Not every hypothetical situation is addressed here, but it’s a deep look at the common questions lawn and landscape contractors are facing in their businesses. Although we don’t have all the answers, The Harvest Group is here to help. If you have any specific HR questions about COVID-19, please call Head Harvester Steve Cesare at 760-685-3800 and he will help you out as fast as possible. Please remember this is a very complicated situation and we want you to know that you are not out there alone. We’re here for you.

Q: As a business, what should I be doing during the COVID-19 crisis? 

Harvester Steve: What I’ve told people to do is to remain calm and be strategic in your thoughts. I have a blog called Tuesdays with Steve, and I wrote on March 17th the first thing you should do is “remain calm.” We’ll get through this.  But in doing so, we have to show poise and a sense of resolve. That being said, when most people ask me what I should be doing, I suggest they implement a three-step plan and have a strategic alignment.

First, I’m telling landscape companies to redo their 2020 budgets because obviously the budget they put together in January is completely upside down and the model has changed. At the same time, for the months of April, May and June, they should probably put together monthly budgets as well, to verify the budgets and the payroll are tracked each week to make sure the budgets don’t show any great degree of variance.

Second, based on that revised budget, start reducing company headcount. I’ve told people to do this before April 1st based on the new legislation, reduce employee headcount, because the company may soon have reduced revenue and may have trouble supporting all your company needs going forward. I’m suggesting that based upon their company “revenue per man” metrics, they should run their headcount 5% lean, rather than 5% heavy. Because it’s likely that some of their customers may run into trouble, based on their revenue shortfalls, that could affect the company in question.

Third, stay close to your customers. Your customers may have operational disruptions that affect their ability to pay you.

I would track those three steps consciously, every week or every two weeks, to make sure that you have money coming in, sufficient staff on board to complete their projects, and that your budget is being met. ”Remain calm,” take a bigger picture view, and execute appropriately to make sure you meet your financial requirements.

Q: Is there a business exemption for companies with fewer than 50 employees?

Harvester Steve: First off, the law that went into effect on April 1 applies to all companies under 500 employees. That’s the law. But there is also an exemption for some employers who have fewer than 50 employees. And that exemption allows them to not be held or bound by some of aspects of the law that says, “paid sick leave, due to school or child care closure” which can be nullified.

To meet the exemption, three criteria must be met. I’ve been told by many sources that to get this exemption, employers should partner with their accountants and satisfy the three criteria that the Department of Labor wants the people to address.

First, the company and the accountant must show that this new law will create financial obligations for the company, increasing the costs of operation for a small business at minimal capacity. That is for you and your accountant to figure out.

The second criterion for getting the exemption is that the absence of employees with certain specialized skills puts the company at risk.

And the third criterion necessary to get the exemption is by showing, with your accountant’s help, that you won’t have sufficient workers to perform the services provided by your company.

People automatically think, “Hey Steve, I want this 50-person exemption” but you don’t get it just because you want it. Partner with your accountant to satisfy those three criteria required by the Department of Labor.

Q: I see a lot of criteria, could you simplify it?

Harvester Steve: Everybody should have a one-page document called the Employee Rights Notice. This should be your guideline in terms of how things should run. This document contains three paid leave entitlements. The first one is addressed to paid sick leave for oneself. If you get sick yourself as an employee, you’re eligible for 100 percent of your pay up to $511 a day, for 80 hours. But, you only get that paid leave entitlement if you satisfy items number 1, 2, and 3 of the qualifying reasons listed on that page.

The second, is not paid sick leave for yourself, but paid sick leave for others. If you’re not sick but you have a family member who is sick, you then qualify for ⅔ of your pay, up to $200 a day, up to 80 hours, as long as you satisfy qualifying reasons 4 or 6 listed on that page. Number 1 is paid sick leave for yourself which corresponds to qualifying reasons 1, 2, or 3. Number 2 is paid sick leave for others which corresponds to qualifying reasons items 4 or 6.

The third is the expanded Family Medical Leave Act. This gives people up to 10 weeks of additional coverage at ⅔ of their pay, up to $200 a day, only if qualifying reason 5 is satisfied.

It’s important for us to realize all 6 of those qualifying reasons only deal with COVID-19. So if somebody has a stomach ache or a pulled muscle or diabetes, they don’t qualify for these benefits. This is only for COVID-19. For anything that comes up from now on, with your employees in your workforce, it has to be COVID-19 specifically to address those benefits.

An employer from California called me the other day and said one of his employees said he was sick and wanted to take off due to paid sick leave. After the employer pressed him, the employer discovered the employee wanted to take time off to go to his daughter’s birthday party. Nothing to do with COVID-19. Keep in mind, to get these 80 hours of paid sick leave, or the 10 weeks of FMLA coverage, it must be COVID-19 related.

Q: What do I do if someone shows up to work sick?

Harvester Steve: Again, there is a little bit of discretion here because right now most of the people that are sick are not necessarily our employees. Keep in mind that we are sorry that anyway has passed away; but most of the people that are getting sick have the flu. And some of the people who are dying are over the age of 68 with pre-existing conditions like asthma and COPD. That’s not really our employee workforce. But nonetheless, we want to take care of our employees.

So if an employee shows up to work in the morning and says he is sick or demonstrates some symptoms, I suggest the employers send their employees back to their personal physician, because it’s not a work-related issue, yet, and get a doctor’s note that says if they do or do not have COVID-19. If the person does have a written doctor’s note for COVID-19, take a picture of that note and email it to the office manager or the general manager, because we don’t want them to hand deliver that note and spread the virus.

Text or email that picture of the doctor’s note to the management team and take a look at it and then start tracking the employee’s time off – those 80 hours – because it’s COVID-19 related. At the end of that 80 hours, do not let the employee come back until he goes back to the physician and gets another doctor’s note that says they no longer have the virus and can return to work. At that point in time, let the employee go back to work because now the liability has shifted from the employer to the doctor. That would be the basic sequence of trying to reduce the fear of some of our customers out there and how we’re handling this. It’s a basic process but keep in mind that you guys have a degree of discretion to handle it as you see fit.

Q: Many times doctor’s notes aren’t available. What do you recommend in those situations?

Harvester Steve: Given the amount of liability placed on the employer that’s a great question, and I get asked that about 4 or 5 times a day.  I would tell the employee to stay home, and get in a queue to see his or her doctor. Because if the employer does allow the employee to come back without a note and he or she just happens to have COVID-19, that puts the employer on the hook for any liability for an outbreak at the company or in the community. It is difficult given the backlog at doctors’ offices. But just to minimize the risk given to the employer, I’d rather be safe than sorry because of the liability issue.

Q: What if an employee’s wife was exposed to COVID-19 but he was not? Would the employee still have to pay the employee to stay home?

Harvester Steve: The answer to that is yes. In that scenario, the employer would request a doctor’s note from the wife’s physician and have that note scanned or photographed and sent to the employer saying, “Mrs. So and So has COVID-19.” Once that triggers, then the employee qualifies for the second bucket and is now qualified for ⅔ of his pay because he is taking care of somebody else who has COVID-19 up to a maximum of $200 a day for 80 hours. Actually, this happened the other day, a company called me who has an office manager whose daughter was sick and we followed the exact same process and after 10 days the doctor’s notes came in and everything was fine. Again, it is better to be safe than sorry.

Q: In normal times if people are covered under the FMLA I can’t fire them. Due to the expanded FMLA, can I fire them?

Harvester Steve: The expanded FMLA does allow you to terminate an employee based on reduced revenue or business need. If you have someone getting 10 weeks of pay at ⅔ the pay, and you are losing revenue and your company is not getting money from its customers, you can lay them off without minimal fear of retaliation. It’s a little bit different from the normal rule of thumb for the regular FMLA.

Q: Are landscape contractors considered essential workers in Southern California? Could they get a ticket for not being at home?

Harvester Steve: If they’re out shopping and doing basic requirement stuff like banks, pharmacies and grocery shopping, “no,” you won’t get cited. But if you’re not wearing a mask and you’re out and about you will be fined $1,000 in certain counties.

Q: Are companies offering hazard pay?

Harvester Steve: “No.” Several companies have called me saying their employees are fearful and do not want to come to work and contract COVID-19. OSHA clarifies this through four criteria. Without going into all the criteria, OSHA says that an employee does not have to come to work if there is a real danger of death or serious injury. So, if that is the case in a work environment, hazard pay would be available.

The rule of thumb now nationwide is that COVID-19 does not present a real danger of death or serious injury so accordingly, there is no hazard pay. Employees cannot say they do not want to come to work out of fear that they don’t want to catch COVID-19.

Q: For a seasonal employee who works irregular hours, how does the employer calculate the maximum amount of money they are eligible to receive?

Harvester Steve: It should be calculated across a previous six-month average. If they have not worked for the company for six months they can go back within a two-week period. If they find they have worked 60 hours in the past two weeks they would only be eligible for 60 hours and not the full 80 hours. So, for seasonal employees, if they have worked enough hours throughout the six-month average they will receive 80 hours.

Q: One of my employees just returned from a family vacation in Texas. Can he come back to work immediately?

Harvester Steve: The answer is “yes.” Every company has its own policy, and part of it should say as part of COVID-19 its going to look at travel restrictions internationally and domestically. For example, three states, New Jersey, New York and Connecticut have been on the high-risk list. Now if somebody is traveling to or from those states, extra caution should be taken. I have not heard anything about Texas.  But it is up to the company policy to determine if the employees who have traveled domestically should be screened or tested.

Q: A major client just canceled a large construction job due to COVID-19. Many of my employees don’t have jobs since the job has closed. Do I play them sick leave since the job has closed due to COVID-19? 

Harvester Steve: The answer is “no.” Employers do not have to pay employees if there is no work to be performed. Essentially, it is like a rain day. If a company is closed because of COVID-19, there is simply no work to be performed.  In this case, the Company does not have to pay them sick leave because they’re not sick. There’s no work for them to perform; therefore they do not get paid.

Q: Can independent contractors receive unemployment benefits?

Harvester Steve: The answer to that is “yes.” But not as much as they think. Unemployment is a state program. To get unemployment benefits, a person must pay into the unemployment fund. Many independent contractors don’t make those payroll reductions from their corporate account. So, while they technically do qualify for unemployment, they should check in with their unemployment office to see how much they really qualify to receive.

Q: One of my employees spent the last two weeks home with his wife who had COVID-19. She is now non-contagious and he wants to return to work. What do I do?

Harvester Steve: He can come back to work if he has no symptoms. Doctors’ notes have become mandatory during this pandemic. But with the overwhelming influx, doctors’ offices have been telling people to stay home if they think they are contagious. If the symptoms get worse over the next couple of days, the employee’s doctor may schedule the employee for some tests. In the meantime, play it safe and stay home.

For this particular case, if the guy was taking care of his wife while she had COVID-19, and did not show any symptoms, he can go back to work. If he does have the symptoms, he should call the doctor and get some kind of email or voicemail alerting him to the fact that he should stay at home. If he is not demonstrating symptoms he should be ok to go back to work.

Q: The wife of one of my employees has been watching so much TV coverage of the COVID-19 outbreak that she has developed panic attacks. On Monday, due to these panic attacks, my employee had to take her to the doctor. Does he qualify for the revised sick leave coverage?

Harvester Steve: The answer is “no.” He does not qualify for sick leave, because no one in his family has COVID-19.

Q: I have a part-time employee who is fearful of contracting COVID-19. She has demanded I allow her work from home, and provide her with a laptop, printer, etc. 

Harvester Steve: The answer is “no.” The issue with teleworking is obviously at the company’s discretion.  I don’t know how many part-timers will be able to get that particular setup at home from their employer, if she does not have COVID-19, and no one in her family has COVID-19.

Q: One of my employees had a heart problem in the past. The employee told me she will not report to work anymore due to COVID-19 and her previous heart problem. What should I do?

Harvester Steve: COVID-19 is a respiratory illness, not cardiological. Without a doctor saying she cannot come to work because of COVID-19 symptoms, she basically just takes leave without pay because she can come to work if she wants to. She does not qualify for paid sick leave unless the doctor says her symptoms are respiratory in nature and prevent her from going to work, not cardiological problems.

Q: At a recent training session my employees told me I cannot terminate their employment if they’re on paid sick leave due to COVID-19, is that true?

Harvester Steve: “No.” They can be terminated first if they’re incapable, second if the company is losing money, or third if the employee’s job ceases to exist. The employee is basically stating that the employer is retaliating against the employee because the employee is taking sick leave; if that was case, that would be a different story.  However, if the company is losing money or does not have enough money to support its employees, it is allowed to terminate its employees.

Q: Can I require employees who have COVID-19 to wear a certain type of vest or colored armband while they are at work?

Harvester Steve: “No.”  We don’t want to stigmatize anybody, nor do we want to discriminate whether it be based on racial or gender status. I strongly encourage you not to do that.  Additionally, the rule of thumb is if one of our employees gets sick and he/she cannot come back to work, the company must not mention that employee’s name out loud to anyone in order to protect that person’s identity.

Q: When there isn’t a requirement for masks can an employer force an employee to wear a mask?

Harvester Steve: “Yes.” That is a company policy decision. For example, certain companies require employees to wear goggles in their yard and on job sites at all times. Face masks are another form of PPE.  If a company has a policy requiring its employees to wear a mask, it is not picking on the employees.  It is simply enforcing a company policy.

Q: Can our employees get a ticket from the authorities for not being home?

Harvester Steve: That’s based upon state and local jurisdiction. We’ve heard similar stories from across the country. A client from Pennsylvania told us one of his guys went out joyriding on a Sunday and a state trooper pulled him over for a bad tail light. The trooper asked him what he was doing out on the road. When he replied that he was just driving around enjoying the day, the cop gave him a $1,000 fine on the spot. That’s not every state.

Likewise, Bill and I live in California and know that if you’re from Riverside County and are found outside on your front lawn or driving around without a mask you will be fined $1,000.

Q: Let’s say I’m in the process of interviewing two foremen. How does COVID-19 affect the interviewing process?  

Harvester Steve: In general, you can ask questions about COVID-19, but only after an applicant gets a conditional job offer letter, which changes the employment status from interviewee to employee. For example, after a conditional job offer letter has been signed and returned, an employer could say, “Do you or anybody else in your family have COVID-19?” Ask this only after the employee has signed and returned the conditional job offer letter.

Also after giving that job offer letter, an employer can take someone’s temperature.  An employer can ask employees about their travels and if they have spent any time in highly contagious areas. But be specific about these questions and ask them questions such as “have you spent time in areas such as New Jersey, New York or Connecticut?”

“Yes,” you can ask some COVID-19 questions.  But only after the conditional job offer letter has been accepted.

Q: With regard to paid time off or schools being closed, the law is confusing. What are companies supposed to do? 

Harvester Steve: That’s covered by the Family First Coronavirus Response Act (FFCRA). As we discussed previously, this law went into effect on April 1st and basically allowed schools to be closed due to COVID-19. Now if it’s due to another reason such as an earthquake, the answer is no. The school could be either a school or child care, and child care does include babysitters. So, it’s a broad definition.

If schools and child care centers are closed due to COVID-19, employees can petition their employer to get up to 12 weeks off. There must be some authorization from a school district saying the school is closed due to COVID-19 meaning the employee can stay home and watch over his or her children for up to 12 weeks and receive up to ⅔ of their pay up to $200 per day maximum. That’s the rule now, up to 12 weeks, the first 2 weeks can be unpaid or paid due to sick leave others, but the following 10 weeks they will receive the ⅔ payment for schools closed due to COVID-19.

Q: Should there be written documentation regarding a company’s facemask policy? And, if so, what should it include?

Harvester Steve: I came across an article the other day from OSHA called, “The Guidance on Preparing Workplaces for COVID-19.” It’s about a 35-page article so I don’t expect everybody to read it.  But it talks about developing a policy not only for the present, but also for the future if COVID-19 or some other virus pops up.

The article includes five quick points.

  1. The first is to monitor state local and federal guidelines.
  2. Do a risk assessment of all employees and then categorize them by high, medium and low. High-risk employees are international travelers, health care workers, elderly people and such. Medium risk employees are those people who within schools, restaurants and retail settings. Low-risk employees are those individuals not working or are not within social contact with others. Most landscapers and construction workers are classified as “low risk.”
  3. The third point of the article talks about infection prevention, referring to masks in terms of style, validity, rigor and changing them out. It also talks about handwashing and basic hygiene procedures. For example, using hand wipes with 60 percent alcohol.  Actually a construction guy called me last night and told me because they haven’t been able to find Clorox wipes they’ve been buying, 1.75 liters of Everclear alcohol, and using it as a disinfectant.  Everclear alcohol is 190 proof and they’re actually using that to clean their equipment. So as long as you have 60% alcohol, or 95% Everclear, you should be fine.
  4. Also in terms of infection prevention, ensure basic techniques like: coughing into your elbow, practicing social distancing, keeping desks and equipment clean, and making sure that people are wearing their masks correctly. One more thing they just said, in terms of identifying and monitoring COVID-19.  On April the 8th, Federal health officials of the CDC said, “if somebody who is an essential worker and does not have symptoms, they are not required to stay home for 14 days, and don’t have to go home if they are not developing symptoms.”
  5. The last point is, OSHA has said because of the overwhelming thrust of COVID-19, OSHA will not enforce its record requirements for most employers. They will do it for firefighting, law enforcement, medical employees, but they will not enforce, using COVID-19 as something on a workers’ compensation claim.

Q: Is it legal to take employees’ temperatures when they come to work? 

Harvester Steve: “Yes.” It is happening more and more all of the time. The Department of Labor, loosened that regulation about 3 weeks ago.  If an employee does not have any symptoms, and there is a company policy, the company can do it; as long as they don’t just take the temperatures for certain employees. So they can’t do it just for the women, or the old folks, or the field workers.  They have to do it for everybody or for somebody who is demonstrating those symptoms. It’s a company decision, but it is legal.

Q: If you make an initial job offer letter but then that candidate has COVID-19, can you rescind that job offer? 

Harvester Steve: “No.”  In this case, the company should re-establish a new start date.  The company cannot fire or rescind the job offer if they happen to be sick or ill, since COVID-19 it is a temporary illness.