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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

9-to-5 workdays are no longer the norm: Flexibility brings productivity

(BUSINESS) Doing away with 9-to-5 workdays in a cubicle can work wonders for a team’s productivity. This is no longer a dream, but today’s reality.

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productivity outside of the challenging the norm of 9-to-5 workdays

As we’ve seen in recent years, many of the old concepts about work have been turned on their heads. Many offices allow a more casual dress as compared to the suit and tie standard, and more and more teams have the option of working remotely. One of these concepts that have been in flux for a bit is challenging the norm of 9-to-5 workdays. Offices are giving more options of flex hours and remote work, with the understanding that the work must be completed effectively and efficiently with these flexibilities.

Recently, I got sucked into one of those quick-cut Facebook videos about a company that decided to test out the method of a four-day workweek. This gave employees the option of what day they would like to take off, or, it gave employees the option to work all five days of the week, but with flex hours.

Despite the decrease in hours worked, employees were still paid for a 40-hour workweek which continued their incentive to get the same amount of work done in a more flexible manner. With this shift in time use, the results found that employees wasted less time around the office with mindless chit-chat, as they understood there was less time to waste.

The boss in this office had each team explain how they were going to deliver the same level of productivity. The video did not share the explanations, but it could be assumed that the incentive of a day off would encourage employees to continue their level of productivity, if not increase it.

This was done with the goal of working smarter, rather than harder. Finding ways to manage time better (like finishing up a task before starting another one) helps to stay efficient.

During the trial, it was found that productivity, team engagement, and morale all increased, while stress levels decreased. Having time for yourself (an extra day off) and not overworking yourself are important keys to being balanced and engaged.

There is such a stigma about the way you have to operate in order to be successful (e.g. getting up early, using every hour at your disposal, and using free time to meditate).

Let’s get real – we all need a little free time to check back in with ourselves by doing something mindless (like a good old-fashioned Game of Thrones binge). If not, we’ll go bonkers.

Flex hours and remote working are not all about having time to do morning yoga and read best-seller after best-seller. Flex hours give us the time to take our kids to and from school and comfortably wear our parenting caps without fear of getting fired for not showing up to work precisely at 9 AM.

9-to-5 workdays are becoming dated and I’m glad to see that happen. So many people run themselves ragged within this frame and it’s impossible to find that happy work-life balance. Using flex options can help people manage every aspect of their lives in a positive way.

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Business News

Corporate-franchise relationships: How has COVID affected them?

(BUSINESS NEWS) Being a part of a franchise has made sense for a long time for both the corporation and the franchisee, but the long stretch of COVID is adding complications.

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A franchise cup on a wooden table.

Americans love a franchise. We love knowing that every Dunkin Donuts iced coffee will taste the same as it did 3 states away – and every McDonald’s snack wrap will meet our expectations.

Franchises rose in popularity after World War II, and the corporate-franchise relationship since has generally been a happy one – that is, until COVID-19.

What’s their relationship?

Franchises are easier to start than a small business from scratch. You receive a business playbook and brand loyalty from corporate – if the business at large is doing well, chances are your franchise will mirror that. No need for independent advertising!

From the franchises, corporate gets an upfront fee and ongoing royalties. (For a McDonalds franchise, that’s $45k and 4% of monthly gross sales, respectively.)

Basically, it’s win-win. Both parties are happy.

Pandemic strain

The pandemic has shrunk margins across most industries, and the chain hotels, restaurants and services have been hit hard. As a result, corporate is adding more costs for franchisees, such as big cleaning bills and promotional discounts to bring back some revenue during COVID.

However, with corporate still taking the same amount from the franchises every month, these newly instated policies threaten to drive some stores into the ground – and franchisees are fighting back.

“I get that franchising isn’t a democracy,” said a Subway franchisee, who objected to the unprofitable “2-Subs-for-$10” promotion that corporate was pushing for. “But at the same time, it’s not a dictatorship.”

What I see here is corporate greed at work; they need to keep their margins up in a sinking economy, so they’re looking to the pockets of their franchisees to make up for that lost dough.

The pandemic has not been easy on any business (with the exception, of course, of Amazon, Facebook, and Tesla, which is a whole other story). However, that’s the draw of being connected to corporate – you are tied to something bigger than your individual store, and will thus stay afloat as long as they do. It’s a big reason why many opt for starting a franchise as opposed to starting their own, independent small business.

I’m glad to see individuals fighting back against corporate policies that don’t benefit them. They held up their side of the bargain – let’s see if corporate can continue to hold up theirs.

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Business News

What to do if you think you have been wrongfully terminated

(BUSINESS NEWS) Being fired hurts, but especially if you were wrongfully terminated. Here is what you can do if you need to take action.

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Stressed man staring at computer after being wrongfully terminated.

While there are plenty of ways an employer can legally fire an employee, there’s also a long list of unethical and illegal methods. If you suspect you’ve been wrongfully terminated from your job, it’s imperative that you fight back.

Common Signs of Wrongful Termination

Research shows that around 150,000 people are unjustly fired every year in the United States. That’s more than 410 people per day – roughly 17 people per hour. Here are some common signs that you’re a victim:

  • Violation of written rules or promises. The vast majority of employment is known as “at-will” employment. This means you may be fired at any time for any reason (so long as the reason is not illegal). However, if there’s a written statement or contract that implies job security, then you’re probably not an at-will employee. Review all of your employment documents to see what sort of language exists around the topic of termination.
  • Discrimination. It doesn’t matter if you’re an at-will employee or not, employers can never fire someone based on discrimination. It’s illegal – point blank, period. If you suspect you’ve been fired because of your color, race, gender, nationality, sexual orientation, disability, age, religion, or pregnancy, discrimination could be to blame.
  • Breach of good faith. Employers are known to breach good faith when they do things like mislead employees regarding their chances for promotions; fabricate reasons for firing; transfer or fire an employee to prevent the collection of sales commissions; and other similar situations.

Every situation is different, but these three signs are clear indicators that you have a potential wrongful termination claim. How you proceed will determine what happens next.

How to Respond to a Wrongful Termination

Emotions tend to run high when you’re fired from a job. Whether you loved the job or not, it’s totally normal to run a little hot under the collar upon being wrongfully terminated. But how you handle the first several hours and days will determine a lot about how this situation unfolds. Now is not the time to fly off the handle and say or do something you’ll regret. Instead, take a diplomatic response that includes steps like:

1. Gather Evidence

Wrongful termination cases are usually more complicated than they first appear on the surface. It’s important that you focus on gathering as much evidence as you possibly can. Any information or documentation you collect will increase your chances for a successful outcome. This may include emails, screenshots, written contracts and documentation, voicemails, text messages, and/or statements from coworkers.

On a related note, remember that your former employer will be doing the same thing (if a claim is brought). Be on your best behavior and don’t let your emotions get the best of you. Avoid venting to coworkers or firing off short, snappy emails to your former boss. As the saying goes, anything you say or do can and will be used against you.

2. Hire an Attorney

Don’t try to handle your wrongful termination case on your own. Hire an experienced lawyer who specializes in situations like yours. This will give you a much better chance of obtaining a successful outcome.

3. Get Legal Funding

If you’re like most victims of wrongful termination, you find yourself with no immediate source of income. This can make it difficult to pay your bills and stay financially solvent in the short term. An employment lawsuit loan could help bridge the gap.

As Upfit Legal Funding explains, “Wrongful termination lawsuit loans provide the necessary financial assistance they need to reach a settlement. This funding helps cover basic living costs until the plaintiff is able to get assistance from their settlement.”

The best thing about these loans is that you only have to repay them if there’s a successful outcome. In other words, if the claim gets thrown out or denied, you owe nothing.

4. File the Proper Paperwork

Work closely with your attorney to make sure that your complaints and claims are filed with the appropriate regulatory agencies (and that you meet the required deadlines). Depending on the type of claim, there are different groups that oversee the complaint and can help you move in the proper direction.

Adding it All Up

Getting fired is serious business. And while there are plenty of legal reasons for being terminated from a job, it’s worth exploring what’s actually going on behind the scenes. If it’s found that your employer stepped out of line, you’ll be compensated in an appropriate manner. This won’t typically help you get your job back, but it can provide some financial rectification.

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