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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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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

Survey indicates that small businesses are optimistic despite COVID-19

(BUSINESS NEWS) Facebook survey captures tumult of spring 2020 on small and medium business, with a dash of optimism going into the summer.

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This story contains information that probably will not evoke shock and awe by now, but is nonetheless upsetting. Stop now and check to see if you need a news cycle break before ingesting more garbage depressive news about the economy – but if you can wade through it, I promise it ends on a high note!

Though Facebook CEO Mark Zuckerberg is running amuck in the political world like one of those signs at restaurants that say “unattended children will be given ice cream and a puppy,” Facebook continues to effectively build an online community of more than 2.6 billion people worldwide – including more than half of the population in the United States. Given their audience and ease of access to business owners, they decided to use their powers for good for once to survey small and medium businesses.

The survey returned responses from 38,078 business owners and managers, 39,104 employees, and 8,694 personal enterprises in the United States (total of 85,876 respondents). Respondents’ industries spanned manufacturing, retail, services, logistics, hospitality, construction, and agriculture. Thirty-three percent of businesses were urban, forty-two percent were urban, and twenty-five percent were rural.

Here’s where it gets depressing: thirty-one percent of businesses reported closing in the last three months, with 71 percent of those closing since March 1. For personal businesses, 52 percent are closed. Of those businesses still operating, 60 percent reported a reduced workload, and 60 percent also report struggling with finances. Employee wages, bills, and rent were the top areas of financial concern.

So how is this important segment of the economy surviving the crisis? Forty-one percent of business owners and managers said they could pull from personal savings, but 45 percent said zero-interest loans were the most helpful option to subsidize lost business.

Unsurprisingly, 79% of businesses say they have made some change to operations to accommodate their customers and keep things moving, like using digital tools and delivery services.

The survey found some interesting geographical differences, for example, that businesses in the Southeast have made slightly more physical adjustments to business like offering curbside pickup and home delivery. They also found differences in strategy by leadership gender: “Businesses led by women are more likely to be using digital tools, particularly with online advertising (43%) and digital payment tools (40%), compared to just 37% and 34%, respectively, of businesses led by men.” And the differences don’t stop at the strategic level. More women owner-managers (33%) reported that managing life in a pandemic at home was affecting their ability to focus on work than men (25%).

Amongst all the chaos, people are optimistic about the future. In fact, 57% of owner-managers are optimistic or extremely optimistic about the future of business. For employees, the results were surprisingly similar. Even though only 45% of SMB owner-managers and 32% of personal businesses reported that they would rehire the same workers when their businesses reopened, 59% of both the employed and unemployed were at least somewhat optimistic about their future employment.

And now for a quote from President Barack Obama’s 2008 New Hampshire Primary speech amidst our last recession, without a smidge of tacky irony or liberal preaching: “We’ve been warned against offering the people of this nation false hope. But in the unlikely story that is America, there has never been anything false about hope. For when we have faced down impossible odds; when we’ve been told we’re not ready, or that we shouldn’t try, or that we can’t, generations of Americans have responded with a simple creed that sums up the spirit of a people: ‘Yes we can.’”

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Business News

Who will get to work from home once COVID-19 stay-home orders are over?

(BUSINESS NEWS) Many large tech firms review and update their work from home policies. This could be presented as THE biggest work perk of 2021.

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The large tech firms that we all know and use frequently are making big announcements on their timing and policies for their employees to work from home as updates on COVID-19 come in.

Square and Twitter have said many employees will work from home indefinitely – even after states begin to open back up. Google, Facebook, and Microsoft have all extended dates on returning to offices. You can read more details here on The Verge.

Let’s break down some pros and cons – especially if this means that working from home will become the hottest recruiting tool in the future. Like ping pong tables and Friday at 4pm beer carts once were.

Some high-level things that contribute to why people love (or tolerate) their W2 jobs:

  • They like the PEOPLE they work with
  • They have a feeling of purpose, and genuinely enjoy the work
  • There are miscellaneous perks (gym membership reimbursement, free cafeterias, personal development workshops, tuition reimbursement, travel opportunities)
  • Their employer helps to pay for healthcare benefits, and makes 401K contributions
  • Their team rotates, and they get to work from home once in a while*

*This is nice to allow some flexibility. Employees can choose to treat their morning how they would like (maybe wake up a little later, or enjoy their coffee at a coffee shop). It allows them to not rush out the door to sit in traffic, or on the bus or train. They can take the day off of wearing real pants, and work in pajamas. Heck, they can even save time on Saturday or Sunday by doing the laundry on their work from home (WFH) day. It could also be a great opportunity to fit in doctor appointments, or have real quality focus time – missing less of the work day.

This is NOT an implication that people work less that day, in fact working from home, you usually work more because there are not things that force you to break up the day like the commute, meetings, or lunch with your colleagues.

Some high-level things that might contribute to the desire to be an entrepreneur:

  • Your work is a main piece of your identity – usually being a product or service that YOU created, and it leverages a perfect marriage of your talents, skills, and passions
  • You likely get to be your own boss, and make your own creative decisions
  • You constantly have the opportunity to learn, and this can be great for those who love the constant change and challenges
  • It’s just never really worked out for you to work for someone else, or for a corporation
  • Something drives you to build something of your own
  • Working from home* in all its glory

*A common misconception of the entrepreneurship or freelance lifestyle is that you work from home or a coffee shop, and it’s oh so very sexy and freeing, and you get to do whatever you want whenever you want. While arguably, yes, you do have more control over your schedule, and there are perks to your own business; likely you are working 24/7, and wearing every single hat from the Producer to Customer Services to Finance to the Accounting department. This requires you to be really open to learning or knowing what you don’t know, and possibly hiring experts.

So, moving forward, will the “you can work remotely! From wherever you’d like” become the hottest recruiting trend of 2021? Here’s why we predict that may not be the best way to move forward.

  1. People are social creatures. Working from home sporadically vs 100% of the time are two completely different things. You could possibly lose the momentum with your teams if they no longer know and trust one another. Plus, no doubt there will be turn-over, and when there are numerous parts and teams, it can be helpful for them to have in person experiences together.
  2. Does this make sense for the commercial real estate industry, and the leases that have been signed? It’s unlikely that many large corporations just perfectly timed their leases that align with COVID-19. Many will likely want to bring people back just for that fact.
  3. All of this takes an enormous amount of money, additional tech support, and infrastructure, (not to mention mailing costs for all office equipment, etc.) and it’s not possible that only the most profitable firms will prevail and be able to do this.
  4. How would large cities (read: high cost of living) like the Bay Area be able to retain talent, and/or why would you pay to live there if you can live anywhere. This could drastically shift urban planning and development.

We just don’t see it moving all the way to the extreme of all knowledge workers working from home indefinitely. If you want to see how people are feeling about working from home, you have to check out this Buzzfeed article, “Zoom Fatigue is Real, And You Probably Have It If You Relate to These 16 Tweets.”

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Business News

Weight Watchers lays off 4K employees on a brief Zoom call #cold

(BUSINESS NEWS) WW fires thousands of employees over Zoom, no questions asked or answered. So much for Wellness that Works, live up to your motto.

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WW International, formerly known as Weight Watchers, fired thousands of employees on a 3-minute phone call on Thursday, May 14. The call was muted so participants could not ask questions. Employee emails were closed by the weekend.

It is unclear exactly how many employees were let go, with some reporting up to 4,000. WW has declined to report the number. Laid off employees were both part-time and full-time. Some had been working for WW for more than a decade.

WW has been slowly shifting its services online, including building a comprehensive app for users to track their food. Founded in 1963, the weight loss company has come a long way from paper-and-pencil weight tracking. In 2018, the company changed its name from Weight Watchers to WW, adopting the slogan “Wellness that Works,” in a move to fully embrace the trendy wellness and self-care movements that have gripped younger audiences.

CFO Nick Hotchkin said, “It wasn’t practical to have all of the conversations be one on one.”

WW has staked its claim on empathy. They have cultivated a community of people motivated to lose weight, and support others on the same journey to also live a healthier lifestyle. Many WW employees are former customers who were so committed to the mission they wanted to join the community as a coach or meeting leader. The company offered many part-time roles that fit the schedules of full-time mothers, their primary demographic of clients from its inception.

Firing swaths of employees over Zoom calls is the latest form of cruelty in the employment chaos that the coronavirus pandemic has inflicted on the economy. But companies can make choices – especially international mega-companies that bring in more than a billion dollars in revenue annually.

Has WW no sense of irony? Just two days before this call, WW announced a free, four-week virtual experience led by Oprah Winfrey, a WW investor, client, and champion.

“Now, it’s more important than ever to be and stay well and strong. Together, let’s reset, refocus and find clarity in what matters most,” Oprah said of the program. Apparently, thousands of employees are not considered an asset to the togetherness of this occasion.

Of course, WW like many other companies has a right to let go employees in anticipation of changes in business. But if caring for your employees, and conducting layoffs with empathy, grace, and compassion is not on the list of “what matters most,” then WW is sorely lacking mission alignment. It is severely disappointing to see a company driven by a compassionate mission act in such a callous way.

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