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Suzi Wear:

Good morning. Welcome to our COVID Compliance Update webinar today. I am your moderator, Suzi Wear, and a few housekeeping items, and then we’ll get rolling with our discussion.

Suzi Wear:

We’ve allotted 45 minutes for this discussion. We received a few questions from all of you who registered and so we made an effort to incorporate those questions into our agenda. But we will allow some additional time at the end for other questions that you have, that come up through the course of the webinar.

Suzi Wear:

Please enter your questions in the chat window. And you can do that throughout the presentation. We ask you to do this because we have a large number of folks on this webinar, and so staying muted is helpful in leveraging the chat for our discussion and questions is great.

Suzi Wear:

The slides and the recording of this session will be made available to all attendees. So we will send those out via email within the next couple days. And of course, as a reminder, you’re always welcome to check out our website. We have a COVID-19 resource page, which will be mentioned later in this session, along with a link and we’re adding resources to that page all the time. So hopefully, those tools, articles, sample policies are helpful to you.

Suzi Wear:

So I’d like to introduce Luke Reese. He’s a shareholder and attorney with Garrett Hemann Robertson in Salem. He does a lot of work for us at Xenium, helping us with preventive legal consult for our clients. We work very closely with him and value his partnership. He also has a number of other clients, does litigation, and he’s very knowledgeable and strategic in his approach, which we appreciate.

Suzi Wear:

I am Suzi Wear, for those of you who haven’t had an opportunity to engage with Xenium in the past. I am the Vice President of People Development and Culture. And that essentially means that I oversee our internal HR and people practices, and also develop and deliver learning and development products for our clients, including leadership coaching. So I will be moderating our discussion today. I might type in a little bit with some of my own questions with my HR hat on. But let’s get started.

Suzi Wear:

So based on the questions that we’ve gathered from you all, there were these top three areas of concern that kind of rose to the surface. So one is around compliance and risk management. So, how can I protect myself and my business? And we have some specific questions pertaining to that, around liability and risk management.

Suzi Wear:

The next is employee relations. So, what type of communication training? How can I assure employees that we are committed to their safety? How can I navigate conversations when employees don’t feel comfortable or aren’t able to return to the workplace? So we’ll be talking about that, how you can prepare and equip your employees to return to the workplace.

Suzi Wear:

And then we had quite a few questions around leave and accommodation. So, certainly there are specific leaves available to folks who are impacted by COVID. But also there may be some interactive discussions that are needed to evaluate whether or not accommodation is appropriate for an employee to feel safe and return to performing their essential functions.

Suzi Wear:

So I see some questions coming in, feel free to keep those coming. I’ll monitor those. One question was, “Are we all muted?” And you are, you should be, and I don’t hear anything. So I appreciate you checking.

Suzi Wear:

So let’s go back. With regards to compliance and risk management, one big question that came up, Luke, is, “How can I enforce policies to reduce risks? So for example, should I have my employees or my visitors and customers sign waivers?” What are your thoughts on that?

Luke Reese:

I’ve got a lot of thoughts. I appreciate the opportunity to do this question and answer. It was funny, as you were saying all my expertise in this, I was laughing because I mean, three months ago, the concept of risk management in a COVID environment was so foreign that we’ve really been inventing this on the fly. I think at this point, we’ve got some really good concepts that are working. We’ve seen what’s been successful, we’ve seen what hasn’t, and the kind of underlying…

Suzi Wear:

Uh-oh. There we go. Sorry. We lost you for a sec.

Luke Reese:

Sorry. I think that’s Zoom telling me to get to the actual question that you’re asking.

Suzi Wear:

Sorry.

Luke Reese:

So waivers, right?

Suzi Wear:

Yes.

Luke Reese:

That’s something that everybody’s focused on right now. Because as we are opening back up, as we’re having our employees come back into this office, as we’re interacting with the public more. What happens when there’s an outbreak? And a lot of people want me to create these waivers that once they’re signed, they’re golden. They’re never going to get sued, there’s never going to be any problems because we have this signed piece of paper that resolves it. The thing to keep in mind is that’s not going to be the case. There really is not a magic form that we can create that says, you waive any and all rights that you may have if you get sick or injured while you’re at work or while you’re visiting a store.

Luke Reese:

So the kind of big thing that I want people to keep in mind is there isn’t a form that can make it so you don’t have to worry about this anymore. At the same time, I do think waivers are a really helpful tool. And here’s why. We can create these waivers and acknowledgments that go through what our expectations are of the people who we’re welcoming into our places of business. So it can talk to employees about what social distancing plan we’re going to put in place, what policies we’re going to have, what we are expecting out of everyone to help make sure that we stay as safe as possible. Same thing with customers or clients or people who we’re going to be interacting with, it’s a good way to lay out in a piece of paper that everybody can see and review that says, “Here’s what we expect out of you.”

Luke Reese:

The other thing that it does is, if you have somebody who’s not taking this seriously or who’s not following the expectations, it allows you to have a conversation using the waiver as a guide, right? So, instead of me coming up and saying, “Hey, customer, I see you’re not wearing your mask. I’d really like you to put it on,” and immediately it turns into this. “Luke is the mask police and how dare you tell me how to live my life.” It can be more of, “Hey customer, I appreciate that you’re not wearing your mask. But remember when we had to sign this release, you promised that you’d abide by what we’re expecting out of everyone. We’d like to remind you that you need to do that or we’re going to have to ask you to leave” or whatever it might be.

Luke Reese:

So that’s a very long way of saying that waivers are great if you’re using them as a tool to set expectations and to enforce those expectations if you have somebody who’s not taking it seriously. They’re not a particularly helpful tool to protect you if there’s a claim out of any of this simply because we’ve got some pretty clear law in Oregon that you can’t waive many of the rights that these waivers suggest that you will.

Suzi Wear:

Okay. Yes, so do you… I mean, this is obviously a crystal ball question. Do you foresee employees, for example, let’s just say an employer has some policies, but maybe they’re not really thorough in documenting those in having employees sign acknowledgement forms? And an employee is exposed to COVID and ends up testing positive for COVID. Do you foresee employees trying to file any kind of legal action against the employer?

Luke Reese:

Yeah, there could be workers’ comp claims that come out of this, but that’s really nothing new, right? We’ve always had the ability for employees to pursue workers’ comp benefits if they get sick on the job and it’s the job that caused that illness. Now, there’s a whole group of attorneys that all they do is practice in the area of, can you show that an illness came out of the work or came out of something else. Think like asbestos litigation, right?

Suzi Wear:

Mm-hmm (affirmative).

Luke Reese:

It’s this whole subset. The great thing for everybody that’s on the line right now is we don’t really have to worry about that. If there’s a comp claim, that’s why you have comp insurance. And I wouldn’t be worried about it. It’s not going to be devastating to your company. I don’t think there’s going to be a huge wave of claims of people who are sick, but if they are, you’re covered.

Luke Reese:

The more important thing to keep in mind is a claim that you’re discouraging your employees from pursuing comp claim. That to me is a way bigger potential risk for all of us, because it’s a more attractive claim for lawyers, right? It’s not just a comp claim, we reimburse you for your medical expenses. A retaliation claim are the ones that end up in giant verdicts or really expensive attorney fees. So what I’d encourage everybody who does what we do, the risk management, the HR folks, it’s, “Hey, if an employee thinks that they got sick on the job, file that 801 form and let the workers’ comp system take care of it.” What we don’t want to do is anything that makes it look like we’re scared or discouraging the employees from pursuing the comp claim. Because that retaliation claim is the one that’s really going to get you into trouble.

Luke Reese:

It’s another thing for waivers. I’ve seen a few that people are pulling off the internet that they’re giving to their employees that basically say, “You promised that you won’t sue us if you get sick at work.” That terrifies me because I would take that and use it as exhibit one in my retaliation case, right?

Suzi Wear:

Yeah.

Luke Reese:

It doesn’t even matter if the employee got sick. If they feel like they’re being scrutinized because they’re raising safety concerns or because they’re asking if they have rights, and we’re saying you might not, then you really do have the potential to have something that could be a significant problem.

Suzi Wear:

Okay, great. So, do you recommend any specific policies to create or to update?

Luke Reese:

So yeah. I think at this point, we know what policies we need to have, which I think is important for everyone in the HR world. You’ve got to have your temporary FFCRA Expanded Family Leave policies. I think most people have those at this point. If you don’t, there’s plenty of examples that are out there. It basically just says, “Here’s what the new temporary leave is. It’s going to be in place through the end of 2020.” Make sure all your employees know about it.

Luke Reese:

The next policy that you need to have is your safety plan, right? It’s the return to work. It’s the here’s how we’re going to go about changing the physical workspace until this is no longer an issue. The Xenium site that I think we have a link to here is frankly the one that I’m sending anybody who ask for examples to go to. There’s some really helpful checklists and kind of outlines of what you need to have.

Luke Reese:

Other than that, no, there isn’t any additional new paperwork that we need to have. I think the thing that I would want to emphasize though is, it is going to be incredibly important to be documenting the issues you’re having with your employees for the next several months to show that any criticism, any adverse action, any eventual termination, doesn’t have anything to do with complaints about safety or questions about leave, but actual performance-based issues.

Luke Reese:

There’s going to be a lot of people who are going to believe that they were terminated because they raised concerns about coming back to the office, or they raised concerns about the setup of their cubicle, whatever it might be. And it’s going to be really, really, really important that you can show, “Nope, we were actually criticizing this employee because their performance was bad, their interaction with their coworkers was a challenge,” or something else to make sure that you’re not going to be on the hook for one of those whistleblower type claims.

Suzi Wear:

Okay, great. So some questions about social distancing. So, one is relating to masks and one is relating to just physical workspaces. So the first question is a Portland employer, “Do you recommend everyone wear, including employees and customers, wear a mask when they are in the office or when they can’t be six feet away from each other?” is the question.

Luke Reese:

Yes. Yes, is the short answer. The reason that I answer it that way is, although there is a ton of conflicting information out there, and we’re all reading about not only the different information but the conflict that it is causing between those who believe firmly one way or the other. At the end of the day, the safest approach, and probably the right approach, is to follow what the governor’s office is saying.

Suzi Wear:

Mm-hmm (affirmative).

Luke Reese:

So, I know we have a link that everybody has access to the governor’s website. It’s up and running now, and actually does a pretty good job of laying out what the expectations are from the state.

Luke Reese:

If you’re meeting the state expectations, one, it takes that burden away from you as a business owner. So it’s not, “This is my decision.” It’s the decision that the governor and the state officials have said, and we’re going to follow it. The other thing that everybody needs to keep in mind is if there is a claim, the key is having insurance, right? We all pay big premiums to make sure that we’re covered if there’s an issue. And although I can’t speak to every single policy, I can tell you one big concern is most general liability policies have exclusions if somebody’s injured because of illegal conduct. And my worry is that the insurance companies are going to interpret the governor’s order as a legal order. So if someone’s in your place of business and gets hurt, and you’re not following what the governor’s recommendations are, you may not have insurance coverage anymore. And that’s a big thing that I want to avoid.

Luke Reese:

So for all of the social distancing restrictions, I would start by looking at the governor’s website. Determining what phase your county is in and making sure that you’re doing your best to meet the standards that are laid out for your type of business based on the phase. And for the bulk of us who are working in the office context, that says you’ve got to have masks. Now the kind of nuance to this is, you can’t wear a mask 24 hours a day, right? When I’m in my office on the phone, I’m not wearing a mask. I’m not wearing one now. I have my mask right here and when I’m walking in the hallways, I’ll put it on and I’m going to expect my employees to do the same. But I think the governor’s order gives that good clarification of if you truly are able to physically distance from your co-workers, then that’s when you can have some leeway on the mask issue.

Luke Reese:

I’ve had a lot of questions over the last couple weeks of, how do we respond to conflict between employees? You got some people who are running around, the kind of deputized masked police and others who love nothing more than to aggravate those people and engage in a debate. I think the key is, as a good leader, is to get ahead of that. It’s, “Here’s what my expectations are. It’s my call, I’m going to be the one to enforce it. I don’t need tattletales. I don’t need people taking that responsibility from me. But what I say goes, and we appreciate you following those directives when you’re at work.”

Suzi Wear:

Right. With regard to social distancing, a question was, “If I have my employees sitting at least six feet apart, so their workstations or desks are over six feet apart. They’re in cubicles and the cubicle is 52 inches high. So four-and-a-half feet high, does there need to be a higher barrier than that?” Have you heard anything about that requirement? We’ve had a few questions.

Luke Reese:

Yeah, I think the suggestion is, yes. Are you going to get in trouble if you don’t? Probably not. What I’d like to be able to show though is that you explored options. I’ve seen some offices that are using shower curtains as barriers from the wall to the cubicle. Looks a little silly but it can be effective.

Luke Reese:

What the governor’s order is saying is, essentially, you have to investigate what is possible and if you can show that you went in through that investigation, you’re fine. Be able to articulate why you did or didn’t, is probably the best advice that I can give.

Suzi Wear:

Okay, great. So a lot of questions came up around employees being fearful for various reasons. So, really anxious and fearful about returning to work. And so, part of this is your policies and having clear written protocols around how you are ensuring that the work environment is safe, you’re taking those precautions. But it also involves just managing individual conversations with employees about their particular situation. For example, if they have preexisting conditions that may make them more susceptible to being exposed or at risk.

Suzi Wear:

So, any guidance that you might offer for employers, so that they can either navigate those conversations or help the employees feel a little bit better about returning to the workplace?

Luke Reese:

Yeah, there’s two ways to look at this. The first one is probably not my area of expertise but it’s the soft skills, right?

Suzi Wear:

Yeah.

Luke Reese:

I have my own employees, I have concerns myself about returning to work. And I can tell you that from the leadership standpoint, it’s communication. You need to communicate, number one. Folks hate being in the dark and it’s a consistent theme of lawsuits that are filed. They’re usually filed by employees who felt like they were either lied to or not given all the information. The other thing is, you can get ahead of a lot of issues by just talking and trying to understand what the genesis of the concern is.

Luke Reese:

So, making sure that you have your internal leaders who have those people and soft skills, really making sure they’re having conversations with folks is probably the most important thing. Now, my area of expertise though is, what are the concrete steps that you can take to make sure that you’re not missing something that would end up with your name on the wrong side of a lawsuit? And there’s a couple of things. So one is starting with those governor’s orders about when we can open back up and have people come into the workplace, whether it’s our employees or our guests. Once we know that the governor says it’s an option, then we need to look to see if it truly is required before we can start mandating that people come back to work.

Luke Reese:

Now, that depends on the type of job that’s being done. There’s a huge spectrum, right? There are clearly those who can work from home because their job is capable of being done remotely. That’s where my office falls in, right? I’ve got a lot of really good staff that can effectively do their job from home, pretty much all the time. There’s a lot of downside to that and not something that we want. But when there’s a safety risk, it really is something that I’m not going to be able to force my secretary or paralegal to come back to the office until they’re ready.

Luke Reese:

There’s also the other end of the spectrum. If you’re a medical office, and you’re seeing patients, you can’t do that job without being someplace where you can see patients. Banks are this way, right? They need to be able to serve the community in a lot of ways in person. They can require their employees to come back.

Luke Reese:

What I’m telling my clients who feel strongly that they want to require people to come back is try to articulate to someone who knows very little about what you do why the job can’t be done remotely. This is a friend, a spouse, somebody who you trust their opinion and you can give them a pitch. It’s, “I have an employee, here’s what their job is, here’s what needs to be done in the office.” If after having that conversation, you’re able to convince that person that doesn’t know much about what you do that, “Yeah, that makes sense,” then I think you’re going to be in good spot because that’s the type of conversation that you’re going to have with a bully investigator.

Luke Reese:

If somebody complains and says, “I shouldn’t be required to come back because I can do my job remotely,” you have to keep in mind that you’re going to be talking to someone who knows nothing about your place of business. So you can’t rely on kind of industry knowledge or knowledge about why it’s better or more efficient to do something in person, as opposed to remotely. Once you’re comfortable that it is necessary to bring people back to the office for the business to be successful then you get to have that conversation with your employees about, “It’s time to come back and it’s a directive at this point, it’s not a request.”

Luke Reese:

If an employee says, “I’m not comfortable with that,” you need to find out why. If it’s because they’re ill, they’re with someone who’s ill, and they have a medical professional who’s saying, “It’s not safe for them to be back,” then we have to engage in that interactive process to see if there’s accommodations that we can make. Now sky’s the limit when you’re talking accommodations, and that’s a really important thing to keep in mind as you approach it.

Luke Reese:

Let’s get everything on the table and we’ll look and see what’s workable and what’s not. If after that conversation, you’ve said, “We hear you, we appreciate that you have a legitimate reason for making the request, but we just can’t accommodate it,” you’re going to be in a safe position as you can be in to enforce that. And then you’ve got to make a decision about whether you’re going to allow leave or it’s a termination issue because the employee can’t do the job anymore.

Luke Reese:

If the employee doesn’t have a protected reason to be out and they just say, “I’m not comfortable, I’m scared. I don’t want to come back to work yet,” then it really is on you to say, “We appreciate that but because it’s necessary for you to be able to do your job, this is time to come back.” And in that conversation, you really have to go out of your way to show everything that you’ve gone through to determine that working remotely is no longer an option and to confirm that they’ve had an opportunity to raise some of those protected areas or not. But really, at that point, you’ve done everything you need to do and it’s up to you to decide whether you’re going to be generous in the additional leave that you’re providing or if it’s time to make a termination decision.

Suzi Wear:

Okay, thank you. Yeah, I think, a couple of things that we’ve done or doing for employees are, one, we did a survey. So we sent out a survey asking employees what was their comfort level. That information was just shared with their managers.

Suzi Wear:

Questions were around, what’s your comfort level with returning to the workplace? If you had a choice, would you want to be part of the first group that returned, or a second, or following group? Asking about how effective they feel they have been working remotely, what technology they may need in addition to what they have.

Suzi Wear:

So I think, that’s one way to start a conversation and then follow up with individual conversations. We learned, we were surprised, we had at least half of our employee population say they’re ready to come back right away.

Luke Reese:

Yeah.

Suzi Wear:

And so then, we have to start looking at, “Okay, can we ensure safe social distancing through adjusting the workplace or even doing staggered schedules?” And so that was the second part of the planning. And then of course, there are folks who are in these different groups where they still need to take care of their children and they need to leverage some of the leave. Or either they themselves or a family member who resides with them has some health concerns and so they’re requesting to be returned at a later date.

Suzi Wear:

So, I think that’s one way you can start the conversation. We also put together the exposure response plan. And that outlined all of the workplace safety measures and the requirements for employees. So, for example, masks being one of them. Also some cleaning and disinfecting requirements, and then we’re doing training before we bring anybody back into the workplace. So, I think those are good steps to take before anybody shows up into the workplace.

Luke Reese:

Yeah.

Suzi Wear:

Go ahead.

Luke Reese:

One thing I would say that I think is helpful, and this is coming up more and more, don’t waste any energy trying to evaluate how your employees are being safe outside of work. And that’s a really long way of saying, I’m getting a lot of calls from frustrated employers that are saying, “Look, I’m getting all this pushback about bringing people to work or what to do once we’re back in the office. And at the same time, I’m seeing pictures on Instagram of my employees at the beach on the weekend or at parties with a bunch of people, and they’re not taking it seriously when it’s on their own time.”

Luke Reese:

Yes, this is happening. There’s not much we can do about it. And frankly, the frustration is going to lead to more problems than anything else. So it’s a really good time to have some discipline and not get too worried about what your employees are doing outside of work. Unless they’re doing something totally dangerous that’s going to pose a risk to other folks, it’s kind of wasted emotional effort on your own part.

Suzi Wear:

Yeah, I think, and it’s one thing to have the policies created, the training for the employees. But then probably the more important thing is holding people accountable and enforcing those expectations around safe workplace behavior. And so that’s where leadership has to be aligned and they have to commit to holding people accountable, equally and consistently accountable. And also, within your training, providing some communication tools to help employees have those conversations with others, so they can hold each other accountable.

Luke Reese:

Yeah.

Suzi Wear:

I want to touch on leave before I dive into some of the questions. There’s some really good questions coming in. But I know there were just some concerns about leave and accommodation. A couple of questions that came in before the webinar were medical certifications. “How far can we go to get verification that the need for leave or even accommodation is appropriate?”

Luke Reese:

Yeah, I mean-

Suzi Wear:

Go ahead.

Luke Reese:

… there was a big fear in March and April that we would never be able to get information from doctors, because they’d be too busy treating patients. That really hasn’t manifested itself and it hasn’t proven that difficult to get medical certification when you need it. The kind of bottom line is, you can require it, you should require it. And if you start to see red flags with the lack of documentation, or what you’re hearing from your employees, that would be a great time to call your HR professional, call your attorney.

Luke Reese:

You want to be really careful about accusing an employee of not being genuine in making these requests. Because if you’re wrong, it essentially makes this employee bulletproof if you need to take adverse action down the road. So I think the, again, bottom line is ask for the documentation. You should be getting it. And if you’re not and you’re concerned about the circumstances of why you’re not, that is a good time to talk to somebody with a little risk management experience.

Suzi Wear:

Mm-hmm (affirmative). Okay, great. There was a question about the FFCRA, so Families First Coronavirus Response Act leave. “Do you know offhand, Luke, and if not, we can follow up, how that leave can be utilized with the PPP loans?” So I think the concern there might be if the employee’s out on this paid leave, does that in any way impact my loan forgiveness?

Luke Reese:

Yes, is the answer. But I honestly can’t tell you how offhand the interaction of PPP and FFCRA is something that has driven me and the people what I do absolutely bonkers, because every time we give advice, the next week, there’s something changes and the advice has to change. The absolute best thing that I can tell you is, you need to work with whomever is going to be submitting for the loan forgiveness of the PPP loan, most likely your CPA to make sure that you’re giving him or her everything they need to show that you’re compliant to maximize the amount that gets forgiven.

Luke Reese:

If you’re going to make a mistake, you’d way rather make a mistake in kind of how you’re tracking the leave than on the loan forgiveness part of it. Because getting that loan forgiven is probably what’s going to be of most valuable to your company.

Luke Reese:

So for that question, I think you take it to your CPA, make sure you have specifics. “I have this person on leave. Here’s when they’ve been out, here’s why they’ve been out. I want to make sure that this doesn’t adversely affect my PPP loan, how should I be handling it?” And they should be able to give you an answer. Be very understanding though that the answer today may change in a week and then may change back after another week. So be flexible, continue to communicate with your CPA and, again, make sure that forgiveness is as solid as it can be.

Suzi Wear:

Okay, great. So I’m going to move to some of the questions that are coming in. There was an interesting question about an employee claiming or maybe even bringing in a note from their doctor saying that they can’t wear a mask. So that’s actually the accommodation they’re asking, that they can’t wear a mask because of some health condition.

Luke Reese:

Yeah. So it triggers the kind of traditional interactive process in the most untraditional way. You need to look at what the accommodations can be, right? So this is one of those situations where you say, “We can’t accommodate you not wearing a mask ever. You don’t get just a pass on the mask rule because you have a doctor who says you can’t. You need to look for less restrictive accommodations that get you closer to your goal of following the governor’s orders.

Luke Reese:

So some things I’ve been doing when that presents itself is you look and see if you can adjust their jobs so they’re not around folks to minimize the time that they have to wear a mask to just when they’re in the halls and interacting with people or kind of coming or going through populated areas. You can have them check with their doctor if that will be fine. And I suspect, based on my experience here, that most doctors who are taking this seriously will say, “Yeah, absolutely, they can wear a mask for very short periods of time if we can find ways to allow them to do their job without the mask.”

Luke Reese:

The real challenge is, for whatever reason, their job can’t be done safely without a mask. And that’s where you may get to the conclusion of, “If this is the accommodation you’re looking for, then you’re unable to do your job.” Obviously, that’s a pretty significant decision to make. And it depends on a million different circumstances on how you get there. But you absolutely can.

Luke Reese:

As with any interactive process, I always encourage employers to remember that really, they’re in charge of that process. You solicit feedback from your employees, you get what they and their doctors are asking for, but you’re the one who decides whether you can do it or not. And you don’t have to feel like you’re held captive to the doctor’s note. You need to be smart. You need to work with people who understand the risks, but ultimately, you get to decide what’s best for your company with just a few limitations.

Suzi Wear:

Great, what about screening? So, some folks have received conflicting information about screening employees. So on one hand, asking an employee about their current medical status and taking their temperature before they start work. It may be a violation of HIPAA is one position that has been taken or heard. And then SHRM, which is the Society for Human Resource Management, supposedly stated that taking a person’s temperature according to the EEOC is considered a medical examination.

Suzi Wear:

I haven’t heard of that. I’m wondering what your thoughts are on that.

Luke Reese:

Yeah. There’s conflicting information because there’s conflicting opinions and conflicting guidance. I think the key is coming up with the plan that is going to work best for you and then making sure that it’s something that you’re comfortable doing.

Luke Reese:

The temperature issue, it is a medical examination, and traditionally, it’s one that you’re not allowed to do. But there’s essentially been an exception created for right now where we can take employee temperatures. We also can collect that information about an employee’s health. Here’s the way that I’m recommending we go about it. And I say this knowing that you could be on the internet right now and get somebody who’s probably going to say something that contradicts this. But what I’ve been advising everybody is look at the information that the contact tracers are going to need, and the governor’s website that we have the link to has that. And if you keep the information that you’re getting employees focused on that, because that’s really the purpose for it, right? It’s to catch people who may have symptoms before they get in your building. But it’s to be ready that if there is an outbreak, you can get information to the contact tracers and let them do their job.

Luke Reese:

So if you’re limiting it to that information, then you should be fine on the collecting of it. Then it turns into what do you do with the information? To use an extreme example, we’re not going to be sending emails to the entire workforce every day saying, “Here’s everyone’s temperature and an update on how they’ve been feeling,” right?

Suzi Wear:

Right.

Luke Reese:

I mean, it’s health information and I would keep it in a secure location, just like you would any kind of medical leave requests, any kind of accommodation requests, and treat it with that level of importance. But it is pretty well established and I’m very comfortable saying that if you want to have a screening program, and you put the right effort into making sure your program is done wisely and for the right reasons, you’re not going to get in trouble for that.

Luke Reese:

The bigger risk to kind of loop back is that employee who says, “I 100% refuse to let you take my temperature. I’m not going to do it.” Then what do you do with that employee? That’s the bigger risk is some allegation that you’re retaliating against somebody or discriminating against a category of workers. So, be kind of thoughtful and strategic in how you put the policies in place. But then be really careful about how you handle the conflicts that may come out of it.

Suzi Wear:

Yes, so, if someone just refused, could that make them not eligible to return to work, but they have to go on leave?

Luke Reese:

Yeah, totally. I mean, that really turns into the employee who says, “I’m not comfortable coming to work.” It’s kind of the same analysis, right? It’s why do you refuse? And if it’s because, I don’t want to get too political on this, but if he comes to me and just says, “I don’t have rights. You’re like the government, you’re just telling me what to do and I refuse.” Well, that’s not a legitimate reason. If it’s, “I have concerns about sharing my medical history or something like that,” then get that information, understand why and you can make a smart decision of how to handle it. But again, you’re in charge.

Luke Reese:

An employee doesn’t get to say, “I refuse and you have to deal with it.” It’s on us to decide if it’s something we’re willing to accommodate. Again, be careful before you decide to terminate somebody for it. But that is very well where it could go.

Suzi Wear:

Okay. What about, “Are employers required to alert anyone if an employee tests positive?”

Luke Reese:

No, but I think experience has shown us that it’s probably a wise thing to do. The goal is to give everybody the tools they need to make sure that they’re getting medical treatment if they need it and they’re isolating themselves if they should be isolating themselves. And not sharing information that an employee of yours may have been in contact with someone who’s positive deprives them of that ability.

Luke Reese:

What’s the legal risk? I don’t know. It kind of depends but I think weighing the risk of sharing that information with not sharing it, I would err on the side of letting people know if there’s an issue. Now, we’re working with folks to come up with ways to do that without disclosing employee names. But that’s a challenge sometimes. Sometimes it’s easier. You need to do it in a tactful way to respect people’s privacy. But at the end of the day, we don’t want to deprive people of information that could help them stay healthy. And I always recommend sharing it in the best way you can.

Suzi Wear:

Yeah, and I would think… My understanding is, if anybody has been in close contact, so other employees have been in close contact with the employee who tests positive, we do have an obligation to let those folks know. Not, again, saying the person’s name, although they might be able to draw that conclusion, but at least let them know. Because it’s like the contact tracing, they may have been exposed and may need to stay home or may want to go get tested.

Luke Reese:

Yeah, it’s the next kind of phase of this that we’re really moving into, it’s until we have a cure, there are going to be outbreaks. And the goal is to manage those outbreaks as a community the best we can. And we’re going to be relying on those contact tracers to do that. I’d love to be able to say, “Hey, if you have an outbreak at your office, call the county and the health official will guide you through how to notify everyone.”

Luke Reese:

We may get to the point where we’ve got the experience and skills to do that. Right now, I don’t think we do. So you do need to call the county and let them know that we have something that needs to be investigated. But then, you’re also going to have to come up with what do you communicate to your employees while they’re doing that. And again, the content of the communication depends on the circumstances but you don’t want to be accused of sandbagging your employees and holding back information that could have helped them.

Suzi Wear:

Yeah, we actually had a client who had a positive and so they contacted the county. And they said the county was really helpful in guiding them through what to do, what steps to take. They ended up making a decision. They’re in kind of a manufacturing-type environment and they deal with food. So they made a decision company-wide. Like, “We’re just going to test everybody,” which is a very highly conservative approach. And so I thought that was interesting.

Luke Reese:

Yeah, I’ve been kind of amazed. It’s really hard to articulate exactly what you do in this kind of hypothetical situation. But there always seems to be a pretty obvious path when it actually happens. And I think I would encourage people to utilize the resources you have available if you find yourself in that position, but know you’re going to get through it.

Luke Reese:

Again, dealing with an outbreak is a significant issue but if we’re looking at kind of the devastating consequences, that’s not it. It’s going to be something that happens further down the line.

Suzi Wear:

Yeah. So I may do two more questions, if that’s okay? And then if there are any that we’ve missed, I’ll look through our list and maybe I can get some information out when we send out the recording link. But the question that I have next is an employee who has been dealing with cancer prior to COVID has a compromised immune system but wants to come back to the office. So they feel comfortable themselves coming back and they’re itching to get back to the office, but their doctor maybe stating that, “No, it would be best for you to work at home.” How would an employer follow up on that?

Luke Reese:

So it’s get the information from the doctor. There are so many variables in that scenario but it’s getting-

Suzi Wear:

We’re not the doctors, so we rely on what the doctor recommends and advise the employee to cooperate with that.

Luke Reese:

Yeah. And if the employee says I’m fine, you really have to take the employee at their word. So the consequences of kind of picking a fight with an employee who’s saying, “I’m fine, my doctor agrees I’m fine” is way more significant and risky than if somebody in fact gets sick, right? It’s a scary thing to think of. We all love our co-workers and want to see what’s best for them. But we need to be careful about making value judgments when we don’t have all the information.

Suzi Wear:

Mm-hmm (affirmative). Okay. And then the last question I have is, it’s a little bit about the employees who are maybe not social distancing outside of work. So, one concern has been employees out protesting and being exposed to crowds, maybe not wearing masks.

Suzi Wear:

Does the employer have the ability or the right to put their employees on a two-week unpaid leave of absence if they believe that they might have been exposed or pose a risk to others? I guess the same thing could go if they know the employee is traveling too. So can the employer so called quarantine, ask that employee to quarantine after they’ve been out protesting or traveling?

Luke Reese:

Yeah, I think there’s really two categories here that I certainly have been wrestling with. It’s the employee who’s been in large groups, whether it’s a protest or a party, right? It doesn’t really matter what they’re doing. There’s plenty of people who are blasting on social media that they’re doing things on the weekend or on their free time that are very much not in compliance with the state’s social distancing recommendations.

Luke Reese:

You also have people who are traveling and potentially traveling to areas that we’re reading a lot about as being hot zones, for example, and what do you do then? This is where I caution about wasting too much energy about being mad at the employee for what seems like contradictory behavior. It’s really easy to get frustrated, especially with someone who maybe hasn’t been the best employee recently. And now, they’re basically looking for you to handle work one way and they’re handling their personal life in another.

Luke Reese:

We need to stay away from, “I disapprove of what you’re doing, and therefore, I’m going to take some adverse action against you,” whether it’s unpaid leave or paid leave frankly. Instead, this needs to be kept on through symptoms, right? So we can keep asking employees that if they’ve been around someone who’s symptomatic or they themselves have symptoms, they need to stay home until they’ve been tested or have been home a sufficient number of days that we’re comfortable with them coming back to work.

Luke Reese:

If you’re asking your employees to disclose that information and they don’t, then you’re in a position of trying to pick and choose your situations of where you’d follow up. I’d be very careful about following up about people who have been protesting, just because of all of the protected characteristics and protected activity that goes along with that. But if you have somebody who’s hacking up a lung and you’re saying, “Hey, do you feel okay?” And they say, “I’m totally fine.” You can follow up with that because you have an objective reason to be concerned that they are symptomatic.

Luke Reese:

So kind of a rambling way of saying, be smart about the battles that you’re picking. We don’t need to make moral judgments about what people are doing on their free time. We need to stick to the most objective things. “Are you symptomatic? Have you been around people who aren’t? And if so, we’re going to ask you to stay home. If not, we’re trusting that you’re telling us the truth.” And until something happens to make you believe that they haven’t been telling you the truth, then we go on the information that we have.

Suzi Wear:

Great. Thank you for responding to all those questions. There were a couple that we didn’t get to. What I would recommend is that you go ahead and send me an email. So you’re welcome to shoot me an at suzi.wear@xeniumhr.com, and I can follow up and help get your questions answered. Also, as a reminder, here’s the link to the real time updates for Oregon, and includes all of the county application status, which are on hold. They got delayed, a week, right now. But you’ll be able to see for each county what the status of their application is, what phase they’re in. And then there’s a lot of good information about requirements. So all of those requirements and recommendations by industry for social distancing, for personal protective equipment, there’s really good information there. So I would encourage you to check that out. And then as I mentioned earlier, we’ll be continuing to add information to our COVID resource page.

Suzi Wear:

So I appreciate everybody for joining us. We will send out the link to this webinar recording in the next couple days. And again, feel free to email me directly, my email is right there, if you had any questions that you didn’t get answer.

Suzi Wear:

I hope everybody has a great day. Thanks for attending.

Luke Reese:

Thanks Suzi.