How Employers Can (and Should) Protect Themselves

Just as it’s important for employees to navigate through this new normal of telecommuting and transitioning back into the workplace, it’s important for employers to understand the myriad of new laws that have gone into effect during the pandemic.

The primary concern for employers is, of course, to keep their workforce safe. That means that, even as shelter-in-place orders are lifted, there will be a new emphasis on worker safety and preventing further spread of coronavirus, as well as a new consideration of disease spread in general. It’s likely that new corporate policies such as an airborne infectious disease policy will become commonplace. These policies will establish procedures for ensuring that sick employees remain home, as well as removing employees from the workplace who become ill. It will also establish written procedures relating to cough and sneeze etiquette, hand washing and high-touch surfaces.

“Well-advised employers will monitor the CDC guidelines, and incorporate them as closely as possible into workplace procedures,” says Jay Putnam, a Petaluma-based attorney at law. He has more than 30 years experience advising and representing employers in all areas of labor and employment law, specializing in guiding employers through the maze of labor laws.

Jay Putnam, Petaluma-based attorney at law

“Workplaces will be governed by the new emphasis on social distancing and workplace sanitation, including policies which mandate frequent hand-washing with approved anti-microbial soaps, wipes and masks, Zoom or Skype meetings in lieu of in-person meetings and policies which facilitate a minimum number of employees present in the same location at any given time such as staggered shifts” he says. “Increased janitorial sanitizing, particularly of bathrooms, break rooms and other common areas, will be introduced. Engineering modifications will be commonplace, ranging from ‘windshields’ at the market check-out stand to ventilation systems that introduce more fresh air.”

With changes in the workplace and the laws surrounding them moving so quickly, it has been difficult for employers to keep up with the new legislation. In March and April, the Families First Coronavirus Response Act (FFCRA), the Emergency Family and Medical Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA) all went into effect.

These laws imposed an abundance of new legal obligations on employers. For one, they require employers of 500 or fewer to provide a leave of absence option for employees, lasting as long as 12 weeks, for coronavirus-related reasons. The rules concerning which employees qualify are subject to a great deal of confusion, as are many aspects of each new statute. Putnam has received many questions pertaining to whether the new paid leave can be taken a few days at a time, or whether it needs to be taken all at once. Other questions relate to whether employees can stay home because they don’t feel safe being at work, even if they don’t have symptoms.

“Family leave and some sick leave can be taken intermittently, if both the employer and employee agree, and employees must have symptoms consistent with coronavirus or require family leave for pandemic-related reasons to have a legal right to take leave,” explains Putnam.

Besides understanding the new legislation, it’s important for employers to protect themselves, both in terms of actual infections and from lawsuits. To protect themselves and their employees from infection, employers should first and foremost follow the CDC guidelines. For legal protections, Putnam has several suggestions.

“First of all, the pandemic impacts virtually every area of employment law,” says Putnam. “Employers can expect an avalanche of new litigation, starting in the next few months. As a result, I encourage every employer to seriously consider a written arbitration policy. If properly drafted and distributed, this will allow a neutral arbitrator to decide a legal dispute, as opposed to a jury.

“Juries are infamously pro-employee, probably because far more employees than employers are seated on juries, given the disparity of their representation in the general population. As significant, defense costs are as much as 90 percent less than litigating a similar dispute through a jury trial. In practice, this means that many more employers can afford to defend themselves if accused of wrongdoing. This is no small matter when defense costs alone can approach or even exceed a million dollars.”

Putnam also highly recommends developing an airborne infectious disease policy. The policy would accomplish several things, including identifying an employee who coordinates coronavirus-related issues, from communicating with employees, to interfacing with authorities in the event of an outbreak, to removing employees suspected of infection. It would also establish the employer as being firmly in charge of crisis management, with a decisive and credible plan, while combining messages of compassion and hard truth to encourage strong bonds of credibility and good will among the workforce.

In addition, with the proliferation of employees working from home, certain issues surrounding these arrangements should be addressed in revised employee handbooks, such as requiring employees to designate a fixed location at home where all employment work is performed and which is in compliance with workplace safety standards. Because remote work frequently requires employees to purchase office supplies and other work-related materials, handbooks must update employee reimbursement policies to reflect the “new normal” of remote work.

“As the economy reopens, there are several themes employers should prioritize,” says Putnam. “These include monitoring the CDC guidelines, which are frequently updated. The more workplace policies comply with these, the safer the workforce will be from infection and the safer the employer will be from lawsuits. The airborne disease policy should emphasize the employer’s commitment to coordinate its policies with the CDC.” According to Putnam, employers are advised to take ample precautions in the age of COVID-19, erring on the side of caution. “I would strongly recommend that employers have an updated employee handbook, including an arbitration policy and an airborne infection policy ready for distribution to employees at the time they return.”

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