As we enter April, employers are settling into their new reality of dealing with COVID-19 and all the changes it brings to the workplace. With its rapid onset and drastic impact, employers are striving to stay ahead of the pandemic and follow best practices. The Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC) have all put out guidance documents to help employers navigate these unprecedented times. Additionally, we have provided recommendations below for the various documentation efforts employers should be making to protect their actions down the line.
Most recently, on April 6, 2020, the Department of Labor issued its updated temporary rule implementing the expanded family and medical leave and emergency paid sick leave provisions of the Families First Coronavirus Response Act. The temporary rule is effective from April 2, 2020, until December 31, 2020.
In its “Preparing Workplaces for COVID-19” guidance, OSHA recommends that all employers take the following steps: (1) develop an infectious disease preparedness and response plan; (2) implement basic infection prevention measures; (3) develop policies and procedures for prompt identification and isolation of sick employees; (4) develop, implement, and communicate about workplace flexibilities and protections; (5) implement engineering (i.e. a drive-through window for customers) and administrative (i.e. alternating shifts) workplace controls; and (6) follow existing OSHA standards. OSHA also provides specific guidance on how to protect workers at the four different levels under the Occupational Risk Pyramid. While most employees across the country will fall into either lower or medium exposure risk categories, employers should make themselves familiar with the steps they can take to lower risk across the board. OSHA’s one-page “Preventing Worker Exposure to COVID-19” guidance is also a good summary reminder of the basic steps all employers should be taking.
The CDC’s “Guidance for Businesses and Employers to Plan and Respond to COVID-19” is being updated on a regular basis as new information is learned about the virus. On March 21st, the CDC updated its guidance as it relates to cleaning and disinfection, best practices for conducting social distancing, and strategies and recommendations that can be implemented now to respond to COVID-19. The guidance also includes links to many other resources, such as state and local health office websites—businesses are encouraged to work closely with those officials for timely and accurate information that can be used in making business decisions. One key takeaway from the guidance: if you haven’t done so yet, identify a workplace coordinator for your company’s planning and response efforts. Having one person or a team assigned to this important task will lead to strategic and reasoned decision-making, as opposed to knee-jerk action.
Businesses are making decisions in compressed timeframes and with minimal guidance that can change by the day. Businesses cannot rely on past practice, for instance, to decide what documentation will be required of an employee taking leave under the Emergency Paid Sick Leave Act (EPSLA). Most employers have never had to deal with a mass layoff or furlough. These are tricky situations, and companies who don’t handle these decisions well may face claims. Documentation is an employer’s best ally in addressing such claims fairly.
Here are our suggestions:
Create a separate folder. On your computer desktop, in your email inbox, and in a physical storage location. An astonishing amount of correspondence is coming through on a daily basis related to the pandemic, and without a centralized storage location, you could spend hours searching for that one email you need. You’ll also want a physical folder to store all paper documentation. Employee medical documentation related to COVID-19 should be kept in a separate, secure location from their general personnel file.
Document the reasoning, not just the action. Many of the employment actions being taken right now—like mass layoffs, furloughs, and reductions in pay—are subject to antidiscrimination laws. For instance, an employer may need to demonstrate that it laid off a particular employee because of business need due to the economic downturn, NOT due to that employee’s race, gender, or because she used leave under the EPSLA. Financial projections and matrices identifying the factors used in making layoff determinations are objective data points that will be helpful in later explaining why certain decisions were made. These are trying and exhausting times for employers, and by the time an agency complaint is filed in August or September, an employer’s perfectly valid reasoning may be long forgotten if it is not properly documented. Additionally, the managers involved in those decisions may no longer be working for the company at the time a lawsuit or administrative claim needs to be addressed. Contemporaneous, accurate documentation will be essential in helping to mitigate those concerns.
Know the documents you’re legally required to maintain. Many of the new federal programs have documentation and retention requirements. For example, on April 1, 2020, the IRS released detailed FAQ’s regarding what documentation employers need to gather and maintain to obtain the tax credits for paid leave under the FFCRA. If you are intending to take advantage of those tax credits, you need to review those requirements or work with your legal or tax advisers to ensure you are keeping proper records.
Examples of Specific Decisions that Require Documentation:
- Basis for Claiming the Small Employer Exemption under the Families First Coronavirus Relief Act (“FFCRA”) (Hint: having less than 50 employees is going to be insufficient)
- Denials of Leave Requests under the FFCRA (Note: the DOL’s temporary rule makes clear that employers cannot ask for documents beyond those required by the IRS to claim the tax credit. So, employers that were asking for a school closure notice or doctor’s note, for example, should stop doing so immediately.
- Basis for Reducing Exempt Salaried Employees’ Wages
- Decisions based on guidance from a public health agency or other governmental entity
If you have any questions on this topic or need assistance, please contact our Labor & Employment Law Practice Group and subscribe to our Labor & Employment E-Briefs to keep up with the latest HR news, tips, and updates.
Woods Aitken recently launched a Coronavirus Resource page that includes valuable information regarding the coronavirus pandemic and all of our publications on COVID-19. We encourage you to visit this page often for updates.