POLICIES, PROCEDURES, & COVID-19

Velissa R. ChapaLegal Counsel to Aaron Demerson

Commissioner Representing EmployersTexas Workforce Commission

WHY WRITTEN POLICIESMATTER

• They act as a Sword and Shield in a Lawsuit• Justify the legality of your actions

• Affirmative Defense

• Unemployment Claims • (No Written Policy + No Acknowledgement = No Good)

• They Establish Expectations and Serve to Maintain Order

POLICY HANDBOOKCHECKLIST

SELECT POLICIES & CREATE HANDBOOKALLOW EMPLOYEES TIME TO REVIEW POLICIES /ASK QUESTIONSEMPLOYEES SIGN POLICY ACKNOWLEDGEMENT FORMAPPLY POLICIES CONSISTENTLYDOCUMENT ALL POLICY VIOLATIONS & ISSUE WRITTEN WARNINGSREVIEW POLICIES ANNUALLYUPDATE OR CHANGE POLICIES WHEN NECESSARY

WHERE TO START?RECOMMENDED POLICIES

• Policy Against Harassment and Disrespect Toward Others

• Grievance Procedure

• Medical Information Confidentiality

• Recording of Work Time

• Falsification/Dishonesty

TEXAS GUIDEBOOK FOREMPLOYERS

• Free Resource for Texas Employers• From the Office of the Commissioner Representing Employers at TWC

• Includes information on Texas and federal labor laws

• Link to Index: https://twc.texas.gov/news/efte/indexmain.html

• Link to Sample Policies: https://twc.texas.gov/news/efte/table_of_contents-az.html

PRESENTATION ROADMAP

Part 1: Policy Format • Necessary Elements: Rule, Examples, Consequences

Part 2: Policy Enforcement• Investigations• Warnings

Part 3: The Laws on Common Policies

CREATING YOUR HANDBOOK

PART 1:BASIC POLICY FORMAT

1. Explain the Rule (say what you mean)

2. Provide examples (e.g.: disrespectful conduct)

3. Consequences• It is a zero-tolerance policy or is there a progressive

disciplinary procedure you will be following?

SAMPLE POLICY FORMATSmoking Policy

The company maintains a smoke and tobacco-free office. No smoking or other use of tobacco or similar products (including butnot limited to cigarettes, pipes, cigars, snuff, or chewing tobacco) is permitted at any point during a workday, while on companybusiness, while in transit between work locations or assignments, while at client locations, in any part of a company building orwithin “x” feet of such buildings, or anywhere on or in company parking areas. There are no designated smoking areas inside oron Company premises, nor does the Company allow smoking breaks during the workday, i.e., no additional breaks beyond thoseallowed under the Company’s break policy may be taken for the purpose of using tobacco or similar products. If returning from ameal break during which you have used tobacco or similar products, do not leave cigarette butts or other traces of litter or tobaccouse on the ground or anywhere else. Dispose of any litter properly in the receptacles provided for that purpose.

Employees may not have the smell of tobacco smoke about their persons during work hours or while on company business. Ingeneral, employees should not use or consume any substance, the effects or traces of which could interfere with the employee’spresentation of a clean and professional appearance to clients and the general public.

Please remember to conform to the smoking or tobacco use policies of our clients when working at a client’s site.

All employees are expected to abide by this policy in all respects while at work, whether on company premises, at a customer’ssite, or while in transit between work locations or assignments, as well as while the employee is off duty, if the employee is oncompany premises or in vehicles owned, leased, or rented by the company. Being permitted to use tobacco or similar productswhile off duty is a privilege, as long as such use does not interfere with the employee’s work, fitness for duty, or professionalappearance. If that privilege is abused, it may be withdrawn altogether. THIS IS A ZERO-TOLERANCE POLICY.VIOLATION OF THIS POLICY WILL RESULT IN IMMEDIATE TERMINATION OF EMPLOYMENT.

PART 2:POLICY ENFORCEMENT

POLICY ENFORCEMENT

Enforcement is not fun, but it is necessary.

Policies lose their teeth if you don’t enforce them.

Proper enforcement requires:

1) Investigating

2) Disciplinary Action if policy violation confirmed

3) Documenting all relevant information ASAP, while it’s fresh

INVESTIGATIONS

INVESTIGATIONS

Employers should investigate before issuing warnings, to ensure that the warning is justified.

Failure to investigate shaky ground. Blind trust is dangerous.

Employers should question all witnesses, including the accused. Get written statements ASAP.

Employers must be discreet.

Keep complainant updated on the status.

Unpaid suspension while you investigate? Stick to three days or less if possible. (Unemployment Claims)

WARNINGS: A GUIDE

When issuing warnings:

• Have two firsthand witnesses present

• Give written warnings

• Do not delay (raises questions that reduce employer credibility)

• Final means final. Multiple final warnings can be misleading.

• Avoid broad language (e.g.: “disciplinary action up to and including termination”)

• Determine the scope of the final warning. Does it only apply to the rule that wasviolated, or to your policy handbook as a whole?

“Further violation of this company policy will resultin immediate termination of employment”or“Further violation of this or any other company policywill result in immediate termination of employment.”

• Sample Final Warning: https://twc.texas.gov/news/efte/discipline.html

FINAL WARNING

DOCUMENTATION IS EVERYTHING

• Documentation is evidence. It protects the employer and can serve to refresh a witness’s memory.

• Document ASAP

• Firsthand witnesses should document what they saw/heard/felt, in their own words.

PART 3:COMMON POLICIES

& THE LAWS

EMPLOYEE BREAKS

• Breaks are generally not required by law.• Exceptions: Nursing Mothers and Employees with Disabilities.• NOTE: Not allowing reasonable breaks can lead to violations of law.

• Breaks may be compensable.• Lunch break of 30 minutes or more: employees do not have to be paid• Breaks under 30 minutes: employee should be paid

• Employees may clock in and out for all breaks

• Employees should be allowed to use cellphones during breaks

HARASSMENT: WHAT IS IT?Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40+), disability, or genetic information.

Harassment becomes unlawful where: 1) enduring the conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Petty or slight annoyances, and isolated incidents (unless extremely serious) do not rise to the level of illegality.

www.eeoc.gov/laws/types/harassment.cfm

HARASSMENT

Dangers: Lawsuits (Harassment, Discrimination, Retaliation, Whistleblower, Intentional Infliction of Emotional Distress, Unemployment)

Harassment and Disrespect Toward Others Policy: https://twc.texas.gov/news/efte/harassment_disrespect.html

Employer liability for Supervisor’s Conduct:

• Automatic liability if harasser/supervisor takes adverse action against theemployee (e.g.: termination, failure to promote or hire, loss of wages)

• If supervisor’s harassment causes a hostile work environment, employercan avoid liability only if it can prove that 1) reasonably tried to preventand promptly correct behavior; and 2) the employee unreasonably failed totake advantage of preventive or corrective opportunities the employerprovided.

HARASSMENT: HOW DOES IT APPLY TOTHE WORKPLACE?

HARASSMENT: HOW DOES IT APPLY TO THEWORKPLACE?Employer liability for Non-Supervisor or Non-EmployeeConduct: Employer liable for actions of non-supervisoryemployees or non-employees over whom it has control (e.g.:independent contractor or customers), if employer knew orshould have known about the harassment and failed to takecorrective action.

Solution? Have a clear policy, educate and train (especiallyall supervisory personnel), limit supervisor’s authority toadversely affect terms and conditions of their subordinates,promptly investigate and take remedial action immediately,enforce policy uniformly.

This is fine.

• Purpose is to provide employees with an internal mechanism for resolving disputes

• Employers should not discipline employees if the procedure isn’t followed. Risk: lawsuit.

• Acts as an affirmative defense in a lawsuit & is a basic risk management strategy

• Employers should develop a procedure that works for them

GRIEVANCE PROCEDURE

ABSENTEEISM & TARDINESS

Employer determines manner of absence and tardiness notification (texting, e-mailing, calling, etc.)

Policy should be reasonable and regularly enforced

Note any exceptions in personal file

ATTENDANCE DURINGCOVID-19

Employers may consider flexible leave policies for its employees

Consider remote work

Document

Check out Department of Labor’s FAQs: https://www.dol.gov/agencies/whd/fmla/pandemic

• (Review questions 2-5)

EMPLOYERS REQUIRINGEMPLOYEES TO QUARANTINE

In general, employers may require employees to quarantine if:• The employee was exposed to COVID-19 (includes personal activities);

• The employee was not practicing safety measures outside of the office;• Social media

• Tips/complaints

• The employee engaged in personal travel that may have resulted in exposure

• Consider remote work during quarantine period

RECORDING TIME WORKED

All employees may be required to keep accurate time records of hours worked.

Non-Exempt Employees: Necessary for pay &overtime calculations

Salaried Exempt: Can serve to confirm that employee is working therequired hours and schedule

VACATION & SICKLEAVE

Not required by law; can be paid or unpaid

Employer decides how much, how it is earned, and how & when employee must request the time off

Texas Payday Law Section 821.25 : You are bound to pay according to your policy terms (written or not).

VACATION LEAVE

Federal Law Requires COVID-19 Paid Leave Under Certain Conditions Emergency Paid Sick Leave Act (EPSLA)

Part of the Families First Coronavirus Response Act (FFCRA) Department of Labor: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Expires 12/31/2020

SICK LEAVECOVID-19 UPDATE

Federal law requires paid leave until 12/31/20, but what about an employer’s internal policies? What are the rules on that?

Paid Sick Leave: not required (company policy is enforceable by law)

Unpaid Leave: generally not requiredExceptions: Protected leave under the Americans with Disabilities

Act (ADA), or the Family and Medical Leave Act (FMLA)

In general, employer decides how much, how it is earned, and how & when employee must request the time off

SICK LEAVE: GENERAL RULES

Accrued Leave Balances – Must employers pay it out?Answer: No, unless the policy or past practice suggests

otherwiseEmployer can have a “use it or lose it” policy, or have

different rules depending on the type of separation(quit, layoff, termination for cause, etc.)

PTO BALANCES UPONSEPARATION

• Employers may ask for a doctor’s note• Do not inquire about diagnosis or prognosis

• “ADA-covered employers may ask [] employees if they are experiencing symptoms of the pandemic virus.” - EEOC

• Give a reasonable deadline to provide the note

• Give job description to provide to the doctor

• Should ask for:• Return to work date• Released to full duty?• If on modified restrictions:

• What are the restrictions?• How long will the restrictions last?

DOCTOR’S NOTES

*COVID-19 UPDATE: Standard fitness-for-duty letters may be difficult to obtain during the pandemic. Acceptable alternatives to a traditional note can include: forms from local clinics, stamps, or e-mails to certify a negative COVID-19 test result.

Name of Health Care Office: Emergency Room

To whom this may concern,

This is to certify that patient came into our office on 02/15/Year and has been advised by Dr. Name to be out of work/school for medical reasons and medication symptoms. Please excuse patient absence from work/school until date listed below. Further certified, that Dr. Name has advised the patient to return to work on 03/05/Year. Restrictions: No Restrictions. Should you have any questions please call our office at the number listed above. Signed, Doctor. MD, PA.

EXAMPLE NOTE

• Look for suspicious items in the note• Misspellings• Different fonts and sizes• Missing the name, address, and contact information

of doctor and/or facility.

• Call the facility and verify the facility exists

• Confirm the doctor works at that facility

VERIFYING DOCTOR’SNOTES

SOCIAL MEDIA, INTERNET, & COMPUTER USAGE

Monitoring computer usage: Texas and federal laws are flexible about monitoring computer usage, butbe mindful of an employee’s privacy rights.

Sample Social Media Use Policy: https://twc.texas.gov/news/efte/social_media_use_policy.html

Sample Internet and Computer Usage Policy: https://twc.texas.gov/news/efte/internetpolicy.html

SOCIAL MEDIA, INTERNET, & COMPUTER USAGE

CAT VIDEOS!

Conduct observed via social media: Employers may have a right to take action against an employee for off-duty conduct if that conduct damages company business or work relationships

Adverse action allowed for: illegal drug use, crime, company policy violations

SOCIAL MEDIA, INTERNET, & COMPUTER USAGE

“Soooooo sleepy here in the ICU. Will someone please code andgive me something exciting to do? #isthatbad?”

-Former Nurse

• Employers may require employees and others on the property to wear masks.

• If employee alleges medical condition prevents use of mask:• Employer may consider Reasonable Accommodation under the Americans with

Disabilities Act• Medical documentation may be requested; do not ask about underlying issue • Explore alternative accommodations (remote work, modified schedules, etc).

• Employee wearing a mask with controversial logo or language?Tip: Require blank masks only, require employees to wear mask w/ company logo (uniform

policy)

COVID-19MASK POLICY

Tune in to next presentation in today’s session on Allowable Workplace Health

Screens & Medical Exams

COVID-19TEMPERATURE & HEALTH SCREEN POLICY

Tune in to our Lunchtime Live! session on November 19th, 2020 for

information on Managing Employees Working Remotely

TELEWORKING

Some policies can violate law. Avoid the following:

• A policy prohibiting employees from discussing their pay with one another;

• A policy where employers hold an employee’s paycheck until company property is returned;

• A policy/agreement where the employee waives the right to file a claim with TWC (fine + up to 6 months in jail under §§207.071-74 of the Texas Unemployment Compensation Act)

PROHIBITED POLICIES

Develop a standard mechanism to distribute the policy handbook to your employees.

Give employees enough time to read it.

Make sure all employees understand the handbook and give them time to askquestions. Note: If English is not employee’s primary language, accommodate.

Make sure the handbook is accessible to all employees Make handbook available online, or a keep an easily accessible copy in the office Employers do not need to give employees their own separate copies of the

handbook.

DISTRIBUTING YOUR HANDBOOK

• All employees should sign an acknowledgement form for the handbook

• If policies are updated, employees should sign an updated acknowledgement form

• E-signatures are generally acceptable.

• Make sure the signature is password protected, and only the employee has that information.

• Policy Acknowledgement Sample Form: https://twc.texas.gov/news/efte/acknowledgment_of_receipt_of_employee_handbook.html

POLICYACKNOWLEDGEMENT

The At-Will Doctrine gives employers the power tochange policies, but note practical limits:

◦ Give advance notice of changes

◦ Train employees on new procedures

◦ DOCUMENT! (obtain new acknowledgment form)

CHANGING ANDUPDATING YOUR POLICIES

THANK YOU FOR YOUR ATTENTION!

www.texasworkforce.org