Tracy Melvin

Does Your Company Have a Return to Work Strategy?

Article co-written and researched by attorneys Tracy Melvin and Alexis Merbach.

Many businesses are still figuring out how to manage HR issues in a pandemic. They are following the changes in every order and stimulus/relief package passed, and effectively rolling with the punches. Among the confusion and uncertainty, they have found ways to persevere. However, as states and cities now start to reopen—in turn allowing businesses to do the same—there is one question that remains…is the business prepared to get back to work?

There are several policies to consider as a business reopens. Some policies may not be new to the organization and likely are already be in place. Regardless, now is a great time to dust them off. Having correct policy documentation in place is crucial to ensuring the organization is proactively approaching and appropriately responding to the impact of COVID-19.

Businesses should draft or update the following policies as they work to reopen their doors:
  • Telework – Have a clear policy that outlines expectations for remote workers.
  • Anti-harassment & discrimination – There have already been many stories of employees being treated differently because they have or suspect they may have contracted COVID-19. Ensuring anti-harassment and discrimination policies are in place can set expectations and help minimize any potential risk.
  • Reasonable accommodations – Have a policy in place detailing how you will engage in an interactive reasonable accommodation process.
  • Overtime – To combat any wage & hour issues, employers may want to consider a policy requiring overtime to be pre-approved.
  • “Off the Clock” Work – Considering some employees may still be furloughed, laid off, or on reduced-hour schedules, implementing an “off the clock” policy makes it clear that employees are prohibited from checking e-mail, making phone calls, etc. for free. Employees must be compensated for all time worked.
  • Safety – Document workplace safety measures, including policies for proper cleaning, protective equipment, and social distancing measures, that have been put in place to prevent spread of the virus.
  • Health & wellness – Draft policies related to any health questionnaire or temperature check process, including that any health information will be properly protected.
  • Leave – Consider implementing a temporary leave request policy related to the two paid leaves under Families First Coronavirus Response Act.

Drafting or updated workplace policies is a great first step; however, businesses need to ensure effective implementation of these new or updated policies.

There are a few ways to do so effectively:
  • Train supervisors and managers on current, updated, and new policies. This will ensure consistency across the management team and present a united front to employees.
  • Consider cross-training your workforce to accommodate employee absences.
  • Any new or updated policies should be communicated to employees to ensure compliance throughout the organization. Distribute current and updated policies, have employees sign an acknowledgement that they have reviewed, understand, and will adhere to the policies, and continue communication about policies regularly.

To learn more, make sure to watch the webinar below. If you have questions or would like assistance developing a strategy to reopen,  contact us here. 

Understanding Recent Guidance from the EEOC

As you know, public health guidelines designed to help communities and employers navigate the COVID-19 pandemic have been changing almost daily. New guidance issued from the Equal Employment Opportunity Commission (EEOC) addresses some of the issues that employers are facing. Here are answers from the EEOC on a few common questions employers may have:

If an employee calls in sick, how much information may an employer ask request from that employee?

Employers may ask employees is they are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. Employers must remember that all information about the employee illness needs to be kept confidential.

May an employee take body temperatures of employees during this pandemic?

Generally, this would be considered a medical examination; however, because health authorities want to control the spread of COVID-19, employers may measure employees’ body temperature. Employers should ensure they are consistent in this practice across the workforce.

May an employer to require employees to stay home if they have COVID-19 symptoms?

Yes. The CDC states that employees who with symptoms of COVID-19 should leave the workplace.

Once an employee returns to work, may an employer require a doctor’s note certifying fitness for duty?

Yes. Employers may need to get creative in what they accept for documentation, as doctors and other health care professionals may be too busy during a pandemic outbreak to provide fitness-for-duty documentation.

As always, we will continue to provide you with factual updates on a regular basis throughout this pandemic. We will be hosting another webinar on Monday, March 23, 2020.


About the Author:

Tracy Melvin serves as a human resources business consultant with Epiphany Law. Tracy is an experienced professional having spent over ten years helping a variety of companies implement and manage complex HR strategies. In her current role, Tracy provides HR consultation to business executives and owners that drive results. Tracy drafts employee handbooks, policies, procedures, employment contracts, executive compensation plans and agreements to protect the company’s interests. She also assists business leaders by conducting HR audits to ensure compliance with local, state and federal employment and labor laws.

Tracy Melvin

Labor Law: What You Need to Know About the Latest Changes

On January 12, 2020 the U.S. Department of Labor (“DOL”) released its long-awaited final rule  updating its regulations regarding joint-employer status under the Fair Labor Standards Act (“FLSA”). The FLSA’s joint-employer regulations had not been substantively amended in over sixty years. This new rule becomes effective March 16, 2020.

The final rule gives employers greater guidance and clarity when determining if a joint-employer relationship exists. The DOL has now adopted a four-factor balancing test to evaluate whether the purported is a joint employer. This test assesses whether the employer:

  • Hires or fires the employee;
  • Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
  • Determines the employee’s rate and method of payment; and
  • Maintains the employee’s employment records.

It is important to note, that no single factor is dispositive in determining joint-employer status, but instead the factors are weighted based on the facts of each case. The final rule states that to be a joint employer under the FLSA, the other actor must actually exercise – directly or indirectly – one or more of the four factors.

The final rule includes a number of examples illustrating the application of the four-factor test, providing for practical guidance to employers who may have joint employment concerns based on their company structure and business relationships with other companies.

In addition to the DOL issuing its final rule on this topic, the National Labor Relations Board (“NLRB”) released a final rule on February 26, 2020 setting forth standards for joint-employer status under the National Labor Relations Act. The NLRB’s final rule will be effective April 27, 2020.

In light of these final rules, it is important for employers to seek counsel in any situation where joint employment is possible.

All employers need to make sure their payroll practices are compliant. Doing so will protect your business from costly lawsuits. If you would like help reviewing your employee classifications, or if you have any other employment law questions, you can contact us here. 

Is Your Health Care Practice Socially Savvy?

Health care companies are operating in a technology-driven world. Patients expect access to your practice through technology, including social media. Today, over 94% of hospitals have an active Facebook page, and an increasing amount also use additional social media platforms to reach their current and potential patients. A practice’s lack of or unsavvy social media presence may even have patients looking for a provider with a more robust online presence.

Why your social strategy matters

Ten years ago, patients would turn directly to their physician for medical advice. Today, they turn to the internet for online research and advice through their social networks. Research shows, 73% of millennials use the internet as their primary, even only, source of health information, and nearly half of adults in our country rely on the internet for healthcare decision making. Having a health care social media strategy is vital, and few simple steps can help physicians better reach and engage with their patients, ultimately improving quality of care and even decreasing readmission rates.

  • Identify your goals and target patient audience.
  • Set a time commitment and decide how often you’ll post.
  • Partner with your staff to educate customers with multimedia content. This is an opportunity to answer common patient questions, share relevant health alerts, provide accurate information in an area inundated by inaccurate and often risky content, and strengthen your brand by creating trust.
  • Engage in conversations around healthcare policy and practice issues, allowing your practice to proactively manage patient expectations and relationships.
  • Engage with influencers to share your content.
How to create an effective and compliant social strategy

An important consideration in building a socially savvy practice, is utilizing employees to expand your social media presence. But with this, comes the need to protect patient privacy. Developing a solid social media policy will ensure your staff understands the dos and don’ts as it relates to using technology to communicate about work. This policy should cover both materials posted on the practice’s social media platforms as well as employees use of personal social media related to work-related posts. Such policies ensure compliance with HIPPA and HITECH and safeguard protected health information (PHI) and confidential business information (e.g. vendor agreements, marketing plans, employee files, etc.). And then, don’t forget, you must balance all of this with the employees legally protected rights under the National Labor Relations Act (NLRA).

Build out a clear and concise social media policy, having a trusted attorney review. A well-crafted social policy can limit the risks associated with employee electronic media use, while allowing health care providers to take advantage of technology. This policy should include:

    • What the policy applies to (e.g. work-related posts only, or also personal posts related to the medical practice)
    • Technology covered – list applicable social media sites while being broad enough to allow for changes in technology
    • Unacceptable activities – inform employees what social media activities would result in a violation of the policy (e.g. giving specific medical advice, sharing PHI, acknowledging a physician-patient relationship, revealing confidential business information, etc.)
    • Compliance and enforcement – outline how the organization will ensure compliance with the policy and consequences of a violation.

Once your policy is drafted, you’ll also need to: 

  • Develop employee training on the topic.
  • Make sure all employees receive, read, understand and sign off on the policy.
  • Train employees, giving specific examples and hypotheticals.
  • Enforce the policy consistently and fairly, thoroughly documenting any violations and disciplinary action.
  • Provide annual refresher training.
  • Update the policy when necessary, as social media, labor law, and HIPPA regulations are all subject to change.

Social media is an important tool for your practice. It’s essential that you understand how to leverage the benefits while still mitigating the risks. Having a social media policy in your employee handbook is an important first step. For questions or concerns about your handbook and social media policy, you can always email us here or call us at 920-996-1000.


More Educational Opportunities for Health Care Practices

Lunch and Learn – Complying with DOL Laws

The health care field has been under strict scrutiny about their payroll practices. The Department of Labor (DOL) announced an updated overtime and salary level threshold rule that took effect on January 1, 2020. To protect against the threat of litigation, it’s imperative that health care companies take a pro-active approach.  Join us for a free lunch and learn. We’ll review the changes to the law, share best practices and answer your questions about how you can protect your practice.

Wednesday, March 4 2020 at 12 PM – 1 PM 

Epiphany Law, 2800 East Enterprise Ave, Appleton WI 54913

Register Now