This blog post can also be found on our Coronavirus Resource Center.
As many states, cities, and communities begin to ease their coronavirus restrictions, US businesses are navigating uncharted territory. What steps should they follow when reopening their workplaces? To help business owners answer many of these new HR and legal questions, we asked three of our experts at Woodruff Sawyer and an employment law expert for their advice in our recent webinar.
Employee Benefits: Compliance Q&A
Jennifer Chung, Vice President
Q: Can we allow employees to make mid-year election changes without a qualifying event?
A: The great news is yes, absolutely. Normally, employees need a Section 125 Qualifying Event or a HIPAA Special Enrollment event in order to make changes to their plan elections once the open enrollment period has closed. Because of the pandemic, some carriers have allowed employees who previously waived to add coverage. But because there wasn’t a Section 125 Event, they had to pay on a post-tax basis.
Now, the IRS has come to the rescue and has issued guidance that will allow employers to adopt an amendment that will allow employees to prospectively newly enroll in the plan, switch plan options or drop coverage completely. Employees will need to attest that they have other coverage.
Q: Do returning furloughed employees just pick up where they left off?
A: ERISA makes a clear distinction between a terminated employee and a furloughed employee. With a terminated employee, the employment relationship is completely severed. So, in order to get them back, you have to rehire them. With a furloughed employee, ERISA treats it more like a continuing employee who has zero hours. So, in order for them to return to work, just schedule them for hours. You should not give them a waiting period. For rehired employees, there is an ACA rule that says within 13 weeks or 91 days of being rehired, you cannot put a rehired employee on a waiting period.
You also can give employees a new enrollment opportunity. That option has not changed because of the pandemic.
Q: Are there notices or legal matters that employers should address upon reopening the workplace?
A: If you have made changes to your plan during this pandemic, you have to amend the ERISA plan and the ERISA SPD to reflect those changes. The IRS and the DOL have extended deadlines for employers to make these amendments. What you need to do now is let your employees know what your intended plan changes are, when they will take effect and what steps they need to follow.
Issues in Legality
Tiffanny Brosnan, Employment Attorney, Snell & Wilmer
Q: What kind of employment lawsuits will I need to worry about when employees return to the office?
A: There are a few main categories—leave laws, retaliation, discrimination, workers comp and pay related claims.
You may want to have everyone come back to work, but your employees may still be entitled to protective leave time if they are sick with COVID, if they’re caring for someone with COVID, or if their child is home from school or daycare, and they can’t go back to work. Another trend that we’re expecting is related to mental issues. Those qualify as disabilities, and you will need to reasonably accommodate them unless you show that it is an undue hardship. And it will be hard to show that it is an undue hardship if they’ve already been working from home.
Then there are the retaliation claims that come into play if an employee says, for example, “I am being retaliated against because I took this leave” or “I’m being retaliated against because I’ve been complaining about these unsafe work conditions.” That is protected, possibly concerted activity, and you don’t want to take any disciplinary action against employees after they’ve made those types of complaints.
Discrimination complaints are possible as well when you are returning employees back to work after furlough. You need to do the same type of analysis that you did at the beginning of that (furlough). Are these returning members of a protected class? Am I disproportionately returning members of a protected class? Is there a disproportionate amount of men or certain races or ages?
We’re expecting workers’ comp claims. Our California Governor made an interesting ruling recently saying there is an assumption that someone who has COVID and who has been in the workplace the past 14 days got it in the workplace. And they will have to prove they got it at the grocery store or wherever.
Finally, let’s consider pay-related claims. You may not have as much work as you usually do.
You can deal with that easily with hourly workers—you can pay them for the time that they work. For salaried workers, they need to get their entire salary for a full workweek even if they’ve done two days of work that workweek. Their salary cannot fluctuate based upon the number of hours that they work.
Q: Can/Should I force employees to come back to the office?
A: Yes, unless they fall into one of those categories that entitled them to protective leave. Should you force them? That’s a whole different question.
We are in very unchartered waters here, and you don’t want to be the first one to fight one of these (cases). Most of the guidelines—either state, county, federal—all say to allow work from home where possible. So, you will be complying with those guidelines by allowing those employees to keep working from home. You’re going to need to enforce social distancing guidelines, and an easy way to do that is by reducing the number of people in the office on any given day.
I recommend that employers do a “Safe Return to Work Survey.” You ask employees to fill out a simple survey with questions such as, “Do you consider yourself to be vulnerable within the CDC Guidelines?” and “Do you have childcare issues that would interfere with your ability to return to work?”
The survey will give you a great foundation to build upon when reopening the office, and it makes employees feel they have a say in the process.
Q: How do I safely reopen the office?
A: You need to look at the orders that apply to you by location and by industry. What is the CDC saying? What is OSHA saying? They have great information on their websites. And then look at your state. In California, for example, our governor put out the “Resilience Roadmap.” It lists five things every employer must do, and there are detailed guidelines by industry for each one. The five must-dos are:
- Perform a detailed risk assessment and implement a site-specific protection plan.
- Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and to stay home if they have them.
- Implement individual control measures and screenings.
- Implement disinfecting protocols.
- Implement physical distancing guidelines.
You also need to look at your individual county and city. If they are inconsistent, follow the strictest orders. For example, Los Angeles might not open for some time now. Even if the State of California says you can open, if you’re in Los Angeles, you need to follow the stricter procedures there.
Employers also must have an Injury and Illness Prevention Plan that includes a new Infectious Disease Preparedness Plan. These plans must be tailored by worksite, and I recommend that all employers complete them right now.
Testing is fraught with problems. The big issue is if you get tested today, and you test negative, you can still get it tonight when you go to the grocery store on your way home from work. And that doesn’t give anyone a sense of security for tomorrow. So testing is not something that we are typically recommending.
Use of masks and face coverings—you’ve got to follow your local orders. I do not recommend that you allow employees to use N-95 masks because OSHA has many regulations you need to follow with those.
Something else that I recommend is a Wellness Certification. Ask employees a series of questions each day they come into the office such as:
- Have you had any of these symptoms? (Check the CDC website.)
- Have you been in contact with anyone who has these symptoms?
- Have you taken your temperature? (You can take an employee’s temperature, but I recommend having employees do it themselves, if you can under your local orders.)
To help with contact tracing, I recommend creating a record of where the employee goes on each office visit. For example, at the end of the workday, the employee records, “I was in my office, the supply room, and the bathroom.”
Finally, include your employees in the process. Have virtual suggestion boxes. Help them take ownership in creating a safe workplace. As I mentioned, the guidance changes almost daily, so you need to monitor it in order to be ready to adapt and change your protocols.
An HR Perspective
Andrea Pappas, Assistant Vice President
Q: How can I make employees feel safe when returning to the office?
A: Employees are going to be looking to their employers to make sure that they feel safe. I think providing mental health services for your employees—whether that’s through your medical carrier or outside vendors—is very important.
We encourage a phased approach to employees returning to the office. Allow employees to have a say when they return that is based on their own personal situation. Ensure social distancing policy is in place, invest in smarter cleaning methods, promote ongoing communication and educate your employees on healthy habits. Also, create an environment where if employees feel sick, they won’t feel that they will be negatively impacted if they stay home.
Lastly, promote telemedicine and virtual health medicine. We’re probably all going to have virtual mental health visits. Maybe we can dedicate an unused conference room for employees to utilize if they need to have a virtual mental health visit or a telemedicine visit.
Q: How do we physically set up work stations in the office?
A: There really is no clear-cut guidance, but we do have some approaches to suggest.
Physical changes—increasing the workspaces, setting desks six feet apart, creating higher cubicle walls, updating air filtration systems, adding automatic doors and no-touch soap dispensers and making sure that hand sanitizer and cleaning products are available for all your employees.
Behavioral changes—creating expectations for hand washing (We have a poster in our tool kit that you can put up around your offices.), suggesting alternatives to handshaking, increasing those office deep cleanings schedules, adjusting your meeting practices, encouraging teleconferences, removing extra conference room chairs, and canceling non-essential travel.
The last part of physically setting up is some of those technology considerations. Maybe consider the use of hands-free voice assistance platforms in the office—getting those systems in place, expanding telecommute options, promoting staggered workdays, and considering compressed work schedules.
Q: Do employers need to provide PPE? If so, what types are required?
A: Much of OSHA’s guidance is really around good hygiene habits. They also recently released some classifications for workers in four categories, starting from very high (that would be like doctors who are treating COVID patients) to lower risk-type office employees, which would be most of us who attended the webinar.
For low-risk employees, employers do not have to supply PPE or really do anything differently as far as PPE than what was going on before the coronavirus outbreak. You don’t need to run out and get a whole bunch of masks for your employees. If you do have some employees who have face-to-face contact with the public, you may want to consider some alternatives. We do, of course, encourage you to set up some of those social distancing protocols and stress handwashing.
The Financial Perspective
Leslie Slay, Senior Vice President
Q: What are updates on carrier premium delays?
A: Over the last two months, some carriers have expressed a willingness to give a 60-day delay on premium payments. You need to check with your broker or your consultant to see which carriers are offering a delay and how you might qualify for it. This delay is not forgiveness; those premiums will be due. However, UnitedHealthcare recently announced that they’re looking at returning premium to their policyholders—$1.5 billion. We believe other carriers will follow suit as well. The formulas are still coming out into the marketplace as to how those premium refunds will be recouped by UnitedHealthcare clients. But the market is responding. They are really trying to make this as tenable as possible.
Q: What are the impacts of future health insurance premiums/renewals?
A: Back in March, when the pandemic began, actuaries were looking at potentially an 8–9%increase on healthcare costs just due to COVID-19. What we’re seeing now is those numbers being reduced. The reduction is primarily due to the unforeseen impact of delayed care.
A lot of people are not going anywhere near the hospital. They are putting off medical care, and those costs are offsetting each other. So now we’re looking at maybe a 1% COVID-related increase or potentially a wash. The concern is that there will be a boomerang on that, perhaps in 2021, so that is something for us to be mindful of.
Q: Are there any new concerns with COBRA?
A: On April 28, the DOL released new guidelines around COBRA beneficiaries. The concern is that there will be some unintended consequences with people delaying paying COBRA premiums, and employers not finding out for many months and then going back to the carriers to ask for refunded premiums. I think that’s a whole other bag of worms, but it’s something that you’re going to want to pay attention to.
For more information on these and other new workplace issues, explore the Woodruff Sawyer Insight, An Employer’s Return to Work Toolkit: The “New Normal” After COVID-19. If you have further questions, reach out to your account manager. Woodruff Sawyer will continue to monitor the situation and provide further resources and webinars as things change.