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The Benefit of Benefits

By Benefits, Employee Benefits

Remaining competitive in the hunt for the right job candidates who will propel your business to success is a struggle. Once you find the people you need, you have to convince them that your company is a better place to work than your competitors. A strategic, quality benefits package can help you attract and retain those top employees.

Employees value a well-rounded selection of benefits, and health insurance, a 401(k) plan, life insurance and dental coverage are a few of the plans that you can consider offering.

The Benefits

Benefits packages offer value to your employees and help you boost productivity and retention in a cost-effective manner. Here are a few of the advantages of offering employee benefits as part of your compensation package.

Talent Attraction and Retention

Employees highly value a good benefits package. Developing a strategic benefits package that targets specific types of employees can help attract the right job candidates to keep your organization running at peak efficiency.

Once you have these top-performing employees at your company, providing a tailored employee benefits package will serve as a barrier to them leaving—a great benefits package can be a huge advantage when looking at retention strategies because it holds more than just monetary value for the employee. A bigger salary at another company likely won’t be as strong a pull for an employee tempted to leave if the other company’s benefits package isn’t as attractive as yours.

Healthy, Productive Employees

When your benefits package includes a combination of health insurance and dental and vision coverage, you will have employees who are able to take a proactive role in managing their health. They will have easy, affordable access to health care, reducing absenteeism due to illness.

When they are on the job, healthy employees are more productive than sick ones. It’s beneficial for your company’s productivity and your employees when they have access to medical coverage and time off when they are sick.

Satisfaction

A good benefits package leads to satisfied employees with higher morale. Employees who find value in their benefits are typically more willing to commit to their company because it helps make them feel valued—which leads to increased productivity and decreased absenteeism.

Efficient Use of Resources

Offering valuable benefits can help lower top employees’ expectations for salary. Many employees are willing to accept good benefits in lieu of a slightly higher salary.

This is an advantage to your budget because the value you present to employees with benefits, especially health insurance plans, can be monetarily equal to a raise in salary for them, while costing you less due to group rates and lower payroll taxes. Employers can avoid the hidden cost of paying extra payroll taxes on higher salary by instead offering benefits to provide similar value to employees.

Thinking Long-term

Even if you think you can save a little money in the short term by skimping on employee benefits, you will eventually face the consequences through a lowered ability to attract high-achieving employees, increased difficulty retaining your top performers, and lowered morale and productivity.

Offering a quality array of employee benefits will pay off through a stronger, more productive workforce with employees committed to your company.

Working with B+H Insurance, LLC will help you develop a strategic benefits package that works for your budget and offers attractive options to your employees. We can also give you access to educational materials for your employees as you launch your new or improved benefits package. Contact us at 302-995-2247 or http://bhi365.com.

How to Manage the Mental Health of Returning Employees

By HR Services

“The most important thing HR directors need to do is to manage expectations,” said Maria Clyde, SHRM-SCP, director of human resources at BHI insurance agency in Newark, Del.”

Our very own, Maria Clyde, Director or HR, spoke to SHRM about “How to Manage the Mental Health of Returning Employees”

Click HERE to check out the article from SHRM (Society for Human Resource Management)

Returning to Work Post-COVID-19

By HR Services

As Delaware and surrounding areas reopen workplaces and release new COVID-19 mitigation guidelines for employers, we urge you to consider adopting the following precautionary procedures:

  • Designate a Pandemic Safety Officer for each active job site or location
    • The Officer should be on site at any time that work is performed or the location is open, screen employees before beginning work and enforce new COVID safety precautions.
    • The Officer should take a COVID-19 Awareness Training Course, obtain a COVID-19 workplace training certificate and post it at the job site or location/establishment alongside any other required posters or permits.
    • The Officer may also be your Site Safety Manager, General Manager, Operations Manager, HR, etc.
  • Create and communicate a COVID-19 Safety Plan tailored to your company (contact us for more details).
  • Limit the number of employees at a location or site (consider square footage, client volume, etc.).
  • Require employees to wear masks at all times while working.
  • Require social distancing of 6 feet or more between employees while they are working and taking breaks.
  • Provide every employee with regular access to hand-washing stations, hand sanitizer, and disinfectant wipes.
  • Schedule regular hand-washing breaks.
  • Minimize sharing of utensils, computers, tools, equipment, etc. amongst employees.
  • Have high-touch areas and tools cleaned and disinfected regularly.

For further guidance, join us for our BHI Executive Learning Series webinar on Tuesday, May 12, 2020 entitled “We are returning to work! Now what?” Click here to register. As always, please contact our Insurance, Safety and/or HR Consultants for further questions.

Thank you and stay safe!
Your BHI Team

The Volunteer Protection Act

By Personal Insurance

To promote volunteerism, the Volunteer Protection Act (VPA) was signed into law in 1997. This act pre-empts existing, looser state laws protecting nonprofit volunteers, encouraging the public to participate in social service.

Overview of the Volunteer Protection Act

The VPA protects volunteers against civil liability under the following conditions:

  • The volunteer was acting within the guidelines of his or her job description
  • The volunteer had the proper licenses, certifications or was authorized to act, and those acts were within his or her job description
  • The volunteer did not cause harm that was caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed
  • The volunteer did not inflict harm while using a motor vehicle, aircraft or other vehicle

The VPA provides consistent protection for all nonprofit personnel since state laws vary. More specifically, many states only provide protection to the organization’s director or board members, while others protect everyone associated with the organization.

The VPA does not, however, protect a volunteer from litigation brought by the organization onto the volunteer for violating one of previously mentioned criteria.

Most importantly, the VPA does not protect the nonprofit organization from litigation; it only protects the volunteer. In other words, the organization may be liable for the negligent actions of the volunteer, even when the volunteer is immune from litigation under the VPA. Therefore, the burden of responsibility is on the organization to assure that its volunteers are acting in a lawful manner while carrying out the duties assigned to them by the nonprofit.

Examples of the Scope of the VPA

Use these examples to see the scope of the VPA:

  • A child is severely injured while swimming at a church-sponsored summer camp. The volunteer camp counselor who neglected to supervise the pool would not be liable for the incident. However, the church is liable for not hiring a properly trained lifeguard to supervise the pool.
  • While driving several young players to a little league baseball game, a volunteer coach makes an illegal left turn and hits another car. In this instance, the volunteer is liable and is not immune under VPA or the state law because he violated a traffic law.

Consequences of VPA

Though the act does encourage the public to volunteer without fear of litigation and assures that volunteer protection laws do not vary significantly from state to state, it also poses threats to you, the organization. With this added legal security, volunteers may take more risks while doing assigned jobs or take on responsibilities without proper training. Furthermore, they may not exercise the type of caution needed or become careless in their dealings with the populations the organization serves.

The act may also deter organizations from enacting risk management programs to ensure that volunteers are properly trained, knowledgeable and prepared.

Organization Liability Prevention

To prevent excessive liability on your organization, you should do the following:

  • Establish a risk management program run by a designated committee to address factors that could negatively affect your organization. The committee should identify risks that have the potential to be costly for the organization.
  • Have risk financing in place to pay for damages, legal expenses, injuries or other costs associated with litigation.
  • Obtain general liability insurance, which protects against bodily injury and property damage claims that are brought against you organization by the volunteer.

General liability insurance will protect an organization’s assets in the event of a lawsuit. In some cases, the VPA may also reduce the organization’s risk and, therefore, may reduce the insurance premium. Contact B+H Insurance, LLC to learn more about our cost-effective liability insurance solutions to protect against litigation as a result of volunteer actions.

 

CARES Act Expands Health Coverage Rules

By Benefits

On March 27, 2020, the U.S. Congress passed the Coronavirus Aid, Relief and Economic Security Act (CARES Act) to provide $2.2 trillion in federal funding to address the COVID-19 crisis. The President signed the CARES Act into law the same day.

Following and building upon two other federal laws that were recently enacted to address the pandemic—the Families First Coronavirus Response Act (FFCRA) and an emergency funding bill—the CARES Act makes a variety of changes affecting health plans.

Health Plan Coverage Provisions
The CARES Act includes provisions to:

  • Expand the types of coronavirus testing that all comprehensive private health insurance plans must cover without cost-sharing or barriers under the FFCRA;
  • Accelerate the process that would make permanent the requirement for health plans to cover preventive services and vaccines related to COVID-19;
  • Allow telehealth and other remote care services to be covered under a high deductible health plan (HDHP) before the deductible is met, without affecting the HDHP’s compatibility with Health Savings Accounts (HSAs) (applicable for HDHP plan years beginning on or before Dec. 31, 2021); and

Treat additional over-the-counter medications, along with menstrual care products, as qualified medical expenses that may be paid for using HSAs or other tax-advantaged arrangements.

COVID-19 ECONOMIC INJURY DISASTER LOAN APPLICATION CLICK, HERE.

 

Families First Coronavirus Act (FFCRA)

By Personal Insurance

Please see below for the latest on FFCRA – updated DOL guidance, a Q&A doc, and IRS guidance on the tax credits.

Visit the DOL website for more Q&As, fact sheets, posters, etc. You must comply with the notice provisions below by April 1, 2020.

Delaware Health and Social Services, Division of Public Health released a notice on Essential Services Screening Recommendations for COVID-19, also below.

DOL Guidance on FFCRA Employer Leave Requirements

Families First Coronavirus Response Act – Questions and Answers

IRS Issues Guidance on Tax Credits for Coronavirus (COVID-19) Paid Leave

FFCRA Poster

Essential Services Screening Policy

 

 

Coronavirus Relief Laws Require Paid Employee Leave

By HR Services

As part of sweeping legislation signed into law by President Trump on March 18, 2020, two laws were enacted that provide workers with paid leave for reasons related to the coronavirus (COVID-19) pandemic. One of the new leave provisions, the “Emergency Family and Medical Leave Expansion Act,” allows 12 weeks of partially compensated FMLA leave to care for a child whose school or child care facility has been closed due to COVID-19. The leave applies only to workers who have been employed by their current employer for 30 days.

The other new law providing employee leave, the “Emergency Paid Sick Leave Act,” requires employers to provide 80 hours of paid sick time to employees in specified circumstances, including:

  • A quarantine or isolation order for the employee or someone the employee is caring for, or medical advice to self-quarantine;
  • When the employee has symptoms of COVID-19; or
  • When the employee’s child’s school or child care facility is closed.

Employers with 500 employees or more are exempt from the laws, and employers may exclude employees who are health care providers and emergency responders. The legislation also allows for future regulations
exempting businesses with fewer than 50 employees from providing leave for child care reasons if the leave would jeopardize the viability of the business.

The laws take effect within 15 days of passage; the leave benefits will expire on Dec. 31, 2020. Employers should familiarize themselves with the new leave requirements to ensure compliance.

Overview
In response to the coronavirus (COVID-19) pandemic, Congress enacted a bill providing various forms of relief, including two separate laws mandating that employers give employees paid leave for specified purposes related to COVID-19. The two leave laws are the “Emergency Family and Medical Leave Expansion Act,” and the “Emergency Paid Sick Leave Act.” The leave mandates take effect no later than 15 days after passage (April 2, 2020) and sunset on Dec. 31, 2020.

The Emergency Family and Medical Leave Expansion Act
In general, the Emergency Family and Medical Leave Expansion Act amends the federal Family and Medical Leave Act (FMLA) to allow employees to take leave for certain child care purposes related to COVID-19. It requires employers to partially compensate that leave after the first 10 days.

Covered Employers
The expanded FMLA requirements apply to private employers with fewer than 500 employees, and all government employers. Thus, small employers that are not subject to the FMLA’s regular leave provisions are subject to the new FMLA leave rules that allow employees to take leave for specified child care purposes related to COVID-19.

The law allows for future regulations to exempt businesses with fewer than 50 employees if the leave would jeopardize the viability of the business. The law states that employers with fewer than 50 employees will not be subject to civil damages in an employee action brought under the FMLA for violation of the new provisions.

Covered Employees
All employees who have worked for their current employer for 30 calendar days are eligible for the new FMLA leave; however, employers are permitted to deny leave to employees who are health care providers or emergency responders.

Using Leave
Eligible employees of covered employers may take up to 12 weeks of FMLA leave if they are unable to work (or telework) because they must care for a son or daughter under 18 years of age. The need for leave must be caused by the closing of the child’s elementary or high school or place of care, or the unavailability of the child’s child care provider, due to a declared COVID-19 public health emergency.

“Child care provider” means a provider who receives compensation for providing child care services on a regular basis.
Where the need for leave is foreseeable, employees should provide their employers with as much notice of leave as is practicable.

Compensation
Employers are not required to pay employees for the first 10 days of the new FMLA leave, but employees may substitute any accrued vacation leave, personal leave, or medical or sick leave for this unpaid leave. Thereafter, the employer must compensate FMLA leave taken under the new provision at a rate of at least two-thirds of the employee’s regular rate of pay, based on the number of hours the employee would otherwise normally be scheduled to work, up to a maximum of $200 per day, or $10,000 total.

Special calculation rules apply for employees with variable schedules.
Special rules apply to multi-employer collective bargaining agreements.

Job Protection
While FMLA leave is usually job-protected, meaning employees who take leave must be restored to their position (or an equivalent) when they return to work, the new law provides a limited exception to this requirement. Employers with fewer than 25 employees are not subject to the job restoration requirement, if:

  • The employee took FMLA leave under the new COVID-19 expansion of the law;
  • The employee’s position no longer exists due to economic conditions or changes in operating conditions of the employer that affect employment and are caused by a public health emergency;
  • The employer makes reasonable efforts to restore the employee to an equivalent position; and
  • If these efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available. The contact period is for one year, beginning on the earlier of:
    • The date on which the employee’s need for leave ends
    • Twelve weeks after the employee’s leave begins

Tax Credit
Employers are entitled to a credit against the tax imposed by section 3111(a) or 3221(a) of the IRS Code for each calendar quarter of an amount equal to 100% of qualified sick leave wages paid. Tax credits are also available for self-employed people.

Emergency Paid Sick Leave Act
The second law passed providing paid employee leave in relation to the coronavirus is the Emergency Paid Sick Leave Act.

Covered Employers
The paid sick leave law applies to all private employers with fewer than 500 employees, and all government employers.

Covered Employees
All employees are covered, regardless of the length of their employment with their current employer. However, employers may choose not to provide paid sick leave to employees who are health care providers or emergency responders.

Using Paid Sick Leave
All full-time employees, regardless of the length of time they have worked for their employer, are entitled to 80 hours of paid sick time, available for immediate use. Part-time employees are entitled to an amount of paid sick time equal to the average number of hours they work over a two-week period.

Paid sick time may be taken when the employee:

  1. Is subject to a federal, state or local quarantine or isolation order related to COVID-19
  2. Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
  3. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
  4. Is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or who has been advised by a health care provider to self-quarantine
  5. Is caring for his or her child if the child’s school or place of care has closed, or the child’s care provider is unavailable, because of COVID-19 precautions.
  6. Is experiencing another substantially similar condition specified by the Secretary of Health and Human Services (HHS).

Employers may not require employees to use other paid leave before using paid leave under the new law. The law allows for future regulations exempting businesses with fewer than 50 employees from providing leave for reason 5, above.

An employer may require the employee to follow reasonable notice procedures after taking leave the first time.

Compensation
Under the new paid sick leave law, employers must pay employees their regular rate of pay if the employee is taking leave for a reason related to their own symptoms of, or exposure to, COVID-19. Employees who are taking leave to care for family members are only entitled to be paid at two-thirds of their regular rate. Daily and total maximum limits apply, as set forth in the compensation table below.

Reason for leaveDaily pay rate/capTotal pay cap
Quarantine or isolation orderRegular rate of pay up to a cap of $511

 

$5,110
Advice from health care provider to self-quarantine
Experiencing symptoms of COVID-19 and seeking a medical diagnosis
Caring for an individual subject to quarantine or isolation order, or who has been advised by a health care provider to self-quarantineTwo-thirds regular rate of pay, up to a cap of $200$2,000
Caring for own child whose school or place of care has closed, or whose care provider is closed or unavailable
Experiencing other substantially similar condition specified by HHS

Special calculation rules apply for part-time employees with variable work schedules.

Employer Notice Requirements
The Department of Labor is charged with making a required employer notice available within one week of the law’s passage. Employers must post the notice in conspicuous places on their premises, where notices to employees are customarily posted.

Enforcement
Employers who violate the new paid sick leave law will be subject to penalties under the federal Fair Labor Standards Act.

Tax Credit
Employers are entitled to a credit against the tax imposed by section 3111(a) or 3221(a) of the IRS Code for each calendar quarter, of an amount equal to 100% of qualified sick leave wages paid. Tax credits are also available for the self-employed.

Homeowners Insurance Policy Q&A

By Personal Insurance

Know Your Insurance

The best time to learn about what’s included in a basic homeowners insurance policy is before you have a claim. We’ve gathered the answers to the most common “Am I covered if…” questions about your homeowners insurance policy to help you to minimize any coverage surprises.

What property and perils are excluded from my policy?

Typically, coverage does not apply to damage caused by flood, surface water, water that backs up through sewers or drains, earth movement, nuclear damage, war, etc. Personal liability and medical payments do not apply to the operation, ownership, use, etc., of any aircraft, automobile, RV, water craft powered by more than 50 horsepower motor; bodily injury or physical damage caused by an intentional act of the insured.

What happens if I have a fire? How do I collect for my personal property?

Whether your policy pays for the replacement or just the actual cash value of your possessions, you will be paid for personal property that you can show you owned at the time of loss. It is a very good idea to keep an up to date inventory in a secure place. Also, to help you remember what you had, it is helpful to take   pictures or video of each room.

If my sump pump fails due to water backing up through the sewers, am I covered?

No, but you can easily add a sewer and backup endorsement to your homeowners policy to cover the loss.

Is my boat covered?

Theft to watercraft, including furnishings, equipment and outboard motors, is typically excluded if the theft occurs outside your residential premises. To cover your boat and its accessories, you need a separate boat owners insurance policy.

I have insured antique items listed on my policy. If I have a total loss, do I receive payment for the full insured value?

We will first confirm the value of the items with one or more independent antique dealers. You should then be paid a dollar value based on the dealer(s) estimate of the worth of the antique items. The best way to insure your antiques? Get appraisals and establish the stated values in the policy.

During a storm, a tree from my neighbor’s yard fell and destroyed my fence. Who pays for the loss?

Generally, your own policy should cover the loss. Our agency may be able to recover the amount paid for the loss from the neighbor’s homeowners insurance if the loss occurred as a result of your neighbor’s negligence.

If I have water damage from a rainstorm, am I covered?

No, a separate flood policy is needed to covers losses to your property caused by flooding. As long as your community participates in the National Flood Insurance Program (NFIP), you’re eligible to purchase flood insurance. We can assist you in determining if your community participates in the NFIP.

What if I lose power and the food in my freezer spoils?

A basic policy typically does not cover this loss; however, coverage for electrical outages is available for a nominal additional premium.

If my iPod is stolen from my vehicle, is it covered under my auto insurance or my homeowners insurance policy?

Almost all auto and homeowners policies exclude coverage for any losses of iPods and other sound transmitting or receiving equipment used in an automobile. For added protection, check with us to determine if coverage can be purchased for the stereo and media players used in your auto.

How can I be sure I have the right coverage?

A complete review of your policy is the only way to determine what property is covered and what perils are insured against. We can help you identify your risks and explain what’s included in a homeowners insurance policy, including the standard limits of coverage on property insured such as money, watercraft, theft of jewelry, silverware and guns. Contact us today to learn how we can help you insure your home, auto and life.

Coronavirus and the Workplace

By Benefits, Business Insurance, HR Services, Safety Services

Coronavirus and the Workplace

Compliance Issues for Employers

 

As the number of reported cases of the novel coronavirus (COVID-19) continues to rise, employers are increasingly confronted with the possibility of an outbreak in the workplace.

Employers are obligated to maintain a safe and healthy work environment for their employees, but are also subject to a number of legal requirements protecting workers. For example, employers must comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) in their approach to dealing with COVID-19.

There are a number of steps that employers can take to address the impact of COVID-19 in the workplace. In addition to reviewing the compliance concerns outlined in this Compliance Bulletin, employers should:

• Closely monitor the CDC, WHO and state and local public health department websites for information on the status of the coronavirus.
• Proactively educate their employees on what is known about the virus, including its transmission and prevention.
• Establish a written communicable illness policy and response plan that covers communicable diseases readily transmitted in the workplace.
• Consider measures that can help prevent the spread of illness, such as allowing employees flexible work options like working from home. are enforced.

What is the Coronavirus?

The 2019 novel coronavirus (“COVID-19” or “coronavirus”) is caused by a member of the coronavirus family that is a close cousin to the SARS and MERS viruses that have caused outbreaks in the past. Symptoms of COVID-19 include fever, runny nose, cough and trouble breathing. Most people develop only mild symptoms. But some, usually people with other medical complications, develop more severe symptoms, including pneumonia, which can be fatal. The incubation period for COVID-19 is from two to 14 days.
Initially detected in Wuhan, China in late 2019, the first case of COVID-19 in the United States was reported on January 21, 2020. Since then, the disease has spread to more than 50 people within the continental United States, with CDC officials warning of further outbreaks.

How is Coronavirus Spread?

The available information about how the virus that causes COVID-19 spreads is largely based on what is known about similar coronaviruses. COVID-19 is a new disease and there is more to learn about its transmission, the severity of illness it causes, and to what extent it may spread in the United States.
According to the CDC, the virus is thought to spread mainly from person to person, between people who are in close contact with one another (within about six feet) or through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby, or possibly be inhaled into the lungs.
It may also be possible for a person to contract COVID-19 by touching a surface or object that has been contaminated with the virus and then touching his or her own mouth, nose, or eyes, but this is not thought to be the main way the virus spreads.
People are thought to be most contagious when they are most symptomatic. Some spread might be possible before people show symptoms, and there have been reports of this occurring, but this is not thought to be the main way the virus spreads.

Disease Prevention in the Workplace

Whenever a communicable disease outbreak is possible, employers may need to take precautions to keep the disease from spreading through the workplace. It is recommended that employers establish a written policy and response plan that covers communicable diseases readily transmitted in the workplace.
Employers can require employees to stay home from work if they have signs or symptoms of a communicable disease that poses a credible threat of transmission in the workplace, or if they have traveled to high-risk geographic areas, such as those with widespread or sustained community transmission of the illness. When possible, employers can consider allowing employees to work remotely. Employers may require employees to provide medical documentation that they can return to work.
Employers can consider canceling business travel to affected geographic areas and may request that employees notify them if they are traveling to these areas for personal reasons. Employees who travel to China should be informed that they may be quarantined or otherwise required to stay away from work until they can provide medical documentation that they are free of symptoms.
There are several legal considerations that employers should keep in mind when implementing and administering a communicable illness policy. These considerations are addressed in the following sections.

Occupational Safety and Health Act of 1970

Under the federal Occupational Safety and Health Act of 1970 (the OSH Act), employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Workers also have the right to receive information and training about workplace hazards, and to exercise their rights as employees without retaliation. There is no specific Occupational Safety and Health Administration (OSHA) standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19. In addition to the General Duty clause, OSHA’s Personal Protective Equipment (PPE) standards and Bloodborne Pathogens standard may apply to certain workplaces, such as those in the healthcare industry.

Employers should continue to monitor the development of COVID-19 and analyze whether employees could be at risk of exposure. It is also important for employers to consider what preventative measures they can take to maintain safety and protect their employees from potentially contracting COVID-19.
Also, OSHA requires many employers to record certain work-related injuries and illnesses on their OSHA Form 300 (OSHA Log of Work-Related Injuries and Illnesses). OSHA has determined that COVID-19 is a recordable illness when a worker is infected on the job. Establishments that are required to complete an OSHA 300 log should be sure to include all COVID-19 infections that are work related.

The Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) protects applicants and employees from disability discrimination. It is relevant to COVID-19 because it prohibits employee disability-related inquiries or medical examinations unless:

• They are job related and consistent with business necessity; or
• The employer has a reasonable belief that the employee poses a direct threat to the health or safety of him-or herself or others (i.e., a significant risk of substantial harm even with reasonable accommodation).

According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

The EEOC has said that sending an employee home who displays symptoms of contagious illness would not violate the ADA’s restrictions on disability-related actions because advising such workers to go home is not a disability-related action if the illness ends up being mild, such as a seasonal influenza. On the other hand, if the illness were serious enough, the action would be permitted under the ADA as the illness would pose a “direct threat.” In either case, an employer may send employees home, or allow employees to work from home, if they are displaying symptoms of contagious illness.

The ADA requires that information about the medical condition or history of an employee, obtained through disability-related inquiries or medical examination, be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. Employers should refrain from announcing to employees that a coworker is at risk of or actually has a disease. Instead, employers should focus on educating employees on best practices for illness prevention.

Employee Leave Requirements

If an employee, or an employee’s family member, contracts COVID-19, the employee may be entitled to time off from work under federal or state leave laws. For example, an employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take leave under the Family and Medical Leave Act (FMLA). An illness like COVID-19 may qualify as a serious health condition under the FMLA if it involves inpatient care or continuing treatment by a health care provider. Employees may also be entitled to FMLA leave when taking time off for medical examinations to determine whether a serious health condition exists.

Many states and localities also have employee leave laws that could apply in a situation where the employee or family member contracts COVID-19. Some of these laws require employees to be given paid time off, while other laws require unpaid leave. Employers should become familiar with the laws in their jurisdiction to ensure that they are compliant.

Some employees may wish to stay home from work out of fear of becoming ill. Whether employers must accommodate these requests will depend on whether there is evidence that the employee may be at risk of contracting the disease. A refusal to work may violate an employer’s attendance policy, but employers should consult with legal counsel prior to disciplining such an employee. However, if there is no reasonable basis to believe that the employee will be exposed to the illness at work, the employee may not have to be paid for any time that is missed.

Compensation and Benefits

If employees miss work due to COVID-19, whether they are compensated for their time off will depend on the circumstances. As noted above, employees may be entitled to paid time off under certain state laws if they (or a family member) contract the illness. In other cases, non-exempt employees generally do not have to be paid for time they are not working. Exempt employees must be paid if they work for part of a workweek, but do not have to be paid if they are off work for the entire week. Note that special rules may apply to union employees, depending on the terms of their collective bargaining agreement.

Employees may be entitled to workers’ compensation benefits if they contract the disease during the course of their employment. For example, employees in the healthcare industry may contract the disease from a patient who is ill. Whether an employee is eligible for other benefits, such as short-term disability benefits, will depend on the terms of the policy and the severity of the employee’s illness.

Communicating with Employees

As part of their efforts to prevent the spread of COVID-19 in the workplace, employers should consider communicating information about the illness to employees. The CDC, WHO and OSHA have all created informational material on the virus and its symptoms, prevention and treatment that can be helpful for employees.

Highlights

COVID-19

The illness caused by the coronavirus can cause symptoms ranging from mild to severe. Cases are expected to spread throughout the United States.

Disease Prevention

Employers must maintain a safe work environment for employees. They may require employees to stay home from work if they are at risk of spreading the disease.

Legal Obligations

Employers must also consider their obligations under workplace laws.

 

Information Resources

CDC

Coronavirus Disease 2019 (COVID-19) Situation Summary

World Health Organization

Coronavirus disease (COVID-19) advice for the public

OSHA

Safety and Health Topics: COVID-19