How should businesses respond when employees have no childcare options while schools are closed? What are their options if laid-off employees refuse a rehire offer because they want to ride out their unemployment benefits? How can they accommodate employees in high-risk categories for coronavirus? And what if an employee tests positive for the virus?
As Riverside County nears Stage 3 on its reopening continuum, Coachella Valley employers are facing new challenges managing employees and providing a safe work environment. In a July 8 webinar hosted by Palm Springs Life, labor and employment attorney Vee B. Sotelo of Palm Springs-based law firm Slovak, Baron, Empey, Murphy & Pinkney (SBEMP) addressed common questions about how businesses should welcome back staff — and what to do if employees say they’re not ready to return.
“In Stage 3, even high-risk businesses are allowed to reopen,” Sotelo told local employers during the webinar before imploring them to adopt, communicate, and enforce workplace safety measures and offer “a reasonable response” to employees’ concerns and requests for special accommodations.
In a conversation moderated by Valerie Powers Smith, a partner at SBEMP, Sotelo addressed the general responsibilities of businesses and answered questions commonly asked of the firm.
Valerie Powers Smith (right), a partner at Palm Springs-based law firm Slovak, Baron, Empey, Murphy & Pinkney, moderates a webinar with labor and employment attorney Vee B. Sotelo of SBEMP.
To put returning employees at ease and minimize exposure to liability, Sotelo suggests employers:
• Communicate and enforce a safety plan with measures such as requiring temperature and symptom screenings, providing face coverings and hand sanitizer stations, enforcing social distancing, and constantly cleaning and disinfecting common spaces and surfaces. “A policy is not enough,” Sotelo says. “You have to continually communicate the rules and procedures and demonstrate that you’re actively enforcing the procedures.”
• Discuss and offer reasonable accommodations to employees in a high-risk category for coronavirus or caring for children learning virtually from home. “Women in the workplace are disproportionally affected by availability of childcare,” Sotelo says, noting she is already seeing discrimination cases arise over the issue. She also cautioned employers to avoid hasty job abandonment termination of employees in a high-risk group or have household members in a high-risk group. “It could lead to a disability discrimination lawsuit,” she says. “Instead, engage in the interactive process. Demonstrate a willingness to reasonably accommodate the employee.”
• Make a clear job offer when recalling laid-off employees and remind them unemployment benefits will soon end. “If an employee receives and declines a reasonable job offer, they will no longer qualify for unemployment,” Sotelo says, suggesting some people prefer to use all of their benefits before returning to work. “Make it clear you’re offering a job by saying, ‘This is a job offer,’ and specifically indicate the position, when it starts, and where that person is expected to work.”
• Act swiftly and deliberately if an employee is diagnosed with coronavirus. “Keep the employee’s name private, but immediately identify and notify other employees who had prolonged close contact — meaning closer than 6 feet and for a period of 10 to 15 minutes or longer,” she says. “Immediately tell the employee that he or she qualifies for emergency paid sick leave and send the information to the employee. Request a doctor’s note, which is required for emergency leave as well as time off under the Family and Medical Leave Act.”
Lawsuits are already challenging workplace safety conditions, wrongful denial or interference with leave, and discrimination of employees in high-risk groups. Sotelo encourages employers to keep meticulous records — “Keep every e-mail and doctor’s note” — to demonstrate good-faith efforts to protect and accommodate employees.
VIDEO: View the Palm Springs Life webinar on how employers should navigate the coronavirus pandemic.