How Small And Medium Size Businesses Can Prepare For The Impact Of Covid 19 - Part 2

March 15, 2020
How Small And Medium Size Businesses Can Prepare For The Impact Of Covid 19 - Part 2

The COVID-19 pandemic is causing a lot of uncertainty and concern for everyone across the globe. As a small and medium size business (SMB) owner you are likely facing challenges that are unique to those faced by larger corporations, and it’s also likely that you may be unsure about steps to take to protect and support your employees while ensuring you’re doing all the swiftly changing laws require. We are here to help you navigate these unprecedented times.

Last week, we kicked off our COVID-19 blog series that addresses questions that are top of mind with our SMB clients—with answers from experts. Today’s blog tackles more questions with answers that have come in as COVID-19 continues to evolve.

In addition to the blog, we hosted a webinar on March 17, in collaboration with national employment law firm, Fisher & Phillips LLP, to provide critical up-to-date information related to legal and compliance requirements in direct response to questions that small and medium size businesses are asking.

1. What actions do I need to be prepared to take should one of my employees receive a Coronavirus diagnosis? Should I make employees get a letter of clearance to return to work? What if employees are sick but we are not sure if they have the Coronavirus? Can we require they be tested?

First and foremost, the health of all of your employees and the local communities in which you operate should be taken into consideration. If the employee is at work when the diagnosis is received, they should be sent home immediately, otherwise, you should not permit them to come to work. Before permitting the employee to return to work, make sure to follow guidance from the CDC and health care providers to confirm that the employee is able to return to work in a way that does not cause danger to themselves or others, this should include requesting a medical clearance from the affected employee’s medical provider. Make sure to follow up with the employee as quickly as possible by phone and ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days and then you should also send home all employees who worked closely with that employee for 14 days. This should help prevent the infection from spreading. This is a sensitive time for everyone and you will want to be sure you are cognizant of the privacy of the infected employee. Do not identify any employees by name and do not comment on rumor inside your company by enforcing a commitment to the privacy of all employees. You may also want to consider asking a cleaning company to undertake a deep cleaning of your affected workspaces.

The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. If any employee presents themselves at work with a fever or difficulty in breathing, this indicates that they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having the Coronavirus is extremely low, it pays to err on the side of caution. It is important to help create an environment that doesn’t cause additional panic or concern for your employees; this is a time of stress and anxiety for a lot of people, so it is important that you help to retrain your supervisors on the importance of not overreacting to situations in the workplace potentially related to COVID-19. You are permitted to ask your employees to seek medical attention and get tested for COVID-19.

Last week, one of the questions we answered was about whether COVID-19 is covered by workers’ compensation. It is important to note that OSHA recently released guidance that employers must track and record instances of workers’ contracting the virus on the job on their 300 logs. Coronavirus can be a recordable illness and you should be tracking any incident of infection in the event that a claim is later made that it was contracted in your workplace.

2. What employee compensation and other factors should we consider if our business is required to shut down due to Coronavirus?

These are unprecedented times for all of us. If this event does occur in your business, it is important to plan and think about many factors; if your workplace temporarily closes and employees are not able to work remotely, you should consider:

  • PTO policies;
  • Sick leave policies;
  • Leave of absence policies;
  • Whether STD insurance is available; and
  • Whether unemployment is available.

There are many resources available to you, so please consult guidance available from state resources. For example, both California and Washington have adopted emergency rules and procedures to allow employees to be eligible for unemployment benefits if work is disrupted by the Coronavirus outbreak. Federal legislation is likely to be enacted to assist employees who experience financial hardship related to the Coronavirus by expanding unemployment insurance benefits and there will likely also be assistance available to SMBs with respect to short-term liquidity issues.

A temporary shutdown may implicate federal and state worker notification statutes. Regarding payment of wages, generally, hourly employees who are not working are not required to be paid, note that some federal and state based emergency legislation is under consideration that may change this position. We will update this blog as necessary if that occurs. Special rules may apply to employees who are exempt from overtime (exempt salaried employees and nonexempt, salaried employees who are paid based on the fluctuating workweek) that require payment of the full week salary for any week in which the employee performs any work. These employees must be paid their full salary if the employer shuts down its location in the middle of the workweek.

3. Can I make temporary changes to company policies (e.g. implementing a remote work policy) in order to minimize the risk of Coronavirus impacting my workplace?

Yes, you can—and in many cases you should—implement or amend policies and procedures to address concerns with regard to the Coronavirus. It is very possible that your current policies may not address the unique circumstances posed by the Coronavirus. Many companies are implementing or amending sick leave, PTO and remote work policies. Other companies are taking precautionary measures to require employees to stay at home following travel.

Before changing policies, you will need to carefully consider your organization’s circumstances, your geographic footprint and the nature of the services provided by your company. For example, before instituting a work from home program, you will want to identify roles that are critical to your business operations and first determine whether your employees can effectively carry out their jobs from home. Consider whether you have the IT resources to support remote workers, and if you can, test issues like bandwidth ahead of shifting to a complete work from home strategy.

Keep in mind that federal and state laws do not prohibit employers from changing their policies so long as it is done in a non-discriminatory manner. Care should be taken that you don’t inadvertently run afoul of federal and state discrimination laws, and beyond the law, please do remain cognizant of your employee’s personal situations. Many employees are in challenging situations dealing with school closures and other changes to their regular home life; changes to work policies while welcome, can have inadvertent consequences. It is unlikely you will have an answer to every individual situation that comes up, but before you make changes, commit to your overarching philosophy regarding the changed policy so that you have a framework against which to make the inevitable case by case decisions that will come up.

We anticipate that Congress and the administration will enact comprehensive measures shortly to support employees and businesses. We understand that in these times there are so many unanswered questions for your business. TriNet will continue to monitor the situation and will strive to provide updates as it develops for small and medium size businesses.

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

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