Human Resource Solutions for a Changing World
April 13, 2020
In addition to maintaining business operations under extremely difficult circumstances and navigating new and confusing employment regulations since the COVID crisis began, employers that have remained open are now experiencing increased employee absenteeism due to COVID-19 and fears of contracting the disease . Questions abound about how to handle employees who are potentially exposed to COVID-19, when quarantined employees can return to work, how to mitigate employee exposure risk, and steps to take to sanitize and disinfect the workplace after a worker contracts COVID-19.

In this e-bulletin, we will address these and other challenging scenarios and we’ll provide a comprehensive road map (chart) to follow when employees are potentially exposed to or contract COVID-19, including specific return-to-work requirements. Our new chart incorporates the latest guidance issued last week by the Centers for Disease Control and Prevention (CDC) addressing safety practices for critical infrastructure workers . Read on to find out more about this guidance and the affected positions.

Our new chart also provides a concise list of links to important safety and health documents with workplace procedures for mitigating employee exposure risk, including, among others, a link to the Occupational Safety and Health Administration's (OSHA's) Guidance on Preparing Workplaces for COVID-19 and the agency’s April 8 guidance for retail employers .

Last but not least, we’ll offer an important recommendation and consideration pertaining to a topic that's getting a lot of attention lately— hazard pay.  
NOTE: This is the seventh edition in a series of COVID-19 e-bulletins published by Seawright & Associates.
If you would like to request prior editions, click HERE. This is a rapidly evolving global pandemic and, as a result, federal regulations, rules, and guidance, along with our recommendations for employers, are subject to change at any time.
Information in this e-bulletin is not intended to be legal, tax, or financial advice; nor is it
intended to provide recommendations for any specific circumstances. 
Employees Potentially Exposed to or Ill with COVID-19
Manage Your Risk in a dangerous world_ company_ workplace or enterprise by reducing costs and liability_ illustrated by these words on three red dice
As testing ramps up across the nation, employers are feeling the effects with rising numbers of employees reporting symptoms of COVID-19 or contact with someone who tested positive for the virus.

In light of the high volume of calls we received over the past two weeks about employees who are ill or potentially ill with COVID-19, we created a comprehensive chart with step-by-step procedures for addressing situations with employees who contract or are exposed to COVID-19, including return-to-work requirements. The chart also includes a special section with links to documents that are essential for mitigating employee exposure risks to COVID-19 and maintaining a safe and healthy environment in the midst of the pandemic.

As you review the chart, here are several important
considerations to keep in mind:

— Every situation is fact-specific. The chart provides procedures for general illness categories. Clients should contact our firm for assistance with addressing specific illness and return-to-work situations.

— Due to the sheer volume of information and number of different documents available on the CDC website, employers are having a hard time finding relevant business-related COVID-19 guidance. A search for one topic often results in a need to read multiple documents or click through multiple links to get the desired information. The chart   we created for this e-bulletin was designed to provide the information employers need to address workplace illness issues in an organized and concise layout , saving you time and trouble having to reference and cross-reference various documents from the CDC site. All pertinent information pertaining to sick workers, ending home isolation, and cleaning the workplace has been culled down into organized sections, so you have one comprehensive resource with step-by-step procedures to follow.

Information on the CDC website is subject to change at any time, so before taking
any action, it is best to verify that CDC-recommended procedures have not
changed by accessing pertinent documents via links on the chart.

— The CDC’s April 8 guidance for critical infrastructure workers who may have had exposure to a person with suspected or confirmed COVID-19 is for employees in positions listed in the Guidance on the Essential Critical Infrastructure Workforce advisory (other than healthcare workers) published by the Cybersecurity and Infrastructure Security Agency (CISA) of the U. S. Department of Homeland Security (DHS).

The original CDC guidelines, which are still in effect, require a 14-day quarantine for asymptomatic employees potentially exposed to COVID-19. The April 8 CDC guidelines for critical infrastructure workers who are asymptomatic and potentially exposed to COVID-19 permit such employees to continue working .

It is unknown if the new guidance pertains to essential workers and industries that are not on the CISA list, but that have been identified by governors and mayors as essential in their jurisdictions. More likely than not it does, based on the following :

  • CISA’s guidance that identified 16 infrastructure sectors with workers it considers to be essential for the response to COVID-19 is nonbinding and is not a federal directive or standard; it is intended to offer an initial baseline for governments and industries to use when identifying key groups of employees essential to maintaining infrastructure during the COVID-19 response.

  • The CISA guidance document is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions. Individual jurisdictions were advised by the Director of CISA to add or subtract essential workforce categories based on their own requirements and discretion.

Although it seems logical to include in the new CDC guidance essential workers identified in county or state executive orders, since this is not specifically stated in the CDC guidance and because the new guidance relaxes requirements for asymptomatic employees who have been exposed to COVID-19 (essentially permitting them to continue working if certain practices are followed), until the CDC provides further clarification, we recommend that employers take the conservative approach and continue to follow the original CDC guidelines for asymptomatic essential employees not on the CISA list who have potential exposure to COVID-19 (see our chart for a precise explanation of the workers in this category AND the original guidelines).

— Some of the positions on the CISA list of critical infrastructure workers include workers providing personal and household goods repair and maintenance, retail workers, cable service providers, restaurant carry-out and quick serve food operations, farm workers, and workers such as plumbers, electricians, exterminators, builders, contractors, HVAC technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses, and buildings such as hospitals, senior living facilities, and any temporary construction required to support the COVID-19 response.

— There are two return-to-work options for employees with COVID-19 who had symptoms and stayed home: one is for employees who get tested to confirm they are negative for COVID-19 and the other is for employees who are not tested to confirm they are negative for COVID-19. Be sure to follow the procedure that is applicable to the given circumstance.

— In accordance with OSHA’s General Duty Clause , employers must furnish each worker with employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm . To mitigate the liability associated with a COVID-19 claim that the company failed to meet this obligation, we recommend that employers follow the practices outlined in OSHA’s March 2020 Guidance on Preparing Workplaces for COVID-19 . This guidance outlines engineering and administrative controls, safe work practices, PPE guidelines, and appropriate employer actions for various employee risk-exposure categories . We recommend you identify the risk categories that your workers fall into and follow the associated OSHA practices.
Information on the chart was derived from CDC and OSHA guidances available on April 12, 2020.
Because of the rapidly evolving nature of the global COVID-19 pandemic, information on
the CDC website is updated on a regular basis. For this reason, we strongly
recommend that you check the CDC website  prior to addressing an issue
involving an employee with potential or confirmed COVID-19.
The Hazards of Hazard Pay
Fire departments emergency response teams conduct disaster preparedness drills. This HAZMAT team is suited up with PPE to protect them from hazardous materials as they investigate this disaster.
Many of our clients have asked us if certain jobs in their companies warrant additional pay during the pandemic in the form of “hazard pay.”  This concept was recently mentioned by some government officials as an option for healthcare workers.

Outside of very limited circumstances, we do not recommend paying private-sector employees “hazard pay.” Here’s why: Hazard pay (usually in the form of a premium added to the regular rate) is typically reserved for employees holding positions that are considered very dangerous from a safety perspective. An employer that pays “hazard pay” is essentially acknowledging that the position poses a serious risk of danger to the worker . From a liability standpoint, this raises all types of concerns! It can also add to employees’ fears and raise questions about the terms and conditions of employment, opening the door to potential union activity.

During the COVID-19 crisis, outside of healthcare and a few other very limited positions (such as morgue workers performing autopsies), in our opinion, employers should avoid sending a message to employees that the work they are performing is SO dangerous that it puts their life at risk and warrants hazard pay. It’s easy to imagine a situation where an employee could use this monetary benefit as a factor in an injury claim, alleging that the employer knew the job posed an unreasonable risk of harm!

If you would like to reward your employees who are working under challenging circumstances, it’s much better to offer temporary premium pay or a bonus that sends a positive message about the work they are performing, such as the $2-per-hour “Hero Bonus” that Kroger is paying hourly employees for a limited period of time.
Along these lines, Senate Democrats are proposing a “Heroes Fund” to provide premium pay to “essential frontline workers” (not yet defined) to reward them for their work on the front lines of the crisis. The current proposal calls for an additional $13 per hour of premium pay on top of their regular wages for all hours worked in essential industries through the end of 2020. Essential frontline workers could also receive a lump sum back payment retroactive to January 27, 2020, when the public health emergency began. The premium pay would max out at $25,000 per worker earning less than $200,000 per year. The proposal also includes a one-time $15,000 sign-on bonus for healthcare workers, home care workers, and first responders in businesses that are experiencing severe staffing shortages that impede their ability to provide care during the pandemic.

We’re keeping an eye on this proposal and will update you as Congress considers it as part of the potential fourth COVID-19 economic stimulus bill.

In the meantime, if you elect to provide premium pay to employees for their extra efforts during the pandemic, keep in mind that if the employee holds a nonexempt position, the premium pay effectively increases the regular hourly rate and overtime rate . The same is true if you pay a nondiscretionary bonus to employees holding nonexempt positions—the bonus must be factored into the regular and overtime rates. To avoid the additional overtime obligation, provide a discretionary bonus instead of a nondiscretionary bonus. In simplistic terms, a discretionary bonus is akin to a surprise bonus —one that the employee had no knowledge of prior to receiving it (in terms of any bonus requirements or the potential amount).

Clients using our HR consultation service are welcome to contact us with questions about how best to structure bonuses and premium pay for employees working through the pandemic.
As a client of our firm, if you have questions about HR practices or solutions, state or federal employment regulations, or any other HR need, call or email our office for assistance.

Seawright & Associates
(407) 645-2433
Jean Seawright
(407) 645-2433 x 14
Jean Martin
(407) 645-2433 x 12
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The information in this bulletin and in any attachments is for general purposes only. Please speak with a Seawright & Associates consultant about your specific needs before taking any action. Seawright & Associates does not engage in the practice of law. Information in this bulletin is not intended to be legal advice. Should you wish to have a legal opinion, we recommend that you speak with a qualified attorney.