Friday June 26, 2020
I’m not an attorney. I’m not giving legal advice. Typically, I focus on organizational culture. In my way of thinking, if your heart is in the right place, compliance with laws, regulations, and court rulings on topics such as discrimination, safety, sexual harassment, wage and hour laws and the myriad of other things regulating the employment relationship is easier and more powerful than forced compliance. Emphasizing how you want people treated in your workplace is way more motivating for your team than what you have to do to manage your risks and limit liability.
And then COVID happened. Compliance is trickier now. For one, there is no real script for this; no one running an organization has been in this situation before, where there is a real disease and a whole lot of fear and propaganda from all sides. No politician, public health professional, or anyone in the media has ever been here either.
The big challenge for employers now is how to comply when there are federal, state, county, and city regulations that aren’t in sync with one another. For instance, some industries were considered “Essential Businesses” at one level of government but not others. That’s confusing! In some cases, there are completely unrelated laws that in order to comply with one, you violate another. I heard of an interesting one from a friend who has a Concealed Carry Permit. As I understand it, to Conceal Carry, you can’t wear a mask...
Then there’s the frequency of change. In this environment where government officials may be attempting to keep everyone safe, the change in regulations can occur more frequently than most of us can keep up with. In Colorado where I live, we now have almost 25 Public Health Orders related to COVID. That’s in addition to over 110 Governor’s Office Executive Orders in 2020 - the majority of which are related to COVID. Some days there are multiple orders.
A difficult one for Colorado employers to grapple with is the conflict between what you are allowed to do under the Family Medical Leave Act (FMLA), the Families First Coronavirus Response Act (FFCRA), and Colorado’s Health Emergency Leave With Pay Act (HELP). Here’s the fun part:
- Under FMLA, employers can request medical certification explaining the need for the leave in order to determine if it’s FMLA. That means you can ask in advance of or at the start of the leave period and even get a 2nd opinion.
- Under FFCRA, employers can require a doctor’s note from an employee requesting a leave of absence for COVID. That means you can ask at the start of a need for leave.
- Under HELP, employers cannot ask the employee to provide any kind of medical certification until after the employee is no longer sick. In other words, you can’t ask for medical certification to approve the leave - you can only ask for it to prove that it’s safe for the person to return to work. And you also can’t deal with the physician directly as you can with FMLA. How to do the FMLA part gets interesting.
Bottom line - tread carefully through this. You could just consider COVID time not to be FMLA and just a weird thing in this weird season. If you want to play it on the compliance side and try to do the FMLA process for potential COVID cases, you may need to consult an employment law attorney… and I know some good ones.
I typically tell business leaders that in strange times, you need to make decisions based on business viability (from logic) and execute those decisions based on your values (from the heart). But now… add in some confusing legal issues in some confusing times and it makes for a confusing path to navigate. As they say, “May you live in interesting times!” You are!
At Open Door, we honestly believe that if you have the right team, united around a compelling vision, you can change the world. We help busy leaders like you intentionally define, cultivate, and reinforce their organization's culture. Through that culture, we help you find and keep the right team members, part ways with the wrong ones, and get everyone on the team focused on the same compelling vision… your vision. When your team members see through your eyes, they think like owners rather than entitled employees. Life is too short and you spend too much of it working not to enjoy the culture you work in. We help you cultivate a culture that can carry the vision that's worth pouring your life into.