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Cognitive Decline at Work: Employers, Are You Prepared?

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Cognitive decline is a tricky subject. It can be caused by a variety of factors – from natural aging to hypothyroidism to Alzheimer’s disease. Sometimes, the symptoms are treatable and reversible. But in other cases, cognitive struggles indicate the onset of a serious underlying illness that will eventually become debilitating. Either way, working alongside a person with cognitive issues can be difficult. It’s okay to admit that.

But what can you do to support someone who suffers from increased confusion, memory loss, a shorter attention span, or other cognitive challenges? And how can you minimize safety risks that could harm that individual or others on their team?

Putting People First

Let’s start with mindset. Sweeping generalizations and business rules aren’t helpful when addressing specific cases of cognitive decline. Mental capacity is a sensitive issue. Therefore, tact and prudence are of utmost importance when discussing this topic.

Every situation is complex and unique. It requires awareness of an individual’s industry, organization, job responsibilities, performance history, and work context. Therefore, it makes sense to respond in a personalized way.

Nevertheless, employers can’t deny broader societal factors that are making conversations about cognitive decline much more important and more commonplace.

Coming to Terms with our Aging Workforce

We’re all aging. It’s a fact of life. But now, significant generational shifts are beginning to shape the future workplace. For example, Americans are living longer, and more of us are working later in life.

Although I’m a fan of encouraging older people to participate in the workforce, it’s time for organizational leaders to address age-related cognitive decline. By becoming more educated and cautiously protecting all employees, employers will be better equipped to support our aging workforce.

Here’s why this is so important. Recently, the Harvard Law School Bill of Health newsletter published some staggering statistics in its article, “Managing Cognitive Decline Concerns in the Workplace:“

  • By 2034, about 77 million U.S. residents will be senior citizens. That’s about 21% of our nation’s population.
  • After age 65, the risk of Alzheimer’s disease doubles every five years. And nearly one-third of people over 85 have this disease.

Of course, Alzheimer’s is only one cause of cognitive decline. However, because so many people are touched by its ripple effects — family, friends, and work colleagues — it illustrates how devastating cognitive decline is likely to be as Americans continue to age.

Soon, most of us will know, love or work with someone touched by Alzheimer’s or another form of cognitive decline. So, how can we prepare to handle this professionally, legally, and with grace?

The Impact of Cognitive Decline at Work

When cognitive changes impact reliability – and even trust – it becomes a larger issue for leaders and teammates. Memory loss, difficulty with multi-tasking or problem-solving, and even personality changes can upset and distract colleagues.

It’s important to treat this topic with compassion. But that means care and concern should also extend to co-workers who are directly experiencing these effects. Keep the door open for discreet conversations about their concerns, and invite input on how to improve the situation.

SHRM offers multiple recommendations in its article, “Coping with Cognitive Declines at Work.” These are some suggested priorities for employers:

  • Conduct a Safety Assessment. The need for this is more obvious in certain lines of work, where rapid response is critical. However, it can be a factor in other professions, as well. There are multiple ways to determine if a person is safe to work.
  • Engage Employees. Non-confrontational conversations about specific concerns are an opportunity to find out more about what’s going on and open lines of communication for future dialogue.
  • Keep Thorough Records. Take notes that detail your concerns. Repeated instances of missed deadlines, significant memory lapses, or behavior problems may be helpful down the line. Stick to the facts and steer clear of age-related commentary.

Legal Considerations

Let’s start at the top. There is no reason to draft a policy that defines workability or retirement readiness. Mandated retirement policies are illegal.

Larger organizations with legal counsel are well aware of The Age Discrimination in Employment Act of 1967. However, if you’re a leader at a new or smaller company, you’ll want to familiarize yourself with the basics of this law.

Also, if you need a refresher, be sure to take the time to revisit these regulations. Understanding the legal parameters of hiring, firing, and pushing retirement based on age is a savvy business move. It’s worth your while because the business risks of acting outside the legal lines can be significant.

Cognitive testing is also dicey from an ethical and legal perspective. Harvard says, “Testing older employees who have no job performance deficits, but not testing younger ones, violates the core principles of the ADEA.”

And that’s not all. It also violates the Americans with Disabilities Act (ADA). This law permits employers to test employees only if the assessment is job-related and consistent with business necessity. According to the Equal Employment Opportunity Commission, testing is permitted only if it is “triggered by evidence of current performance problems.”

So, to avoid claims of age discrimination, will employers want to administer cognitive tests to all employees? Let’s not go there, either. It triggers a slew of concerns related to ADA, Title VII, and other discriminatory issues.

Lastly, it’s important to consider the tremendous medical advances that have led to predictive tests and markers associated with cognitive decline. However, it seems logical to leave those medical procedures to employees’ families. That said, if an employee brings these findings to your desk, be prepared to align your discussion with ADA regulations.

Solutions Start With Education

You may wonder why I’ve been investigating this topic. To be honest, it comes from a personal place. Someone dear to me was deeply concerned about a coworker’s cognitive decline.

I am sure I’m not alone. More and more of us are crossing paths with people who display cognitive changes or have been diagnosed with a related condition. Some of you have been caretakers for those who have experienced cognitive impairment.

This is a triggering and heart-wrenching topic. It’s delicate. But it’s important. And if you are an employer or people manager you’ll likely find yourself affected by it more frequently, going forward. My best advice? Educate yourself.

Upon exploring this topic – and then writing about it – I’ve felt some anxiety and dread. But knowledge is power. And fortunately, there is an abundance of reliable information at our fingertips.

It’s important to be curious and forward-thinking about a topic like this. It’s equally important to understand the law, as well as the needs of people who may be unsure and fearful about their own diminishing cognitive capabilities.

If this is new territory for you, don’t be afraid to ask questions, read up, take notes, and admit that you are learning. But watch your language, mind your approach, and make decisions carefully. Err on the side of caution and care. And remember that kindness is always a good move.

Resources

Alzheimer’s Association: This organization offers many resources, including:
10 Early Signs and Symptoms of Alzheimer’s

CDC:
Subjective Cognitive Decline: A Public Health Issue

Mayo Clinic:
Mild Cognitive Impairment

U.S. Equal Employment Opportunity Commission:
Mental Health Provider’s Role in a Request for Reasonable Accommodation at Work

Workplace Strategies for Mental Health (via Canada Life):
Dementia Response for Leaders

Does Your Staff Feel Safe at Work? Here’s How to Help

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The Problem

Can you confidently say that 100% of your employees feel safe at work? For business and HR leaders, ensuring the health and safety of everyone on the job is imperative. But sometimes, reality has other plans.

Fraud, misconduct, harassment — even the most prepared organizations may face these challenges at some point. That’s why it’s vital for employees to feel free speaking up. Whenever issues arise, a speak-up culture can help you respond more swiftly and effectively. It also helps employees feel safe, which in turn, leads to increased overall wellbeing and productivity.

Over the years as a risk management consultant, I’ve discovered that ensuring people feel safe at work is no easy feat. But the following practices can help your organization establish and maintain a sense of psychological safety:

The Solution

1. Start With a Comprehensive Anti-Retaliation Policy

A zero-tolerance anti-retaliation policy can act as a baseline for all employees — including C-suite executives — to guide expectations around retaliation in the workplace. But what exactly does anti-retaliation really mean in an HR context?

In organizational settings, retaliation presents itself through actions such as marginalizing or shunning people, impromptu negative performance reports, and regularly assigning unwanted work shifts to targeted individuals. Illegal retaliation can even go so far as firing someone for speaking up. A zero-tolerance policy ensures that any person responsible for retaliatory behavior will be terminated.

Rather than disciplining people who speak up, managers should be encouraged to address employee concerns with understanding and act swiftly to investigate and resolve the issue. Anything less, and employees may be too scared of possible retaliation to report a problem.

The policy should clarify key factors, such as:

  • Specific types of conduct that should be reported,
  • How your organization facilitates the reporting process,
  • Actionable process steps, and
  • How this policy complies with local laws and regulations.

The zero-tolerance principle should also apply to discussions about workplace discrimination allegations, because this can result in unintentional retaliation. Finally, to ensure that your policy reflects new needs as your organization grows, review your documentation periodically and update it accordingly. 

2. Implement Anonymous Reporting Tools

An anonymous reporting system is a broad term for tools such as help lines and intake forms that make it easier for employees to report misconduct. Anonymity is vital because it adds a layer of protection that further shields those who speak up.

Organizations can invest in an in-house reporting system or outsource this process to a third-party provider that specializes in managing and tracking reports. An outsourced system helps employees feel safer, because they know others in the organization won’t be able to undermine or dismiss their concerns.

Also, implementing multiple reporting tools can be beneficial. Creating multiple reporting avenues encourages employees who need to report an issue or incident to speak up in a way that is most comfortable for them.

For example, in addition to offering a helpline, some organizations also provide an online intake form in various languages so it’s accessible to more people. Often, reports submitted through online forms contain sensitive information that some individuals may not be comfortable communicating out loud. Or a safe space may not be available where people can speak confidentially, so the online form serves as a trusted alternative.

Of course, implementing these tools is only the first step. It’s also important to provide ongoing education, training and monitoring to ensure that everyone in your organization understands the policy and how to use any reporting tools you provide. To ensure widespread adoption, this educational process must be a top-down effort across your organization. It must also serve as a cornerstone when onboarding each new member of your workforce.

3. Train Managers in Conflict Resolution

As an executive or HR leader, you’ve most likely been involved with conflict mediation as a fundamental aspect of the managerial role. In fact, 85% of U.S. employees have reported some level of conflict at work. You can help mitigate this by ensuring that lower-level managers develop conflict management and resolution skills. This can support a more cohesive strategy for spotting issues sooner and getting to solutions quicker, so you can avoid having to deal with situations after they’ve reached a boiling point.

Understanding the root cause of a conflict is often the first step in resolving these issue. The most common conflict triggers are workplace stress, clashing egos, lack of support, or poor leadership. There is room for middle-level management to identify potential issues before they escalate, engage with staff, reduce conflict directly, and evaluate how they can improve workflow management to better support their teams.

Disputes between managers and employees will still need to be handled with bias-free executive attention. However, the more conflict management and resolution training managers receive, the more likely employees will believe to trust “open door policies.” Ultimately, this can reduce conflict and increase well being across your teams.

4. Ask Employees for Feedback

You won’t know if people are satisfied with your efforts to help them feel safe at work unless you ask. That’s why you’ll want to find a viable method to gather feedback and channel key insights to decision-makers. By periodically gathering and acting on feedback, you can continuously improve employee satisfaction and retention over time.

But keep this in mind: Research says 78% of employees are willing and happy to participate in workplace feedback surveys. Yet, only 50% think their input will lead to meaningful change. This means you’ll want to be sure you close the loop if your survey reveals gaps or weaknesses in your policy or process. Otherwise, you could undermine your entire strategy.

When People Feel Safe at Work, Wellness and Productivity Follow

The ideal solution combines clear guidelines with anonymous reporting tools and conflict resolution training for managers, in conjunction with employee feedback surveys. Each mechanism works in tandem with the others to create a more holistic approach to maintaining well-being in the workplace. When thoughtfully implemented, this approach can increase trust and confidence across your organization.

Once you implement a zero-tolerance policy alongside anonymous reporting tools, training and feedback, you’ll be able to address areas of concern more proactively. Over time, you can expect to improve productivity and retention because you’ve invested effectively to foster an environment that supports workforce wellness and safety.

Workplace Safety Reporting – How to Streamline

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In pursuing health and success for a business, safety compliance is critical and we understand why. Monitoring injuries and potential hazards can help your workplace combat risks and costly fines. It can also make employees feel safer, but understanding where to begin isn’t always easy.

Maintaining workplace health and safety reporting is a practical challenge for HR teams already balancing a lot on their plates. Plus, fluidity and growth in the compliance industry over the past few years have added some complex obstacles.

Reporting requirements are likely to keep shifting. The more aware you are of changing regulations, the better prepared you will be to meet the uncertainty of maintaining health and safety in the workplace.

Meeting Regulations Around Employee Health and Safety

There are no two ways about it: Being compliant in the workplace is a must for companies that don’t want to welcome risk. For starters, companies that don’t adequately or accurately report workplace incidents could incur financial penalties from regulatory bodies or have legal action taken against them. What’s more, the public could form the opinion that your company doesn’t protect its most valued assets: employees.

Being prepared to confront the evolving nature of health and safety concerns can put you at ease when an unfortunate incident does occur. But how should you go about it practically? These three elements should be part of your action plan to maintain health and safety in the workplace:

1. Make record-keeping a habit.

Employee health and safety is something no company can afford not to prioritize. If a workplace incident or mishap occurs, you shouldn’t wait to report or record it.

Getting proactive about record-keeping will save you a lot of time and stress when reporting to the Occupational Safety and Health Association, or OSHA. Track recordable incidents throughout the year and always maintain an accurate count of all information required for the OSHA log. This information can include injury information (e.g., date, body part, location), restricted days, lost time, the annual average number of employees, and their total hours worked.


This data can be complicated and time-consuming to gather in one fell swoop, so establish a practice of thoroughly documenting every injury, incident, and safety audit as it occurs. Doing so will also put troves of insightful safety data in your hands. For example, suppose the numbers tell you that the most common injury in your organization is lower back pain. In that case, you could introduce preventive measures, such as mandatory lunchtime stretching periods or weight limits on packages. The more informed you stay on injury occurrences, the more proactive and supportive you can be about employee safety.

2. Work to reduce employee injuries.

The safest way to make OSHA reporting more efficient is to have fewer employee injuries. Easier said than done, sure, but if you and your team dedicate time to preventing injuries, you might be surprised at the difference. 

Start by removing any unnecessary hazards from your workplace. Then, try scheduling regular check-ins with your employees and taking note of their safety concerns. These conversations can help you shine a spotlight on hazards you haven’t even considered.

That said, actively trying to avoid on-site injuries doesn’t guarantee they won’t happen. A business that works with any risk will have a run-in with OSHA at some point. If you’re unlucky enough to have to report a fatality, serious incident, or complaint against your business, OSHA will reach out to you for additional information.

When it does, you want to be ready to comply with the OSHA reporting requirements. Be prepared to present a record of all nonminor injuries, copies of the safety training provided to employees, and hazard assessments. These documentations also serve to educate your team continuously about safety trends.

3. Categorize staff logs.

When your company diligently maintains accurate safety reports, it creates a buffer against legal action. Reports are verifiable and evidential, and they can help make your case if your business faces a lawsuit.

Keeping timely safety reports is especially useful because many lawsuits happen months or even years after an incident. Preserving documents like associate reports, investigation summaries, medical documents, email correspondence, and photographic or video evidence means you can be ready to inform your legal team when ready.

Your HR network might be complicated, especially right now when contingent workforces are trending. When working with different types of employees (e.g., seasonal, part-time, or temporary employees), make it a little easier on yourself by distinguishing among them. If you’re working with a staffing agency, ensure that they have strong safety processes, prioritize associate safety, manage incident documentation, and oversee workers’ compensation claims.

Making compliance reporting more efficient in your workplace will take some time. Once you have a plan in place, reporting activities should be easier and more efficient. 

Maintaining health and safety in the workplace is critical for your business’s survival. Streamlined reporting will help you stay organized and safeguarded from legal action. Prioritizing health and safety is also a necessary investment in the value employees bring to your company. It can lead to fewer accidents and injuries. It can help keep your teams healthy and ready to perform at their best.

 

How to Be a 2021 Leader: Help Bring Employees Back on Their Terms

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Just when everyone got the hang of working from home, employers are bringing whole departments back to working in office settings.

According to CNBC reporting, Google and Bloomberg are among the 70 percent of companies that intend to put an end to mass telecommuting within the coming few months. Yet not all teleworking employees are eager to change their daily habits once again.

Some people had a chance to discover how they truly worked best. Many found that working from home allowed them to spend more time with family, eat dinner at normal times, exercise during the day, and wake up on their own terms. Pew Research Center insights show that more than one-third of remote workers say they can now balance all their familial and professional responsibilities. Similarly, about half are enjoying the freedom to choose how they divvy up their hours.

How to Be a 2021 Leader

This puts a high degree of pressure on corporate talent managers and leaders like you. On one hand, you want to get your operations back to pre-pandemic norms. On the other hand, you can’t ignore the sweeping effects that the pandemic has had on people’s daily routines. The flexibility to structure one’s day in a more balanced way has been refreshing, and lots of employees learned that remote work could be highly beneficial (and quite productive).

What’s the bottom line? Above all else, you have to understand that telework may feel isolating to some, but not to all. A good number of your employees won’t immediately forget the advantages they enjoyed by avoiding hairy commutes—or the need to dress up beyond throwing on a “Zoom shirt” now and then. And most won’t love paying once again for fuel, daycare, or expensive lunches.

This doesn’t mean that employees will launch walkouts (or perhaps home work-ins?) en masse. Most understand that getting everyone back into the office setting can be advantageous. At the same time, if a company is working to bring employees back, workers expect and welcome patience, creativity, flexibility, and empathetic leadership from their managers. Begin by taking measures to support an environment of collaboration and connection.

1. Allow flexibility for telecommuters returning to “home base”

Even as organizations bring employees back to work, some workers may want additional flexibility to deal with the transition. Support your people by enabling them to potentially switch working hours or even try hybrid workweek solutions.

Can’t offer a hybrid option long-term? Float one in the interim just to ease everyone’s tensions. Let’s say you have employees who can’t quite make the transition seamlessly within a week or two. Maybe they have to line up babysitters, or perhaps they are still caring for sick relatives, or simply need the time to adapt to the change. Seek out ways to gradually bring employees back at a pace that works for everyone.

2. Continue to overcommunicate with your team

During COVID, you probably began to communicate more often with your team members to fill in the interaction and collaboration gaps. Now isn’t the time to scale back on initiating conversations or sending emails. Instead, keep up with consistent dialogues and informational flow. Set up routine check-ins too. Ask employees how they’re doing, what you can do to support them, and whether they’re feeling overwhelmed.

Overall, make transparency and open dialogue your guiding motto and mantra. Even though the office may seem “normal,” it’s not. Workers are hungry for information they didn’t think about before 2020.

3. Focus on your employees’ safety needs

Many workers, including ones who are vaccinated, remain wary about coming back to an environment where they see colleagues—and maybe clients or vendors—in person. Ease their fears about their health and well-being by sharing the safety measures your company has put in place.

These could include building enhancements, workstation rearrangements, or cleaning protocols. Again, it’s not possible for you to overemphasize what your organization is doing to keep everyone as protected as possible.

4. Anticipate people’s psychological needs

Although you can’t predict how each worker will react when you bring employees back to the office, you can plan for some emotional ups and downs. Many employees re-established their top personal priorities during the pandemic. This means they might need different types of emotional support than they did before.

For instance, a team member who experienced extreme stress or anxiety over the course of the past year may need to transition more slowly into pre-COVID workflows. Stay attuned to each person’s responses. As Gallup has noted, leaders likely will have to face some hard, deep conversations. Your talks may make you uncomfortable or take you outside your element. Need help? Lean on your trusted human resources representative or employee assistance vendor for guidance.

It can be tempting to just bring your whole staff back into the fold at once and be done with it. But you can’t pretend that the past year didn’t happen. Instead of moving suddenly, take some small steps toward the next norm. Your people will appreciate your concern for their well-being.

New CDC Vaccine Guidelines: What They Legally Mean for Employers

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According to new CDC vaccine guidelines, vaccinated individuals can now safely gather indoors without a face covering. This is an exciting development after more than a year spent at home. Employers and employees alike are sorting through the implications. What does it mean for employees who are unable to get vaccinated or choose not to get vaccinated? Or those who feel uncomfortable gathering without masks, regardless of their vaccine status? What does it mean for employers when employees decline vaccination or push back against health and safety measures?

The CDC vaccine guidelines are the beginning of a much anticipated, albeit slow, reopening of the country. However, they also present employers and HR departments with more complicated scenarios to navigate. The legal and scientific landscapes continue to evolve. Because of this, employers find themselves hitting a gray area regarding how to handle these new guidelines in tandem with the needs, beliefs, objections, and safety of their workforce.

Companies around the country are eager to open their doors and welcome employees back in. But as more organizations consider lifting mask mandates and implementing vaccine passports and COVID-19 tracking programs, there are several key issues for employers to keep in mind.

Encourage or mandate COVID-19 vaccines

Business leaders and HR departments must determine if and how to mandate vaccination. The CDC vaccine guidelines encompass only those who have been fully vaccinated as safe to congregate. While most experts agree that employer vaccine mandates and subsequent potential passport programs are lawful absent state or local bans, there are specific employee rights to consider. For example, employers must make necessary accommodations for those unable to get a vaccine for reasons such as disability or a sincerely held religious belief. Any employer vaccine program up for consideration must fully comply with anti-discrimination laws. This is to ensure that accommodations are provided to those who need them under federal, state, and sometimes even local law.

In addition, we are starting to see more legal challenges to vaccine mandates. As of this writing, none have been successful. Many of them cite the emergency use authorization status of the vaccines available in the U.S. They also cite a portion of the Food, Drug, and Cosmetic Act that requires that recipients be informed about benefits/risks/unknowns, their right to refuse, and the consequences of refusal. However, there is no private right of action authorizing employees to sue employers under that statute. Also, there is no specific provision that prohibits termination as a consequence for those who refuse.

Although the litigation challenging vaccine mandates seems likely to fail, a successful legal defense is costly all the same. Moreover, even without litigation, vaccine mandates present legal complications in wage and hour, workers’ compensation, and other areas. As a result, most employers are strongly encouraging vaccination rather than imposing a mandate.

Know your audience and communicate properly

Whatever approach an employer takes, considering where employees are based––including remote workers––is critical. Because federal law and regulations concerning the pandemic provide limited guidance, state and local law may have a major impact on specific employer obligations and employee rights. Moreover, because some states and cities have been more successful than others at curbing the infection rate, a uniform solution across state lines may not be the best tactic.

Employers must recognize that jurisdictions have varied in their approach to vaccine mandates. For example, Montana now recognizes vaccination status as a protected class under its anti-discrimination laws. Employers cannot refuse to employ or otherwise discriminate against employees or applicants on the basis of vaccination status or possession of a vaccine passport. In addition, employers cannot mandate vaccines that have only obtained emergency authorization status or are subject to ongoing safety trials. In other words, mandatory vaccination policies are unlawful in Montana. Conversely, Santa Clara County, California has issued an order under which all businesses and governmental bodies must determine the vaccination status of all personnel as of June 2, 2021, and maintain relevant records. Those who are unvaccinated or who refuse to provide proof of vaccination must wear masks and remove themselves from the work location in the wake of COVID-19 exposure.

Having determined the best approach in light of legal risks, employers should focus their attention on getting the word out in a way that works for the corporate culture. There is no escaping the fact that the issue is sensitive and highly politicized. For some, continuing to require masks for vaccinated individuals despite CDC vaccine guidelines runs the risk of negatively impacting the way employees view their employers. This is especially true in states that may have opened up more than others.

Ensuring ultimate safety and success

HR managers should develop an intimate understanding of how different populations may respond to certain regulations and effectively communicate down the line. They should offer opportunities to ask questions and obtain additional information. Thoughtful, accessible, and regular communication about vaccine requirements and health and safety protocols can be helpful. Employees will be able to better understand why decisions are being made and have greater confidence in the company overall.

Obviously, employers are faced with unique and complicated questions about vaccination and health and safety measures as we navigate out of the pandemic. Whatever strategy an employer adopts, they must consider state and federal law, possible risk, and employee morale. Employers should consider their reopening goals and ask the following:

  1. What am I hoping to achieve as employees come back into the workplace?
  2. Is the best approach to get to 100 percent in-person operations as soon as possible?
  3. Is my aim to continue some portion of a remote workforce for a more staggered and safer return to work?
  4. Am I ready to completely reimagine expectations for a hybrid remote/in-person workforce?

Employers need to determine what the goals are upfront and include stakeholders from across the business. From there, they need to familiarize themselves with legal requirements. Then create a comprehensive program to achieve those objectives. Also, they need to adopt a functional and sensible means to communicate it to all relevant parties. Employers are excited to safely reopen their doors and welcome their workforce back in. But as they do so, it’s essential to understand possible risks and adjust to a changing legal landscape. They also need to take steps to ensure that the employer’s approach protects the business and employees alike.

 

Photo: Christina Morillo

Keep Your Workforce Informed With Electronic Solutions

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In any workplace, health and safety has to be top of mind. Complying with workplace laws takes a lot more effort when your workers are remote and are teams dispersed — as is happening in so many organizations. And right now, in the midst of the COVID-19 crisis, employee safety in any working environment is an ongoing concern for leaders and managers — and employers need to not only navigate new laws, but inform their people as well.

The key lies in electronic solutions that provide clear guidelines and information to every employee, no matter where they are. Managing compliance means being clear on your own responsibilities as an employer, and being able to get the answers you need about what’s happening right now — so you’re up to date, and there are no surprises.

To get clear on the best practices for keeping your workforce informed, I spoke to Ashley Kaplan, Esq., Senior Employment Law Attorney for ComplyRight, a leading provider of human resource solutions and employment compliance products. Here are the highlights of our conversation:

  1. Ashley, what brought you to ComplyRight, and can you talk about what you handle?

I joined ComplyRight in 2000, after practicing labor and employment law for several years with a national law firm. My experience includes representing businesses of all sizes and industries, in matters ranging from general HR counseling and risk management, to defending discrimination lawsuits and class-action FLSA litigation. At ComplyRight, my responsibilities have evolved quite a bit, but I am primarily responsible for managing employment law compliance and overseeing the teams responsible for researching and developing HR compliance solutions and labor law posting services for U.S. businesses.   

  1. Let’s talk about electronic posting. What is mandatory for employers to post, no matter where their employees are working? So many employers are dealing with remote workforces now: are remote workplaces exempt from any mandatory postings?

Depending on your state, employers are required to post up to 22 postings for federal and state compliance. Additional postings may be required depending on city and county employment laws, which has been a growing trend over the past few years. Plus, there are specific posting requirements for government contractors and employers in certain industries, so it can be a lot to manage. 

As far as remote employees go, there is no exemption from these requirements. The Department of Labor provides guidance on this, and recommends that employers provide posters in an “alternative format” for any employee who does not regularly visit a business location where posters are displayed. According to the DOL, “visiting regularly” means at least three to four times a month and electronic postings are an acceptable alternative format.

With so many employees working remotely at the moment, and given that employment laws are changing rapidly during this emergency, employers really need to consider providing electronic postings in addition to maintaining physical postings at business locations that are still operational.

  1. What’s the biggest question you get asked about maintaining compliance right now?

When it comes to posting compliance, a lot of employers want to know if they can simply provide all of the postings electronically instead of displaying physical posters in the workplace.

The general rule is that the posters still have to be posted in all physical facilities where employees report to work. Electronic postings are a solution for remote workers who do not have regular access to the postings at your physical facilities, but not a substitute for the physical posters for onsite workers.   

  1. Can you explain the Families First Coronavirus Response Act? Are smaller companies exempt from mandatory posting requirements?

The Families First Coronavirus Response Act (FFCRA) is a temporary federal law that is effective from April 1, 2020 through December 31, 2020.  This law is very broad and encompasses many aspects of the federal response to COVID-19.

The biggest impact on small businesses is the requirement to provide paid leave to employees who cannot work due to various reasons related to the pandemic. Generally speaking, this paid leave requirement applies to all private employers with fewer than 500 employees, and most public employers. These employers will receive tax credits to offset the cost of the mandatory paid leave.

The law also includes a new mandatory posting requirement for all affected employers.

The qualifying reasons for paid leave cover many different scenarios, and the mandatory pay rates vary depending on the circumstances.

In some cases, affected employees qualify for up to two weeks (or 80 hours) of leave at their regular pay rate. That’s if they cannot work because they are under mandatory quarantine based on a government order (federal, state or local) or quarantined on the advice of a healthcare provider. The full pay rate also applies to employees who are experiencing COVID-19 symptoms and are seeking a medical diagnosis.

In other cases, affected employees qualify for up to two weeks (or 80 hours) of leave at two-thirds of their regular pay rate. This rate applies to employees who cannot work because they must care for another individual who is under mandatory quarantine based on a government order, or on the advice of a healthcare provider. It also applies in cases where the individual is experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services.

The third category of affected employees includes those who are having to care for a child, or children, due to school closings or because their usual caretakers are unavailable due to COVID-19. All employees affected in this way are entitled to the same two weeks, or 80 hours, of paid leave at two-thirds of their regular rate. In addition, those who have been employed for at least 30 calendar days prior to requesting leave are eligible for another ten weeks of paid leave. Again, this would be at two-thirds of their regular pay rate.

Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or childcare unavailability — if the leave requirements would jeopardize the viability of the business. However, they are not exempt from the new mandatory FFCRA posting requirement.

The posting requirement can be satisfied in this case by mailing or emailing the FFCRA poster to employees, or posting it on an employee website. The notice also must be distributed to all new hires.  

  1. So many companies have had to quickly redistribute their teams and shift employees to working from home — and have had very little time to prepare. How can employees ensure their electronic and posted information is consistent and up to date in all locations?

Given all the time and know-how required to stay on top of posting requirements and updates, coupled with the potential fines and penalties for non-compliance, I think it makes sense for a business of any size to outsource this aspect of compliance.

Choose a reputable partner that offers sound electronic solutions for your remote workers, such as an intranet link you can post on your employee website, or a service that pushes out all required postings and updates directly to your employees via email. It’s important to choose a partner backed by a seasoned legal team that researches and updates all of the posting images in real time as the laws change, and that covers all city/county requirements, industry variations, and foreign language postings.  That’s especially true now, as employee leave laws are getting more complex and are an area of high litigation.

  1. I think a lot of employers are asking very basic questions about paid leave — particularly in terms of sick leave and family leave during COVID-19. I’m thinking of the Families First Coronavirus Response Act, but what other pieces of new legislation do companies need to be aware of?

In addition to the federal FFCRA, other legislation is being passed by state and local governments to protect employees during this crisis. Many states, cities and counties have passed new laws (and many more are pending) expanding paid sick leave rights, caregiver leave, unemployment insurance benefits, and other provisions to provide relief to workers and their families.

Though not on the topic of paid leave, there is also the newly enacted CARES Act, a federal law that provides financial incentives to businesses who retain their employees, and boosts unemployment insurance significantly for employees who are laid off or furloughed as a result of the pandemic. The goal of this law is to incent employers to retain their employees during the crisis, and also provide a safety net for workers who do lose significant income.

  1. Can you clarify the mandatory employee information employers need to add to their postings according to the most recent legislation? For instance, are employers responsible for requiring their employees to observe social distancing?

There are some new posting requirements on the state and local level addressing social distancing, including a new poster for Arkansas employers and businesses in San Jose County, California. We are expecting more of these in the coming days. We have also seen new state and local postings informing employees of their expanded sick leave rights, emergency paid leave provisions, and unemployment insurance benefits.  

  1. How can employers ensure compliance with labor law posting requirements in general during the COVID-19 epidemic, as more and more employees are working from home? What about for new hires?

Ideally, you should look for a service that provides all of the required federal, state, city and county posters for all of your physical locations where employees report to work. Posting laws apply even if you only have one or two employees at a worksite. Choose a service that includes automatic poster updates whenever the laws change, since these posters change frequently throughout the year. (Last year our legal team tracked almost 200 mandatory changes nationwide.)

Supplement your physical postings with an electronic solution for your remote workers. Posting obligations are the same for new hires as all your other employees, but there are additional federal, state and local requirements for prospective employees during the application process. Ask your poster provider for information about posting services for online applicants where you can simply place a link to the current posters on your applicant web page or in online job postings.        

  1. What if an employee appears to be ill? What are the obligations and responsibilities of employers with regards to requiring disclosure or exiting the workplace?  

You can, and should, ask the employee to leave your premises and seek medical attention, including getting tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. The Equal Employment Opportunity Commission has confirmed that it is permissible to send an employee home if the symptoms are akin to the COVID-19 coronavirus or the flu.

Without revealing the employee’s name, communicate to other employees who have worked closely with the employee that a coworker exhibited symptoms that led you to believe a positive diagnosis is possible. And if the employee does test positive for the virus, you should notify and send home any others who may be affected, as well as close off the affected areas for proper cleaning and disinfection.  

  1. What best practices do you recommend for companies who now have temporarily remote workers? Should they create a remote workplace practices policy?

Absolutely. It is important to set out the expectations, rules and responsibilities in a written policy. Whether you are creating a temporary, emergency remote work policy or a more general telecommuting policy for a longer term, your policy should address: expected work hours and availability, equipment and security issues, safety, timekeeping practices for nonexempt employees, PTO and absences, and any adjustments to performance goals and expectations. Your policy should also address how employees are selected for work-at-home arrangements, and should indicate that management reserves the right to change or end the arrangement at any time based on business needs. 

Take the Mystery Out of Compliance

To effectively meet year-round compliance needs, the best strategy is to rely on experts. This is certainly not an arena for speculation, especially now. As Ashley Kaplan points out, with so many ongoing and new federal, state and regional requirements, employers need clear guidance that keeps them up to date — as well as all the postings they need. Two recommendations: consult the Poster Guard® Electronic Service for Remote Workers for the latest posting requirements and tools for electronic postings. And the Intranet Licensing Service enables companies to add a custom link to their own corporate intranet or employee portal. The key for employees is simple navigation and ease of use. The key for employers: knowing that your postings are up to date, whether they’re physical postings or electronic, and are completely accessible to your employees.  

To learn more about how to maintain workplace compliance with online and on-site posters and compliance, visit PosterGuard.com.  

This post is sponsored by Poster Guard from HRdirect.

Gustavo Frazao

How to Establish a COVID-19 Safety Policy

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The spread of COVID-19 is changing how we all operate, and businesses are no exception. With cases mounting across the United States, we’re watching the “world’s largest work-from-home experiment” unfold. Many companies that normally work in office spaces are requiring employees to work remotely, including Google, Amazon, Microsoft, Twitter, and my own company, Influence & Co.

Under the Occupational Safety and Health Administration’s General Duty Clause, employers are required to provide employees with workplaces free from recognized hazards that are causing or likely to cause death or serious physical harm.

During any infectious disease outbreak, we have a shared responsibility to prevent spread. And if a company fails to take the necessary steps to protect team members? More employees may fall ill, leading to increased absenteeism and decreased productivity. Illness costs American employers $530 billion in lost productivity each year under typical circumstances. Putting in place policies that protect employee health is essential right now. In fact, this is the best way for companies to protect themselves and to retain their existing teams.

Employees who don’t have paid sick leave will be torn. They’ll need to choose between staying home to prevent spreading illness and supporting themselves and their families. So evaluate your policies. Specifically, ensure they provide adequate support during situations like the COVID-19 outbreak.

Now is the time to review your policies to ensure they promote a safe workplace. React now — because you need to — and in doing so, you can build trust with your employees. You can also set up your company to respond to similar threats in the future.

6 Considerations When Updating Policies

At Influence & Co., we’ve taken some steps to make sure our employees know what to expect while we need to adjust our work policies.

One of our core values is “treat others with trust and respect,” so in light of that value, we already trust our people to do their work remotely when needed. Because of this, it was easy for us to take the next step of requiring all three of our offices to begin remote work full-time.

When you begin updating your company policies to lessen the impact of COVID-19 among your workforce, consider the following questions:

  • Can the work be performed remotely?
  • If work can be done remotely, are there tools you can use to prevent the disruption of communication and collaboration? No? Then do you have the resources to purchase, implement, and train your staff on the new tools?
  • If going fully remote isn’t an option, what are ways you can reduce the number of employees in the workplace at any given time?
  • What are the expectations you have for employees regarding the changes?
  • Is additional sick leave available? If yes, what must employees do?
  • Are these updated policies temporary, or will they be kept in place indefinitely?

Considering these questions will help you make the right decisions for your unique workforce, and help you maintain clarity and structure for your team.

9 Steps for Revamping Workplace Policies

While revamping your company’s policies in light of COVID-19, here are some steps you can take to create a supportive, safe work environment for employees:

1. Stay Calm

This is one of the most important things you can do. With the always-on media cycle and social media, your employees are being bombarded with information (and misinformation) about COVID-19. Keep your workers grounded and build trust with them. How? By providing the facts and letting them know what steps you’re taking to protect them.

2. Knowledge is Power

Review applicable laws and regulations, such as the Americans With Disabilities Act, the Family and Medical Leave Act, and those set by OSHA. And stay up-to-date on the latest information from reputable sources, such as the Centers for Disease Control and Prevention, the World Health Organization, and the departments of Labor and Health and Human Services.

3. Consider Remote Work and Mandatory Quarantines

If possible, allow employees to work remotely, and consider mandatory quarantine under certain circumstances. To avoid the spread of illness throughout your workplace, allow everyone to work from home if that’s a possibility. Also, if any employees have recently traveled to geographic locations with known cases of the illness, have been in an airport with flights to and from those locations, or have been in contact with anyone who’s been diagnosed, consider implementing a mandatory quarantine.

4. Be Forthcoming

Inform employees about health concerns and steps they should be taking in the workplace to reduce spread. Armed with insights from the above sources, provide employees with accurate information on COVID-19, how it’s known to spread, and how they can prevent transmission. Make it clear where they can find disinfectants in your workplace, how to properly wash their hands and how often, and what other steps they can take to ensure the workplace stays sanitary.

5. Provide Updates

Notify your entire team of any temporary changes to policies or expectations. Send an email to your entire team outlining important information, like prevention measures you’re taking to ensure a safe workplace, temporary policy changes, healthcare policy updates, and details about the illness and how it’s passed from person to person. I sent an email to our team that you’re welcome to customize for your own company — just click here to access it.

6. Require Full Disclosure

It’s important to request that employees disclose whether they’ve been diagnosed with COVID-19 or have been in contact with someone who has. Should you receive such notice, it will be necessary to let your company know that a contagious illness may be present in the workplace. Maintain all information about the employee’s illness as a confidential medical record in compliance with the ADA.

7. Reduce In-Person Meetings

Decrease the number of in-person meetings, or eliminate them altogether. Utilize the wealth of technology at our disposal to have essential meetings without the risk of spreading illness. Google Hangouts Meet, Cisco Webex (a client of ours), or a good old-fashioned phone call are great options. Our marketing team has even been experimenting with doing brainstorm sessions in its Slack group and has seen great results.

8. Schedule for Distancing

Adjust scheduling so fewer employees are in the same space at the same time. If in-office workers are essential, try to stagger the times when employees need to be in your workplace to reduce exposure. This also means large events that would normally bring lots of people together should be postponed.

9. Review Your Mental Health Policy

Health goes beyond the physical. Employers should care about their employees’ mental health as well — especially during a time when everyone seems to be in crisis mode. Review your mental health policy, and make sure employees are aware of the mental health resources at their disposal.

An infectious disease outbreak can touch businesses in so many ways: Employee health, company culture, productivity, and revenue may all become concerns where company leaders had none before. Thankfully, there are tangible things companies can do to protect employees. Take these steps into consideration as you’re re-evaluating your company’s policies to ensure you’re providing a safe workplace for your team.