Returning to Business But Not as Usual

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“Unprecedented” will probably go down as one of this year’s most frequently uttered words. It does truly reflect the profound significance of our current situation.

Because the result of the pandemic upon our business culture is indeed unprecedented, we need to find ways of addressing the health and safety of our workplaces and then determining best practices for managing, and potentially reinventing, our businesses.

Be Aware of State and Federal Laws

If you have been closed and are preparing to reopen, or if you have been conducting business on a limited basis and plan to bring back most of your staff in the coming weeks and months, be aware that you must still comply with nondiscrimination laws, including Title VII, applicable state laws, and the Americans with Disabilities Act (ADA).

Employers are often “well meaning” in their efforts to protect their employees. Good intentions, however, do not bode well as defenses in discrimination cases. For example, deciding against returning workers who have disabilities out of concern (or fear) that they are more likely to contract the disease is discriminatory.

It is up to the employee, and his or her physician, to assert an inability to return to the workplace because of a protected Families First Coronavirus Response Act (FFCRA) reason. Distribute your FFCRA forms to your employees; once they are completed and returned, you MUST retain those forms for 4 years.

A review of the forms and the reasons set forth must be assessed in an objective and professional manner. Confidentiality must be protected, and the review should be done by one or two key people with a need to know.

Understand the Accommodation Process

An employer’s obligation to reasonably accommodate a qualified individual with a disability remains a business obligation, as well. As in pre-pandemic times, if an employee sets forth a proposed accommodation that is not viable for your business and would cause a hardship, the Equal Employment Opportunity Commission (EEOC) requires that you engage in a positive dialogue to determine if another reasonable accommodation would enable the employee to perform the essential functions of his or her job.

That said, remember that all employee medical information is strictly confidential, as laid out in the Health Insurance Portability and Accountability Act (HIPAA). If you’re a self-insured employer, federal law mandates appointing a privacy officer who maintains this personal data and lets employees know about their rights to privacy.

Such information includes Family and Medical Leave Act (FMLA) physician certifications or doctors’ notes possibly required if an employee takes a leave of absence due to illness, as well as any records that demonstrate a need for accommodation under the ADA. Of course, as with all good Human Resources practices, document, document, document!

Be Objective When Conducting Layoffs or Furloughs

If your business can no longer support the staff you had on board last year, address your cutbacks carefully. Create a spreadsheet with an objective analysis as to your business needs and the positions/roles in the company that support your requirements.

Once you determine the necessary grouping of positions, you may need to then further reduce the number of workers holding these positions within certain categories. Use relevant and impartial factors, such as documented performance reviews, with the goal of retaining the best-qualified people for the remaining jobs.

Keep an eye out for unintended discriminatory results. While you may use factors that you believe to be nondiscriminatory in nature, the actions you take could result in unexpected discriminatory impact, so you may wish to enlist professional assistance for these decisions.

Don’t Forget About Social Distancing

Adherence to Centers for Disease Control and Prevention (CDC) guidelines and protection of your valued Human Resources are necessary. Deep cleaning/professional sanitization is crucial. Apart from the obvious importance, it sends a clear message to your employees and your customers/clients/patients about your commitment to health and safety. You should continue to have professional cleaning done as often as practical.

Your workplace is ready, but what about the practical nature of bringing in your people? Physical distancing is key. For now, gone are the days of getting the team together in the conference room. Use of such a room might be limited to two colleagues on opposite sides of a long table. Meal areas must become more utilitarian…

Source: HR Daily Advisor

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