to follow guidelines from OSHA and the CDC to ensure that cleaning is properly done? Have you identified areas that will need to be more frequently cleaned? Have you instituted new policies to space out employees in hallways, lunchrooms, and their workstations as is possible in your business? Will you institute staggered lunches?
Have you updated your handbook to include policies related to leave under the FFCRA?
Have you obtained the necessary safety supplies to clean areas and protect your employees including infrared (no contact) thermometers, masks, gloves, and additional cleaning supplies? Will you be using temperature checks when employees enter the facility?
Have you trained supervisors to handle employee accommodation requests? For example, an employee with a heart condition may have a disability that needs to be accommodated. Are supervisors prepared to address any disability accommodation requests related to the coronavirus?
Do you have a plan in place to let employees know all of the extra steps that you are taking to protect them and to receive feedback on any safety concerns? Are you posting flyers related to the steps that you have taken? Again, Lear has provided flyers that can be used.

These suggestions barely begin to scratch the surface of issues that businesses must consider to reopen. Every business is unique, and it is likely beneficial for businesses to seek outside guidance about their specific business as they prepare to reopen and recall employees.

Conclusion

With an over 20% “real” unemployment rate, many people in the country are suffering. This is not going to end soon. A lot of capital has been lost, supply chains have been destroyed, and the economy has changed forever. The more preparation businesses do to reopen, the more likely they will be successful in doing so.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Crisis Management: Employees and COVID-19 (Coronavirus)

Published by Brett Holubeck on April 17, 2020

Image of a medical person to illustrate employees that are working through the COVID-19/Coronavirus crisis. — Photo by Hush Naidoo on Unsplash

Anyone that is working right now is aware of the coronavirus. It is all over the news and is impossible to avoid. Every day the death toll is updated, and more infections are found. Moreover, the news reports are saying that the US may face 18 months of rolling shutdowns. The reality is, businesses will be dealing with COVID-19 (the Coronavirus) for the foreseeable future.

Last week I gave some tips on managing remote employees in light of the COVID-19 crisis. This week I thought I would talk about managing and working with the employees that are on the front lines: the essential workers.

What is an Essential Worker?

Most states are following the guidelines from the Cybersecurity and Infrastructure Security Agency (CISA) regarding what is and what is not an essential business. Some states have issued additional requirements on what is an essential business. Texas is following the “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response” from the CISA also.

The CISA has several categories of essential workers by industry including 1) healthcare, 2) law enforcement, public safety, and other first responders, 3) food and agriculture, 4 energy, 5) water and wastewater, 6) transportation and logistics, 7) public works and infrastructure support services, 8) communications and information technology, 9) other community or government-based operations and essential functions, 10) critical manufacturing, 11) financial services, 12) chemical, 13) defense industrial base, 14) commercial facilities, 15) residential/shelter facilities and services, and 16) hygiene products and services. You can read more about whether a business essential here.

Basically, essential workers are the ones that are striving to keep the country running by curing people that are sick, providing food, manufacturing needed goods, and making sure that everything is continuing to operate in this crisis. They are still coming to work every day. They are the nurses working in the emergency rooms putting themselves at risk with people that may be affected with COVID-19, the grocery workers that are stocking the shelves and serving customers, the nursing home staff that are caring for patients, and the food processing workers that are continuing to make products. They are the millions of people that are fighting day in and day out to do their best to keep people safe, fed, and cared for.

What Are They Feeling?

Employees are stressed. Businesses are worried. For employees that are “essential employees” many are extremely concerned about getting sick. Some of them are getting their wills done in case they die from the coronavirus. They are facing their own mortality in this crisis. Many are worried about taking care of their kids. A few are not going home because they are afraid of spreading the disease. Some essential employees are worried about paying their bills.

How Can Companies Help Essential Workers?

Safety Comes First

Employers must take action to keep employees safe and show employees that their safety is important while the world is facing this crisis. Some companies have already started to be sued by employees that have gotten COVID-19 at work and more lawsuits are sure to follow. There is a lot that employers can do to help prevent employees from getting sick and keep them safe.

Post the OSHA poster on COVID-19 in your workplace and follow the recommendations within (it is available here). You should also post information about washing hands around the facility.
Make efforts to obtain masks and other protective equipment. If you are able to obtain masks, then you should require employees to wear them. If you cannot obtain sufficient masks, then you should suggest employees wear masks or other cloth coverings that they bring from home if they are available.
Contact your worker’s compensation insurance provider to ensure that they are prepared to address any COVID-19 related claims in the workplace.
Follow all CDC recommendations to the extent possible at your operation
You should also follow guidance from OSHA regarding protecting employees.
Transition employees to remote work if possible.
Clean and disinfect all surfaces that are touched by employees frequently (doorknobs, light switches, microwaves, coffee makers, keypads, and other flat surfaces).
Space out employees in areas like hallways and lunchrooms.

Employees need to actually see that you are doing these things to understand how their employer is engaging in crisis management. Now is the time to emphasize your open-door policy. Employers should hold meetings with small numbers of employees, provide memos, and post fliers to explain all of the steps that they are taking to care for their employees. Managers and supervisors should call employees that are working remotely and essential employees that are present to ask how they are doing. Managers should ask employees if there is anything the employees need to do their jobs. Companies must empower employees to bring problems to your attention. Any employee complaints should be taken very seriously, and immediate action should be taken, if possible, to remedy the problem. Employers should then follow-up with employees about the steps that were taken to correct the problem.

If Employees Walkout

Employees have a right to walk out because they are concerned about COVID-19 and their safety in the workplace. This action is a type of concerted action that is protected under Section 7 of the NLRA. Employees refusing to work because they believe that they are in danger are also protected under Section 13(a) of the OSH Act.

Employees should not be disciplined, terminated or threatened if they walk out. Employers should try to address any issues that the employees raise about their safety and take additional steps to ensure employees that they are doing their best to keep employees safe after a walkout occurs. The best thing that employers can do to prevent a walkout and address any fallout from one is to constantly communicate the steps that they are taking to keep employees safe and make adjustments as employees raise issues and as new guidance on keeping a safe workplace is released. Companies should follow all guidelines from the CDC and OSHA to ensure that they are doing all that they can do to keep employees safe.

Conclusion

Crisis management is different than the day-to-day operations of a company. This is the time when companies can either succeed or fail, when your employees will either believe that you care about them or not. A good company will act because they care about employees. Employees recognize when an employer actually cares about them and this causes their morale to increase.

Employers have a great chance to build morale and better their company. Every business is unique, so every company needs to conduct its own assessment of its workplace and workforce to determine the best approach to take. The worst thing that companies can do is to keep working as if nothing has changed. We are in a crisis. COVID-19 (the coronavirus) has dramatically changed the workplace. All companies need to recognize that and take action.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Remote Work and COVID-19

Published by Brett Holubeck on April 8, 2020

Things are not fine. Like really not fine. Work is not normal. Employees are trying to take care of their kids, work, find toilet paper (and other household goods), and maintain some kind of normalcy in light of the COVID-19 pandemic.

Remote work is a benefit that a lot of employees want in normal times. In the time of COVID-19, remote work is a smart way to protect employees that do not physically need to be present at work. Prior to this outbreak, CNBC published an article and stated that one “Gallup survey found that 43% of Americans work from home occasionally and according to Quartz ‘5.2% of U.S. workers completely worked at home in 2017.”’

Many people desire to work from home, but the coronavirus has given many employees the chance they never had before. The result of the COVID-19 pandemic may indeed include a surge of flexibility for workers and greater opportunities for them to work from home.

For those of you that are concerned about the effects on the productivity of your workforce. One company did a two-year experiment with its employees. It had one group work from home and another group came into work. As stated by Scott Mautz on Inc. Magazine, they found:

[An] astounding productivity boost among the telecommuters equivalent to a full day’s work. Turns out work-from-home employees work a true full-shift (or more) versus being late to the office or leaving early multiple times a week and found it less distracting and easier to concentrate at home.
Additionally (and incredibly), employee attrition decreased by 50 percent among the telecommuters, they took shorter breaks, had fewer sick days, and took less time off. Not to mention the reduced carbon emissions from fewer autos clogging up the morning commute.

However, 50% of the workers did not want to work from home all the time as they did not like the isolation. Employees want the opportunity to get to know their coworkers and be a part of the team. It may be best for employers to limit remote work to 2 or 3 days per week while requiring employees to come into the office for the other days.

However, for now we are isolated and if we are working, it’s likely from home. With the current pandemic in full swing, here are some things to consider right now.

Managing Remote Work

Managing employees when you see them on a daily basis is difficult enough. It becomes even more tricky to manage employees that you do not see (especially in light of the lockdowns from the coronavirus).

To manage employees properly, you must set clear expectations. For some employees, this will be relatively easy. A lawyer may be expected to answer emails, phone calls, and draft motions just like they would normally do in the office. Little may change for them. It looks different for other employees. Some employees that are a part of teams or work closely with other employees regularly may need to set up Zoom, Microsoft teams, or other video conference meetings to discuss their progress, reassign projects, and determine how everything will be integrated with what work has been done.

There are many ways that companies attempt to monitor employee progress and assign tasks.

Some are using software to track when an employee is active at the computer. These usually measure when an employee is active on their computer, but often does not give much more useful information.
Other companies are having employees make a report back to their managers at the end of each day with the work that they completed.
More tech savvy companies are using project management software like Trello to assign and manage projects. One positive thing that may come out of this is that more companies may recognize various tools that they can use to assign projects to individuals that will hopefully allow more employees to work remotely.

Maintaining Culture

One of the biggest problems with remote work is learning how to intentionally and thoughtfully maintain a workplace culture that is welcoming without employees being in the same place. People can quickly tell whether someone actually cares about them and whether they are a part of the team. There are a lot of horror stories about companies neglecting remote employees especially during the onboarding process. In light of the pandemic, showing your employees you actually care about their well-being and the well-being of those they love is pivotal. Managers need to ask employees how they are doing; they should ask whether their kids and loved ones are okay and if there is anything they can help with.

Managers need to have ways to connect with the employees. They should have meetings with the employees, encourage employees to openly communicate, and give employees the opportunity to provide feedback to managers on how things are going and whether any changes need to be made to the work. Supervisors must set expectations on how employees should communicate with them (is there a set time to call or contact them when they will be able to separate themselves from any family members that are nearby). Companies should also set up a virtual place for employees to communicate (like a Slack channel). A slack channel or other platform is a great way for employees to have a virtual water cooler to be able to keep in contact with each other (even sharing gifs and other funny images).

Some employees may not want to tell their bosses their issues over the phone or by email. You need other ways to solicit feedback from employees in an anonymous way. https://www.sli.do/ and similar anonymous polling software can be a great way to have employees share information that they may feel uncomfortable about or are afraid that someone may retaliate against them.

Companies should also reiterate that their Human Resources personnel is available to address any problems. HR should also reach out and connect with employees that are now working remotely. It is HR’s job to discover and address employee issues and concerns. The only way to do this effectively for remote workers is for HR to reach out to them. There is no longer an opportunity for employees to walk into HR’s office or to bring up an issue as HR personnel are walking throughout the facility.

Employers may also benefit from virtual town halls where they give messages to their employees about the direction that the company is going in and address employment concerns that are relevant for all employees. A platform like sli.do also allows employers to gather questions in real time or before an event, and allows employees to submit both with their name or anonymously.

It may be harder to keep tabs on what employees are feeling and how well they are doing in the current situation. You need to encourage them to let you know what they need especially now. It is a very difficult time for a lot of employees. Even if the employees are not afraid of losing their jobs, they may have a spouse that lost a job or a family member that is having problems. Supervisors need to let their team members know that employees can talk with them with any concerns.

Remote Employee Pay Issues

Many companies are struggling with managing pay issues for employees that have never done remote work.

For salaried exempt employees your pay structure does not change when they work remotely. They are guaranteed the same salary no matter the number of hours that they work (that is assuming that they do any work in a week and a limited exception does not apply).

One of the main issues with nonexempt salaried employees is making sure that they do not work over 40 hours a week. Time tracking software is essential to ensure that the employee is not working more time than they are supposed to work or that they are compensated if they are working. Some companies have installed software on computers to do this and many programs can be installed remotely if the employee was recently given a computer.

The biggest problem comes from what should be done with hourly workers. Off the clock work can be incredibly problematic and difficult to track. All companies should have a written policy that states that these employees are not to work off the clock, must report their hours accurately, and cannot work overtime without approval. Employees should sign and date this policy. Employers still need to pay employees that work overtime without approval but can discipline the employee.

Again, timekeeping software is the best option to measure how long these employees work, but other methods (including employees tracking and reporting their own hours) can be used if the software cannot be bought and set up.

Confidential Information

One of the most important considerations for companies that have telecommuting employees is protecting information. This not only means making sure that a hacker does not steal the information, it also means that employees do not take confidential information. Companies must be careful with how employees are transmitting information at home. Many programs have remote logins that can be used to securely view sensitive information even when the person is on their personal Wi-Fi.

All companies should take steps to protect their data by having a cybersecurity policy, purchasing and encouraging employees to use a virtual private network (more commonly known as a VPN), and installing encryption software on company computers.

I-9 Verification Issues

Every employee must fill out an I-9 when they are first hired. Employers normally cannot complete the I-9 form remotely. Companies must review the applicant/new hire’s documents in person. With COVID-19 (the Coronavirus) raging, this is one rule that has been relaxed. Remote workers no longer need to present documents physically. Companies can now view the documents through video and write COVID-19 as the reason for the delay in physical inspection on the relevant part of the I-9. They will need to review the documents physically once this disaster is over.

You can read more about I-9 issues in this past article I wrote here.

Workplace Injuries at Home

OSHA, Remote Work, and COVID-19

OSHA requires employers to keep safe workplaces. However, OSHA has said: “OSHA will not conduct inspections of employees’ home offices. OSHA will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.”

Employers that allow employees to work at home should have a policy that requires telecommuters to state that they have a dedicated workspace where they can work at home and that the space is safe. In these current times, it is probably not possible to ensure that telecommuters have such a space, so companies must be aware of this risk.

Workers Compensation Issues

An employee that is injured when working from home could be entitled to workers compensation. An employee injury is typically covered by workers compensation insurance if the injury “arises out of and in the course of employment, regardless of the location the injury occurs.”

One of the most unbelievable workers compensation cases, was the case of a French man who died from a heart attack after having sex with a stranger on a business trip. A court found that his company was liable and his death was a workplace injury since it occurred on a business trip. The result likely would have been different in the US.

In the current case of remote workers, tripping over their dog could be an injury that would entitle them to worker’s compensation coverage or stepping and subsequently tripping on a Lego (which hurts a ton more than it should). Basically, the employee’s home is now their work environment and companies may be liable for injuries that occur there. Many companies need to check their coverage to ensure that these injuries are covered under their current policy.

One suggestion by SHRM to minimize liability for these injuries is to “[s]et fixed work hours and meal and rest periods for telecommuters. Doing so can help establish whether an injury was ‘in the course of’ employment.”’

Conclusion

These are not normal times to conduct remote work. Many companies are trying their best to quickly address issues as they arise and that really is the most important thing that they can do. All companies need to work with their employees, take feedback from them to improve the current remote work situation, and adjust the way that they are managing based on feedback. The next couple of months will offer a great opportunity for companies to improve their telecommuter policies and practices which ultimately will make many businesses better.

The information provided is my own and does not reflect the opinion of my firm or anyone else.