It’s hard to believe almost two months have lapsed since non-essential businesses in New York (NY) were forced to close or shift to 100% remote work. While President Trump has unveiled Guidelines for Opening Up America Again, a three-phased approach based on the advice of public health experts, each state will ultimately be responsible for its own plan.
On April 27, Governor Cuomo outlined a phased plan to safely reopen NY using a regional approach. Phase one could begin as soon as May 15, with the plan to reopen low-risk construction and manufacturing businesses in parts of the state that have experienced a 14-day decline in the hospitalization rate. Phase two will open certain industries based on priority and risk level. Businesses considered “more essential” with inherent low risks of infection in the workplace and to the customer will be prioritized.
The Governor indicated there will be a two-week waiting period between phases to monitor the effect, which will help ensure that the hospitalizations and infection rates are not increasing as some workers begin to return to work.
Businesses will need to create plans that include new measures to protect employees and consumers, including the implementation of processes that lower the risk of infection. The state is consulting with local leaders in each region and industry to formulate these plans.
While we don’t know exactly what the State’s reopening plan will entail, we do know, based on CDC and other guidance, what employers should start considering now to begin developing their own plan to reopen. While awaiting further state-specific guidance, employers should start assessing their businesses and outlining steps they will take to safely reopen their business, including practices that will be put in place to continue to minimize the risk of spreading the virus to employees or customers.
Components of a Post-COVID-19 Return-to-Work Plan
Your first step will be to ensure you are prepared to establish and maintain a healthy work environment. The CDC recommends identifying a workplace coordinator who will be responsible for COVID-19 issues and their impact at the workplace. This is a critical role, particularly because CDC guidance changes regularly as new information becomes available or as the situation evolves. It’s anticipated that the crisis will extend beyond the reopening of businesses, at least until there is a vaccine. Therefore, it is important to have someone dedicated to staying on top of changes who can also then assess the impact of those changes on your specific workplace, as well as identify and implement updates to your operations, as needed.
The plan should start with an evaluation of your staffing and operational needs to determine who should return to work first by identifying essential functions and essential personnel. This is important to ensure your staff can maintain appropriate social distancing measures, when back in the workplace, including assessing the level of interaction with customers or the general public, business travel, etc., and determining what is essential and what protocols will need to be in place to keep your employees and your customers safe.
Next, identify practices the business will have in place to minimize or prevent the spread of the virus in the workplace, including personal protective equipment, such as the required or optional use of facemasks, as well as routine cleaning and disinfection standards. You will also need to consider if implementing measures such as the use of Health Screening Questionnaires or temperature checks is right for your business, and if so, put measures in place to manage those processes properly and in compliance with applicable laws and CDC guidance.
Understanding the risk of future exposure is high, part of each employer’s re-opening plan should include having a process to address scenarios where an employee tests positive, is presumed positive, or has been directly exposed to an individual who has received a confirmed or presumed positive diagnosis. The plan should include: (1) the need to self-quarantine; (2) an assessment to determine if others in the workplace were exposed and may need to self-quarantine; (3) implementation of proper cleaning protocols; and (4) procedures for recording and/or reporting a confirmed case of COVID-19 in the workplace pursuant to OSHA standards.
Wage and Hour & Benefit Considerations
As you prepare to reopen, also be mindful of potential wage and hour issues that may arise based on changes made in the organization. In some cases, employees’ wages may need to be adjusted to off-set financial challenges that the business is facing. While you can do this, you’ll still need to ensure that non-exempt employees are paid at least minimum wage for all hours worked and salaried employees must still receive the minimum salary for their applicable exemption. Under federal law, the minimum salary for exempt employees is $684 per week (or $35,568 annually). States may have a higher threshold that employers would have to comply with. For example, in NY the minimum salary for the Executive and Administrative exemptions is currently $885/week ($46,020 annually), outside of New York City, Nassau, Suffolk and Westchester counties, where it is even higher. Be sure to check your state-specific rules to ensure if you are reducing an exempt employee’s salary that it does not fall below the minimum required threshold.
Additionally, NY employers are required to provide an updated Wage Theft Protection Act (or Pay Rate) notice if an employee’s wages are decreased or if other changes to the employee’s pay status change, such as a change from exempt to non-exempt status. A change from exempt to non-exempt may be required if either the employee’s salary falls below the minimum required for the exemption, OR if job duties change such that the employee’s primary duties no longer meet the duties required under one of the “white collar” exemptions. This could occur if you are bringing back less workers and have exempt employees taking on additional duties that may include functions previously performed by a non-exempt employee. Review and update job descriptions if job duties are changing and conduct an FLSA analysis to confirm the appropriate designation of either exempt or non-exempt, based on salary level and job duties.
Also think about the impact to any benefit offerings and whether changes are necessary. If the employer paid the employee’s portion of benefit premiums during a period of furlough, evaluate if the employee will be required to repay those contributions and prepare reasonable repayment plans, that comply with applicable state wage deduction laws.
Employee Relations Considerations
Naturally, employees may have fears about returning to work or be dealing with additional personal issues that may inhibit their return. Therefore, part of your plan will need to focus on employee relations and ensuring managers are equipped to address issues that may arise. Some of the employee relations issues you should be prepared to address include:
- Requests to continue working from home
- Employees grieving the loss of loved ones
- Financial difficulties
- Workplace discrimination or harassment
Work from home requests may range from personal preference (employees who enjoyed the experience while “forced” to do so; those who have continued childcare challenges; or employees who are fearful, either due to their own underlying health condition or fear of exposing vulnerable family members. Regardless of the reason, be prepared to assess and respond to such requests.
Also consider that employees returning to work may have experienced challenges during the pandemic that they’re still grappling with, including the loss of a loved one or financial challenges due to the virus. Employees’ lives (and our own) have been upended due to the pandemic and we can’t simply return to life as we knew it before the outbreak. It will take time for people to recover. Employers should be empathetic to that and work with employees, to the extent possible, while also managing the needs of the business. If ever there was a time for a workplace benefit such as an Employee Assistance Program (or EAP), this is probably that time! If your company does not currently offer an EAP, speak with your broker to determine if EAP benefits are included in your current insurance offering or look at the option of adding an EAP as a benefit when the workplace reopens.
Another employee relations challenge to be mindful of is the potential for discrimination. For example, references to “Chinese virus” or other perceived or blatant discriminatory treatment of individuals based on their race (or any other protected class). Supervisors and managers should be trained on non-harassment and non-discrimination and ensure they know how to properly address and report any potential harassment or discrimination they see or hear in the workplace.
Communication is Key
Throughout your planning and reopening process, keep the lines of communication open with employees. If employees have been furloughed, stay in touch periodically, and keep them apprised of the Company’s plans to reinstate them, when able to do so. Also ensure you are communicating to all employees the efforts the Company is taking to ensure worker safety when you do reopen.
This article provided a high-level overview of key areas for every business to consider; however, depending on the size and nature of your business, and the specifics of your current situation, the details of your plan will vary. When it’s time for your business to reopen, be sure to review and follow guidance provided by your state and local health authorities, OSHA and the CDC, and work with your legal counsel to ensure the specifics of your situation are appropriately addressed. Additionally, we have developed a Return to Work Checklist, which can be downloaded here.
HR Works is also available to help. Clients can reach out to their designated Onsite Consultant, HR Strategic Services Partner, or our HR Helpline for tools and resources, including a return to work packet and more information on developing your plan and updating policies and procedures to ensure your employees and customers remain safe and you have protocols in place to minimize or stop the spread of the virus, when you do reopen. If you are not currently an HR Works client and need our compliance expertise and support, please contact email@example.com, go to the “Contact Us” section of our website or call 1-877-219-9062. We will connect you with a representative who can provide additional information about our services.
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