On March 11, 2020, the World Health Organization declared COVID-19 a pandemic. As the virus continues to spread, health officials and governmental authorities have enacted responsive measures and published guidelines aimed at curbing the spread of COVID-19. The impact and duration of COVID-19 remains unpredictable, as does governmental response. In the face of this uncertain landscape, nonprofits will need to consider the role that their Human Resources (“HR”) departments will play in guiding their workforces through this unprecedented time. This article will discuss various HR department considerations and actions for nonprofits as they look to respond to COVID-19, with additional guidance on reopening facilities outlined in the Goodwin Client Alert "Preparing for Re-Entry: Key Considerations for Returning Employees to the Workplace Amid the COVID-19 Crisis."
HR Department Education on COVID-19
Before developing a plan for operating during this pandemic, HR departments should take care to educate their professional staff about COVID-19 and the particular challenges that nonprofits may face, such as the management of employees and volunteers and decreased budgets. In considering how a nonprofit organization will operate, HR departments should look to verified sources with information on COVID-19, especially to the extent such sources have published information specifically geared towards nonprofits. Some sources include federal or international bodies such as the Center for Disease Control and Prevention (“CDC”), the World Health Organization (“WHO”) and the Occupational Safety and Health Administration (“OSHA”) as well as state and local bodies covering the jurisdiction in which a nonprofit operates. HR departments should also educate their professional staff on regulatory matters such as data privacy and information concerns, and stay abreast of regulations relating to the privacy of employee health information.
Define Clear HR Policies
Once professional staff within HR departments are familiar with the various safety guidelines published by the CDC, WHO and OSHA as well as any applicable state or local bodies, HR departments should review their internal policies and revise them to fit the circumstances.
For example, HR departments may need to revisit the nonprofit organization’s sick leave policy. Nonprofits may be required to provide sick leave in the event an employee is required to self-quarantine and may also want to encourage employees to stay home when they are symptomatic. Nonprofits must comply with certain provisions of the Families First Coronavirus Response Act (the “FFCRA”) requiring employers with fewer than 500 employees, including nonprofits, to provide their employees with paid sick leave and family leave. Through December 31, 2020, covered employers must provide up to ten days of paid sick leave to eligible employees who are impacted by the coronavirus pandemic. Covered employers are also required to provide eligible employees with up to twelve weeks of paid family and medical leave if an employee is unable to work or telework due to the need to care for the employee’s child under eighteen years of age and is home as a result of a school or daycare closure. The FFCRA also includes tax credits to help employers offset the costs for such leave. Moreover, employers do not have to wait until they file their 2020 taxes to get these credits. Instead, they can reduce the payroll taxes they must pay to the IRS right now to cover the cost. If there are not sufficient payroll taxes to cover the cost of COVID-19 sick leave and/or emergency paid leave, employers will be able file a request for an accelerated payment from the IRS. Goodwin Client alerts “Families First Coronavirus Response Act Establishes New Paid Sick Leave and Family Leave Rights for U.S. Employees” and “New Guidance on the FFCRA: Key Takeaways and Action Items for U.S. Employers” provide additional information on this topic.
In addition, HR departments should review any remote work policies, in particular considering how to address employees who do not feel comfortable returning to work once permitted to do so. Part of this review will involve balancing the various reasons employees may not want to return to work. For example, employees may feel nervous about returning to work, finding their commute or their workplace unsafe and potentially life threatening due to the risk of contracting COVID-19. Employers need to be prepared to address these concerns. Other employees may have underlying disabilities making them more vulnerable to the virus. If an employee has an underlying disability, an employer is required to grant reasonable accommodations under federal and state law. HR departments should be sure to enact policies in compliance with these laws. Similarly, HR departments at nonprofits with large volunteer bases should review policies allowing their volunteers to work remotely if a task or activity lends itself to such flexibility.
Further, if an employer does not take adequate steps to comply with OSHA guidelines, employees have a right to refuse to work if they have a reasonable belief that they are in “imminent danger,” defined to mean “any conditions or practices in any place of employment such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA has the right to investigate workplaces. If an OSHA inspector believes that an imminent danger exists, the inspector must inform affected employees and the employer that the inspector is recommending OSHA take steps to stop the imminent danger. Further, OSHA has the right to ask a federal court to order the employer to eliminate the imminent danger. While OSHA has not commented on the application of this standard to COVID-19, the fact that COVID-19 can cause serious illness and/or death within a few weeks and can spread at greater rates and increased virulence if there are lowered safety standards may pose a problem for employers, including nonprofits, that do not take adequate precautions to protect workers. Further, states or local governments may have similar guidelines and standards to those put forth by OSHA; in such cases, a similar analysis would apply. As such, HR departments should be cautious and thoughtful in their disciplinary or termination decisions with respect to employees who do not feel it is safe to come to work, specifically if an employee is high risk.
HR departments should also consider the policies in place to ensure workplace safety and minimize the risk of contracting or spreading COVID-19. As discussed in a recent Goodwin Client Alert “Mitigating Risks after Reopening in the U.S.: What to Do When an Employee Who Has Returned to the Workplace Has Symptoms of, Tests Positive for or Has Been Exposed to COVID-19,” a COVID-19 safety and return to work plan should ensure the quarantine of sick employees, the cleanliness of the workplace after a positive COVID-19 test, the implementation of COVID-19 notifications and contract tracing and the maintenance of reporting obligations. Please see the Goodwin Client Alert for a more detailed discussion on specific policy considerations. To highlight a few key points: one recommendation may be to identify critical business functions and essential employees and permit only those employees into the workspace. Another option is to alternate teams of employees through the use of staggered work schedules (e.g., telecommunication and working in person). In addition, employers can reconfigure the physical workspace to facilitate social distancing. HR departments should consider the need to cross-train employees so that any disruptions are minimized in the case of employee absences. HR departments should also consider training employees on protective equipment and the importance of hygiene and social distancing. In considering its various policies, HR departments must follow any precautions, trainings and guidelines required by local, state and federal laws and regulations.
Finally, HR departments should use this opportunity to remind employees about the organization’s Equal Employment Opportunity policy. There have been reports of increased harassment and discrimination of Asian employees a result of misinformation about the origins of the virus. HR departments should make it clear that the organization has zero tolerance for employees refusing to interact with colleagues and/or customers who are of Asian descent. Likewise, HR departments should take care to reiterate that discrimination because of a person’s race, color, religion, sex, national origin, age, disability or genetic information will not be tolerated. Goodwin addresses these issues in a Client Alert titled “Labor Cost Reduction Options for Employers in a Distressed Economy: The CARES Act and Other Considerations."
Communication of COVID-19 Information and Policies by HR Departments
HR departments will play a significant role in disseminating information about COVID-19 and administering workplace rules and policies aimed at reducing the spread of the virus.
Once HR departments have the proper policies in place, professionals within HR departments will need to communicate the new policies and work rules to employees. The dissemination of information will be most effective if policies related to the virus as well as federal, state and local mandates or suggestions are conveyed through multiple channels. First, policies should be put into writing and communicated to all employees via email as well as posted on an online portal accessible to all employees and/or sent in physical letters. In addition, HR departments should consider posting policies in visible areas such as lobbies, coffee areas or restrooms to ensure all employees are aware of expectations in place.
Finally, as more and more employees work from home under stay-at-home orders, HR departments should ensure that their organizations have the most current contact information of all employees, including their home address, home or mobile telephone numbers and emergency contact information so that employees can be contacted with any updated policies or information as needed.
For a more detailed discussion on these issues, please refer to the recent Goodwin Client Alert “Preparing For Re-Entry: Key Considerations For Returning Employees To The Workplace Amid The COVID-19 Crisis" as well as the other Goodwin Client Alerts referenced above.
Please visit Goodwin’s Coronavirus Knowledge Center, where firm lawyers from across the globe are issuing new guidance and insights to help clients fully understand and assess the ramifications of COVID-19 and navigate the potential effects of the outbreak on their businesses.