In a poll from a recent Guardian and ADP webinar, we discovered that about 59 percent of companies had their employees working onsite in at least some locations throughout the pandemic. As worksites forge ahead and open more widely, the re-entry requirements will continue to evolve, so to do your research is key.
Gene Cautillo, 2nd VP, Corp. Chief Compliance Officer at Guardian, highly recommends that organizations develop an ongoing schedule to check in with the CDC, the state and the local level to ensure that your small business is following the quickly changing re-entry requirements.
- How can I set up my worksite to help keep my employees safe and also comply with CDC, state and local laws?
Many states will require a COVID administrator in your office as well as a COVID “plan” in place, similar to a fire safety plan.1 The goal is to focus on the safety of employees, so tasks that will fall under the COVID administrator’s duties will include a risk assessment and a site-specific plan for cleanliness protocols and what to do in case of an employee with a positive COVID test.1 Some states go a step further and require an online certification prior to reopening.2
Both visitors and workers must be documented as they visit your worksite.1 Distinctions are made between requirements and best practices: a requirement is limiting access to the worksite; a best practice is implementing a check station at the entrance of the business.1
- What are some tips for social distancing inside an office?
Social distancing and capacity guidance is not consistent, so each organization needs to check their local and state guidelines. For instance, there is currently no mask mandate or social distancing requirement for fully vaccinated employees of Wisconsin on the statewide level. However, many counties like Dane County and Milwaukee County require mask use and social distancing through specific dates.17 Steps to consider to comply with this rule are:
- Limiting the number of people in an elevator
- Designating routes for entry and exits so the flow of traffic goes in only one direction
- Reconfiguring areas of work; you may not be able to utilize all the space in the office.
- Providing sanitation and cleaning supplies that meet EPA standards.3
- Creating signage that explains building restrictions, rules of the worksite, and how to obtain additional re-entry information. Signage should be in English as well as any relevant non-English language spoken by the employees and guests in the worksite.
- If you have break rooms, you may need to ask your employees to take breaks outside so they are not congregating in one space. This may require allowing them more time.
Mapping out a floorplan in advance is helpful. Certain states will categorize different types of activities into varying risk levels, which may impact your plan.
- Do I need to require my employees to wear face masks all day?
If your employee is fully vaccinated, they may be able to resume work in the office without wearing a mask or physically distancing, as long as the employee is following federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.4 Employers have discretion as long as they are complying with all applicable laws. If there is no prohibition, the individual employer can still require masks in order to meet their business needs.
If your employee is not fully vaccinated, face masks are still required, even if you are in a state or a worksite where social distancing is enforced. One is not a substitute for the other. Exceptions include children under a certain age, health conditions, and if you are eating and drinking.5 As more vaccinations are provided, rules surrounding face masks within the office will loosen (depending on type of job).4
Many people may be uncomfortable working in an office where vaccinations are not mandated. Regardless of the employees’ vaccination status, consider extending your mask-wearing and social-distancing practices at your place of work in order to help allay those concerns.
Utilize this COVID-19 checklist for preparing your small business for reopening.
- What are my options if an employee who has been successfully working remotely wants to continue and no longer appear in the office?
Gene Cautillo of Guardian states that we are seeing a strong trend towards alternative ways of working (shared work, telecommuting, etc.), so this may just be the time to try something new. But ultimately, this decision is based on the needs of your particular business and in-office needs.
- Am I required to provide employee leave, paid or otherwise?
Managing leave has become increasingly complex for employers throughout the pandemic, says Meryl Gutterman, Counsel at ADP. The top three challenges for managing employee leave, according to a poll on a recent Guardian and ADP webinar, were vaccination-related requirements (39 percent), the Families First Coronavirus Response Act (26 percent), and updated state paid family and sick leave laws (27 percent).
The Families First Coronavirus Response Act (FFCRA), passed by Congress in March of 2020, granted certain employees paid leave for COVID-related purposes and provided employers with a corresponding tax credit.7 But the leave entitlement is now expired (as of 12/31/20). So, covered employers are no longer required to provide FFCRA leave.
That said, covered employers can voluntarily provide it and still be entitled to the tax credit extension through September 30, 2021. The FFCRA allowed for up to 10 days (80 hours) of emergency paid sick leave, and once it expired the American Rescue Plan Act (ARPA) picked up that allowance again.8 Under the ARPA, an employer that previously claimed tax credits for employees who exhausted their 10 days leave before April 1,2021 can now allow those same employees to take an additional 10 days and will be eligible to receive additional tax credits.
- What tax credits is my organization entitled to for voluntarily providing COVID-related leave benefits?
If an employee takes emergency paid sick leave:
The amount of sick leave wages eligible for the tax credit is limited to $511 per day for care required for the employee, and $200 per day for care that the employee provides to others.9
If an employee takes public health emergency leave:
From 4/1/21 – 9/30/21, the aggregate public health emergency leave payments eligible for tax credits is limited to $12,000 per employee.10
Both types of leave are ensured under the ARPA.
- What are qualifying reasons for COVID-19 leave?
- Quarantining or caring for a family member who is quarantining
- Experiencing COVID-19 symptoms and seeking a medical diagnosis
- Caring for a child because their school or place of care is closed due to COVID-19
- Obtaining a vaccination, recovering from immunization, or awaiting the results of a COVID-19 test11
Some jurisdictions require organizations to provide paid leave. For instance, in California, employers with more than 25 employees must provide 80 hours of supplemental paid sick leave through 9/30/21 and it applies retroactively. Again, make sure you examine all the laws that apply to your business – CDC, state, and local – to ensure that you are complying.
- Is my organization allowed to require that its employees get a vaccine?
The short answer is yes. In some jurisdictions, legislation has been passed that confirms an employer can mandate its employees receive a COVID-19 vaccination.12 Under federal guidance in the past, the U.S. Equal Employment Opportunity Commission (EEOC) has generally advised against requiring vaccines, such as the flu vaccine. But for COVID-19, the updated guidance doesn’t expressly endorse or prohibit a mandatory practice.12
- Do some states allow employers to mandate vaccinations?
It depends on state laws. For instance, employers in California may mandate vaccines with the following caveats:
- Do not discriminate against or harass employees or job applicants on the basis of a protected characteristic
- Provide reasonable accommodations related to disability or sincerely-held religious beliefs or practices
- Do not retaliate against anyone for engaging in protected activity12
In the state of New Jersey, where employers may require that their employees receive vaccines to return to the workplace, there is one additional allowance. The employee must be exempt from the mandate if:
- The employee’s physician has advised otherwise due to pregnancy, or need to breastfeed13
New York was the first state to mandate that employees are entitled to up to four hours per injection of paid time off to receive the COVID-19 vaccination.14 In Illinois, if employers require their employees to be vaccinated, that mandatory vaccine should be combined with paid leave, or otherwise provide compensation for the time taken to comply. This applies to both the employees’ vaccines and their accompaniment of a family member to a vaccine appointment. 15
- How do I manage the concerns of an employee who is hesitant about receiving the vaccine?
Meryl Gutterman, Counsel at ADP, recommends to direct employees to call their physician or point them to the dedicated vaccine page on the CDC’s website. If they have a concern about the cost, let them know that the vaccine doses purchased by the federal government are generally provided at no cost and/or the employer may be required to cover any vaccination costs.
- If I have an employee who has used sick time during the pandemic, can I require them to provide proof of vaccination and/or a negative COVID-19 test before returning to the office?
The CDC advises against employers requiring documentation or certification. That said, under federal law, employers are allowed to require fitness-for-duty documents.16 But make sure you drill down to your state and local level to find if this is permitted in your area because these requirements vary throughout the country.
- I’m unsure whether to mandate vaccinations at my business. What do I need to consider?
Let’s take a holistic look. Things to consider are:
- The availability of the vaccine in your area
- The risk to others if employees don’t get vaccinated (Are you in a tight space? Or do most of your employees work remotely anyway?)
- The effectiveness of masks, social distancing, and other safety measures within your workspace (Read on for more on this topic.)
- The likelihood of employees seeking out the vaccine anyway without a mandate
- The risk of litigation or workers’ compensation claims if employers do or don’t require vaccination
- Requirements for providing accommodations for disabilities and sincerely-held religious beliefs
- Protections for employees under the National Labor Relations Act (NLRA) if they decide to work together to oppose a vaccine mandate
- The potential impact on employee morale
The new and ever-evolving workplace and workforce guidance represents a positive step toward resuming a normal, pre-pandemic lifestyle. Employers should maintain a frequent habit of looking for updates from OSHA, the U.S. Equal Employment Opportunity Commission (EEOC), the CDC, and state and local websites to be fully informed on changing workplace guidelines related to COVID-19 safety and best practice.