What HR can and can't enforce when employees return to work

As COVID-19 stay-at-home orders are being lifted or modified and more employees are returning to the workplace and resuming business operations, it can be challenging for HR professionals to know what standards they should enforce with employees and what they can’t as they prepare their post-pandemic plans. The lines can get blurry, so here are some key areas to help point you in the right direction and ease the process of keeping everyone safe while also staying compliant with regulations.

Before we get started, It’s important to note that any information contained in this article should not be considered legal advice, and it is important for every organization to have their own legal counsel review and interpret the regulations that their organization is subject to.

What HR can enforce

There are several areas where clear policies and guidelines have been defined for responding to the pandemic when you return to work. These are some examples of areas where you can put processes in place that align with these standards:

Official COVID-19 regulatory standards at different levels

Companies should continue to enforce current local, state, federal, and industry regulations, as well as newly introduced guidelines and regulations such as the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES).  It will also be important to stay current, keep up with regular updates, and follow current guidelines from organizations like the Centers for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA).

Furthermore, the United States government issued guidelines to enable individual states to reopen in a phased approach, so it will be important to follow the reopening guidelines established for the states you employ people in.

Here are some options for how HR professionals can manage tracking and reporting of compliance with COVID-19 regulations:

• Adjust your policies and procedures to reflect changes and provide employees with relevant documentation on new developments.
• Adjust your compensation models and pay rules to reflect payroll protection regulations, stimulus packages, and loans that businesses now have access to through programs such as FFCRA and the CARES Act.
• Adjust your OSHA reporting to reflect new OSHA workplace safety measures by using frameworks built into your HCM system.
• Automate the tracking of compliance with these new standards so you can keep your processes up to date and provide appropriate reporting.

Social distancing and personal protective equipment (PPE) orders

As employees return to the workplace and have greater risk of contact with others, employers will need to keep them safe physically.  Each company will need to determine what protections are required for the safeguarding of their workforce.

Here are some options for how HR professionals can manage tracking and reporting of social distancing and PPE enforcement:

• Enable mobile punch options for hourly workers so they can easily clock in and out from their own mobile device. This will reduce their interactions with others and maintain social distancing protocols.
• Provide facial recognition technology to enhance safety measures and limit exposure to a device or time clock.
• Add or adjust attestation processes to address health-related questions, such as “Did you wash your hands?” or “Are you wearing your PPE?” This will allow you to automatically track whether employees are following proper safety standards to protect themselves and lower your risk of liability.
• Adjust OSHA tracking and reporting to reflect new OSHA workplace safety measures by using frameworks built into your HCM system.
• Track and report qualifiers for disaster relief when you apply through organizations such as FEMA or a state equivalent. If you take advantage of grants to cover reimbursable emergency costs, track how you spend that money by logging assets like PPE in your HCM system to reduce the risk of misspent funds.
• Automate the tracking of compliance with these new standards so you can keep your processes up to date.

Temperature and health checks

Many states, localities, industries, and public health officials have orders in place that require employers to get temperature screenings and/or monitor symptom screenings before their employees can report to work.

Here are some options for how HR professionals can manage monitoring and reporting of temperature and health checks:

• Adjust your incident definitions to track disease-related events and employees who have had exposure or symptoms.
• Protect your employees' rights and reduce the risk of violating other regulations as you try to meet new requirements, for example by ensuring you don’t expose health information protected by HIPAA.
• Consider remote work options for employees who are reporting symptoms or are quarantined but still willing and able to work.

Sanitizing, cleaning, and disinfecting

As companies reopen, they are required to practice a sanitary environment by cleaning and disinfecting public spaces, workplaces, businesses and schools.  Companies need to follow CDC guidelines to ensure their business, employees, and customers are as safe as possible so they can reopen and remain open.

Here are some options for how HR professionals can manage tracking and reporting of sanitizing, cleaning, and disinfecting practices they implement:

• Set up a non-paid code in your time and attendance system to track when cleaning and disinfection occurred to ensure a sanitary environment.
• Track locations that have been cleaned and disinfected to ensure your company stays compliant.
• If your organization practices activity tracking, designate a specific activity type for cleaning and disinfecting.

Contact tracing

Employers are responsible for understanding when employees or customers have been at risk of contact with COVID-19 to prevent and reduce its transmission.  It is important monitor federal, state, and local public health communications for regulations, guidance, and recommendations to ensure the appropriate monitoring of exposure and risk to the organization. In many cases, these have taken the form of contact tracing guidelines.

Here are some options for how HR professionals can manage monitoring and reporting of contact tracing in their workplace:

• Implement contact tracing tools to help you track whether employees are taking the proper precautions, what health risks the organization may be exposed to, and what incidents have occurred to minimize risk.  
• Develop a plan and monitor schedules for employees who may become ill to ensure proper coverage for productivity.
• Monitor employee absences and have flexible leave policies and practices.
• Ensure you are keeping information protected and staying compliant with EEOC, OSHA and HIPAA guidelines when tracking this information.

State and local paid family and medical leave regulations

If your employees are unable to work due to COVID-19 or have to care for an ill family member, you will need to follow Department of Labor (DOL) guidelines to verify if the leave is covered under the Family and Medical Leave Act.  It will be equally important to enforce state and local paid family and medical leave regulations to ensure compliance.

Here are some options for how HR professionals can manage tracking and reporting of paid family and medical leave:

• Adjust accruals to account for unique forms of time off, including mandatory quarantine, required sick time, and time to care for sick family members.
• Adjust leave rules to track crisis-related leave types as they are happening, and report on them so you know how your organization is being affected.
• Automate leave administration and tracking of paid and unpaid federal, state, and employer-specific leave policies. Ensure your technology is configured to match the needs of your organization to maintain balances, reduce manual process errors, and control absence costs.

What you can't enforce

While there are many things that companies need to enforce, they also need to protect themselves from the things they can’t enforce without violating employee rights protections and other similar compliance standards. Below are some areas to potentially watch.

Requests for family members' medical information

While companies can ask employees if they have been exposed to anyone diagnosed with COVID 19 or shown symptoms of the disease, according to the Genetic Information Nondiscrimination Act (GINA), they cannot ask employees for medical information about their family members.

Requesting that specific people work from home

While companies have the right to set the terms and conditions of employment based on the needs of the business and/or for health and safety reasons, they cannot mandate employees to work from home because of perceived or actual disabilities. In addition, according to the Age Discrimination in Employment Act (ADEA) and the ADA, companies cannot require employees who are a certain age, disability or other protected characteristics to stay home from work. This can set the company up for risks related to discrimination.

Targeting protected groups for health screenings and temperature checks

While organizations may choose to screen employees based on high-risk roles or employees who interact with customers, they cannot select groups of employees based on characteristics related to age, sex, race, national origin, religion, or disability.  Furthermore, according to the ADA, companies cannot disclose employees’ personal medical information to other team members, but they can inform staff if someone in the company has tested positive or has symptoms of COVID-19.

Conclusion: Take care with standards as you reopen

As HR professionals prepare to reopen, there are a lot of things that need to be considered.  The good news is your HR technology can help you manage during a crisis and prepare you when a next crisis hits.  A unified HCM solution can help ensure that you are tracking and reporting on critical information in a timely and accurate manner.