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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

Coca Cola drops 200 brands, most you’ve never heard of

(BUSINESS NEWS) Coca Cola hopes to revitalize their drink arsenal by rolling back some “underperforming” brands (that you might not have known they were still making.)

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Woman drinking Coca Cola against plain wall

2020 has forced a lot of businesses to return to their proverbial drawing boards, and the Coca Cola Company is no exception. Last week, Coca Cola announced in a corporate blog post that they are halting the production of 200 of their beverage brands.

In the words of Cath Coetzer, the head of global marketing for Coca Cola, the restructuring will “accelerate [Coke’s] transformation into a total beverage company”.

“We’re prioritizing bets that have scale potential across beverage categories, consumer need states and drinking occasions,” Coetzer added. “Because scale is the algorithm that truly drives growth.”

That’s… a surprising amount of technical beverage jargon, Cath.

Coca Cola is already the leading manufacturer of non-alcoholic drinks on the planet. It’s hard to imagine their scope becoming any more “total.” But this strategy shift comes as the consumer thirst for soda is drying up.

Soda consumption has steadily fallen over the last ten consecutive years, thanks to a swath of modern studies that link excess sugar intake with negative health outcomes like obesity, diabetes, and heart disease.

In light of this research, regional sales taxes on drinks with added sugar have been debated across the country, despite aggressive corporate lobbying against it. All this has meant that beverage companies have had no choice but to pivot hard.

Take Odwalla, a Coca Cola brand that touted its vitamin content and servings of produce, which was discontinued earlier this year. Despite being marketed as a health brand, Odwalla flavors contained whopping amounts of added sugar: Their popular “superfood” flavor quietly boasted 47 grams per bottle.

The brands affected by Coke’s recent soda cull also include TAB diet soda, ZICO coconut water, and Coca Cola Life, plus internationally marketed drink brands like Vegibeta of Japan and Kuat of Brazil.

Condensing their portfolio allows Coca Cola to prioritize their most profitable products and invest in more new beverage trendsetters that better fit the times, like sparkling water, coffee, or even cannabis-infused products.

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Business News

Uber and Lyft face the music as employee ruling is upheld

(BUSINESS NEWS) The battle for Uber and Lyft drivers’ status continues, and despite company protests, the official ruling has been upheld.

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Interior of Uber and Lyft rideshare looking out on palm trees

A gig economy has its pros and cons. For anyone who has ever been an independent contractor, done freelance work, or worked for companies like Uber, Lyft, and DoorDash, the pros are clear – you get to work when you want, where you want and how much you want. Flexibility and gigs go hand in hand.

And the cons? Well, those are a little more complex. Without a W2 linking you directly to the company, you as an independent contractor don’t receive the same rights and perks that your 9-5 employee friends might. For example, your employer is not required to provide a healthcare option for you. You are also not entitled to earned time off or minimum wage.

So which is better?

The gig economy conundrum has made its way all the way to an appellate court in California last week. The ruling was that Uber and Lyft must classify their drivers as employees.

Back in May, Attorney General Xavier Becerra and city attorneys from L.A., San Diego and San Francisco brought forth a lawsuit that argues Uber and Lyft gain an unfair, unlawful competitive advantage by not classifying their workers as W2s.

Uber and Lyft responded to the suit, stating that if they were to reclassify their drivers as employees, their companies would be irreparably harmed – though the judge in last week’s ruling negated that claim, stating that neither company would suffer any “grave or irreparable harm by being prohibited from violating the law” and also that the financial burden of converting workers to employees “do[es] not rise to the level of irreparable harm.” Essentially, the judge called their BS.

Additionally, according to the judge, there is nothing that would prevent Uber and Lyft from offering flexibility and independence to their drivers – and they have had plenty of time to transition their drivers from independent contractors to employees (the gig worker bill that spurred this lawsuit was decided in 2018). Seems fair to me!

However, there is an oppositional proposition on the ballot that muddies the waters. Proposition 22, if passed, is a measure that would keep rideshare drivers and delivery workers classified as independent contractors, meaning that those workers from Uber and Lyft would be exempt from the new state law that classifies them as W-2 employees. And you might be surprised to know how many of the app-based rideshare workers are in favor of Prop 22!

In a class-action lawsuit, Uber has been accused of encouraging drivers and delivery workers to support Prop 22 via the company’s driver-scheduling app. It appears, unfortunately, that Uber is manipulating its workforce by wrongly hanging their jobs over their heads.

On this matter, Gig Workers Rising stated: “If Uber and Lyft are successful in passing Prop. 22 and undo the will of the people, they will inspire countless other corporations to adapt their business models and misclassify workers in order to further enrich the wealthy few at the expense of their workforce.”

Ultimately, the fate of California Uber and Lyft driver’s in still in question. It’s unclear if the question we should be asking is, will Lyft drivers have proper healthcare through their jobs or will they have jobs at all. All of this is occurring at a time where millions are jobless and 158,000 individuals sought unemployment support this week due to COVID-19 layoffs.

Personally, I have little sympathy for tech-giants that rake in billions off the backs of the exploited working-class. If the CEO of Uber is an ostentatious billionaire, then his employees should have health insurance. Clear and simple.

The scariest part of the gig economy is that workers have become increasingly happy to work for a company that gives them little to no benefits. More companies are dissolving or combining positions so that they can further bypass their responsibilities to their employees. Let us not be fooled: The dispute over whether or not to make Uber and Lyft workers W2 employees does not affect the health of the companies themselves. What it will affect is how fat the bonuses will be the big guys at the top, and that’s exactly why the companies are so adverse to the ruling. They’d rather their workers suffer than lose a single dime.

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Business News

Bay Area co-living startup strands hundreds of renters at dire time

(BUSINESS NEWS) They’re blaming COVID for failing as a co-living space, but it looks like trouble was well established even before now.

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Person packed a bag and walking away from co-living space.

Over the last few years, “co-living” startups have become increasingly common in tech-rich cities like San Francisco. These companies lease large houses, then rent individual bedrooms for as much as $2,000 per month in hopes of attracting the young professionals who make up the tech industry. Many offer food, cleaning services, group activities, and hotel-quality accommodations to do so.

But the true value in co-living companies lies in their role as a third party: Smoothing over relations, providing hassle free income to homeowners and improved accountability to tenants… in theory, anyway. The reality has proved the opposite can just as easily be true.

In a September company email, Bay Area co-living startup HubHaus released a statement that claimed they were “unable to pay October rent” on their leased properties. Hubhaus also claimed to have “no funds available to pay any amounts that may be owed landlords, tenants, trade creditors, or contractors.”

This left hundreds of SF Bay Area renters scrambling to arrange shelter with little notice, with the start of a second major COVID-19 outbreak on the horizon.

HubHaus exhibited plenty of red flags leading up to this revelation. Employees complained of insufficient or late payment. The company stopped paying utilities during the spring, and they quietly discontinued cleaning services while tenants continued to pay for them.

Businesses like HubHaus charge prices that could rent a private home in most of the rest of the country, in exchange for a room in a house of 10 or more people. PodShare is a similar example: Another Bay Area-based co-living startup, whose offerings include “$1,200 bunk beds” in a shared, hostel-like environment.

As a former Bay Area resident, it’s hard not to be angry about these stories. But they have been the unfortunate reality since long before the pandemic. Many urbanites across the country cannot afford to opt out of a shared living situation, and these business models only exacerbate the race to the bottom of city living standards.

HubHaus capitalized on this situation and took advantage of their tenants, who were simply looking for an affordable place to live in a market where that’s increasingly hard to find.

They’ve tried to place the blame for their failure on COVID-19 — but all signs seem to indicate that they had it coming.

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