The COVID-19 pandemic has created a labyrinth of new legislation, regulations, orders, and guidance, forcing employers to adapt quickly. Given the rapid change, now is a good time to ensure that your workplace policies have kept pace. Here are six policies to review.
#1: Sick/COVID-19 Leave:
In response to COVID-19, federal, state, and local legislatures and agencies have approved new laws and/or emergency rules requiring employers to provide leave to employees impacted by COVID-19. Additionally, some state and local jurisdictions already had leave laws that cover certain situations related to COVID-19 and public health emergencies. Review your policies to confirm they comply with all current laws and emergency orders.
Employers may also want to consider offering more generous leave benefits to encourage employees to stay home when sick and give them flexibility to manage family responsibilities during the pandemic.
Some leave laws require employers to have written policies outlining the leave entitlement. Even if the law doesn't require a written policy, or you choose to provide leave voluntarily, it's a best practice to have a clear policy outlining employee and employer rights and responsibilities related to leave. Generally, it's a best practice to have a separate policy for each type of leave. Your leave policies must be at least as generous as all applicable federal, state, or local laws and should address:
- Who is eligible (include all requirements for eligibility, such as length of service and status as a full-time or part-time employee).
- How much leave is available and how it accrues (if applicable) and whether and how much leave can be carried over.
- Whether the leave is paid or unpaid.
- The types of absences covered by the policy.
- How employees can request leave, taking into account that, during a public health emergency, supervisors and other leaders may not be in the physical workplace to receive such requests.
- Employee notice about the need for leave (many leave laws restrict the amount of notice employers may require).
- Benefits continuation (leave laws typically require employers to continue health and other benefits while the employee is on leave).
- Documentation (many leave laws have rules on the documentation employers may require to confirm the absence is covered).
- Job reinstatement (under most leave laws, employees must be reinstated to the position they held prior to the start of leave or a comparable position).
- How the policy interacts with other leave policies.
- Anti-retaliation statement (many leave laws prohibit any adverse action against an employee for taking leave or inquiring about their rights under the law).
Note: For leave provided under the federal Families First Coronavirus Response Act, see our sample Emergency Paid Sick Leave for COVID-19 Policy and Public Health Emergency Leave/Expanded FMLA Policy.
Many employees are using less vacation during the pandemic than they usually do, which can make it harder for employers to plan and budget for the time off. In some states, ballooning vacation balances could also become a financial liability for employers at year-end or when employment ends. This is because some states explicitly prohibit policies that force employees to forfeit accrued, unused vacation (also known as use-it-or-lose-it policies). In these cases, employers must generally allow employees to carry over accrued but unused vacation from year to year, or pay employees for the unused time at the end of the year. Similarly, in these states, employers are required to pay out any accrued, unused vacation at the time of separation.
While you may want to encourage employees to take vacation time to rest and recharge, review your policy to ensure it allows you to maintain adequate staffing and clearly communicates that vacations will be granted based on scheduling needs. Consider planning for peak periods by establishing an early deadline for submitting requests.
Also, be sure that your policy complies with all applicable state laws. States generally handle unused vacation in one of three ways:
- Expressly prohibit use-it-or-lose-it policies. These states require carryover from year to year and payout at separation;
- Permit use-it-or-lose-it policies but only if the employer has a written policy that explicitly states it will not carry over accrued, unused vacation to the following year and won't pay employees for accrued, unused time at separation; or
- Don't require employers to carry over accrued, unused vacation to the following year or pay employees for unused time at separation unless they have a policy that says otherwise.
Even if your state allows a use-it-or-lose-it policy, you may want to consider revising it to allow employees to carryover more leave given the restrictions on travel and the stress of the pandemic on many employees' lives.
Note: In some of the states that prohibit use-it-or-lose-it policies, a reasonable cap on accruals may be permitted. In such cases, employees have to "use" some of their time in order to earn any additional time.
#3: Safety & Health
Review your safety and health policies to ensure that they comply with rules enforced by the U.S. Occupational Safety and Health Administration (OSHA), state health and safety standards, and all applicable state, local, and industry-specific COVID-19 rules, orders, and guidance.
In particular, review your infectious disease control policy to ensure it addresses health and safety issues brought about by the pandemic, including:
- Face coverings
- Social distancing requirements
- Avoiding group gatherings and in-person meetings
- Travel restrictions
- Reporting potential exposure
#4: Flexible Work Arrangements
In response to the pandemic, many employers have adopted or expanded flexible work arrangements, such as telework, staggered shifts, compressed workweeks, and flextime (early arrival or departure).
Given the unique circumstances of COVID-19, employers may need to consider making their telework policies more flexible than usual. For instance, these policies sometimes prohibit employees from taking care of a child or elder during work hours. However, if employees are working from home due to community spread of the virus, children are likely to be home from school with no backup care available. Consider altering deadlines or allowing employees to schedule their work around their child or elder care needs.
The U.S. Department of Labor (DOL) generally requires an employee to be paid for all the time between their first and last principal work activities. However, the DOL has announced that it won't apply the "continuous workday" rule in certain situations where employers give teleworking employees flexibility during the COVID-19 pandemic. For example, an employer and employee may agree to a telework arrangement of 7 a.m.-9 a.m., 11:30 a.m.-3 p.m., and 7 p.m-9 p.m. on weekdays. In such cases, the employer must compensate the employee for all hours actually worked (7.5 hours in this example), but not all 14 hours between the hours of 7 a.m. and 9 p.m. The continuous workday rule still applies to employees who aren't teleworking for COVID-19 related reasons. Check your state law for similar rules.
With compressed workweeks (such as four 10-hour workdays per week, instead of the typical five 8-hour workdays), keep in mind that some states (and certain industries), including Alaska, California, Colorado, and Nevada, require overtime pay when non-exempt employees work more than a certain number of hours in a workday. However, some states may allow employers to adopt alternative schedules (eliminating the daily overtime requirement) if certain conditions are met. Check your specific law to ensure compliance.
Flexible work arrangements can also make timekeeping more complicated. Make sure your policies require employees to record all hours worked and expressly prohibit off-the-clock work. Additionally, to ease tracking, consider implementing an electronic timekeeping system that workers can access via a computer or mobile device. Train employees to accurately record all hours worked as well as meal breaks and paid and unpaid time off.
Note: The DOL has recently released guidance addressing employers' obligations for tracking teleworking employees' work hours.
#5: Meal & Rest Periods
To help promote social distancing in response to COVID-19, many employers have adopted staggered meal periods and rest breaks. Since some states and local jurisdictions have specific requirements for the timing of meal periods and rest breaks, ensure that staggered breaks comply with those rules.
In general, rest breaks must be paid. Under federal law, meal periods must be paid unless the two following requirements are met:
- The meal period must generally be at least 30 minutes without interruption; and
- The employee must be fully relieved of all duties for the purpose of eating a regular meal.
Note: If you require employees to do work, whether active or inactive, while they are eating their meal, they aren't completely relieved of duty and they must be paid for that time. For instance, if you ask receptionists to eat lunch at their desk in case the phone rings or clients arrive, you would have to pay them for the entire time, even if no calls come in and no clients arrive during that time.
Some state and local COVID-19 orders require or recommend that employers block or limit access to break rooms to help prevent group gatherings. In response to this and other social distancing guidelines, some employers may contemplate requiring employees to eat their meals at their workstation. However, this can increase the possibility that employees may be interrupted during their meal period and trigger the pay requirements under federal law. Also, under certain state laws, requiring employees to stay on premises may affect whether the meal period is paid or unpaid. In general, employers may give employees the option of eating their meals at their workstation (if safe to do so), in their cars, or away from the employer's premises. If the option to eat at their workstation is available to employees, they should be directed to report any interruptions so that they can either be compensated for the time or be allowed to continue their meal period so that they receive a full, uninterrupted 30-minute meal period.
#6: Equal Employment Opportunity (EEO)
Federal, state, and local laws prohibit employers from discriminating against applicants and employees on the basis of certain protected characteristics, such as age, race, sex, disability and religion, among others. The list of protected characteristics continues to change as states and local jurisdictions enact new laws and government agencies and courts take new positions on existing laws. For example, some jurisdictions have enacted legislation that expressly bars employers from discriminating against individuals because they have tested positive for COVID-19 or refuse to serve customers who aren't following safety protocols. In addition, instances of harassment and discrimination tend to increase around situations like COVID-19.
When reviewing your equal employment opportunity policy, consider whether it clearly:
- Includes all the characteristics protected under applicable federal, state, and local laws.
- Prohibits retaliation against employees for filing a complaint or participating in an investigation.
- Stresses that all employment decisions are based upon one's qualifications and capabilities to perform the essential functions of a particular job, without regard to protected characteristics.
- Governs all aspects of employment, including but not limited to hiring, selection, training, benefits, promotions, compensation, discipline, and termination.
- Urges the reporting of all instances of discrimination and harassment.
- States that appropriate disciplinary action, up to and including immediate termination, will be taken against any employee who violates the policy.
Ensure that policies are updated as laws, regulations, guidance, or company practices change. When you update your policies, include a revision date on each version and make clear that the current version supersedes all previous versions. It's also a best practice to obtain signed acknowledgments from employees whenever you issue new or updated policies.