HR News & Updates

Job Abandonment Notice

by hrconsulting14

Here is a letter/email to an employee that you suspect has abandoned his or her position. This can be used from your HR department or via your HR consulting firm:

It has come to our attention that you left the office/company facilities and/or failed to show for work as follows: (describe the dates and circumstances).

In so doing, there was no notification to management or your supervisor of such absence or the reason for this conduct. As you know, it is against company policy to act in this manner.

This causes us to believe there has been job abandonment. If it was not your intent to resign your position and you require a medical leave of absence, there was a justified reason or any other excused circumstance, please contact your Human Resources Dept. at: XXXXXXXX within 24 hours to complete necessary paperwork.  If it involves a health issue, you will need to submit a healthcare provider’s certification indicating the nature, scope and estimated duration of leave required.

If we do not hear from you with a justified reason within a 24-hour period, we will consider this to be job abandonment and you will be removed from our active employment list.

HR Consulting Network can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

New CDC Mask/Social Distancing Guidelines For Employers

by hrconsulting14

Effective May 13, 2021, CDC has issued new recommendations as to “fully vaccinated” persons. These are defined as individuals who have received the Pfizer, Moderna or Johnson & Johnson vaccines and who have waited at least 14 days after the first or second administration. For a chart on this subject, go to: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/pdfs/choosingSaferAct.pdf

These new recommendations apply to inside venues of public accommodation.  For example: barbershops/hair salons, shopping centers, museums, movie theaters, churches, hotels, restaurants, bars and exercise gyms. They do not apply to private businesses.

The CDC now recommends fully vaccinated patrons may safely frequent these venues without social distancing or a mask.

As to unvaccinated persons, although not technically prohibited, not wearing a mask or distancing is considered a “least safe” practice. Question: Does that mean after a company warns of a possible unsafe practice, it is then up to a person to make a decision of what to wear? This is not answered by the CDC.

As of this date, cities and counties are evaluating the new CDC guidance and will shortly be issuing their own recommendations. Because of the great respect given to the CDC by the states, it is predicted local laws will follow suit and also dispense with masks and social distancing or trends. The CDC has stated that it honors local requirements. So, it would be a good idea to continue abiding by those local rules.

This places a company in a dilemma. Should vaccinated and unvaccinated persons be treated differently? And how do we know their status if we cannot inquire about their vaccinations? There is no bright line answer.

Bottom line suggestion: Although the company cannot ask a person if they have been fully vaccinated, if someone voluntarily discloses such and decides not to wear a mask, honor his or her wishes.

Comment–Employees. At this point, the CDC is only issuing guidance for individuals as patrons of a places of public accommodation, but does not mention private businesses or their employees. Can the employees of such businesses disregard masks and social distancing if they have been fully vaccinated? These new recommendations are silent on that subject.

But some analogies can be drawn. For example, as to non-employee individuals, if they are fully vaccinated, they are free to frequent without distancing and masks at public places. The CDC also allows them to dispense with masks to “attend a small, indoor gathering of fully vaccinated and unvaccinated people from multiple households.” Assuming the business premises are not overcrowded, why wouldn’t this apply equally to employees? For example, there is no fundamental difference between employees working within an office, warehouse or manufacturing plant and those same persons going to a movie or shopping center.

State and Local Health Laws and Federal Preemption:

What if there is a conflict between these new CDC guidelines and local state law? Specifically, what if a state still requires distancing and masks? Who controls?

Under the doctrine of federal preemption, if Washington DC passes a law that applies to the entire nation and the express congressional intent is to be controlling on the states, individual states cannot pass contrary laws. Examples of federal preemption are laws as to: immigration, bankruptcy, National Labor Relations, minimum-wage, FDA regulations and the like.

However, CDC guidelines do not constitute federal preemption of healthcare. They are not statutes and therefore do not have the force of law. In fact, under the new guidelines, the CDC states there must still be compliance with local law. Also, the CDC has a history of honoring conflicting state laws (for example, more stringent local ordinances prohibiting smoking in confined public spaces). And, after these new CDC recommendations, states have gone both ways in response–for example Ohio deciding to abide by the new guidelines and New Jersey not doing so.

So, businesses should continue abiding by local law. After all, if there is a violation, it will be enforced by fines in the local courts.

Now for the gray area. Even though the CDC does not technically have the force of law, states give it great credence. And in the author’s opinion, it is just a matter of time when all states will abide by their recommendations (especially when they do not want to jeopardize federal funding for their local health departments).

With this in mind, assume local law requires masks and distancing, but the CDC does not. If your business is risk adverse, you should follow local law. The only good news is that the Governor apparently will be lifting these restrictions as of June 15, 2021.

If your business is less risk adverse or otherwise needs for business necessity to eliminate masks, abide by the CDC recommendations and ignore conflicting state law. After all from a practical standpoint, there would be less incentive from a local police officer to enforce stringent state laws when the CDC has recommended more leniency.

Finally, in the author’s opinion with more vaccinations available, in the short foreseeable future, masks and social distancing will be a thing of the past.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

New COBRA Premium Assistance–For Employers

by hrconsulting14

April 18, 2021

As part of the new American Rescue Plan of 2021 (ARP), changes have now been made to extended COBRA coverage. Previously, a terminated employee received extended group healthcare if he or she continued making payments or co-pays. Now under the new Act, the employee pays nothing out of pocket and the premiums are paid for him or her during the extended period. Here are the details for HR consultants to be mindful of:

Previous COBRA

This applied to companies that had at least 20 or more employees, both full or part-time and had a group health care plan in effect. If an employee is terminated (for other than gross misconduct or resignation), has a reduction in work hours or goes from full-time to part-time, that person becomes a qualified beneficiary and is notified by the insurance carrier it has the option of continuing the coverage for at least 18 months. However, the beneficiary must continue making payments.

From an HR consulting standpoint, under the special provisions of Cal-COBRA, the extension period goes as long as 36 months.

It also applies if an employee is furloughed or has a layoff and during this period did not receive health coverage.

In many cases the extended premiums were more expensive because the company previously had covered part of the premium. During the extended period, the employee would pay the full premium and an administrative fee.

Coverage was also provided, if certain conditions were met, as to an employee’s spouse and dependent children.

Reduction in work hours is defined under the group plan. In other words, the group plan usually has a minimum number of hours the employee must work to be covered. If the employee goes below those minimum hours and is no longer covered, it is considered a qualifying event (26 CFR Section 54.4980B-4e)).

The whole idea is the terminated employee would have health coverage while he or she is looking for a new job.

New COBRA

The same basic COBRA rules apply, except that premiums are no longer paid by the employee. They get what is called premium assistance. Premiums are paid by the employer for the period April 1, 2021 through September 30, 2021. These payments are reimbursed through payroll tax credits.

This premium assistance is only for the period April 1, 2021 through September 30, 2021 (six months). It is anyone’s guess whether this will be continued. Assuming there is extended coverage under the plan for 18 months after termination, here are the different scenarios (for these hypotheticals it is 18 months, although you have to add up to 36 months in California):

Termination after April 1, 2021:

The employee shall receive premium payments through September 30, 2021:

        Example 1: Linda is terminated in May 2021. Her premiums will be paid for the period May through September 30, 2021. Thereafter, she will have to start paying full premiums herself.

Termination before April 1, 2021 and the employee has paid all premiums:

There is no relief under the Act and the employee does not receive reimbursement for premiums previously paid.

        Example 2: Jim was terminated in September 2019 and paid all his COBRA premiums for the 18-month period through March 2021. He will receive no relief under the Act.

Termination before April 1, 2021 and the employee has paid partial premiums:

Assuming the employee is not later covered under a new employer and wants coverage, the employee’s premiums are paid for the balance of the period April 1, 2021 through September 30, 2021.

        Example 3: Sally was also terminated in September 2019. Her 18-month entitlement period ends in March 2021. She paid premiums for one year–from September 2019 through September 2020. Then she stops paying. She still has six months left on her 18-month period, so she can receive premium payments for the period April 1, 2021 through September 30, 2021.

Termination before April 1, 2021 and the employee has not paid any premiums:

Assuming the employee is not later covered under a new employer and wants coverage, the employee’s premiums are paid for the full period April 1, 2021 through September 30, 2021.

        Example 4:  John was similarly terminated in September 2019. His 18-month entitlement period ends in March 2021. He can receive  premium payments for the period April 1, 2021 through September 30, 2021.

This premium assistance is not available if, for example, the employee becomes entitled to group benefits through another employer, under a spouse’s plan or with Medicare coverage.

To help soften the employer’s payment of these premiums, they get a tax credit for that amount. In other words, the employee does not receive money to pay the premiums–instead they are paid for by the employer.

An employee has 60 days after notification to elect receipt of this premium assistance.

As long as the premiums are the same or lower, the employee can also elect to receive different coverages under the same plan.

The employee is not required to pay any administrative fee during the covered period.

What Notices are Employers Required to Send its Employees?

In many cases, the employer’s health care plan administrator would have the notices needed. It is also good idea to call your plan administrator and get definitive direction as to who sends what notices. In the absence thereof, here are the notices to be sent out:

        “Model ARP General Notice and COBRA Continuation Coverage Election Notice”: Sent to employees by the health care plan administrator and not the employer.

        “Model COBRA Continuation Coverage Notice in Connection With the Extended Election Periods”. Sent to employees by the health care plan administrator and not the employer.

        “Notice of Expiration of Period of Premium Assistance.” Sent to employees by the health care plan administrator and not the employer.

        Notice to Plan Administrator of an Employee’s Termination:

This can be sent informally, but must be within 30 days of the termination.

The federal FAQs on the subject indicate: “the plan or issuer [in other words the insurance company] should provide you and your beneficiaries with the notice of your eligibility to elect COBRA continuation coverage and to receive the premium assistance. The notice should include any forms necessary for enrollment . . .”

This means that the insurance company gives the above notices and not the employer.

If a terminated employee does not receive notice, it can demand same through a “Request For Treatment as an Assistance Eligible Individual”. If an employer receives this notice, it should be forwarded immediately to the carrier.

Your group insurance company will also include amendments to its plan covering these extended benefits.

Because of the complexity of these issues, HR consultants need to be keenly aware of this new law.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

Arbitration of labor code violations– is a waiver valid?

Featured by hrconsulting14

In 2018, the US Supreme Court issued its case in Epic. It involved 3 Consolidated federal circuit court cases on the question whether arbitration agreements signed by employees allowed waiver of class action lawsuits. Epic decided that employers nationwide, can now prevent its employees in employment disputes from litigating class-action lawsuits if there is an arbitration agreement prohibiting same.

That was a decided victory for employers. But what about individual employee claims? For example, wage and hour, discrimination, sexual harassment, retaliation, over time, missed meal and rest breaks, FEHA claims, or in the California context, the provisions of the labor code? In essence, can all employee disputes now be forced into arbitration? In other words, does this now allowing employer to make a motion to compel all state claims? If that is the case, it would have an almost monumental effect: essentially barring employees from ever going to court to litigate all their claims—instead, only through such tribunals as the American arbitration Association and JAMS.

To answer this question, a more detailed analysis of Epic is in order. It began with the acknowledgment of the “liberal federal policy favoring arbitration agreements . . . the plain meaning of the statute and the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, the speedy and not subject to delay and obstruction in the courts”.

In light of this unwavering public policy in favor of arbitration, the court then queried whether there were any exceptions after parties voluntarily entered into an arbitration agreement. It cited to what is called the “saving clause” which “allows courts to refuse to enforce arbitration agreements upon such grounds as exist at law or in equity for the revocation of any contract” (section 2 of the FAA). In turn, the court held that clause “permits agreements to arbitrate to be invalidated by generally act applicable contract offenses, such as fraud, duress, or unconscionability” citing Conception.

In most cases, it would be hard to prove fraud or coercion. But an unconscionable contract would be a different matter. California courts are very liberal in this regard and lean toward this if they find a contract is one of adhesion. Namely, forcing an employee, as a condition for employment, to sign the arbitration provision or else. So it can be expected the California courts, even in light of epic, will still invalidate these provisions.

In Epic, as to its specific facts, found that the contract was not unconscionable. But it did so without much analysis. It might be possible for it to change its mind if other facts are presented in a later matter. But based upon the other language of epic, this will probably not be the case.

This is because epic found in the battle between voiding a contract for unconscionability and the public policy in favor of arbitration, the latter will win out: “This fundamental change to the traditional arbitration process, the court said, would sacrifice the principal advantage of arbitration– it’s informality– and make the process slower, more costly, and more likely to generate procedural morass than final judgment.”

Going even further, the court emphasized being wary for state courts invalidating arbitration on general public policy grounds: “Just as judicial antagonism toward arbitration before the arbitration Act’s enactment manifested itself variety of devices and formulas declaring arbitration against public policy, Conception teaches that we must be alert to new devices and formulas that would achieve much the same result today.” Ergo, California’s decided, almost uncontrolled bias to protect employee rights and place them in a jury trial.

If the court continues to emphasize this public policy, then it will strike down California’s future attempts to invalidate based upon unconscionability.

In fact, a head-on collision between California’s liberality and Epic will shortly be the case. This is based on the recent California Supreme Court case of Lawson v. ZB N.A., 18 Cal.App.5th 705 (2017) which held an employee does have the right to ignore an arbitration provision and go directly into court to enforce lost wages and civil penalties under the labor code.

In the meantime, arguments can be made by both sides and we will have to await not only the California Supreme Court decision, but a follow-up US Supreme Court decision.

HR Consulting Network can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

Employer‘s Quick Guide to COVID-19

Featured by hrconsulting14

This is a short guide of the steps to be taken by an employer as a result of the Coronavirus. In the categories below, it depends upon the extent to which an employee has contracted the virus or been exposed to it.

GENERALIZED FEAR ONLY

Has no Symptoms and no Prolonged Exposure to Someone with COVID-19, But Still Has a Generalized Fear of Going to Work:

In the absence of a State closure of the business and/or stay-at-home order, and assuming it is not necessary to stay home to take care of a child whose school is closed, the person must return to work. If not, it is job abandonment. Of course, this assumes the company has maintained a clean and safe working environment.

STATE SHUTDOWN

The State Has Ordered Businesses to Shut Down or Issued Stay-At-Home Orders:

Whether or not an employee has symptoms or has tested negative, and whether or not an employee wishes to work, there must be compliance with these orders.

However, in the author’s opinion, the company may maintain a skeleton crew as necessary to preserve the very essence of the business and if it would be an undue hardship otherwise.

STAY OPEN BUT WITH CONDITIONS

Needless to say, a company is to observe all mandatory conditions imposed at the state and federal level. Remember OSHA’s “General Duty Clause” which requires the maintenance of safe working conditions. If there is noncompliance with even one of these mandatory rules, it will be Exhibit 1 in a lawsuit.

TESTED NEGATIVE AND HAS NEVER BEEN TESTED POSITIVE

Many persons are simply curious and have gone out and received a test of COVID-19. It came back negative. Assuming they have not had symptoms or prolonged exposure to persons with the virus, nothing prevents them from continuing to work.

Although there is no definitive guidelines from the CDC, it is recommended they receive a one-half day off for the testing and be paid.

NOT BEEN TESTED

Has Symptoms (10-day Rule):

Send home immediately. Then 2 options:

  • Return to work after: a) at least 24 hours have passed since last fever without the use of fever reducing medication, b) improvement of symptoms and c) at least 10 days since symptoms first appeared with COVID-19.

                                                     OR

  • Get tested. This is optional but not required. Thus, the CDC makes it voluntary with the following language: “Depending on your healthcare provider’s advice and availability of testing, you might get tested . . . if you will be tested . . . 

This means the employee may either wait-it-out for the symptoms to subside or decide to be tested. If there is testing, the employee must have no fever or respiratory symptoms and receive two negative tests results in a row, at least 24 hours apart.

For example, an employee might be free of symptoms of COVID-19 within a few days and not want to wait the 10 full days. That person can then take the two tests that are negative and return to work earlier. But remember, if the first test is positive, you have to start all over.

Been Exposed (14-day Rule):

Close contact is defined as being within 6 feet of an infected person for approximately 15 minutes. “Infected person” is defined as one with symptoms in the last 14 days or who has tested positive. In other words, prolonged exposure. Brief interactions do not count.

Examples of COVID-19 exposure: 1) Sneezed or coughed-upon even for a few seconds, 2) Face-to-face encounters where an infected person is talking directly to you for a substantial period of time, 3) Close quarters in confined spaces or 4) Living with a roommate or spouse who has symptoms or has tested positive.

If there is prolonged exposure, the person should be sent home for 14 days after last exposure. While at home, maintain social distancing and self-monitor for symptoms and check one’s temperature twice a day.

The CDC requires notification to other employees who may have been exposed. Maintain the confidentiality of the infected person.

For employees who have not had prolonged exposure (simply being in the general area or brief interactions), they should self-monitor for symptoms and if they develop, notify their supervisor and stay home.

Confused? Why does the CDC recommend 14 days in one instance and only 10 days in the other? This is because a person who has merely been exposed may take a longer to become infected (hence the need for 14 days). As stated by the CDC: “The CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.”

TESTED POSITIVE

Did not Have Symptoms for COVID-19:

This is a relatively rare situation. Applies to employees that had very minor symptoms, if any or were asymptomatic. Typically applies to younger and more healthy individuals who were readily able to fight-off the infection.

Option 1: If the employee continues to be symptom free, they can return to work if there has been at least 10 days after taking the initial test. In this circumstance, they are not required to retest.

                                                           OR

Option 2: Although not required, if the employee does not want to wait 10 days, he or she can retest. They can return to work after receiving two negative tests in a row, at least 24 hours apart.

Has Had Symptoms:

Applies to most employees—namely who have been seriously ill with past symptoms.

Option 1: Can return to work: a) after 3 days with no fever (without the use of medicine that reduces fevers), b) respiratory symptoms have improved (for example, cough and shortness of breath) and c) 10 days have passed since symptoms first appeared.

                                                            OR

Option 2: Re-testing optional. Return to work after receiving two negative tests in a row, at least 24 hours apart. Cannot take the test unless you are fever free and no longer have respiratory problems.

Caution: If your first re-test is positive, you have to start the re-testing all over again. It is best to wait a number of days because the virus may still be in your system.

                       WHEN IN DOUBT, USE A DOCTOR’S NOTE

An employer can always recommend an employee receive advice from a doctor. This is voluntary and cannot be required. But if the employee receives a note from the doctor that he or she may return to work, the company may honor same.

Just the opposite can occur. If a healthcare provider determines the employee is to be tested, then testing is required.

WHAT TO DO WHILE WAITING FOR THE TEST RESULTS?

Although there is some confusion in this area, if the employee has symptoms, traveled abroad or has been exposed, there should be self-quarantine while waiting for the results.

If not, the employee can work while waiting for the results as long as the usual precautions are met, including social distancing.

WHAT IF TAKES TOO LONG TO GET TESTED?

There can be various difficulties in getting tested. This may include: a) long lines, b) waiting days to get tested, c) trying to find a testing center or d) waiting a substantial period of time to get the results.

But these difficulties do not excuse the need for getting the test. For example, if there is a requirement of receiving two negative tests in a 24-hour period, an employee cannot forgo the second test just because it takes too long.

DON’T GET TESTED TOO SOON

Assume an employee has had symptoms, but within the last couple of days feels better. Or, they have cold-like symptoms and don’t think it is related to Coronavirus. Do not rush out and get tested. The virus can still, in a small degree, be in your system while you are asymptomatic. This is why the CDC recommends waiting 10 days after the onset of the symptoms and after three days of no fever.

As stated above, that can be a real “Catch 22”. If you jump the gun and test too early and it ends up being positive, you have to wait another 10 days and be tested negative twice within 24 hours.

REQUIRING A DOCTOR’S NOTE OR A TEST RESULT BEFORE GOING BACK TO WORK

According to the CDC, this cannot be required because “healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.”

For example, if an employee has symptoms and has self-quarantined for 14 days, but is feeling better, they can return without doctor’s note.

EXAMPLES

Example 1. Joe is a sous chef in the kitchen of Company A. Like most other restaurants, this kitchen is in rather close quarters. Because of the heat generated by the kitchen, it is not always practical to wear one’s mask on a continuous basis. On one particular day, Frank a line cook, tells his supervisor he is experiencing COVID-19 symptoms and is sent home. Joe remembers the previous week, as normal, he walked by Frank within a couple of feet a number of occasions. For example, to talk to other employees, go back and forth to the storeroom, take things in and out of the commercial refrigerator, and also work at his station several yards away. His passing by Frank literally lasted only a few seconds at a time and he does not remember stopping near him or facing/ talking with him. Joe remembers some of the employees, including Frank, lowered their face masks. Otherwise, all kitchen staff have been observing social distancing of 6 feet. Joe would not necessarily have to be sent home. Remember also that if all employees within that same kitchen were sent home, the business would essentially be shut down.

Note how this might be different if any of the following occurred: a) Frank coughed in someone’s face, b) Frank was in close quarters, including touching and grabbing, during horse play with another employee, c) the employees frequently shared cooking utensils, or d) there was frequent brushing up against each other.

Example 2. John is the office manager for B Company. The office currently has approximately six employees. Desks and workstations have now been set up to be at least 6 feet apart.

On four separate occasions last week, John passed Bill in the hallway going to the restroom. There also were a few occasions when he passed Bill’s desk within 6 feet. They did not engage in any conversation.

It was then determined that Bill has just tested positive for COVID-19. This does not appear to be the type of persistent contacts that would require John to be sent home.

Notice how this would be different if: a) there was a sharing of files or office equipment, b) there were frequent close quarter meetings in the conference room or c) employees sat side-by-side in the break room.

Example 3.  C is a manufacturing company. Dozens and dozens of its workforce are spread out in long tables, workbenches and workstations. They work alongside each other, although at 6-foot intervals.

Linda and Sarah work next to each other for the full eight-hour shift. Although they are 6 feet away, on numerous occasions during the day they pass by each other to either pick up material or take finished products to the next department for packaging and shipping. In the past, they would talk with each other for hours on end and catch up on the latest news. However, they no longer do so.  While doing their work, there is no physical need to be within 6 feet. They also eat their lunch at separate locations.

It was then discovered Linda either has experienced COVID-19 symptoms or tested positive. It would not be mandatory to send Sarah home.

Example 4:  The same example above except on a frequent basis both Linda and Sarah are required to feed into a large machine raw material or product. They can literally be inches away from each other when this is done. Because of the close and prolonged contact, it would be recommended to send Sarah home.

The same would apply if employees are frequently receiving the product handled by other employees as part of the sequential manufacturing process.

Example 5:  D Company is a hotel. There is no longer valet parking, no room service directly to a patron’s room, no bellhop’s handling luggage, or opening doors for patrons. Check-in staff and receptionists all where masks.

One of the maintenance persons has tested positive. However, just because that person may have walked by patrons in the hallway or spent some time in the lobby/reception area, does not mean patrons would have to be alerted.

Example 6:  E Company has outdoor seating and picnic tables for employees during the lunch hour. Debbie and Joan are not only co-employees, but good friends. The company observes social distancing even during the lunch hour. In many cases persons at the picnic tables sit 6 feet apart.

Unfortunately, it is later determined Debbie tested positive for COVID-19. Even worse, many co-employees observed that during the lunch hour, they were literally inches away from each other when they looked at each other’s cell phone for pictures of their children, vacations, sporting events and shopping events.

Because of the close and prolonged contact, Joan must be sent home.

Example 7: F Company is a golf course. It has followed many of the attached guidelines, including no close person-to-person lessons, on line purchases, online reservation of tee times, only one person at a time at the pro shop and the back office, and a battery of other protective measures.

On one occasion, George gave a group golf lesson to members at the golf range. Sign-ups were limited to 10 people and using their own clubs. Members were to stay 6 feet apart. At the head of the class, George was over 10 feet away.

Unfortunately, it was later determined George tested positive. Because of the social distancing, there would be no need to quarantine the members.

Example 8: G Company is an exercise gym. It offers its members a number of classes. Participants observe social distancing and instructors are always at the front of the class, several yards away. Brenda in the last couple of weeks has given several such classes. But it was then determined she had symptoms and was sent home. Because of the social distancing, she it would not be necessary to direct self-quarantine of the members.

It is noteworthy there should be company rules against the following: a) allowing unlimited numbers of members into the gym at one time, b) not sterilizing the equipment on a daily basis, c) one-on-one instructing or d) when showing a member how to use equipment, having close contact with them or touching.

Example 9:  H Company has an employee that shares an apartment with a roommate. That roommate has now tested positive. It is imperative that the employee self-quarantine and/or be tested as soon as possible.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

When an Employee Tests Positive for Coronavirus–Informing Other Employees

by hrconsulting14

 

The question posed is whether a company has the obligation to inform other employees if a particular employee has tested positive.

The CDC advises that if an employee tests positive, other employees should be informed of their possible exposure:

“Inform employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (ADA).”

This author has been unable to find any contrary authority to his duty to inform. Additionally, the failure to do so could very well impose liability.

One of the first cases on this subject is the Walmart case. It demonstrated the significance of warning other employees. In that matter, the estate of an Illinois Walmart employee sued for wrongful death in the case of Toney Evans v. Walmart, Inc. (Cook County Illinois Circuit Court, filed April 6, 2020, Case Number 2020L003938). The estate alleged management knew several other employees exhibited symptoms of the Coronavirus, allowed these employees to continue working and did not warn the deceased or others of the possible risk.

But it is significant to note the case also alleged the failure to maintain a safe working environment due to:

  • Not disinfecting the store or providing employees with masks/latex gloves;

 

  • Not enforcing social distancing guidelines;

 

  • Failing to evaluate employees for symptoms (for example, not using non-touch thermometers or otherwise monitoring employees for sickness);

 

  • Not inspecting, cleaning or sterilizing facilities or equipment; and

 

  • Not implementing any infectious prevention program.

Hopefully, a company will have implemented reasonable safety measures across the board–exactly what did not occur with Walmart. The take away: As long as a Company implements safety procedures before and after, and notifies other employees, it should have a relatively safe harbor from liability.

Steps to Take:

The first step is to meet with the affected employee. This should be done in a confidential setting; behind closed doors or by phone. Explain the importance of a healthy job environment and a requirement of the person to self-quarantine at home. Tell him/her to stay home until one is free of a fever for at least 72 hours and at least 10 days have passed since the symptoms first appeared.

Then inform other employees. When doing so, it is crucial to preserve confidentiality (per ADA) and not disclose the identity of the affected employee. Never do any of the following:

  • Disclosure of the infected person’s name or job title;

 

  • Disclosure of any of the person’s symptoms;

 

  • Disclosure of how long a person may have exhibited symptoms;

 

  • Disclosure of the medical condition of the employee;

 

  • Disclosure of what medical procedures the person will undergo;

 

  • Any other details of the illness.

 

By informing the other employees, the conversation can be verbal, informal and for each individual employee who may be exposed. The conversation can be as follows:

 

“Hi John. I’d like to briefly discuss a matter in private with you. There is no reason to be alarmed, but I wanted to discuss something with you briefly.

As you know, your Department consists of approximately ______ employees. One of those employees has just tested positive for the Coronavirus. That employee was last at the Club on __________ and is now at home under self- quarantine. We bring this to your attention because you worked in the same Department as that individual. Because of confidentiality, we cannot disclose that person’s name.

We will continue taking steps to make the work environment clean and healthy. This consists of ____________________________. We are hopeful these measures will be adequate for your safety.

For this reason, it is important that you self-monitor for any symptoms and let us know if any appear.

Feel free to seek medical advice if you wish. We honor all doctor’s notes. If your doctor has a particular recommendation, please get a note from him or her and give it to our HR department.”

 

The real question is how far should you go. For example, the CDC which is exorbitantly conservative, recommends that employees self-quarantine at home if they had been in close contact with an infected person. “Close contact” is defined as “being within approximately 6 feet of a COVID-19 case for a prolonged period of time.” But enforcing that to the letter of the law, would mean many of employees would stay home and the company would have a hard time operating.

In many ways, telling other employees who were in contact to stay home would be an overkill as long as the following prerequisites have or will be met:

  • Historically in the past, protective measures have been implemented, including cleaning, sterilization, masks, gloves, etc.

 

  • Cleaning and sterilizing any of the equipment this employee may have been in contact with.

Note as a practical matter, telling other employees they may have been exposed to someone who was tested positive means they will put 2+2 together and know exactly what employee. Especially when the employee has been sent home. But that realization does not mean the employer would be found liable–it is simply the inevitable result of making the disclosure.

OSHA:  At the present time, OSHA does not have specific guidelines as to the Coronavirus. For example, in March of this year, OSHA has prepared its “Guidance On Preparing Workplaces For COVID-19”. It has elaborate details of protective measures to ensure a safe work place, but there is no specific mention of having to inform other employees (for example, in a section titled “Steps All Employers Can Take To Reduce Workers Risk Of Exposure”).

This means if there is any enforcement, it will have to be under the General Duty  Clause (Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1)), which requires employers to furnish to each worker “. . . a place of employment, which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

The OSHA guidelines dovetail back into the CDC, because the Agency is allowed to utilize outside nationally recognized standards.

 

Worker’s Compensation:

Many experts predict there will be a rash of lawsuits by employees who allege contacting Coronavirus because of exposure at work. But there is some good news.

A typical Superior Court lawsuit sues, among other damages, pain and suffering, emotional distress and even punitive damages. And if death occurs, a wrongful death action. But if the Coronavirus is considered an occupational disease or injury, those damages are not available and the employees only recovery is for workers’ compensation wage loss and permanent disability ratings.

But be careful. A creative lawyer will allege the worker has suffered a mental or psychic trauma, no different than physical injury, because of exposure to the virus.

 Disgruntled Employees:

What if an employee refuses to return to work, claiming the facilities contain some of the Coronavirus germs? If they take that position, it would be unjustified.

If the Company takes ongoing efforts to clean and sterilize such equipment, this fear would be misplaced. Certainly, the employee can decide to use some of his or her accrued PTO. But I cannot stay away indefinitely or even utilize the new federal paid sick leave protections. Those protections are under the Families First Coronavirus Response Act (HR 6201), but do not allow absences for a generalized fear of contracting the virus without any substantiation.

There is some credence however, to the argument that an employee can sue for mental distress for fear of being exposed to the virus. This is exactly the basis of the new lawsuit as to what occurred to the guests on the Grand Princess cruise ship as recently reported by the media. Some of the guests sued, even though they did not test positive; it was based on the mental distress of being fearful they might contract the virus.  Archer v. Carnival Corp., No. 3:20-cv-02381 (N.D. Cal. filed Apr. 8, 2020)[Of the nine named plaintiffs, the Complaint identifies only one who was diagnosed and treated for COVID-19].

But that cruise ship presented a totally different environment for most companies. Not to mention the fact that few employees would have the resources to find an attorney to bring such an action, especially since it would not be a class action.

 

Employer’s Offer to Return-to-Work–What if an Employee Says No? HR Consulting Guidelines

by hrconsulting14

How to Handle Employees Who Refuse to Return to Work After a Furlough?

Thankfully, businesses in California are slowly reopening. A number of questions have arisen to be addressed by HR Consultants as to what is expected for the returning employees. The following are some of the common questions posed with guidelines.

Obviously, few issues are involved if an employee readily returns to work after a temporary layoff for furlough. This Memo concerns employees who, for various reasons, do not want to return and insist on remaining on furlough for an indefinite period of time. In large part, this may be because they are enjoying the ample benefits of unemployment insurance.

Remember this guidance must be viewed with the background of various state laws. For example, in California’s recent Executive Order N-33-20. Gov. Newsom has ordered all employees of non-essential businesses to stay home until further notice. It is anyone’s guess the extent to which this will be enforced in the future. If you are performing HR Consulting, you know this may also be true in other states

A word to the wise: more and more non-essential businesses are opening up even though self-quarantine laws are still in effect. Most legal advisors opine that police officers will probably not enforce these rules. However, if you do reopen, it is absolutely necessary to implement serious hygiene and protective measures. This will hopefully lessen the blow if there is a lawsuit due to one of your employees becoming sick or dying because of the virus.

FAQ

If someone refuses to return to work from furlough due to making more money via UE what are the appropriate steps here?  I know we can alert the EDD as to their refusal.  Is it a quit?

Denial of Unemployment Benefits:

As a general rule before the onslaught of the Coronavirus, to receive unemployment benefits, the employee must be: a) totally or partially unemployed, b) unemployed through no fault of their own; c) physically able to work; d) available for work and e) ready and willing to accept work immediately if offered.

This has changed slightly because of the virus. For example, the California EDD states:

Qu: Are benefits available if my employer reduces my hours or shuts down operations due to the impacts of the coronavirus?

Ans: If your employer reduced your hours or shut down operations due to COVID-19, you are encouraged to file an Unemployment Insurance (UI) claim. UI provides partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able, available, and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria.

This means that for the first few weeks/months, there would be no need to seek work because the employers were not making positions available. During that period, unemployment could be paid.

This would all change soon as there is a return-to-work offer. If the employee refuses to work, one could hardly claim they are making themselves available or seeking work. At that point, one could argue unemployment benefits cease.

But this assumes the company is considered an essential business and has the right to continue operating. For non-essential businesses, there is no right per se to remain open nor to allow employees to return to work. In that case, the employee need not prove he or she is available to work–because that position is technically unavailable.

Because California favors employees, it will probably allow the employee to continue receiving unemployment even with an offer to return to work–under the theory the offer is not legally valid because the company has not yet been given the right to reopen.

But what if a non-essential business decides to open up anyway? It would be a technical violation of the Executive Order. Positions would now be available from a practical standpoint. But not from a strictly legal standpoint. Again, because of the per se violation, the employee could argue there never was a valid return to work offer and so continue to receive unemployment benefits.

A finding the Employee Has Quit:

Bottom line: As long as the Executive Order is in effect, do not consider the employee to have quit (i.e. if an offer to return is made and there is a refusal).

The safer approach is do the following:

  • Make at least two offers to return to work (see emails #1 and #2 below). If the employee refuses, state it is evidence the employee has decided not to come back to work. In other words, they have decided, not you, to terminate the relationship. An employee can do this voluntarily at any time.
  • State if they do not return to work, their position may be filled by another person (see Email #2 below).

Email #1:

Dear Joe. This is an update as to our operations in light of the Coronavirus. For a limited number of positions, we are giving some of our employees the right to return to work. As to your previous position of ________, we are happy to report you can now return to that  job effective ______________. Your hours and rate of pay will be: _________________.

So we can properly schedule, please indicate within 48 hours as to whether you wish to return to work under those conditions. Feel free to contact me for more details (Phone: ________; Email: ________).

Email #2:

Dear Joe. On _________ we emailed you with an offer to return to work with your previous position. We have not heard from you  –OR–  We have yet to receive your written consent  –OR– You have not yet informed us of your desire to return. It is important we receive your decision, either way, so we can schedule work hours.

If we do not receive word from you within 48 hours, we will assume you are no longer interested in the position and accordingly reserve our right to have it filled by someone else.

You can call/email at any time if you have further questions (Phone _________; Email: __________). If we do not hear from you, the best of luck in your future job endeavors.

If someone refuses to return to work from furlough due to fear of the virus what are the appropriate steps here? I know we can try to explain the safeguards in place and the fact that the venues have no known cases of COVID-19.  Should we just keep them out on furlough and leave them alone or can that be a quit?

 Assume an employee has not tested positive, does not have the virus, has none of the symptoms, has not sought or received medical attention and there is no information of contacts with others having the Coronavirus. Notwithstanding, the person has a generalized suspicion it would not be safe to return to work. It is merely a personal belief.

At the Federal level, there is the Families First Coronavirus Response Act. This is the new federal paid sick leave, so technically it does not apply to our situation. But by analogy, it may provide some guidelines. There are only six reasons to receive benefits:

  • (1) Subject to a federal, state or local quarantine or isolation order due to the Coronavirus.
  • (2) Has been advised by a healthcare provider to self-quarantine due to concerns related to Coronavirus.
  • (3) Experiencing symptoms of the Coronavirus and is seeking a medical diagnosis.
  • (4) Caring for an individual who is subject to a self-quarantine order as directed by a governmental authority or healthcare provider.
  • (5) Caring for a son or daughter if the school or place of care has been closed or is unavailable due to the virus.
  • (6) Experiencing any other substantially similar condition specified by the Sec. of Health and Human Services.

Factor (1) does apply in California because of its stay-at-home quarantine order.

Then there are regulations at the State level. As mentioned, California currently has in effect a stay-at-home order which would apply to non-essential businesses. It applies even if an employee has no symptoms. And by definition, it would apply to mere generalized suspicions–since it applies to all persons in all circumstances as to these non-essential businesses. Further, the Federal Act does not preempt state law.

So as stated above, the company would technically have to continue the furlough.

The answer could also depend upon the relationship with the employee. If the Company really likes the employee or that person is indispensable, by all means you can allow him or her to continue on furlough.

For these reasons, the best solution is not to force a “Quit”, but send out the attached emails and let the employee make the decision.

If someone refuses to return to work from furlough due to underlying medical condition?  I assume we keep them out on furlough and maybe have them complete an accommodation request?

 The usual ADA rule has been the employer can ask an employee if they are able to perform work duties, but cannot ask about the disability itself. But the EEOC has changed this rule with the Coronavirus. Under new guidelines, if an employee does not want to come back to work for fear of contracting the virus due to an underlying medical condition, the company can actually ask the nature of the disability and even request medical documentation (while the same time keeping this information confidential) . Supposedly, this will better help the Company institute accommodations and prevent the spread of the virus those individuals.

Thus, effective April 23, 2020 the EEOC has stated:

What are an employer’s ADA obligations when an employee says he has a disability that puts him at a greater risk of severe illness if he contracts COVID and therefore asks for a reasonable accommodation?

A:    The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, this is clearly a request for a reasonable accommodation and a request for a change in the workplace. Because employers cannot grant employees reasonable accommodations for disabilities that they do not have, employers may verify that the employee has a disability, what the disability is, and that the reasonable accommodation is necessary because the disability may potentially put the individual at a higher risk for severe illness due to COVID-19.

There may also be a situation in which the employee’s disability is exacerbated by the current situation. The employer may verify this as well. Aside from requesting a doctor’s note, other options to verify an employee’s disability may be to request insurance documents or their prescription. An employer may want to provide a temporary reasonable accommodation pending receipt of the documentation.

For this reason, if an employee states they have an underlying condition, you can follow up with the following email:

Thank you for your recent reply. To summarize, on our Company offers you the opportunity to return to work in your position as ____________. You indicated you would not be comfortable doing so and wanted to continue on furlough because of an underlying health condition.

We want to make sure you are safe at work and accommodate any disability. For this reason, please indicate the nature of your disability. Also provide medical documentation or a doctor’s note. This is in accordance with the recent guidelines of the EEOC on April 23, 2020.

In the meantime, we reserve the right to fill your position with someone else so we can productively operate our business. So, your prompt response would be very helpful.

This would not apply to obvious conditions such as age (over 65) which would not require medical confirmation.

If someone refuses to return to work from furlough due to lack of childcare should we just leave them out on furlough?  Are they then entitled to the FFCRA 2/3 pay?

 You have to be very careful here. Two recent laws give employees large entitlements in cases in which their child’s school has been closed. In California, all schools are closed through the end of the school year. This includes the following:

Families First Coronavirus Response Act–New Federal paid sick leave: up to 80 hours of paid sick leave at the regular rate of pay. Maximum is $511 per day or a total of $5,110.

Families First Coronavirus Response Act–New extended FMLA: If an employee stays home to take care of a child with a closed school, a person receives no benefits the first 10 days. But on the 11th day forward, there is paid leave at the rate of two-thirds of their regular rate of pay, not to exceed $200 per day and $10,000 total.

Obviously, this could be a financial drain on the Company if large numbers of employees insist upon these benefits. You want to avoid this as much as possible. For this reason, it is better to allow the employee to remain on unemployment and continued furlough. If you refuse the furlough (declare job abandonment or they have quit), you run the risk they will immediately apply for these benefits.

If we just don’t hear back from someone who we try to call back from furlough, I presume this will be considered a quit?

Yes, you can presume this is a “quit”. You would send the above emails, and if no response, confirm they have voluntarily quit.

Conclusion

To be safe, if an employee refuses to return to work while on furlough, let them continue in that status and do not force a termination or quit status. What does the company have to lose? The employee continues to receive unemployment and is happy with the situation. There is less danger the employee will be asking for the payout of additional paid sick leave.

As an HR professional, you can always inform the employee that you reserve the right to fill that position with someone else if they continue to be on furlough.

HR Consulting Network can act as your virtual Independent HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our independent HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

HR Consulting News: California Meal Break Waivers

by hrconsulting14

The question presented is whether it is permissible for a non-exempt employee to waive a second meal break. Note: these rules do not apply to exempt employees under the category of executive, administrative or professional. This is written from the perspective of an HR consultant.

For example, the employee receives a 30-minute paid meal break before the 5th hour. But the employee continues to work for 12 hours in that particular day. Because the employee has been given the first meal break, can there be waiver of the second?

HR Departments know that California Labor Code Section 512 sets forth the general rule. An employee who works 8, 9 or 10 hours in a day, is entitled to just one 30-minute meal break. An employee who works 11 or 12 hours in the day is entitled to a second meal break unless that person waives it in writing. A person that works 13 or more hours in a particular day, must under all circumstances have a second meal break and it cannot be waived.

This is the general law of the State. However, there are special rules as to the pest-control industry. This is found in California Wage Order 5—2001. This Order applies to the “public housekeeping industry.” Under “Definitions” (P), this is defined as companies that “contract for development, maintenance, or cleaning of grounds; maintenance or cleaning up facilities and/or quarters of commercial units and living units”.

As to maintenance, this would most readily apply to handyman services or building contractors. For example, maintaining and repairing an HVAC system.

As for cleaning, this would most readily apply to maid or cleaning services, such as sweeping, vacuuming, mopping, sanitizing and other related cleaning services. The open question is whether this would apply to pest-control. Obviously eradicating, for example, rats, mice, ants and roaches would be a form of cleaning the premises. Because the penalties of not giving a meal break can be severe (one hour of wages per missed break, together with penalties and interest per Labor Code Section 226.7) an abundance of caution would classify pest-control companies under this wage order. In fact, the review of one of the attorney blogs who represents employees, emphatically states that it does apply to pest-control companies: (https://www.turleylawfirm.com/blog/pest-control-class-action-lawyer.cfm).

Section 11 “Meal Periods” of Wage Order 5 states as to the healthcare industry, employees who work more than eight hours in the day can waive in writing the second meal break. But that is the only waiver that is specified. Waivers for the pest-control industry are not mentioned.

Thus, this is subject to two interpretations:

  • Because a special exception is not stated for the pest-control industry, there cannot be a waiver of that second meal break or
  • The Wage Order does not state pest-control companies cannot give the waiver so it would be allowed as usual under Labor Code 512.

Recommendation:

Because of the vagaries of the law and the tendency of California courts to side for employees, be cautious here and lean toward being conservative.

Here are the examples:

Employee Works 8, 9 or 10 Hours in a Day: You can get away with one meal break.

Employee Works 12 or More Hours a Day on a Rush Job: Have the HR department give the employee the option of either taking a second 30-minute meal break or, if the employee would rather go home and not take a second break, give them one hour of pay at the normal rate. Once that is paid, there are no further penalties (Cal. Code of Regs., tit. 8, § 11040, subd. (12)(B) states: “If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided”).

As an HR professional, always keep these rules in mind. If you have any special fact pattern that does not fit nicely into these guidelines, feel free to give us a call.

National Lien Law can act as your virtual Independent HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our independent HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

 

 

 

Taking Employee Temperatures for Coronavirus

by hrconsulting14

This is a guide for HR consultants before they make a decision as to whether to take employee temperatures before going to work. Here are FAQs on the subject:

 

Is it Permissible for HR to Take Employee Temperatures Before Start of Work? As a result of CDC recommendations, it is now permissible per the EEOC to do so. As of March 17, 2020, the EEOC issued the following guidelines:

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

However, a Company is not required to take temperatures.

What is Considered a High Temperature? Per CDC guidelines, 100.4 F/38 C or above.

How do you Give the Results? The actual temperature should be kept confidential and placed in a file separate from the personnel file and not broadcast others. If the employee has a high temperature, take the person aside to notify them of the reading. Also privately state the details, if any, of your decision to send the person home.

What Kind of Devices are Used? Use only a no-contact, infrared digital thermometer (forehead scanner). Traditional oral thermometers are considered too intrusive.

Who Administers the Test? Recommendation: A trained nurse or other medical professional. If not available or too costly, a management level employee or someone from the HR department. Use PPE precautions, including gowns, facemasks and gloves.

What to do if the Employee has a Temperature? A temperature alone is not indicative of COVID-19. However, it is recommended the employee be sent home for a minimum of 24 hours to be fever free. If in addition to fever, there are symptoms of dry cough, shortness of breath and chills, the employee must be sent home for a 14-day quarantine.

Can the Employee be Required to Wait in Long Lines? There are no specific guidelines, but for productivity purposes and to eliminate employee inconvenience, HR should attempt to shorten the lines by: a) having more than one entry point or b) staggering with different shifts. Make sure there is social distance while waiting in line (placing markers with tape).

Are the Employee’s Paid For the Time Taking the Temperatures? It is best to have the employees punching in when they first arrive before getting in line. That way they will not be shorted for their hours. Although the argument can be made testing is so brief in time to be de minimis, it is best to consider these preparations indispensable to employees work activity (per the FLSA) and therefore compensable.

What Records Should be Kept? Temperatures need not be recorded, but if they are, they should be contained in a confidential file. As an alternative, you can be recording “No” or “Yes” as to the temperature thresholds.

What Questions Can You Ask the Employee? Per EEOC guidance, the employer may ask an employee if he or she is experiencing any symptoms of COVID-19 or if they have been tested. This applies even if the employee has not volunteered that he or she is feeling ill. As usual, you cannot be selective who you ask as this could be interpreted as discriminatory.

The perfect time to ask these questions is right before the temperature is taken. You can ask the employee: “Have you been experiencing any of the following symptoms recently? Fever; dry cough; shortness of breath or difficulty breathing; chills; repeated shaking and shivering; muscle pain; headache; sore throat; excessive sweating; sinus congestion or new loss of taste or smell (read from a card to show it is uniform)?

Because you will be asking personal medical information, this has to be out of the hearing range of others. Put the employees in a separate line. Then one by one take an employee to a separate room immediately adjacent which is private, for the questions and temperature taking.

Do These Rules Also Apply to Non-Employees Entering the Workplace? Yes. The same rules would apply to guests, customers, vendors, consultants and other third parties. Remember that OSHA requires an employer to maintain a safe workplace and protect others from direct threats as to recognize hazards, including the virus. Place the attached form at the entrance of the facility in a conspicuous location so all persons entering can see same.

Is Employee Written Consent Required? No, but employees must be given prior notice–please use the attached form.

What if the Employee Refuses to Take a Temperature? No employee can be forced to take a temperature. If they refuse, you can bar entrance to the facility. And technically it is a violation of company policy and they can be written-up. However, termination would not be recommended. Instead, instruct the employee to stay home until they bring in a certification of negative testing through a community testing center or when government authorities have given the “all clear” for all employees to return to work.

National Lien Law can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.