Are your employees coming back to in-person work yet? As states shift forward into new phases that allow nonprofit and other employees to come back to worksites, employers face a plethora of warranted policy changes. High on the list should be to develop and implement a Workplace Health and Cleanliness Operations Policy. In addition, employers may address continued remote work options, such as through a new or updated Remote Work Policy. These important changes should be reflected in modified employee handbooks, at least in summary versions, which should also include policies covering new COVID-19-related Emergency Paid Sick Leave and Expanded Family and Medical Leave.
The following are key points for such changes, summary policy and handbook language, and related options for next steps. Wagenmaker & Oberly is glad to provide sample handbook and policy language as indicated below, as part of our firm’s stated values – namely, to engage fully with the communities we serve to strengthen the nonprofit sector through meaningful relationships, teaching, pro bono service, and generosity. (See our website here.)
Initial Best Practices and Legal Considerations
All employers should comply with applicable federal, state, and local law and follow “best practices” protocols, particularly regarding applicable phases as may be identified. Of prime importance, the Centers for Disease Control has issued general guidance for offices, titled “Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes,” available online. The following sections regarding workplace health and cleanliness and remote work options are consistent with such guidance.
As one example of applicable legal requirements, Illinois Governor Pritzker mandated certain “Phase 3” public health requirements for Illinois per Executive Order 2020-38 as of June 20, 2020. (See the Order here.). Chicago and the rest of Illinois are now scheduled to begin “Phase 4” on June 26, 2020, which will allow for higher-capacity gatherings and for all employees to return to work, but continued careful safety measures and accommodations for COVID-19-vulnerable employees should still apply. (See here for Phase 4 information.). Certain geographic areas may phase back to more restrictive levels, depending on infection rates, available treatments, and other variables.
Workplace Health and Cleanliness Operations – Updated Employee Handbook and New Policy
Every employer should care about its employees and embrace a safety-oriented culture, amply demonstrating that staff are highly valued. Adopting a Workplace Health and Cleanliness Operations Policy is a helpful way to promote a clean, healthy work environment for all employees, consistent with applicable government requirements and public health standards and particularly attuned to COVID-19-related safety concerns. Employers should remain attentive to specific cleaning and disinfecting protocols as may be warranted, with periodic updates as needed.
Such protocols should be summarily set forth in employee handbooks, along with expectations for employees, such as the following: (1) to avoid using other employees’ phones, desks, offices, or other work equipment, when possible; (2) to comply with other health and safety protocols as may be set forth in an accompanying Operations Policy; (3) to self-assess symptoms of COVID-19 or other communicable diseases before reporting to work each day, such as through self-administered temperature checks; (4) to stay home if suspected or confirmed to have COVID-19 (or if the employee has had close contact with someone diagnosed with COVID-19); and (5) to participate in training about health and safety measures.
More detailed information may be spelled out in the Operations Policy, including introductory considerations, health concerns addressed, applicable legal requirements and safety concerns, training and monitoring, a list of health and safety standards that the organization will follow, corresponding expectations for employees, and protocols for employees who are sick or have been exposed to other sick persons. The Policy should likewise be made available to employees, for their understanding and benefit.
To obtain a sample Workplace Health and Cleanliness Operations Policy and accompanying sample employee handbook language, please send an email to [email protected] with the subject line “COVID-19 Workplace Guidance.” Please indicate this request and any related information you may wish to share.
Remote Work – Updated Practices and Employee Handbook Policy
COVID-19 has also drastically expanded remote work, and for some employers, the expansion could be a long-term or even permanent arrangement. Maximizing continued remote work options is also generally consistent with health and safety protocols as identified above. Until the pandemic fully subsides, employers thus should consider proactively making such options available and determine how best to accommodate individual requests to work from home when possible. Correspondingly, employers should develop remote work policies (or update their current policies) to address continued full or partial staff remote work arrangements, particularly for employees who have demonstrated a high degree of efficiency, have maintained productivity, or have health needs warranting remote work arrangements as a disability-related accommodation.
In developing a robust remote work policy, as well as appropriately addressing work situations for specific employees, employers should anticipate the following significant elements for COVID-19-related and other remote work arrangements.
- Responsibilities and Priorities of Jobs. Some duties are well suited to remote work arrangements, such as research, data crunching, planning, customer service response, or scheduling. Where the connection between job responsibilities and a remote work accommodation is less obvious, employees who request such an accommodation may be encouraged to propose how their job duties and responsibilities might be adapted for remote work.
- Technology and Internet Connectivity. Remote workers may require a computer, internet access, and phone capabilities. Employees who do not have employer-issued laptops may be permitted to utilize their own devices and should be aware of and required to comply with data privacy policies. Additional considerations may apply for employees who supply their own equipment, such as current Illinois law requiring employer reimbursement.
- Home Environment. Employees should consider whether their home environment is conducive to remote work. For instance, is there an appropriate workspace? Will other household members be competing for the employee’s attention?
- Pay. Non-exempt employees should maintain a work schedule consistent with office hours, be paid for hours worked at their regular hourly rate, and be approved for overtime in advance. Exempt employees are not covered by the record-keeping and overtime requirements of the Fair Labor Standards Act. (See here for more information about exempt/non-exempt distinctions.).
- Accountability. In connection with any remote work arrangement, a supervisor and remote worker should maintain an appropriate level of communication, and no less frequently than is necessary for the job and the individuals involved. To that end, remote workers should be required to provide contact information to their immediate supervisor and to keep it current.
- Remote Work Communications and Agreements. Clear communication to staff will go a long way toward ensuring successful and productive remote work arrangements. Consequently, an employer’s remote work policy should be clearly articulated and made available to all employees, such as through an employee handbook or stand-alone policy. In cases of very limited remote work arrangements, rather than organization-wide remote work operations, it may be helpful and appropriate to have employees sign a remote work agreement.
- Time and Performance Expectations. Remote workers should maintain regular contact with their immediate supervisor regarding work priorities, deliverables, timelines, etc. Additionally, employers should communicate that remote work is subject to employer discretion and does not generally constitute an entitlement, organization-wide benefit, or in any way change the terms and conditions of employment.
- Security Concerns. Remote workers should be required to ensure the protection of proprietary organizational information accessible from their home office. Steps may include utilizing virtual private networks, locked file cabinets and desks, regular password maintenance, and any other measures appropriate for the job and the environment.
- Safety Concerns. Employees should be expected to maintain their home workspace in a safe manner, free from safety hazards. Injuries sustained by the employee in a home office location and in conjunction with his or her regular work duties are normally covered by an employer’s workers’ compensation policy. As such, remote workers should understand their duty to provide timely notification of such injuries.
- Application. While remote work may not be appropriate for all employees or all positions, employers who authorize flexible work arrangements should exercise caution to ensure remote work accommodations are applied consistently and without any discriminatory impact on certain groups.
To obtain a sample Remote Work Policy, please send an email to [email protected] with the subject line “COVID-19 Workplace Guidance.” Please indicate this request and any related information you may wish to share.
Emergency Paid Sick Leave and Expanded FMLA Policy
The Families First Coronavirus Response Act (FFCRA) requires employers with less than 500 employees to provide full-time employees with two weeks of Emergency Paid Sick Leave (and part-time employees with paid leave equivalent to their regular hours worked), along with ten weeks of partial paid leave and job restoration under the Expanded Family and Medical Leave Act (FMLA), for COVI9-19 related absences.  Emergency paid sick leave is available to all employees, including those who may need to quarantine themselves. Expanded FMLA leave is available to all employees who have worked at least thirty days.
Given these significant and widely applicable legal changes, employers should update their employee handbooks accordingly and make corresponding protocol changes. As with the above policy guidance, please send an email to [email protected] with the subject line “COVID-19 Workplace Guidance,” to obtain a sample Emergency Paid Sick Leave and Expanded FMLA Policy. Please indicate this request and any related information you may wish to share.
Onward Through Re-Opening Operations
There is certainly no one-size-fits-all approach to reopening and resuming an organization’s operations. Employers need to think carefully about health and safety, continued remote work options, and new legal changes such as those affecting paid leave. Consequently, establishing or updating cohesive policies as well as maintaining open and clear communication will go a long way in alleviating stress and anxiety for returning employees. Wagenmaker & Oberly’s provision of sample policies and employee handbook materials is intended to help many organizations as they continue to address COVID-19 complexities and to ensure legally compliant, successful operations.
 Please note that the federal Equal Employment Opportunity Commission issued guidance on June 17, 2020, indicating that employers may not require their employers to take tests to detect COVID-19 antibodies. Such medical tests violate the Americans with Disabilities Act.
 An employer policy requiring older employees to work remotely, while allowing employees under forty years old to return to in-person work, thus may violate anti-age discrimination laws.