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COVID-19: Answers to everything employers are asking right now

(BUSINESS NEWS) Can an employee refuse to work for fear of COVID-19 infection? Can we put employees on unpaid leave of absence? Can we ask for medical information? One Texas law firm answers these and other questions.

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covid-19 work from home

Our globe is officially somewhere we haven’t been in modern history, as the COVID-19 pandemic chokes off businesses worldwide, leaving confusion in its wake. Employees have been Googling their rights, but employers are in an equally tenuous position.

Fortunately, Texas law firm, Bell Nunnally is on top of it, not only putting together a library of resources, but noting, “we know your business is determined to continue forward, as is ours. Our attorneys and staff, along with our files and documents, remain fully accessible, as they always have been.”

To that effect, they published a full list of questions and answers on Tuesday, and the following guidance is in their own words from Bell Nunnally website:

U.S. employers are in uncharted territory in the wake of the Coronavirus pandemic. The following is guidance for employers based on the information currently available. As the situation continues to evolve on a daily basis, our team will continue to keep you apprised of relevant developments. As always, please feel free to call us with additional questions.

Can we put employees on unpaid leave of absence?

Yes. Employers in Texas can put employees on an unpaid leave of absence to ensure the safety and security of its workplace. Employers should be careful to use reasonable, non-discriminatory measures to determine who should be put on a mandatory leave. The Occupational Safety and Health Administration (OSHA) has published guidelines for employers to use to protect their workforce.

During the H1N1 pandemic, the Equal Employment Opportunity Commission (EEOC) stated that requiring workers to go home is not disability-related if the symptoms present are akin to the seasonal influenza or the H1N1 virus. Therefore, an employer may require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the flu. Employers may also consider implementing a mandatory quarantine policy for employees who have come in contact with an infected person or have recently traveled to severely impacted parts of the country or the world, such as Seattle or China. The CDC has issued guidance suggesting the incubation period for the virus can be as long as 14 days so employers may choose to require a 14-day quarantine for employees returning from severely impacted areas. Employers should be careful not to rely on stereotypes or target specific groups by race, religion or national origin in determining who should go on leave.

An extended unpaid leave—especially in the case of a 14-day quarantine—could have a tremendous financial impact on some workers. While not required by law, employers may consider some partial pay options in the event an employee is put on leave due to possible Coronavirus.

Employers should also consider work from home possibilities to allow employees to continue working without risking the health of the workplace.

Congress is considering expanding Family Medical Leave Act protections to families impacted by COVID-19 and requiring employers to provide some form of paid sick leave. As of today, the legislation has not passed the Senate.

Can we ask employees for medical information?

It depends. The Americans With Disabilities Act (ADA) prohibits employers from requiring medical examinations and making disability-related inquiries unless: (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity; or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation. The EEOC’s position during a pandemic is that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” Given that President Trump declared Coronavirus a “national emergency” on March 13, 2020, it is likely reasonable for employers to make health-related inquires and/or take the temperature of a potentially ill employee. That being said, employers should limit the focus of the inquiry to determining whether the employee may have contracted Coronavirus and limit that information to the smallest number of people that “need to know” in the organization. Employers must protect the health information of employees, which would include any documentation related to Coronavirus to be housed in the employee’s medical file separate from the standard employment file.

What if an employee tests positive for the virus?

  1. Employees who test positive for the virus should be required to notify management as soon as possible. Employers should designate one person with management as the recipient of this information.
  2. The employee should be sent home immediately and instructed to follow up with his or her primary care provider. The employer should not allow the employee to return to work until he or she is symptom-free for at least 14 days.
  3. The identity of the infected employee must be kept confidential and shared only on a “need to know” basis.
  4. Employers should ask the employee to re-trace his or her steps to identify all office areas and co-workers with which the employee interacted.
  5. Extra measures should be taken to sanitize any areas of the office that the infected employee trafficked.
  6. Without disclosing the identity of the infected employee, co-workers who may have had contact with the infected employee should be notified so that they can self-monitor their condition. The employer should also consider having those potentially infected co-workers self-quarantine at home for up to 14 days.

Can an employee refuse to come to work because of fear of infection?

Only if the employee reasonably believes he or she is in imminent danger, which essentially means that he or she reasonably thinks that reporting to work would result in immediate death or serious physical harm. While asking an employee to travel certain parts of the world (i.e., China, Italy) may rise to this level, coming to work in the United States is unlikely to rise to this level based on the information available now. However, employers should remain sensitive to employee fear as we progress through the pandemic and try to work cooperatively with employees to keep everyone safe, calm and working.

Do short term disability or business interruption insurance cover this?

Employers should contact their short term disability carriers to inquire as to whether Coronavirus would be a covered illness under their policy. Often there is a one-week waiting requirement before benefits begin, so in some cases, the employee may not qualify if the mandatory leave is less than one week. Similarly, the employee would not qualify if he or she is asymptomatic but simply quarantined.

Unfortunately, most business interruption policies require some type of property damage for coverage to apply. But employers are encouraged to contact their insurance brokers or carriers to evaluate what coverage may be available.

What if my company is a nonsubscriber to workers’ compensation insurance?

For Texas nonsubscribers to workers compensation employees testing positive for the virus are likely not covered under your work injury benefit plans. The benefit plans are designed to cover only those work injuries suffered in the “course and scope of employment.” For that reason, the benefit plans only cover “occupational diseases” (those encountered exclusively in the workplace), not diseases the general population is exposed to. Even if an employee contends they were infected by a co-worker who was previously diagnosed, it is just as likely that employee was infected outside of work in the multitude manners in which the virus is transmitted in the community.

What should employers be doing?

  • Plan – Develop an emergency response plan, which may include increasing employee ability to work from home in the event of a quarantine.
  • Sanitation – Implement increased sanitation measures, which may include enhanced cleaning of commonly touched surfaces, providing hand sanitizer or gloves and posting signs that require frequent hand washing.
  • Limit travel – For a limited period, consider restricting, or outright banning, travel by regional managers, salespeople and other employees who travel to other locations as part of their work routine. Instead, instruct them to conduct their work by phone or skype.
  • Isolation Policy – Develop a policy on how to reasonably identify and isolate potentially infected employees in a non-discriminatory manner.
  • Hotline – Larger employers may consider setting up a hotline so that employees can report they are experiencing symptoms and receive direction to a company-designated testing facility. Employers can likewise have payment set up with that facility as a benefit for their employees so the testing is free to the employee. As test kits are currently scarce, be advised that facilities are not obligated to test all people desiring a test, only those meeting the CDC testing criteria.
  • STAY CALM. Together, our communities and businesses will get through this.

 

The American Genius is news, insights, tools, and inspiration for business owners and professionals. AG condenses information on technology, business, social media, startups, economics and more, so you don’t have to.

Business News

You should apply to be on a board – why and how

(BUSINESS NEWS) What do you need to think about and explore if you want to apply for a Board of Directors? Here’s a quick rundown of what, why, and when.

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What?
What does a Board of Directors do? Investopedia explains “A board of directors (B of D) is an elected group of individuals that represent shareholders. The board is a governing body that typically meets at regular intervals to set policies for corporate management and oversight. Every public company must have a board of directors. Some private and nonprofit organizations also have a board of directors.”

Why?
It is time to have a diverse representation of thoughts, values and insights from intelligently minded people that can give you the intel you need to move forward – as they don’t have quite the same vested interests as you.

We have become the nation that works like a machine. Day in and day out we are consumed by our work (and have easy access to it with our smartphones). We do volunteer and participate in extra-curricular activities, but it’s possible that many of us have never understood or considered joining a Board of Directors. There’s a new wave of Gen Xers and Millennials that have plenty of years of life and work experience + insights that this might be the time to resurrect (or invigorate) interest.

Harvard Business Review shared a great article about identifying the FIVE key areas you would want to consider growing your knowledge if you want to join a board:

1. Financial – You need to be able to speak in numbers.
2. Strategic – You want to be able to speak to how to be strategic even if you know the numbers.
3. Relational – This is where communication is key – understanding what you want to share with others and what they are sharing with you. This is very different than being on the Operational side of things.
4. Role – You must be able to be clear and add value in your time allotted – and know where you especially add value from your skills, experiences and strengths.
5. Cultural – You must contribute the feeling that Executives can come forward to seek advice even if things aren’t going well and create that culture of collaboration.

As Charlotte Valeur, a Danish-born former investment banker who has chaired three international companies and now leads the UK’s Institute of Directors, says, “We need to help new participants from under-represented groups to develop the confidence of working on boards and to come to know that” – while boardroom capital does take effort to build – “this is not rocket science.

When?
NOW! The time is now for all of us to get involved in helping to create a brighter future for organizations and businesses that we care about (including if they are our own business – you may want to create a Board of Directors).

The Harvard Business Review gave great explanations of the need to diversify those that have been on the Boards to continue to strive to better represent our population as a whole. Are you ready to take on this challenge? We need you.

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Business News

Everyone should have an interview escape plan

(BUSINESS NEWS) A job interview should be a place to ask about qualifications but sometimes things can go south – here’s how to escape when they do.

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interview from hell

“So, why did you move from Utah to Austin?” the interviewer asked over the phone.

The question felt a little out of place in the job interview, but I gave my standard answer about wanting a fresh scene. I’d just graduated college and was looking to break into the Austin market. But the interviewer wasn’t done.

“But why Austin?” he insisted, “There can’t be that many Mormons here.”

My stomach curled. This was a job interview – I’d expected to discuss my qualifications for the position and express my interest in the company. Instead, I began to answer more and more invasive questions about my personal life and religion. The whole ordeal left me very uncomfortable, but because I was young and desperate, I put up with it. In fact, I even went back for a second interview!

At the time, I thought I had to put up with that sort of treatment. Only recently have I realized that the interview was extremely unprofessional and it wasn’t something I should have felt obligated to endure.

And I’m not the only one with a bad interview story. Slate ran an article sharing others’ terrible experiences, which ranged from having their purse inspected to being trapped in a 45 minute presentation! No doubt, this is just the tip of the iceberg when it comes to mistreatment by potential employers.

So, why do we put up with it?

Well, sometimes people just don’t know better. Maybe, like I was, they’re young or inexperienced. In these cases, these sorts of situations seem like they could just be the norm. There’s also the obvious power dynamic: you might need a job, but the potential employers probably don’t need you.

While there might be times you have to grit your teeth and bear it, it’s also worth remembering that a bad interview scenario often means bad working conditions later on down the line. After all, if your employers don’t respect you during the interview stage, it’s likely the disrespect will continue when you’re hired.

Once you’ve identified an interview is bad news, though, how do you walk out? Politely. As tempting as it is to make a scene, you probably don’t want to go burning bridges. Instead, excuse yourself by thanking your interviewers, wishing them well and asserting that you have realized the business wouldn’t be a good fit.

Your time, as well as your comfort, are important! If your gut is telling you something is wrong, it probably is. It isn’t easy, but if a job interview is crossing the line, you’re well within your rights to leave. Better to cut your losses early.

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Business News

Australia vs Facebook: A conflict of news distribution

(BUSINESS NEWS) Following a contentious battle for news aggregation, Australia works to find agreement with Facebook.

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News open on laptop, which Australia argues Facebook is taking away from.

Australia has been locked in a legal war against technology giants Google and Facebook with regard to how news content can be consumed by either entity’s platforms.

At its core, the law states that news content being posted on social media is – in effect – stealing away the ability for news outlets to monetize their delivery and aggregate systems. A news organization may see their content shared on Facebook, which means users no longer have to visit their site to access that information. This harms the ability for news production companies – especially smaller ones – from being able to maintain revenue and profit, while also giving power to corporations such as Facebook by allowing them to capitalize on their substantial infrastructure.

This is a complex subject that can be viewed from a number of angles, but it essentially asks the question of who should be in control of information on a potentially global scale, and how the ability to share such data should be handled when it passes through a variety of mediums and avenues. Put shortly: Australia thinks royalties should be paid to those who supply the news.

Australia has maintained that under the proposed laws, corporations must reach content distribution deals in order to allow news to be spread through – as one example – posts on Facebook. In retaliation, Facebook completely removed the ability for users to post news articles and stories. This in turn led to a proliferation of false and misleading information to fill the void, magnifying the considerable confusion that Australian citizens were confronted with once the change had been made.

“In just a few days, we saw the damage that taking news out can cause,” said Sree Sreenivasan, a professor at the Stony Brook School of Communication and Journalism. “Misinformation and disinformation, already a problem on the platform, rushed to fill the vacuum.”

Facebook’s stance is that it provides value to the publishers because shared news content will drive users to their sites, thereby allowing them to provide advertising and thus leading to revenue.

Australia has been working on this bill since last year, and has said that it is meant to equalize the potential imbalance of content and who can display and benefit from it. This is meant to try and create conditions between publishers and the large technology platforms so that there is a clearer understanding of how payment should be done in exchange for news and information.

Google was initially defiant (threatening to go as far as to shut off their service entirely), but began to make deals recently in order to restore its own access. Facebook has been the strongest holdout, and has shown that it can leverage its considerable audience and reach to force a more amenable deal. Australia has since provided some amendments to give Facebook time to seek similar deals obtained by Google.

One large portion of the law is that Australia is reserving the right to allow final arbitration, which it says would allow a mediator to set prices if no deal could be reached. This might be considered the strongest piece of the law, as it means that Facebook cannot freely exercise its considerable weight with impunity. Facebook’s position is that this allows government interference between private companies.

In the last week – with the new agreements on the table – it’s difficult to say who blinked first. There is also the question of how this might have a ripple effect through the tech industry and between governments who might try to follow suit.

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