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Employer COVID Toolkit

Client Alert

As employees come back to work and employers operate “mid-COVID” in the “new normal,” employers must update their Employee Handbook and related employment policies. BMD has put together an Employer COVID Toolkit to supplement an employer’s existing Employee Handbook and policies to ensure compliance with the Department of Labor guidance, OSHA, FFCRA, the CARES Act and state law. 

The return of the workforce brings a renewed set of documentation requirements for employers, particularly those employers with fewer than 500 employees and any companies who received PPP funds. With the ever-increasing rules, orders, interpretations, employee questions, and customer expectations, it is imperative that businesses have the necessary documents in place.

What are the necessary documents? Companies will want to have policies and forms in place to minimize the risk of liabilities and to best manage the workforce. Because of the uncertainties around the spread of COVID-19 and its testing, treatment and tracing, companies are more at risk for an extension of liability or a regulatory intervention.

What do we specifically need? And why? Keeping in mind the volatility of the laws, rules, and regulations, the safest practice is an Employer COVID set of forms and policies to include:

Return to Work Notice and Form
With furloughs, terminations, PPP loans, and expansive unemployment, employers must track which employees are refusing to return to work, as a best practice, and to extinguish any continuing obligation to the employees. Additionally, under PPP forgiveness exception rules, businesses must maintain a written record if an employee rejects a good faith return to work, the employee was fired for cause, the employee voluntarily resigned, or the employee voluntarily requested a reduction of hours.

Waiver of Liability
The state orders regarding workforce and workplace requirements can create additional duties owed to business invitees. A Waiver of Liability for customers, while not foolproof, will provide an important line of defense to frivolous lawsuits alleging COVID-19 exposure at your business.

COVID-19 Testing Consent Form
As an established precautionary measure, employers will want to engage in some testing or results review for their employees to prevent an outbreak in the workplace. For healthcare providers, this is a recommended best practice with respect to obtaining patient consent and informing patients of the risks associated with COVID-19 when seeking treatment. A Consent Form will set out the necessary parameters for testing by both employers and healthcare providers.

Childcare Leave (Summer Vacation) Form
Under the FFCRA, employees may be eligible for Emergency Paid Childcare Leave.  However, that leave is only applicable to school and care closures due to COVID-19. It does not apply to school closures due to Summer Vacations. During the summer months, employees will need to provide supplemental information regarding their requests for Childcare Leave.

Workplace Policy on COVID-19 Safety and PPE
A top question we receive from employers is “What do we do if an employee refuses to wear a mask, wash hands, keep distance, etc.?” The Workplace Policy will address the mandatory requirements and the potential for disciplinary actions.

OSHA Standards Policy
More and more groups are calling on OSHA to implement COVID-19 safety standards beyond the General Duty Clause. As OSHA introduces federal requirements, employers must be able to implement and adapt through an OSHA Standards Policy.

Internal COVID-19 Reporting Form
When two or more employees raise a concern about workplace safety, they are arguably engaging in a “protected concerted activity” protected by the NLRA. The number of retaliation, whistleblower, and public policy claims are on the rise. It is prudent and imperative for employers to have reporting policies and procedures in place, document and investigate any COVID-19 concerns of the employees and prevent retaliation to avoid the potential claims.

Away from Workplace COVID-19 Policy
This is another major concern for employers. Even if employees are monitored at work, what can stop them from engaging in risky behaviors away from work? An off-duty conduct policy isn’t fail-safe, but it will help set expectations for employees’ actions away from work that may affect the workplace. If employees travel to hot-spot areas, or party with large groups of people, that creates risk for the employer and coworkers, and this Policy announces the employer’s right to restrict the employee from returning to work until safe from exposure.

If you need assistance with any or all of these recommended Employer COVID Policies and Forms, please contact Jeffrey C. Miller at 216.658.2323 or jcmiller@bmdllc.com or Amanda L. Waesch at 330.253.9185 or alwaesch@bmdllc.com or your attorneys with Brennan Manna & Diamond. An Employer COVID Toolkit will be offered to existing L+E Advisory and Healthcare Advisory clients.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

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The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.