By Patrick Connelly, originally published in Buffalo Business First, Buffalo Law Journal on March 20, 2020 .
As employers field legal questions, attorneys say communication and flexibility are key
A lot has changed for employers in a matter of days as COVID-19 has spread.
Lawyers in Buffalo and around the region are answering question after question. Clients range from the largest companies to school districts and small businesses.
To layoff or not
“There’s no clear answer on that and it depends how long this goes on,” said Brendan Kelleher, member at Harris Beach PLLC.
For small businesses, particularly the seasonal variety, layoffs could ensure employees can get some form of payment from unemployment, he said.
“That’s a way to get employees money in their pocket right away,” Kelleher added.
“Employers do not have to have all the answers on the spot. But a lack of honest communication likely will erode employee confidence in the employer and have longer term effects on the employer’s relationship with its workers,” he said.
Employers undoubtedly will not know all the answers to every question asked.
“Leaders need to remember that it is OK to say, ‘We need to look into that and get back to you.’ But be sure you follow up if you say you were going to do so,” he said.
Empathy and sympathy
“My tip to any boss or business owner is very simple: put yourself in the shoes of your employees,” said Joseph Brown, a member at Hurwitz & Fine PC. “People are scared. Things are uncertain. And many of the things that our employees enjoyed as a stress release are the things that we are now temporarily restricted from doing. In these circumstances, we must be flexible, understanding, and kind.”
Brown said federal and state employment laws are likely to change rapidly, which means employers must be ready to adapt.
“We also anticipate changes to New York’s Paid Family Leave law,” he said.
Kinsey O’Brien, senior associate at Hodgson Russ LLP, said employers should find ways to be alert and nimble as the crisis progresses.
“Employers need to keep on top of the latest developments and recommendations from federal, state, and local officials and be ready to react quickly when the situation changes,” she said.
What’s tough for employers is that they are often limited in the extent to which they can ask about employee medical conditions, O’Brien said.
“At the same time, they need to carefully consider any requests for telework or other accommodation made by employees who report that they have underlying medical conditions that make them more susceptible to COVID-19,” she said.
As things change, Rosemary Enright, a partner at Barclay Damon LLP, said communication with employees is crucial.
“Tell them what you as their employer are doing to keep them safe in the workplace,” she said. “Tell them what is expected in terms of reporting to work, not reporting to work. Keep an even tone. Invite your employees to reach out if they are stressed or have questions.”
Telecommuting and remote-work policies should include outlined verbiage of how employees should regularly communicate with their supervisors, Enright said. Goals and objectives should be clear, as well as how to track time spent work and how to report to management on a daily or weekly basis.
Work from home
For some employers, a remote-work mentality may be entirely new, said Vincent Miranda, partner at Lippes Mathias Wexler Friedman LLP.
“Take into consideration the employment risks, but understand that this situation needs flexibility and proper crisis management,” he said. “You can do things you might never have considered before. There are ways that your professional service providers can help you responsibly accomplish what you want and still mitigate legal exposure.
Business owners need to be mindful of the interplay between sick-leave laws and policies and be ready if employees have questions. This may be a good time to think about organizing a cross-functional emergency management team that can assess and plan for similar scenarios.
“This team can be a point of contact for your workers and address any operational issues arising from the COVID-19 outbreak,” Miranda said.
Robert Weissflach, partner at Harter Secrest & Emery LLP, said employers must do their best to stay up to date on COVID developments, follow directives from public health agencies and put health and safety of employees first.
Employers should “review all policies and procedures and adjust as necessary” and “stay calm and act on specific and reliable information rather than speculation,” he said.
That steady presence can work hand-in-hand with good communication with staff, said Kristin Klein Wheaton, partner at Goldberg Segalla.
“Remaining calm and communicating the company’s plans frequently and with transparency can help employees remain calm and weather the crisis,” she said.
Employers have asked her what what to do if an employee tests positive or if employees are exposed.
“The situation is truly evolving every day and in some cases by the hours,” Wheaton said.
While remote isn’t a new concept, some employers may be managing workers for a lengthy time. Employers should be cognizant about obligations to a spouse, elder relatives and families. Keep in mind that children would be in school or daycare so child care becomes a heavy burden for parents.
“Employers need to ensure that they maintain their workforces,” said James Grasso, partner at Phillips Lytle LLP. “Firing or disciplining employees who have virus-related attendance issues, such as having to stay home to care for children out of school, may only compound the problem.
“Employers must be careful in taking action against employees who express a concern about the safety of the workplace as they could be protected from discipline by federal law.”
Grasso said employers should have a contingency plan and error on the side of caution as developments progress.
“If an employee is ill, they should stay home or be sent home,” he said. “Employers need to convey to employees the basic health safety measures being issued by the Center for Disease Control and local health authorities.”