In the ongoing COVID-19 pandemic, businesses are facing major personnel challenges, and the office of Human Resources is where much of the delicate work is being done. How many people are needed? How much work is there to be done, and can it be done remotely? And perhaps most importantly, what can the Human Resources department do to minimize the damage to the company, putting it in a better position to bounce back and re-employ those who may be temporarily laid off?
HR departments will need to act diplomatically to retain employees as best they can while not promising more than they can deliver, and to prevent a run of lump-sum payouts that could suck the company dry.
In a Webinar titled “COVID-19: Dealing with Pandemic in the Workplace,” the National Native American Human Resources Association (NNAHRA) heard from experts at the law firm Drummond Woodsum. The entire webinar is archived online at the Drummond Woodsum website.
One clear strategy with a changing crisis like COVID-19, is to make sure that the HR department’s decisionmaking is transparent and documented. Dan Rose, Drummond Woodsum’s practice group leader for labor and employment, brought up what is one of the first issues a department has to deal with: Who should go home, and when? Although many businesses are past this stage, these questions will come back in the other direction — businesses who’ve sent everyone home will at some point have to determine who should come back to work and when.
“Pick up the phone,” Rose said. “Call either [the Tribe or Tribal enterprise’s] doctor or the CDC, and get guidance. So that gives you some protection, you’re not just making arbitrary decisions.” In essence, when deciding who should or should not come in to work, HR’s most prudent move is not to decide at all, but to get answers from a health authority and implement them.
A second key piece of advice from Rose, is to not be “penny wise [but] pound foolish.” Zealously keeping track of hours and sick days as a potential business-wide shutdown looms is legal, but it’s unwise. “Don’t waste your time,” he says, “If someone needs to stay home because … they’ve been quarantined, or someone in their family’s been — that may not fit PTO or sick leave, but I don’t want to argue about it.” He also brought up the employee who might not want to come in because they’re feeling anxious about the pandemic or scared to come to work — “that doesn’t qualify [for PTO or sick leave], but maybe we should think about exceptions.”
In the face of this crisis, an employer’s flexibility, as demonstrated by each HR decision, can enhance — or ruin — a business’ reputation. “This is an opportunity to set the tone for the future 20 years,” Rose said. In other words — don’t be the business that insisted its employees do something for work when they thought their health or life was at risk. That’s the kind of story that could haunt a company for years.
That brings us to where we are now — with many states putting businesses under a mandatory shutdown of some kind. Rose stresses that HR needs to choose their words carefully when it comes to an employee’s status. “It matters what you call it,” Rose said. “If I tell someone they’re being laid off, what that means is the umbilical cord between employer and employee has been broken. If you say it’s a temporary layoff or a temporary furlough, you’re saying ‘you’re still my employee, I just don’t have work for you right now.'”
This is about more than employee morale — an employee who thinks they no longer have a job, full stop, will naturally try to get all the money they’re owed, such as PTO/Vacation, sick leave, or Family and Medical Leave Act (FMLA). Most businesses don’t have the cash on hand to cover such requests from a large segment of their workforce. Rose’s solution: “You explain to employees, it’s a temporary layoff. And you give employees choices. [The first choice is] you can file for unemployment. … We’ll get you the site, we’ll get you the information you need, you file for unemployment.” He also advises that the rules about unemployment, familiar to all HR professionals, are in flux. “Some states are adding to the categories of what ‘unemployment’ is, so that even if you can’t work, they’ll let you file for unemployment,” he explained. “Don’t tell people whether they’ll qualify or not, because it’s changing. Tell people how to apply.”
It’s an appealing best-case scenario for furloughed employees who want to return: “We’ll hold your PTO, your sick or vacation [days] for you [while you receive unemployment benefits], that way when you come back you’ll still have your PTO or vacation.”
The second option is for employees to use sick days, PTO or vacation as they normally would, and to continue to get paid in full. This is likely to be less appealing because these workers will not be eligible to receive unemployment benefits at the same time. A third option is to quit, and receive money owed as a lump sum, but this could strain the company’s resources and might not be best for the employee.
If you’ve watched the news coverage of COVID-19, you’re familiar with the concept of “flattening the curve.” If we’re talking about money that goes to employees who aren’t able to work right now, you flatten the curve by keeping employees in a temporary layoff status, where they receive unemployment benefits or take PTO or vacation days as needed, to get through. That’s more feasible than paying out a bunch of lump sums at once.
A big question for employees pondering their options is health insurance status. If they leave and are no longer employed by the company, they will be looking at an extension of benefits under COBRA rules. But those who remain employees with a temporary layoff or furlough status may be able to retain full employee health benefits — it’s up to the Human Resources department to contact the company’s insurer and determine whether that’s the case.
Ultimately most if not all of a workforce may be working from home, either voluntarily or because a workplace has been temporarily shuttered. And there may be less work to do. This leads to a common question that employers have, and that the HR department will need to navigate: What if I send someone home and then I don’t have work for them, does the Fair Labor Standards Act require that I pay them? The answer, Rose says flatly, is no. But this is another situation where there’s long-term benefit in doing more than what is required.
“You don’t have to pay someone who is not working,” Rose says. “However, a lot of employers, in trying to keep good employees and be a good employer, have said ‘I’m going to pay you to work from home. I may not have work for you, but you need to be available.'”
As a final piece of advice, Rose suggests that HR departments — which live and breathe by their corporate enshrined and approved policies — should think of COVID-19 policies in a different, more nimble way. “I got this question: Do we need a whole new policy?” He recalled. “And the answer is no. Write an e-mail — if it’s a Tribal Council thing, get Tribal Council’s approval — but you don’t have to adopt a whole new policy. You can adopt an e-mail that says ‘this is what we’re doing now, we’re suspending this rule, we’re changing that rule.’ This is a time where being flexible is important.”