back to work
Managing paychecks, unemployment claims, virus fears and more
by Brian Evans

Since the COVID-19 outbreak, many employers have made the difficult decision to downsize staff or suspend operations entirely. In the homecare industry, operations weren’t completely halted, but employers still faced decisions that required adjusting schedules and reducing staffing levels to ensure the safety of employees and patients alike. 

Organizations faced the issue of losing employees due to COVID-19-related reasons, including illness or pre-existing conditions that prompted employees to request time away from work. Now, as many jurisdictions are allowing businesses to return to a level of relative normalcy in their operations, employers are left to navigate how and when to bring back staff affected by the coronavirus or its associated economic downturn. 

To further complicate matters, many employees may be content to stay home due to fears of contracting or spreading the virus, or because of the windfall that's provided through state and federal unemployment assistance programs. 

Let’s discuss a few common concerns employers in the homecare industry are facing and explore effective ways to address them.

Developing a Fair Back-to-Business Plan

At home, employees have control over face-to-face interactions. They may be apprehensive about returning to work due to constant and often conflicting information about the coronavirus and related safety precautions. This may be especially true in the homecare environment, where employees are relational and spend one-on-one time with their patients or around other staff members.

Employers should first consider whether a particular employee is needed back at work. By analyzing which jobs are necessary to bring back first, or which workers are most needed to return to full-time hours, a business can determine the employees they should recall. Some employees may feel more comfortable than others about returning to work, so assessing each employee’s thoughts and desires about returning may help determine who comes back first. In the homecare sector especially, recalling those employees who have stayed home for virus-related reasons or restoring full-time employee hours may present a challenge.

Employers should not underestimate the importance of listening to employee concerns, since there may be important information disclosed. In the homecare environment, contact with vulnerable people might make workers fearful of returning and put patients at risk. As an employer, explaining what controls are in place to reduce the threat of transmission—such as staggered shifts, proper personal protective equipment, and regular symptom checks—can go a long way in garnering employee buy-in around returning to work.

Handling Unemployment Insurance Benefits

In March, the CARES Act passed to protect workers from the economic impact of COVID-19. A major provision of the act was the expansion of unemployment insurance (UI) benefits, particularly the creation of a federal program that expanded eligibility and increased the maximum weekly benefit by $600. A separate provision offered a Payroll Protection Program (PPP) loan so employers could continue paying their workers with potentially forgivable money. For many in the homecare sector, these provisions were competing against each other, since a large portion of affected workers would earn more by taking unemployment payments over their regular paychecks.

Thus, we experienced an unprecedented situation in which many workers did not want to continue receiving their normal pay, since it potentially disqualified them from a more lucrative UI benefit. However, employers needed to continue paying the employees to receive the PPP loan forgiveness. Regardless of whether an employer elected for the PPP loan, the fundamental issue of some employees facing the reality of returning to work for less than they were making by not working still needs to be addressed. Properly handling some inevitable pushback or refusals to return to work is important.

When offering an employee an opportunity to return to work or asking for the return of an employee after allowed time away, employers should document the offer and the employee’s response. While there may be financial reasons under the PPP to document offers to work in writing, it’s always important to document important conversations as a matter of best practice. In the event that an employee files a charge or an unemployment claim against the company, the employer may be required to recall specific discussions many months after they’ve taken place. 

Another important item to note is that most state unemployment agencies require employers to notify them of employee refusals to return to work. While this requirement can seem burdensome to organizations, it can be a powerful tool to motivate some workers to return. 

Regarding workers who refuse to return, employers should inform them about the state’s notification requirement. While the state notification does not automatically disqualify someone from receiving unemployment benefits, it can provide an added incentive for people to return to work if they don’t have a valid reason for not doing so. Refusing work because unemployment pays more would not be considered a valid reason. 

Creating protocols and guidelines to ensure workplace safety

As previously discussed, it is important for employees to feel safe returning to work. While not an exhaustive list, here are a few items that can help support your employees’ emotional and physical well-being when they return to work.

1. Set the tone for a safe working environment.

Employees returning to work may feel uncomfortable discussing their experiences related to coronavirus with their colleagues and with their managers. And while communication is encouraged, managers should be careful not to pry into personal information—particularly medical information—upon their employees’ return to work. Employers should ensure employees feel supported as they return to the field while also staying mindful of conversations as employees recount their experiences over the past several months. 

2. Establish temperature checkpoints.

Employers have varying opinions on the usefulness of temperature screening checkpoints, but it can be a useful tool if conducted properly. An elevated temperature (or lack thereof) by itself is not necessarily an indication of having or not having COVID-19, and fevers can certainly be masked by taking over-the-counter medication. Some people may even take medications to control their temperatures in order to return to work. This leaves many employers wondering if the administrative controls needed to conduct the screenings are worth the benefits.

In the homecare sector, with employees’ significant exposure to vulnerable populations, temperature checkpoints can serve a purpose beyond simply screening for high temperatures. The checkpoints are a form of showing employees and customers that the company cares about both employees’ and patients’ well-being and is doing its best to ensure proper precautions are implemented.

3. Keep FFCRA rules top of mind.

As time goes by, it’s easy for employers to overlook or forget about the requirements outlined in the Families First Coronavirus Relief Act (FFCRA) for employers with fewer than 500 employees. In particular, the requirement to provide paid sick leave to employees who must miss work for a variety of coronavirus-related issues should not be forgotten.

When an employee says they need to take leave, the employer can and should make a general inquiry of the employee’s need for time off. This ensures the employer can provide the employee with proper leave time and address any additional accommodations that might come into play.

One reason for leave under the FFCRA is the closing of a child’s school. Employers should not assume that this no longer applies because most schools are closed for the summer. Not only does the FFCRA apply to daycares and other providers of childcare, but it also applies to school-aged children who cannot attend day camps because of COVID-related closures.

Employers in the homecare industry are facing unique challenges as a result of COVID-19 and the legislation surrounding it. While different industries have their own unique challenges, proactive planning and consultation with knowledgeable HR and legal partners can set organizations on the right path, with actionable steps that comply with regulations and facilitate goodwill towards employees, customers and vendors alike.

Brian Evans is Senior Care Practice Leader at Adams Keegan.