Enforcing Company Policies, Procedures and Performance Standards During the COVID-19 Pandemic

April 6, 2020Alerts

It seems like “business as usual” no longer exists, but while employers face an ever-growing number of new compliance issues related to COVID-19 stay-at-home orders and federal and state legislation concerning employee leave and benefits, businesses continue to operate, and employers must continue to manage an effective and productive workforce in order to maintain business operations. Here are some best practices in these changing times for enforcing employee policies, maintaining workforce performance standards and procedures and implementing discipline to minimize the possibility of running afoul of discrimination and retaliation laws, or violating public policies.

1. Stay Current on Changes in the Law

Understand that changes in the laws affecting your employees are ongoing and ensure that you have the means, whether in-house or outsourced, to stay up-to date on those changes. Ensure that your policies continue to comply with the law and that you effectively and correctly communicate to your employees the changes that affect them.

2. Reinforce Your Support of Your Employees

Let them know that you understand these are difficult and unique times. Keep your employees apprised of your efforts to keep both them and the workplace as safe as possible. Let them know how you are implementing evolving state and federal leave and benefits laws.

In this regard, it is important to identify or reinforce reporting chains and proper lines of communication. Make sure your employees understand the need and know how to properly report coronavirus concerns, including knowing to whom they can ask questions. Emphasize that employee health information is confidential, but that communications concerning possible exposures must be made in accordance with state and federal guidelines to protect others.

3. If Working With Reduced Staff, Review Job Descriptions

If you are working with reduced staff, or implementing staggered schedules, review your employees’ job descriptions to determine whether any employees’ job functions have been altered as a consequence of reduced workload or a reduced work force. Ensure that any enhanced or reduced employment responsibilities do not have a discriminatory effect, and then communicate with your employees to make sure that they understand their roles and your expectations. Similarly, follow the same discrimination analysis before implementing a reduction in compensation (and remember to document these changes in accordance with any applicable laws). If the company is continuing to operate, you need to ensure that your employees continue to perform. If each employee performs as expected, business operations will continue as efficiently as possible, which should enhance morale among the workforce.

4. Monitor and Evaluate Performance

Keeping in mind that the times demand more flexibility, if employee performance is subpar, or if an employee is unwilling to perform, non-performance needs to be addressed directly with the employee in a timely fashion. But, be aware of possible retaliation claims. If an employee ties poor performance to a concern about coronavirus, if appropriate, make sure the employee understands what leave may be available and implement any enhanced safety, spacing or disinfecting practices which may be warranted. Otherwise, make clear what your evaluation was based upon and what improvements need to be made. If any employment action is being taken, or not being taken as a result of the performance issue, be specific about what that action is and the reason the action is warranted.  As always, document the specific issue and your communications with your employee.

5. Review Drug and Alcohol Policies

Stress levels are high. If you suspect employee drug or alcohol use, the company does have the right to require testing. Company substance abuse policies should include procedures for when and how substance testing will occur, and clearly set forth the consequences for testing positive or refusing to test. In moving forward with drug or alcohol testing, the procedure must comply with company policy, and the policy must be applied consistently for all employees, no matter their position in the company.

6. Monitor Compliance With Company Harassment and Discrimination Policies

Be particularly alert to red flags signaling possible harassment related to the coronavirus based on ethnicity, national origin or disability, including, for example an employee’s reluctance to work with Asian co-workers. Address all incidents immediately and in accordance with company policy. Many times an issue can be resolved and a potential situation diffused by promptly identifying and addressing the improper conduct or communication with the employees involved. 

Finally, emphasize that while everyone must be able to be flexible as you all navigate through the new work environment, work must go on and compliance with company policies remains important as ever.

Fox Rothschild LLP stands ready to assist with providing solutions to human resources issues during the pandemic.

This alert also appeared in New Jersey Business Magazine.