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As businesses open throughout central Pennsylvania and the Lehigh Valley, legal and human resources experts are urging businesses to avoid liability issues by understanding the ever-evolving rules, especially as regions open in various phases without liability protections in place.
Uncertainty over the process has led business leaders on the state and national level to seek legal protections for businesses. Gordon Denlinger, the state director for the National Federation of Independent Businesses, said he had been praising Gov. Tom Wolf for issuing an executive order granting liability protections to some healthcare workers.
“Unfortunately, the governor has not come forward with additional liability protections for Pennsylvania’s small business owners,” Denlinger said on May 11. “Despite the significant steps our small business owners are taking to make sure their returning employees and customers remain safe, the governor seems unwilling to shield our mom-and-pop shops and stores from the threat of COVID-19-related lawsuits.”
“Businesses need some level of certainty if owners are to reopen their doors,” Denlinger added.
But many businesses are eager to get back to work, even without such protections. In fact, political leaders in some Central Pennsylvania counties have been saying that they will not penalize owners who open before Wolf gives a go-ahead. Wolf responded Monday by saying the state might withhold money from communities that violate his orders and sanction the permits of licensed businesses.
For businesses that wait for the governor’s go-ahead under the phased-in plan, numerous steps must be taken before they open and that primarily means following the guidelines set by health officials in Pennsylvania and at the Centers for Disease Control and Prevention, several experts noted.
“Employees will see a new normal when they return to the workplace,” said Jill Welch, a partner in the employment practice group at Barley Snyder, which has offices throughout Central Pennsylvania. “… Under the Pennsylvania Secretary of Health April 15 Order, employees will be required to wear masks in the workplace except to eat and drink, unless they have a disability that prevents them from wearing a mask. Meetings will be held virtually, or if they must be conducted in person, with fewer than 10 people spaced at least six feet apart.”
Welch and others noted that open offices and common rooms must be re-organized to ensure adequate spacing, including having lunch tables arranged so that everyone faces in the same direction. Best practices also will include staggered shifts and break times so no more than 10 people are in an area at one time. Companies that have been deemed essential already have adapted to such changes, Welch said.
“And everyone will be reminded not to shake hands, to wash their hands frequently, use hand sanitizer, and sneeze into one’s elbow and routinely clean their workstations,” Welch added.
Stephane Smith, consultant with RKL’s human capital management practice, said employers should provide enough details about the new workplace so workers can envision what it will look like. RKL is a national CPA and professional services firm with offices throughout Central Pennsylvania.
“This is a big change, and everyone processes and copes differently,” Smith said.
She recommends that employers designate a “safety officer.”
“Prepare for multiple possible scenarios and develop a response plan for each,” she said. “Naturally, the first focus is reopening, but plans should also be prepped for another spike in cases. There are a lot of unknowns, but if we’ve learned anything over the past several weeks, it’s that businesses must be agile enough to pivot very quickly.”
Understand the new rules
Many people will continue to work from home, which will create its own challenges, she and others said. Some workers might ask to telecommute when they are needed in the workplace, which could create tricky situations, several legal experts said. Michael J. Crocenzi, a partner at Barley Snyder, said companies will need to determine whether the worker has a general fear of infection or if there is an underlying medical condition or a problem with childcare.
“If it is a medical concern or childcare concern, then an employer with less than 500 employees should determine if the employee may qualify for benefits under the Families First Coronavirus Response Act (FFCRA),” Crocenzi said. “For example, if the employee is symptomatic or is in a population particularly susceptible to COVID-19 and a healthcare provider has advised an employee to self-quarantine because of community spread of COVID-19, the employee may be eligible for paid sick leave.”
Workers who need to care for a child because a school or daycare center is closed might be eligible for paid leave under the Family and Medical Leave Act (FMLA), which has been extended to workers in small businesses during the crisis. In fact, the updated national labor laws extend to just about every business with fewer than 500 workers, noted Jacob M. Sitman, chair of the employment law and labor relations practice at Fitzpatrick, Lentz and Bubba in the Lehigh Valley.
“New guidance is coming out every day,” said Sitman, who urges employers to be aware of the details of FFCRA and the FMLA. Businesses will best protect themselves against liability concerns by following the CDC and state guidelines and then making sure they monitor changes.
They can do this by either by getting someone on staff to do so, or pay an expert to provide frequent updates until the extensions expire. While the benefit of two weeks of paid sick leave has been extended to workers in small businesses who get sick from COVID19, so far it is much more common for workers to invoke the provisions that allow for paid leave to care for a child, Sitman said.
He and Crocenzi said businesses need to make sure they understand the rules.
“An employer faces liability if it terminates an employee’s employment because an employee requested or received benefits under the FFCRA,” Crocenzi said. “For larger employers over 500 employees, they should determine if the employee is eligible for paid time off, a medical leave of absence, or an unpaid leave of absence under the employers’ policies.”
For workers who simply refuse to return to work out of fear of getting sick, Sitman said, “that presents a difficult human resources challenge. But ultimately it could include losing their jobs.”However, Sitman recommends that employers be as flexible as they can. As in pre-COVID-19 times, documentation is critical.
“In general, if employers are taking the right steps, they should be insulated from liability,” Sitman said. He is encouraging employers to seek a “greater degree of empathy.”
“I think it is patience, deep breaths and empathy,” Sitman said. “We are all in this together.”
Plan Ahead
Employers will need to have a plan that addresses a wide range of topics tailored to their workforce and to communicate expectations to employees and customers, said Sarah Yerger, an attorney at Barley Snyder. Those plans need to include the adjustments to the workspace and cleaning protocols but also on how to deal with workers who show symptoms of COVID-19. Businesses should consider requiring employees to sign and acknowledge the organizations’ policies on preventing the spread of the coronavirus, Yerger said.
Even with intense planning, businesses should expect to run into situations that will be difficult.
Jennifer Craighead Carey, a partner in the employment practice group at Barley Snyder, said she is getting two common questions from employers as they call workers back from furloughs.
“First, what if the employee refuses to return out of a generalized fear without a bona fide health basis or because they are earning more on unemployment compensation?” she said. Employers should notify workers of the time and date they are expected back to work and include the steps being taken to mitigate health risks, she advised. “If an employee refuses to return to work for purely personal reasons or a generalized fear, that might be considered job abandonment and disqualify the employee from unemployment compensation benefits.”
The second question is “fraught with legal risks,” Carey said. That question is, “if an employee was temporarily furloughed but we don’t want them back, can we just lay the employee off and fill his/her position with someone else?” That situation could open the employer to legal claims, including employment discrimination, Carey said. Overall, she added, not everything can be determined before people return to work.
“Employers need to recognize that these are uncharted waters and that the answers are not always clear,” Carey said. “Employers need to be patient and take into consideration what is best for their business and also their employees. Employees are scared, so communication is critical.”
Smith agreed.
“Show support by talking to your employees, asking what’s on their minds and listening to their concerns,” Smith said. “Provide resources and offer grace as everyone adapts to what this means, not only in the workplace but also to families and life as we know it. Knowing they are heard and supported helps employers establish leadership and engenders company loyalty.”