Legal Alert: Developing a Flexible Approach to Navigating Coronavirus (COVID-19)



By now, you have certainly been provided much information about the novel coronavirus (COVID-19), and are trying to sort through and manage the new information that seems to be coming in on a minute-to-minute basis. As nonprofit organizations develop contingency plans to address their unique, dual role as employer and service provider, flexible response strategies may be required. Many employers, large and small, are exploring varied options as part of the planning process.

Of course, you should consult your local health department or the Centers for Disease Control and Prevention for the most up-to-date advice on how to proceed should your workforce be affected by COVID-19. Following are a few additional considerations you might think about when trying to navigate how to manage your workforce during this unique time:

1. Encourage any employees who feel sick to stay home until they feel well enough to return to work. For those employees who do come to work, encourage them to wash their hands frequently, keep their workplaces clean and sanitized, greet each other without a handshake or any other gesture that would require physical touching, and to sneeze or cough into a tissue.

2. Re-examine what benefits the organization’s paid time off policies provide. For employers with at least 50 employees, federal law allows up to 12 weeks of unpaid protected leave each 12 months for an employee’s or employee’s covered family members’ serious health condition. Additional time off may be required as a form of reasonable accommodation under federal law or under state law.

Certain employers with 50 or more employees in Connecticut are required to provide 40 hours of paid sick leave to service workers.

In New Jersey, employers are required to provide up to 40 hours of paid sick leave per year to covered employees.

Westchester County, NY also requires local employers to provide up to 40 hours of paid sick time to eligible employees working for employers with at least five employees. Employers with fewer than 5 employees must provide this time with or without pay.

Employers might have other written paid time off policies, including designated vacation, sick leave banks for extended leaves, or personal time. Nonprofits should be prepared for an increase in the need to use this time. If an employee is not eligible for paid leave or if an employee no longer has any paid time off available, while recognizing there is still a financial impact, an employer could consider options such as advancing time not yet earned to assist in covering certain gaps in wage continuation during absences not covered by state or local laws.

3. Telecommuting has long been a good option for nonprofits. It may remain a good option for many employees should a workplace be affected by COVID-19. But, typically, this option was reserved for certain exempt employees since it could pose increased data security risks, a myriad of legal considerations, IT infrastructure requirements, reimbursement costs, among other concerns.

Should an office need to close or employees need to work from home because of school closures, nonprofits may consider a temporary work-at-home policy for non-exempt employees. This temporary measure allows for continuity in staffing and operations of the nonprofit. Before doing so, among other considerations, an employer should determine how it will monitor and enforce the same time recording rules required when someone works on-site. For nonprofits that choose this option, the organization remains responsible for paying for all time actually worked by the at-home, non-exempt employee, including any overtime worked. If not properly supervised, this can be a challenge. Before putting in work-at-home arrangements, it is a good idea to put all expectations in writing (with the employee signing an acknowledgement), including for non-exempt staff to obtain approval to work overtime.

4. Mapping out communications is an important part of any organizational contingency plan. Communications create trust and set clear expectations for staff. Employees will appreciate being kept up to date on any workforce changes that will be put into place because of COVID-19, such as travel prohibitions, meeting cancellations, etc. Any changes in policies should be in writing, and in some instances, are required by law to be in writing (e.g., sick and vacation). Providing frequent and clear communications, will allow employees will have a better understanding of what policies are only temporary, and what to expect when “life returns to normal.”

Helpful links to assist in developing a proactive strategy:

QUESTIONS?

If you have further questions, please contact your local Pro Bono Partnership office.

Thank you to Susan Corcoran of Jackson Lewis for assisting Pro Bono Partnership with this legal alert.