News

We know that the last couple weeks have been exceptionally trying for our clients at DeWitt, and for small, medium, and large businesses everywhere.  The Coronavirus crisis has presented unprecedented challenges and required businesses to make incredibly difficult staffing decisions with no lead time and little certainty as to what comes next.  So much of this crisis is fluid. 

We wanted to share some of the “front line” human resources lessons and observations we have found to be most important so far.  We hope they help.

Lesson #1:  Plan for the first Coronavirus-positive employee before you have one, if possible.

For a while, the prospect of having an employee test positive for Coronavirus seemed more theoretical than real.  That is now quickly changing.  With the virus spreading and testing increasing, we are now beginning to see employers contend for the first time with an employee receiving a positive diagnosis.  Such a diagnosis often raises big alarm bells—not only for the company but for co-workers.  The urgency level rises immediately.  It is wise to think through a plan ahead of time.  An example of such a plan follows in Lesson #2.  

Lesson #2:  Once you have a Coronavirus-positive employee, act fast.

Some items to consider are:

• Make a general announcement that an unidentified employee has tested positive and detail steps being taken by the company to limit further risks.
• Shut down part or all of an office/facility for a period of time.
• Require employees most likely to have had contact with the employee to work from home or take off of work.
• Engage an industrial cleaning service to sanitize the facility. Conduct frequent cleanings thereafter.
• Begin temperature checks of all employees to identify those most likely to be infected, consistent with recent EEOC guidance.
• Re-emphasize to all employees that they should stay home if they experience absolutely any symptoms associated with Coronavirus.
• Introduce hand sanitizers throughout the facility and underscore the importance of frequent hand washing.
• Consider increasing pay or providing other incentives for employees to remain on the job.

To be clear, once an employee tests positive, his or her employer will face a significant challenge convincing other employees to continue doing their jobs.  Employers must do everything possible to demonstrate that they are “doing the right thing” such that employees can be reasonably confident they are not being needlessly exposed.

Lesson #3:  You may very well qualify as an “Essential Businesses” under Wisconsin’s Emergency Order and/or similar emergency orders in other states.

Many businesses feared that they would have to shut their doors in the wake of Wisconsin Governor Evers’ Emergency “Safer at Home” order (and similar orders in other states).  But this order, like those in other states, provides fairly broad exceptions.  We expect many employers to be able to continue running.  It’s best for employers not to assume that they must shut down if they prefer to remain open. 

Lesson #4:  You may be advised to tolerate some amount of sick leave “abuse.”

Many employers are understandably concerned that some employees will use the Coronavirus crisis to take sick days that may not be warranted.  We certainly recognize this possibility.  However, most employers are well-advised to take a very flexible position on sick days right now.  In general, there is far more risk associated with a Coronavirus-positive person operating in the workplace than with a healthy employee taking liberties with the employer’s sick leave policy.  As noted above, once an employee tests positive, it becomes much more difficult to continue operating smoothly.  In general, avoiding that risk must take priority.

Lesson #5:  Expect employee confusion on the new federal Coronavirus sick leave and expanded FMLA law and be prepared to address it.

We have spent a significant amount of time advising employers on the Families First Coronavirus Response Act (FFCRA), a law that provides some employees with expanded PTO and FMLA rights related to Coronavirus.  It takes effect April 1, 2020.  For a great summary of this law by one of my DeWitt colleagues, please see hereclick to read summary of this law.

Based on our discussions and analyses so far, we see ample room for confusion—both on the side of employers and employees.  It’s important that employers quickly get a handle on this new law so they can properly inform employees of their options and manage these new programs. 

Here are four things that are routinely misunderstood:

• Employees may only take advantage of new PTO and FMLA rights if they cannot telework.
• Any leave or paid time off taken before April 1, 2020 has no effect on an employee’s rights under the new law.
• The law only applies to employers with fewer than 500 employees.
• An employee can receive some payments under both the PTO and FMLA provisions, but those payments are capped, and employers can receive immediate tax credits on payments made under the FFCRA.

We expect that employers will have to communicate regularly with legal counsel on FFCRA issues in the first few weeks.  There’s just too much to digest.

Lesson #6:  You may be able to accomplish more work remotely than you thought.

One of the positive trends to emerge out of the Coronavirus crisis is the successful transition of significant work to remote locations. Obviously, necessity breeds ingenuity, and we are regularly seeing ingenuity.  Most employers are reporting to us that they have been able to move far more operations to remote work environments than they would have anticipated.

Lesson #7:  It’s wise to consider many options on staffing—not just layoffs.

Yes, layoffs are an option and sometimes a necessity.  However, many employers—at least at this early stage—are considering other possibilities to managing employee costs.  Here are few:

• Decreased hours for staff
• Reduced pay for staff
• Placement of employees on unpaid administrative leave (potentially with the option of retaining health insurance)
• Conversion of some employees from salaried to hourly.

We expect employers to continue exploring ways to avoid letting most of their workforce go.  Hopefully, they will be able to “buy time” until more dramatic steps become necessary.

Lesson #8:  You will likely have to accept certain WARN-related risks if you are a medium-sized or large company conducting big layoffs.

For some companies, layoffs are the only realistic option. Normally, federal and state laws require employers of certain sizes to provide notices to affected employees (as well as some governmental agencies) 60 days or longer in advance of the actual layoff.  In this environment, most employers conducting layoffs do not believe they can realistically extend this lead time.  Many are proceeding with layoffs immediately, notwithstanding the potential risks in doing so.  In general, both federal and state law do provide “sudden unforeseeable business change” and “natural disaster” exceptions to these lead time requirements that may apply.  Even with these possible exceptions, however, a notice is usually required as soon as practicable.  It is wise for employers to confer with counsel about WARN requirements and make a thoughtful decision about how they wish to proceed.

THIS ARTICLE CONTAINS GENERAL INFORMATION AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE.  FOR LEGAL ADVICE, PLEASE CONTACT EMPLOYMENT LAW PARTNER SCOTT PALER OR YOUR REGULAR DEWITT ATTORNEY.