Pandemic Planning: But What About the Other “P Word” in Your Re-opening Plans? (Hint: It’s Privacy)We are two months into the declaration of the COVID-19 pandemic, and a handful of states are starting to ease restrictions. With relaxation of the rules, employers are developing plans to re-open and bring employees back to the workplace. As this flurry of planning takes place, the focus (rightfully so) will be on keeping employees healthy, safe, and productive. What may not be getting as much focus right now is how to keep not just employees but their privacy safe as well.

You are likely thinking through plans to test, trace, and mitigate the spread of COVID-19 among your employees. This may include measures such as mandatory temperature checks, stricter sign-in/sign-out procedures, and even requiring employees to download apps that will track their movements throughout the day. While your intentions are good – for example if an employee tests positive, you can track exactly who else they came into contact within the days preceding the positive test – the results will include employers having responsibility for an enormous amount of personal data. Not only do employers have an obligation to keep employees safe, but they also have a legal obligation to properly handle this data too.

Is There an App for That and Should You Use It?

As with many business problems, lots of employers are looking to technology for a quick-fix solution. Some employers are considering electronic check-ins in which employees report that they feel fine or have begun exhibiting COVID-19 symptoms. The EEOC says such medical inquiries are acceptable (at least while COVID-19 poses a direct threat to health and safety) so the key will be to keep the collected information secure. Some employers are going a step further and considering apps that track an employee’s movements to help identify people who might have been exposed when someone tests positive. Whether you can require your employees to download an app to trace movements implicates all kinds of legal issues that are well beyond the scope of this post and will likely be addressed in legislation. If you can, here are some things we think you should consider.

First, employers should weigh the pros and cons of taking such a measure. The pros include enabling a much more detailed contact tracing of the virus if necessary. The cons include possibly risking employee privacy. Could you accomplish your goal with an old-fashioned sign in/sign out process? Do you need to track all employees or just some? Each employer will need to assess its particular situation.

Second, should you get employee consent rather than mandate tracking? Many states have passed laws that require an employer to get employees’ consent to track employee movements. Check to see if your state requires consent; even if it doesn’t, getting consent from employees is a good practice, just in case.

Third, you will need to consider if the device the employee is using is company-owned or personal. An employer has wide discretion to track activity on a company-owned device. Things get murkier on a personal device. If the personal device – for example a phone – is not used at all for work purposes, there is virtually no argument you can make for tracking employees using that device. If, however, you allow personal devices to be used for work, you may want to consider what is known as a Bring Your Own Device Policy (BYOD) that outlines what devices are being used, by whom, when, and where. With a BYOD in place, you can likely track employees’ activities outside of the office on personal devices, but that will depend on both your state’s law and getting the employees’ consent.

Finally, with all of these things in mind, you must consider the privacy aspects of the data you collect, whether in medical questionnaires or employee tracking. How will you ensure that employee data is securely stored? And what about medical information? Are you making sure any medical records are stored separately from individuals’ personnel files? Apps may seem like an “easy” fix to a hard problem, but they come with additional challenges that must be considered when creating re-opening policies.

Testing and Tracking

Many employers are opting for temperature checks as employees arrive to the workplace each day. Others are taking it a step further and planning for COVID-19 or anti-body testing of their full workforce. Regardless of your chosen testing and tracking plans, you need to be sure you are balancing the need to protect employees’ health and well-being with the need to implement effective testing and tracing that risks running afoul of not only employment discrimination laws, but data security laws too.

For example, imagine one of your employees tests positive for COVID-19. You send him or her home. Now what? You cannot disclose that person’s name (at least not without consent), but you want to be sure that you are protecting the safety and well-being of anybody that person has come into contact with in the past two weeks. This is where your contact-tracing plan kicks in. You need a way to effectively track the positive employee without disclosing their identity and while maintaining consistent security measures to protect the employee’s data. How are you storing that data? Where are you storing that data? What is your data retention policy for these types of records? Who has access to the data? Make sure you can answer all of these questions before implementing testing or tracking measures.

Additionally, you should be careful about treating that employee differently in the future because of the positive diagnosis. For example, after they have returned to the workplace with a clean bill of health, can you reassign them to a position that is less “social” or more “solitary” as a result of the prior positive test? On the flip side, given that they have already had the virus, can you treat them better than employees who have not tested positive? This would be tantamount to discrimination based on a medical condition. Is the fact that the person had COVID-19 a disability? Is the fact that someone has not had it a perceived disability? Do you want to be the company to test that theory in court or do you want to avoid such perceived discrimination?

If you aren’t convinced yet, it’s worth noting that even the federal government has begun to weigh in on how to protect the mountains of personal data being gathered in the process of fighting COVID-19. On April 30, Congress announced its plan to introduce a bill aimed at protecting consumer personal data. The bill will include measures requiring, for example, that companies receive affirmative opt-ins and allow individuals to opt-out of programs that collect, process, or transfer information regarding consumers’ personal health, geolocation, or proximity information. Additionally, the bill will require companies to delete or de-identify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency. Such measures, while aimed at protecting consumers, should be considered when dealing with employee data as well.

So, what now?

The bad news is that there is no silver bullet. The good news, however, is that there are proactive steps that you can start taking right now to create thorough re-opening plans that also protect employee data and privacy.

  • Encourage voluntary participation in contact-tracing programs. Rather than immediately mandating employees download an app (for example), pitch contact-tracing programs to employees as voluntary. Most of your workers are just as worried as you are about getting sick and, when given the chance, may gladly participate in programs to mitigate risks for themselves and their coworkers.
  • Build ownership over the plan you create. Rather than forcing a top-down approach, consider surveying your employees to determine what they are most worried about when coming back into the workplace. Perhaps their worries and yours are different – this might create an otherwise invisible opportunity to cultivate trust (while protecting physical health and data privacy to boot).
  • This is a time to over communicate with your employees. Make sure they understand the policies and procedures you have created before they come back to the workplace. Offer the ability for questions and answers, host a webinar, post videos, schedule trainings, send carrier pigeons – just make sure you are communicating early and often about what is expected.

At the risk of repeating every article online, these are unprecedented times. While it can be tempting to go back to “business as usual,” it will be up to employers to create a “new normal” that protects not just employees’ health, but also their privacy.

Do We Really Have to Get Dressed and Go Into Work? Guideposts for Re-Opening After COVID-19 Authors: Rachel LaBruyere, Anne Yuengert and Craig Oliver Tags: Coronavirus, PoliciesIs your state starting to lift COVID-19 restrictions? Are you migrating your workforce back into the office from furlough or from remote work? Are you trying to figure out how to do this and just wish someone would give you a straight answer on how to keep everyone safe? We know this is hard, and there are not clear answers to many of your questions. Although the “new normal” will be different in every workplace, below is a checklist you can reference as you develop policies and procedures to bring your employees back safely and effectively.

Not So Fast: What Is Your State or County or City Doing?

First and foremost, it is absolutely crucial that you follow your state’s lead. Has your state begun to lift its stay-at-home or shelter-in-place orders? If not, you may not be able to bring your employees back to work yet. If your state has relaxed stay-at-home orders or implemented re-opening plans, read those orders (as they are not all the same) and decide what you can and can’t do. If you have employees in multiple states, you will need to adopt a state-by-state reopening approach. Finally, many localities have their own orders, so check the cities and counties where your employees live and work.

New Policies to Consider

What new policies do you need to deal with when bringing employees back to work? Here are some to consider:

  • A check in/check out system to track when employees are at the office (to help with social distancing and contact tracing if necessary)
  • Update attendance policies to include references addressing:
    • How employees request leave under the Families First Coronavirus Response Act
    • Employees accessing FMLA leave (if you have 50 or more employees) due to COVID-19
    • Teleworking and accommodation policies
  • Update your policy for employees to report safety issues to include COVID-19 concerns
  • A policy for how to handle an employee who has been diagnosed with COVID-19 or who is exhibiting symptoms
  • A plan for how to track positive cases and notify those who have been exposed (contact tracing policy)

Speaking of Policies

Tennessee Gov. Bill Lee has strongly recommended that, before bringing employees back to work, employers modify existing employee illness policies to include certain COVID-19 provisions or create a separate COVID-19 policy containing these provisions. Some of the provisions Gov. Lee suggested related to the employer’s policy include:

  • A description of COVID-19 symptoms
  • Screening questions for each employee to answer before returning to work
  • A description of leave options available under the Families First Coronavirus Relief Act

Gov. Lee also recommended that employers post a copy of this policy and require all employees to sign an acknowledgment of their receipt of the policy.

Other state and local officials may recommend similar steps as employees transition back to the workplace.

Communicate, Communicate, Communicate

Now is a time to over-communicate with your employees. Make sure that each and every employee receives training and information regarding new policies and protocols. Document everything.

  • Have employees acknowledge receipt of new rules, trainings, and policies.
  • Train managers and supervisors on compliance with new policies.
  • Where it make sense, post signs and visible reminders of new policies.

Brass Tacks: Protection and Hygiene

How do you plan to keep your employees safe on a day-to-day basis? Walk through a typical day in your office, and try to plan for every single step of the day.

  • Place proper hand-washing protocol posters in common areas and restrooms.
  • Provide additional cleaning or sanitation measures for any equipment employees use. Require employees to sanitize this equipment after each use (i.e., clean the copier or microwave after each use).
  • Provide supplies in all common areas: wipes, hand sanitizer, trash cans, etc.
  • While you don’t have to require people to wear masks, follow your local authority’s lead. If your state or city is requiring masks in public, encourage your employees to wear masks in the office, especially in common areas or when working together.
  • If you are encouraging masks, provide clear examples of how to wear masks, what proper masks look like, and/or provide masks if possible.
  • Train employees on use of PPE, sanitization protocols, and require sign off on completed training.

Brass Tacks: Social Distancing in the Office

Just because your employees are back in the office, doesn’t mean social distancing isn’t required. Below are a few best practices to consider:

  • Staggered schedules. Do you need all of your employees there at the same time or can half of your employees come in Mondays and Wednesdays, and the other half Tuesdays and Thursdays? Can your first-shift employees come in one week, and second-shift employees the next week? Find what works for your workforce.
  • Hold meetings virtually, even if everybody is in the office.
  • Postpone gatherings and events, or hold them virtually.
  • Create a policy for elevator use (i.e., only three people at a time, use the sanitizing wipe on the buttons as you leave, elevators will be cleaned X times a day).
  • Rethink your break room. Should you close it entirely? Place physical barriers in every other seat or table to increase distancing? Reconfigure the tables or chairs?
  • Create a visitor policy: who, how many, where, and when are visitors allowed?
  • Request contactless deliveries from vendors to the extent possible.
  • Stagger break and lunch times.
  • Install clear shields for any staff that cannot avoid distancing from visitors/customers/clients (for example, those at the front desk).

Brass Tacks: Testing, Screening, and Privacy

  • Mandate that employees with symptoms stay home, and create a dedicated call-in procedure.
  • Do you want to implement temperature checks? A few things to consider when making this decision:
    • Temperature checks are a medical procedure under the EEOC’s most recent guidance.
    • It’s ok to take an employee’s temperature, but be sure that you are keeping the results confidential (i.e., only available to those who need to know).
    • Any testing must be “job-related and consistent with business necessity.” As this crisis continues, whether taking employee temperatures or other tests meet this standard could change. Make sure your testing protocol is within the bounds of existing laws and guidance.
  • If an employee tests positive, do not disclose that employee’s identity to other employees, unless the positive employee gives his or her consent. If you have consent, get it in writing.

Create a contact tracing policy that assumes you may not disclose the identity of an employee who tests positive, and plan to implement contact tracing in a manner that respects employee privacy.

Do We Really Have to Get Dressed and Go Into Work? Guideposts for Re-Opening After COVID-19

We Got the PPP Loan -- What Do We Do Now?So, you are one of the fortunate ones who received a payment from the government for the Paycheck Protection Program (PPP) – how do you get that loan amount forgiven? The quick answer is that you need to use at least 75% of the loan to pay employees, meeting the PPP’s goal to keep as many people employed as possible. But you should be aware of the devilish details to best position your company for that forgiveness.

We have covered the application for and amount of your loan through previous blog posts and webinar recordings, but here we address what you need to do after you have received your PPP check.

Use the Funds for Your Payroll for Maximum Forgiveness

The PPP loan is plainly intended to keep as many people on your payroll as possible. Loans used to keep employees on payroll might be completely forgiven. What counts for payroll?

  • Compensation, such as salary, wages, and commissions
  • Costs of providing employee benefits, such as vacation pay, family, medical, or sick leave
  • Costs for providing group healthcare benefits, including insurance premiums
  • State and local payroll taxes assessed on compensation

You can use loan proceeds on rent or mortgage interest payments incurred before February 15, 2020, costs for group health insurance benefits, utilities, and other operational necessities. However, you must use at least 75% to pay your employees during the eight-week period after you received the loan. If you hit that 75% mark, your loan is eligible to be completely forgiven. PPP recipients should allocate the loan funds towards payroll as best they can.

Maximizing Loan Forgiveness and Why June 30 Is Significant

The loans can be 100% forgiven if properly used. BUT, even if you use the loan amounts as prescribed (75% to payroll), the loan forgiveness amount can be reduced if either of two things happen during that critical eight-week period following the origination date of your loan:

  • You reduce the number of your full-time employees from what you had on February 15, 2020 (employee reduction)

OR

  • You reduce the amount of wages paid out by more than 25% from what you had on February 15th, 2020 (wage reduction)

This does not mean that you can’t manage your workforce in the eight-week period. If you laid off employees or reduced wages during the covered period through April 26, 2020, but you restore those full-time employees back onto your payroll and restore the previous reduction in wages by June 30, 2020, you would still be eligible for complete loan forgiveness.

To assess the employee reduction qualification, the formula to use is:

[Average number of full-time equivalent employees (FTEs) during the eight-week covered period] divided by either [average number of FTE per month for the period of February 15, 2019, through June 30, 2019] or [average number of FTE per month for the period of January 1, 2020, through February 29, 2020]

That result will be the amount by which your loan forgiveness would be reduced.

For the wage reduction analysis, look at each covered employee (who makes less than $100,000 annually) and determine if their wage or salary decreased by more than 25% for the covered period versus the first quarter of 2020. If they fall into that camp, determine the amount in wage difference between the covered period and the first quarter for all your FTEs to determine the amount by which your loan forgiveness would be reduced.

Even if you have the employee or wage reduction occurring during the covered period, if you restore your employee numbers and wages by June 30, 2020, you still can have the full loan amount forgiven. Put differently, if you furloughed FTEs between February 15, 2020, and April 26, 2020, but then you rehired all those FTEs by June 30, 2020, then those employees would count as part of the FTE formula to determine if the loan forgiveness amount would be reduced.

You should apply for loan forgiveness with the lender from whom you received the loan. When you apply, provide the supporting documentation, such as your payroll tax filings, to show the number of FTEs and pay rates, as well as the payments on eligible mortgage and utility obligations. Additionally, you must certify that the documents submitted are true and that you used the forgiveness amount to keep employees and other eligible uses. Pay attention to your lender’s specific guidelines if they ask for more. Once submitted, the lender is supposed to make a decision on how much of the loan is forgiven within 60 days of your application.

If not forgiven, the payments for principal and interest on the loans are deferred for six months, but interest will continue to accrue. The loan is due in two years and the amounts forgiven are non-taxable.

So Now What?

Do what you can to best position your company for forgiveness by taking these steps:

  • Get a grasp on your data. Understand your FTE headcount so you are working with the right numbers when evaluating retention. Remember the critical dates are what you had on February 15, 2020, and where you are at on June 30, 2020 – always keep those dates in mind.
  • Get organized. Retain and organize receipts and documentation for your expenses, particularly payroll tax filings and mortgage/rent expenses to support your forgiveness request. You may also want to set up a separate bank account for the PPP loan monies and then pay out payroll from that bank account to make it easier to track the PPP funds.
  • Get a plan. Think strategically about how best to use the loan amounts, understanding the forgiveness potential. Remember that the loan forgiveness opportunity is not “all or nothing,” but can be reduced in degrees. If using 75% of the loan amount towards payroll is just not possible for any number of reasons (perhaps even not being able to hire back laid-off workers), play out the economics for the best possible application of the loan for your company to get through the pandemic. If you need to repay some portion of the loan, it comes with a favorable 1% interest rate.

During this unprecedented time receiving a PPP loan should be some welcome news, but putting a good plan in place to use the money so that the loan can eventually be completely forgiven should be a top priority.