ILMA Compoundings - August 2020 - 32

COUNSEL COMPOUND

HR Considerations in
the COVID-19 World
By Jeff Leiter

I

received positive comments about
my presentation during ILMA's
first virtual Town Hall about how
the COVID-19 pandemic is driving
changes in member companies' HR
administration. Several attendees suggested that I write about this topic in a
future issue (or several) of Compoundings.
Here is my first attempt at building out
my presentation, recognizing that the
pandemic is presenting new challenges
almost daily to business leaders, HR
professionals and employees.
A recurring theme I hear from
talking with ILMA members is that,
in today's environment, everything
seems to be a priority that is competing for their time and attention.
Balancing accounts receivable or
customer issues with dealing with
employees who have had COVID-19,
or those workers in at-risk categories
who are afraid of contracting the
disease at work, is not an easy task.
There is an evident need for increased
communication with employees.
The following are HR priorities as
everyone tries to get to a "new normal":
*	 Addressing employee concerns,
including privacy considerations with their personal health
information, fears of contracting
COVID-19 in the workplace or
while commuting to and from
work on public transportation,
and shifting advice about face
coverings;
*	 Policy revisions, including whether and how to allow remote work;
*	 Understanding the new regulatory landscape, including the paid
leave mandates of the Emergency

32

AUGUST 2020

| COMPOUNDINGS | ILMA.ORG

Family and Medical Leave Expansion Act (EFMLEA);
*	 Whether and how to take employees' temperatures without
violating the Americans with
Disabilities Act (ADA) and Equal
Employment Opportunity Commission (EEOC) guidelines;
*	 How to protect employees'
information under the Health Insurance Portability and Accountability Act; and,
*	 Importantly, following Occupational Safety and Health Administraion and Centers for Disease
Control and Prevention guidance
on cleaning, personal protective
equipment (PPE), face coverings,
hand sanitizer and social distancing measures in plants and
administrative offices.
On several of the above bullets,
it is important to think through
time horizons. For example, many
governors are encouraging remote
work during the phased reopening of
their states, but the company wants
to restrict remote work later. In this
instance, a temporary or short-term
policy allowing remote work makes
sense, making sure to communicate
to employees that remote work is
being reassessed, while seeking team
cohesion and accountability. Cybersecurity and technology issues for
employees working remotely still need
to be addressed.
By way of another example, it may be
advisable to plan for the long term when
modifying work spaces to accommodate
social distancing guidelines, while at
the same time setting out policies for

maintaining the cleanliness of individual
work spaces, conference rooms, break
rooms and copiers or printers. Consider
developing company procedures on
meeting sizes, navigating small spaces
around the facility (e.g., elevators and
restrooms), face-covering etiquette,
limiting customer or vendor visits, and
travel restrictions. While the company
has responsibilities, so do employees.
Let me take a little deeper dive on
policies and procedures. Now is a
good time for companies to review
their policies and employee manuals
and to update them. In addition
to remote-work policies, employers
must address their paid time off and
leave policies, including to address
the requirements of the EFMLEA for
employees with COVID-19, those
workers caring for family members
with COVID-19 or those employees
who cannot access child care because
of the pandemic.
As part of the review, it is appropriate to consider the company's
workplace accommodation policies.
While the EEOC has provided greater
flexibility in managing accommodations and determining undue
hardships - a legitimate reason
to deny an employee's request for
accommodation under the ADA -
employers have to navigate carefully
the iterative process contemplated by
the statute and the EEOC.
The EEOC also has allowed employers
to screen employees and job candidates
for COVID-19, and they may take
employees' temperatures at workplace
entrances. However, any mandatory tests
must be job-related, and appropriate
management and security of the test
Continued on page 35
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