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STETSON LAW SPECIAL NEEDS TRUST CONFERENCE 2020

Lessons Learned: When a Large Scale Health Crisis Threatens, How Do You Protect Your Staff, Yourself, and Your Beneficiaries While

Keeping the Trust Running

Thomas Brink Esq., Cheryl Severson, Kerry Tedford-Coles

10/13/2020

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Introduction

COVID-19 has had a significant impact on Pooled Trust organizations across the country.

Although many groups had strong disaster recovery plans in place, many of those plans did not

address the impacts of a long term disaster like the current pandemic. Organizations had to quickly

navigate a new normal and become educated on changing employment policies all while providing

essential services to some of the most vulnerable in the community.

The “new normal” is a phrase often utilized to describe the situation in which we are living.

Unfortunately, the “new normal” translates to an ever changing environment. COVID-19 has

required businesses to adapt in new ways. Staff has equally had to adapt to shifting local and

federal recommendations while adjusting to working from home. It is an environment where

communication is key and it feels like the learning curve never ceases to end.

Managing staff has become more complicated than ever. Organizations that were financially sound

and running smoothly are suddenly faced with furloughs, layoffs and accommodating for needs

they have never had to accommodate for in the past. Regular monitoring of staff health, both

physical and emotional, has become both normalized and required. Now, more than ever, seeking

the advice of on an employment attorney is essential to maintain the most up-to-date information

on employment regulations.

Ideally, Pooled Trust organizations will become stronger as a result of successfully working

through this pandemic. Reviewing and updating policies and procedures, learning from missteps

and acquiring new skills and insight will eventually allow for growth. Looking to peers for

guidance and lessons learned always has value, especially in such unprecedented circumstances.

Lesson Learned: Establishing Working Norms for Our New Normal

Cheryl Severson, COO, TEAM Risk Management Strategies, LLC

At the beginning of the pandemic, employers and employees alike responded by shifting business

operations to work-from-home as quickly as possible while covering all bases on the home front.

Most people shifted into survival mode and there was a ‘do what you can when you can’ mentality

adopted across many organizations as everyone tried to wrap their minds around adjusting to a

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global pandemic on a temporary basis. Six months in and with no clear end date in sight,

organizations are re-evaluating what success looks like and how to re-claim some of the working

rhythms that were lost during this transition.

There following are just a few considerations for incorporating new or different working norms

when managing a remote workforce. No two organizations are alike and company cultures vary

drastically, so the application of these considerations will differ from organization to organization.

General Communication & Availability

Establish clear expectations for what responsiveness and availability should look like for your

organization. It may seem obvious that the shift to working from home should not have impacted

core business hours or shift hours, but that is not always the case. There are other nuances to

consider, such as whether employees are expected to check-in or respond at night or on weekends

if others are working, and which warrant clear expectation setting.

Many non-exempt employees have the ability to access email or instant messages on their personal

cell phones as part of their work-from-home set up. While this is a practice that most companies

shied away from in the past due to potential wage and hour issues that can crop up with this type of

practice, it was a quick and easy go-to when moving from the office to home office. It is important

to clarify working hours and expectations outside of those hours, especially for non-exempt

employees. Policies that clearly state that non-exempt employees are not permitted to work outside

of their scheduled hours without prior approval from their manager and that working off the clock

is strictly prohibited is a good place to start to avoid unanticipated overtime or other wage and hour

issues. Training employees how to turn of alerts during these off-hours is one way to help keep

clear distinction between working and non-working hours and to ensure that an expectation, or

permission, to work has not been inadvertently created.

Depending on the company’s culture, it may also be necessary to clarify for the leadership team or

other exempt employees what is expected during these times as well. Some companies are setting

guidelines that if there is an urgent matter that requires a response after hours, an email will be

combined with another form of communication (e.g., call, text).

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For those managing remote teams in an organization requiring specific service level standards,

calling employees’ phone lines, rather than relying solely on email or instant messaging, is a

critical management tool to measure availability and response times. This also allows managers to

keep their finger on the pulse about the experience your clients have when engaging with your

organization.

Lastly, similar to when swinging by a colleague’s office or desk, it is always good practice to

“knock on the door” when starting an instant message conversation to see if the person is available

before diving into your question or the topic at hand.

Using technology

Many organizations quickly incorporated video conference technology for meetings and instant

messaging software to maintain a connection with colleagues.

This same technology can be used to recreate a conference room feel during client calls by using a

video conference line for your internal team and calling into a phone conference line with other

outside parties and clients. This ensures the team can continue to rely on critical nonverbal cues

necessary when navigating the call, such as nodding your head in agreement or signaling to others

your desire to jump in and take the question.

It is important to establish documentation practices for topics discussed or decisions made over

instant messaging. Not all platforms have archiving capabilities so it is important to also establish

what should or should not be discussed, decided, or memorialized on this technology. Another

critical reminder is that all written communications, including those sent by instant messaging, are

considered legally discoverable so while messages sent on instant messaging platforms are meant

to be casual and informal, they can still create very real issues during any legal proceedings.

Meetings & Emails

Managing a remote workforce has only heightened the need to improve the overall management of

these critical areas to ensure things are not lost in translation or forgotten about the moment the call

ends or the email is read.

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Identifying meeting agendas ahead of time not only allow for better meeting management, but also

give participants an opportunity to prepare (or opt out) ahead of time. Providing a clear title and

objective for the meeting is also a must - is this a meeting to gather information, to decide

something, to brainstorm or debate? Knowing the desired objective or outcome ensures alignment

from the start. When the meeting is in response to something that began as an email thread, include

that email as an attachment. Including other documents or links to documents is also recommended

to fully prep the meeting participants.

Designating a note taker for meetings, when applicable, is a great way to share this responsibility

across several team members, boost engagement during the meeting, and ensure that there are

reference materials to refer to later. Lastly, discussing agenda topics right up to the final minute of

the meeting leaves no time to recap key takeaways or action items, which is another good meeting

habit to adopt.

Collaborating over email has replaced huddles around someone’s desk or office. It is helpful to

note in the subject line when a client-facing thread is moving to an internal thread so there is clear

delineation between the internal and external conversation. It is also critical to be explicit about any

requests sent by email and include specifics about the task being requested, who is being asked to

complete the task (e.g., avoid “we need to…” language), key requirements for the final product,

and clear and realistic deadline for completing the task.

Make time to connect personally

It is important to continue the cadence of regular one-on-one and team meetings when managing

remote workers. In the early weeks of the pandemic, these meetings tended to scale back or be

pushed to the side completely, but it is critical to get those back on track. Employees will face new

and different challenges during this time and setting aside dedicated time to connect one-on-one

with employees is critical to their continued success.

When leading meetings, it is easy to fall into the habit of jumping right into the agenda or topic at

hand. Small chat that occurs when assembling is often relegated to pandemic-related topics and

mainly between the meeting host and participants. Most participants do not engage with each other

the same way they would if seated next to each other in a conference room. Organizations have

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also lost the opportunity for other in-person connection points that come organically when people

are passing one another in the halls or while congregating in the lunchroom.

Some organizations have created time and space virtually to connect through periodic virtual lunch

bunches and happy hours. This is also a great way to connect with clients and other partners

outside of your organization. Break out rooms during a larger group meeting is another great way

to randomly pair employees up for ice breaker or other brainstorming or teambuilding activities.

Other company sponsored ideas include special interest channels on instant messaging platforms

(e.g., pets, foodies, parenting, fitness), themed video meetings, and finding new ways to celebrate

special occasions like birthdays and work anniversaries. So long as the ideas are authentic to the

organization, the sky is the limit.

Lesson Learned: Practical Policy Considerations for Employers Reopening Offices

Establishing in-office COVID-19 policies

The requirements for what to include in return-to-office policies vary greatly from location to

location and industry to industry so it is critical to consult an employment law attorney when

creating policies.

In general, sections to include in the policy include an overview of the purpose, some key

definitions, and procedures relating to working in the office safely, addressing visitors/vendors,

notification requirements and management of suspected employee exposure or confirmed

diagnosis, handling employee leaves of absences or other COVID-related time off requests,

managing employee confidentiality, and addressing that the employee discrimination and

retaliation is prohibited. Employers should facilitate a company-wide training for employees and

employees should sign an acknowledgement of this policy.

Examples of in-office policies or guidance include:

• Conducting employee health screenings upon the employee’s arrival at the office, in

accordance with applicable laws, that may include any of the following questions or

actions:

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o Have you or anyone you live with shown signs or symptoms of a respiratory

infection or COVID-19 in the last 14 days?

o Have you had contact with anyone who has been diagnosed with, or screened for

COVID-19 in the last 14 days?

o Taking employee’s temperature, in accordance with the law.

• Staying 6+ feet away from others and prohibiting all physical contact (including

handshakes) with anyone in the office.

• Adherence to all physical distancing signage and markings established while in the office or

office building (if shared).

• Taking frequent handwashing breaks, in accordance with CDC guidelines, and use of

sanitizer in absence of hand washing and when entering certain common areas such as a

breakroom.

• Wearing face masks or facial coverings at all times when entering/exiting the building, in

transit inside the building and/or office suite, when accessing shared spaces (elevator,

hallway, bathroom, breakroom, conference room), or anytime you might come in contact

with another person.

• Using sign in/out sheets for better contact tracing in the event of suspected exposure or

confirmed COVID-19 diagnosis.

• Practicing good respiratory hygiene by coughing or sneezing into a tissue and discarding

the tissue immediately, or into the inside of my elbow if a tissue is not available.

• Disinfecting common areas more frequently and limiting use of shared office supplies or

equipment without cleaning between users.

• Disinfecting personal work areas (desk, keyboard, phone) upon arrival and before leaving

each day.

• Prohibiting in-person meetings in offices or conference rooms.

• Prohibiting communal lunches.

• Requiring pre-approval from designated management member(s) before allowing any

guests or visitors into the office.

• Prohibiting non-essential travel.

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Lesson Learned: Considerations for your clients employing workers in their homes

The pandemic has created many additional considerations and challenges for employers to

navigate. The same is true for any clients who serve in the role as household employer and are

directly employing caregivers or other service providers in their own homes.

In addition to the requirement to stay abreast of and adhere to COVID-19 related laws and

regulations, ensuring a safe worksite and the continued safety of employees is a requirement of all

employers.

Examples of policies or guidance include:

• Asking the following screening questions of yourself, anyone in the home, and employees

daily:

• Have you or anyone you live with shown signs or symptoms of COVID-19 in the last 14

days such as fever, cough, shortness of breath, or sore throat?

• Have you had contact with anyone who has been diagnosed with, or screened for COVID-

19 in the last 14 days?

• Having the employee check their temperature upon arrival – note that this is considered a

medical evaluation and is normally prohibited in most employment situations. The Equal

Employment Opportunity Commission (EEOC) is temporarily allowing this type of policy to

prevent further spread of pandemic so long as the process adheres to very specific protocols.

• Requiring employees to wash their hands with soap and water for 20 seconds upon arrival and

throughout the shift.

• Requiring employees to wear freshly cleaned clothes to work.

• Providing facial coverings or masks to employees and requiring their use for the duration of the

shift.

• Increasing the frequency of cleaning and sanitation tasks.

• Opening windows to promote circulation of clean air.

• Determining whether there are other safeguards that can be put in place to further protect

workers that are not already required, such as the use of gloves, or other equipment or supplies.

• Promoting social distancing between individuals of at least 6 feet whenever practical,

particularly if out in the community.

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• Developing a communication and call-out policy for what an employee should do if they

suspect exposure or if they have any COVID-19 symptoms.

• Developing the protocol if someone in the household is showing symptoms of COVID-19,

suspects exposure, or is diagnosed.

• Requiring that employees stay home when sick or showing any symptoms of COVID-19

• Requiring frequent handwashing breaks (at least 20 seconds with soap and water), with hand

sanitizer as a temporary measure if soap and water is unavailable

• Following proper respiratory etiquette (coughing and sneezing into an elbow, etc.)

• Maintaining a clean work environment and washing/disinfecting regularly.

• Discouraging use of sharing any personal items, work tools or equipment, etc.

Managing staff shortages or other time off requests

There are many new laws protecting the rights of workers to take paid or unpaid time off for

COVID-19 related absences and employers must pay attention to these laws.

Maintaining adequate coverage is paramount and it is encouraged that household employers

leverage resources as available, such as professional care managers, physicians, and local health

departments to determine the most appropriate contingency plans should a member of the

household contract this disease or if the spread of this pandemic otherwise impedes the ability of

employees providing services.

Developing contingency plans to ensure minimal disruptions in daily services may include hiring

additional on-call staff (including other family members) than can be formally engaged to assist

with any unforeseen staff absences or other coverage needs.

EMPLOYMENT ISSUES IN THE COVID-19 ERA

Thomas Brink, Esq, Partner, Litchfield Cavo Attorneys at Law LLP As stay-at-home orders are lifted and offices reopen for non-essential employees and remote

essential employees return to the workplace, employees will be concerned for their safety due to

the ongoing risk of Covid-19. Employers will continue to be responsible for following ever-

changing safety procedures and regulations while remaining responsive to the concerns and

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needs of the workers. Employers should consider staggering employees’ return to work

beginning with essential office workers or those who may not be able to work remotely. Those

employees who already work remotely should continue to do so to allow a reduced number of

workers in the office to maintain necessary social distancing and safety. However, even if

employers take all necessary precautions, there is still the risk that employees could acquire the

virus, remain asymptomatic, and spread the virus to coworkers.

It is important that first and foremost, employers should consider those employees considered

“high risk” of severe illness or even death if they contract the virus when they return to work.

The Centers for Disease Control and Prevention (“CDC”) has found that people with chronic

medical conditions such as lung disease, heart disease or diabetes are more likely to suffer

severely if they contract Covid-19. Employers may be concerned about privacy rights or the

exposure of ADA and discrimination claims that may be brought if the employer inquires as to

the employee’s current medical condition. As the rules and regulations continue to change in

different states and localities, it is important to consider each employee’s individual

circumstance and implement necessary accommodations for high risk employees to avoid

infections and the spread of Covid-19. Above all, employers should keep an open line of

communication with employees to ensure that safety and hygiene are paramount when offices

reopen.

Even if employees are not considered high risk, the may be reluctant to return to work or refuse to

return out of fear for their own health or the fear that they may bring the virus home to vulnerable

family members. Some of those fears may be relieved by explaining the employees the steps and

precautions that are implemented to ensure their safety. The federal government has enacted

various new legislation to reinforce Occupational Safety and Health Act (OSH) and Family and

Medical Leave Act (FMLA) laws so that reluctant employees and those employees at risk may be

given accommodations or paid leave, rather than unpaid leave, during the pandemic.

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With the constant barrage of statistics of increased positive cases of Covid-19 and deaths, it is

understandable that employees may see an office setting as a hazardous environment. Those

employees may seek protection from an “imminent danger” as initially contemplated by the

Occupational Safety and Health Act. Under OSH, employees are protected from retaliation by

employers and they may refuse to work if their duties involve “a risk of death or serious bodily

harm” if all of these elements apply:

1. the employee asked the employer to eliminate the danger, and the employer failed to

do so;

2. the employee refused to work in ‘good faith’ (a genuine belief that “an imminent

danger exists”)

3. a reasonable person would agree that there is real danger of death or serious injury;

and

4. there is not enough time, due to the urgency of the hazard, to get it corrected through

regular enforcement channels, such as requesting an Occupational Health and Safety

Administration (OSHA) inspection.”

However, at this point in the pandemic, the courts have not universally answered to the question

of whether or not Covid-19 is an “imminent danger” as compared to other workplace hazards as

Covid-19 also exists outside of the workplace. In May 2020, a federal district court in Rural

Community Workers v Smithfield Foods Inc., declined to grant an injunction to pork plant

workers claiming that Smithfield was not protecting employees from COVID-19. 2020 WL

2145350, United States District Court, W.D. Missouri, St. Joseph Division. The Court found

that there was no actual harm and that “in this time, no essential-business employer can

completely eliminate the risk that COVID-19 will spread to its employees through the

workplace.” See Id.

Under the Occupational Safety and Health Act standard, even if there is imminent danger due to

Covid-19, employers may not have to pay employees who refuse to work. The United States

Supreme Court has held that there is no requirement under OSH that requires employers to pay

employees who refuse to work for safety reasons. Whirlpool Corp. v Marshall, 100 S. Ct.

883, 894 (1980).

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Since Covid-19 there have been drastic changes to the rights of workers in the workplace as long

as the employees’ workplace concerns are reasonable. If an employer is following current CDC

guidelines and taking all of the necessary precautions, an employee cannot refuse to work just

because of a fear of the virus. Employers may face workers compensation, discrimination and

negligence claims but employees cannot refuse to work when there is no one in the workplace

who has been diagnosed with Covid-19 or exposed to anyone with Covid-19.

Employees still have the right to file a complaint with OSHA if they have concerns about any

hazards in the workplace where there is a risk of death or serious physical harm.

If the employee has filed a complaint and OSHA has not had the opportunity to inspect the

alleged hazard, the employee may refuse to work to avoid being exposed to the hazard. There

must be actual concern over exposure and not just an employee’s fear that he or she may be

exposed by returning to work.

OSHA introduced new standards as of May 26, 2020 where employers are now required to

track cases of Covid-19 in the workplace. These requirements had been limited to health care

workers, emergency responders and correctional institution workers but expanded to other

industries. Employers are now required to report to OSHA when:

1. The case is a confirmed case of Covid-19 (defined by the CDC as an individual

with at least one respiratory specimen that tested positive for SARS-CoV-2, the

virus that causes Covid-19)

2. The case is work related (if exposure in the workplace either caused or

contributed to the resulting condition or significantly aggravated a pre-existing

illness or injury)

3. If the case meets the general reporting requirements meaning it results in death,

days away from work, restricted work or transfer to another job, medical

treatment beyond first aid or loss of consciousness. 29 CFR section 1904.7

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This creates the question of what is an employer’s obligation to investigate and what does

OSHA believe demonstrates that an employer has complied with regulations. They are clear that

employers are not expected to undertake invasive and elaborate medical investigations and it is

sufficient for employers to:

1. Ask the employee how he believes he contracted Covid-19

2. Ask the employee about out of work activities that may have caused him to acquire

Covid-19

3. Inspect the employees work area for potential Covid-19 exposure. The employer may make a determination based on the information currently available and

should not be penalized for information later discovered. There are certain criteria that would

demonstrate that exposure was work related such as:

1. Several cases develop among workers who work closely together and there is no

other explanation.

2. Covid-19 is contracted after close exposure to a customer or coworker with a

confirmed case of Covid-19

3. Close and frequent exposure to the general public in a an area where there is evidence

of ongoing exposure.

4. In the alternative it may be deemed not work related if the employee had close and

frequent contact with someone outside of the workplace who is not a coworker, has

Covid-19 and exposes the employee during a time when they are infections.

If the employer takes these reasonable steps and cannot determine if the exposure is work related

then it does not need to be reported, however, the employer should still continue to follow current

CDC guidelines.

Employers may be concerned about employees filing workers compensation and discrimination

claims while non employees entering the office may file negligence claims if there is any

evidence of exposure from the workplace. The CDC recommends that employers take reasonable

precautions including:

1. Recognizing the symptoms of Covid-19.

2. Understanding the basic precautions needed to prevent the spread of Covid-19.

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3. Encouraging sick employees to stay home, separate sick employees, hand hygiene,

covering mouths and noses to avoid spread, environmental cleaning, and restricting

travel.

To avoid potential negligence actions the courts will determine if an employer acted reasonably

under the circumstances which would include documented Covid-19 procedures and checklists

or forms showing that the employer complied with those procedures.

Employers should also consider actions taken against employees during this time to avoid

discrimination claims. There are essentially three actions an employer can take against an

employee including Layoffs, Furloughs and Termination. A layoff is a temporary separation with

the intent that the employee will return at some point; a furlough is when an employee’s hours

are reduced or given mandatory time off with an intent to eventually return to full time status;

and termination is a complete severance of employment. An employee may be entitled to full

unemployment compensation for a layoff or termination but a furlough may only qualify the

employee for partial benefits.

It is important that any treatment among employees be consistent and specifically cite the reason

for the adverse action and communicate those reasons to the affected employee. The employer

should also consider the exposure of any adverse action taken against a member of a protected

class, which would include race, color, nationality, gender, religion, age, disability or marital

status.

It is also important to discuss the newly enacted “Families First Coronavirus Response Act"

(FFCRA) was signed into law on March 18, 2020 and will expire December 31, 2020. It is

important to note that the FFCRA does not protect an employee from a layoff, furlough or

termination as long as the employer shows that there was a legitimate reason for the adverse

action. The employer must also show that the action against the employee would have been taken

regardless of whether or not the employee took leave. However, under the FFCRA, an employer

may not layoff, furlough or terminate an employee due to the following reasons:

1. The employee takes paid sick leave or family leave under the FFCRA.

2. The employee files a complaint related to retaliation for taking paid sick or family

leave under the FFCRA.

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3. The employee has expressed concerns or complaints over workplace safety.

4. Race, color, national origin, religion, sex, age, disability, or marital status.

5. An employee has filed a workers’ compensation claim or are currently receiving

workers’ compensation benefits.

Even if the employee takes leave and the office closes while the employee is on leave, the

employer is required to pay for any paid sick leave or expanded family and medical leave the

employee used before the employer closed.

The FFCRA is broken down into two sections including the Emergency Family and Medical

Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). The

EFMLEA was enacted to allow an employee who is unable to telecommute to care for his/her

child if the child’s school or childcare facility is closed due to a public health emergency. The

employee is only required to have worked for 30 days prior to the designated leave and can take

up to 12 weeks of leave with job protection. The first 10 days of the leave would not be paid but

could be paid by vacation or PTO. After 10 days, the employer is required to pay fulltime

employees at 2/3 of the employee’s regular wages for the number of hours the employee would

otherwise be normally scheduled to work. Payments are limited to $200 per day and a maximum

total payout of $10,000 per employee. As required under FMLA, employers are required to

return the employee to the same or a similar position when the employee returns. Employers with

under 25 employees are excluded if the position is no longer available or is not feasible due to an

economic downturn or problems from the ongoing health crisis.

The second section of the FFCRA is perhaps the one that most employers will encounter. Under

the Emergency Paid Sick Leave Act, an employee may take sick leave for the following reasons:

1. The employee is subject to a federal, state or local quarantine or isolation order

related to COVID-19;

2. The employee was advised by a health care provider to self-quarantine due to

COVID-19 concerns;

3. The employee is experiencing COVID-19 symptoms and is seeking medical

diagnosis;

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4. The employee is caring for someone who is subject to a federal, state or local

quarantine or isolation order or advised by a health care provider to self-

quarantine due to COVID-19 concerns;

5. The employee is caring for his or her child if the child’s school or day care is

closed or the child’s care provider is unavailable due to public health emergency;

and

6. The employee is experiencing any other substantially similar condition specified

by the Secretary of Health and Human Services in consultation with the Secretary

of the Treasury and the Secretary of Labor.

Under this section, the employer must provide 80 hours of paid sick leave (maximum under the

EPSLA) at the employee’s regular rate for paragraphs 1-3 above and 2/3 regular rate for

paragraphs 4-6 listed above. An employee may take only 80 hours of aggregate leave under the

Emergency Paid Sick Leave Act, regardless if they qualify under more than one of the reasons

to take leave. They cannot take 80 hours under one qualifying reason, and then take more time

for another qualifying reason. The paid sick leave has a maximum of $511 per day up to $5,110

total per employee for their own use and to $200 per day up to $2,000 total to care for others

and any other substantially similar condition.

All of the benefits under the FFCRA are provided with very limited requirements. To take the

paid sick leave, an employee must provide:

1. Name

2. Date leave is requested

3. Qualifying reason for the Leave.

4. An oral or written statement that the employee cannot work due to the qualified

reason.

5. If the employee seeks paid sick leave and cannot work due to a qualifying related

Covid-19 reason such as an isolation or quarantine order then the employee must

identify the entity that issued the order.

6. The employee must also provide the name for the health care provider who told

the employee to self-quarantine if that is the reason for seeking leave.

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7. If the employee is experiencing symptoms and is waiting on testing results,

the employee must provide the name of the entity that issued the quarantine

or isolation order or the health care provider who advised the employee to

self quarantine.

8. If the employee is taking paid sick leave to care for a child the employee

must provide the child’s name, the school or daycare that is not available

and a statement that no one else is available to care for the child.

9. The employer may also request additional information from the

employee if needed to apply for the government tax credit.

Businesses with less than 50 employees can be exempt from providing paid sick leave under

the EPSLA and EFMLEA if the requirements would jeopardize the viability of the small

business under section 5102(a)(5) of the EPSLA. If the employer can show that the business

would be at severe financial risk due to the need for specialized employees or there are not

qualified workers who are able to perform the duties of the employee requesting leave.

The employment landscape is changing rapidly in order to accommodate employees in the era

of Covid-19. Employers have been given new benefits through government programs but are

also subject to various dangers including workers compensation claims, discrimination claims

and negligence claims. It is important that employers take reasonable steps to follow current

CDC guidelines and continue to treat employees equally under the law.

Lessons Learned in the Pooled Trust World

Kerry Tedford-Coles, Executive Director, PLAN of CT/National PLAN Alliance

A lot has changed since March 2020 when COVID-19 became a regular part of the vernacular.

The impact to Pooled Trust organizations is as vast as the differences in the organizations

themselves. The intention of this section is to provide insight into the struggles at the onset of the

virus and the expectations moving forward. A non-scientific survey was provided to Pooled

Trust organizations in which 22 answered anonymously. These answers will be explored to

encourage self-reflection through the lessons learned by our peers.

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Although the staff size and assets under management vary greatly, most organizations reported

the same struggle of managing the mail with staff working from home. Many reported having

one designated staff member to pick up and process the mail. Many also stated that they would

change this procedure if there was a requirement for all staff to return to working from home.

The burden of being the one person to process and scan all of the mail was just too great. A

solution could be to have alternating staff on particular days. For those concerned about more

intense cleaning protocols, alternating weeks would be more appropriate. Processing the mail

also raised the concern of security and separation of duties as much of the incoming mail

includes checks. Handling the income checks is just one security issue to consider as

organizations are regularly both receiving and mailing checks on a daily basis.

The processing of checks for payment was also of considerable concern. For organizations that

print their own checks this meant that staff would have to go into the office. The security of the

checks, the separation of duties, and check signing were all reported to be an initial hurdle. Often

the processing of checks requires multiple staff members. In a typical environment, ensuring

proper separation of duties would include those entering checks, those approving checks,

someone printing checks and then signatures by authorized signers and preparation for mailing.

There was suddenly a need for entry and approval to occur from the home setting with staff

needed in the office to print and mail checks. This is cause for reorganization and temporary

procedural changes to adapt. Auditors will want to know how the task was performed, but may

also request updated procedures to reflect the temporary change. The question becomes does all

of this become the job of one person to ensure staff safety? Is that fair? Is it appropriate? Often it

appeared that the Executive Director was performing these duties. Much of this due to the

security of who could be in the office alone. This is certainly not the best use of an ED’s time,

especially in the middle of a pandemic. What are the solutions?

This should be motivation for organizations to reevaluate their ability to process checks in both a

short and long term disaster scenario and maybe even their process prior to COVID. Many

organizations have been apprehensive to pay client bills online due to concern that the payment

will not be processed correctly or there are simply too many beneficiaries to set up separate

online accounts. This may be unavoidable in the future, especially with recent concerns

regarding the US Postal Service. This is an opportunity to speak with the organization’s banking

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institution to discuss options and how they may be able to assist. Another solution widely used is

dividing the staff into groups that consistently work together to reduce the risk of virus spread.

This could include certain staff working in the office on specific days, or providing 4 hour shifts

in which half of the staff is in the office.

Interestingly, the pandemic has allowed for reevaluation of the overall entry and approval

process even prior to COVID. Many organizations did report that their biggest success was that

they continued to pay beneficiary bills on time despite the chaos, but the process is not perfect.

Reflection is essential now that the initial hurdles are over. Organizations should evaluate now

that the process is or has been done in a new way; all bills scanned, importance of coordination

of completion etc. and compare the effectiveness of the old and new ways. A staff meeting

regarding the old way versus the new way may be a perfect opportunity to perfect the process

while including all of the stakeholders.

Management of staff was also noted as a major difficulty for multiple reasons. Numerous

organizations reported having to manage staff fears regarding the virus. It is certainly

challenging to keep staff safe and supported while also running an essential business. The stress

of when to shut the office down, potential furloughs, PPP loans and when to reopen the office

can be overwhelming, but at the root is the physical safety of the staff. The organization can

simply not afford for the entire staff to be out sick with COVID, but the organization must also

survive. The balance of the two must constantly be monitored.

Of the 22 organizations reporting; 6 reported all staff still working from home, 12 had some staff

still working from home and 4 reported all staff to be back in the office. Many reported the ease

in which they transitioned to working from home after initial technology issues/expenses, but the

expectation is that organizations will continue to transition staff back to the office. Management

must closely pay attention to CDC guidelines, federal and state regulations and local COVID

cases as this transition occurs. Knowing when to send staff home, when to enforce quarantine

with other staff and determining how these people are paid can be tricky. The Families First

Coronavirus Response Act 1 provides 80 hours of sick time for suspected COVID and mandatory

quarantining, but building and updating policy is wise regarding mandatory quarantining and

1 https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

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when the organization will allow the person quarantining to work from home. This will create

clarity for staff to understand how the organization is handling the safety of its employees.

Considerations given to this policy should include:

• Will the organization require a negative COVID test? Will a negative result be enough or

will you require the full quarantine time?

• What potential COVID contact scenarios will the organization require an employee self-

report and to quarantine? Any person who has had more than 15 minutes of close contact

with someone with a positive COVID test? A suspected but unconfirmed person in their

home?

• If a staff member is COVID positive, will the office close or will only those in close

proximity be required to quarantine?

• How does the organization balance encouraging staff to not come to work sick, but also

not take advantage of staying home?

• What will the office cleaning protocol be? Will it be increased if a staff member tests

positive?

• How will the office handle desk sharing, low cubicles, and office sharing?

• Will the organization provide a phone and computer to work from home or will the staff

member use their own? Will 2 factor authentication be required for logging in?

• Will working from home be an 8 hour work day?

• Will IT be available to assist as needed? Will remote access to the server remain open or

will it need to be opened by the IT department?

Of course having staff working from home has also allowed for some positivity. Although

initially there were issues; staff internet difficulties, the pieces of garbage internet phones that are

supposed to travel anywhere, spending significant amounts of non-budgeted money on laptops,

IT set up etc., eventually it had its benefits It has proven to many organizations they can

actually function with staff working remotely. Like many businesses, this may prove a need for

less office space, allowing for significant savings. Additionally, staff was forced to learn and use

new technology. This includes teleconferencing. Despite many people experiencing “Zoom

fatigue” many organizations reported an increase in attendance to workshops they were

presenting online. In a time when soliciting new business seems impossible, it appears that

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everyone is suddenly comfortable using a teleconferencing platform. As staff perfected their

ability to use these services, more and more potential families were willing to try. This is a

fantastic finding for future business.

Using teleconferencing has also been one solution to continue to offer some case management.

Numerous organizations are struggling with not being able to see their beneficiaries. This has

been both detrimental to the beneficiaries and the non-profit’s bottom line as this is typically a

service that provides the non-profit additional revenue. As beneficiaries become acclimated to

visiting their doctors and therapists via teleconference, they will also acclimate to case

management presented this way. For security purposes, the organization should consider a sign

out process for any case files not available remotely. This will include sign out sheets and a time

with little or no staff in the office for pick up. Providing the files in the parking lot provides the

least contact. This new technology can also be seen as a long term benefit to Pooled Trust

organizations who serve larger states and/or beneficiaries across the country as staff will more

readily interact with beneficiaries with this technology. Although a computer is never a

replacement for an in-home visit, it will allow for staff to continue to build relationships with

their clients in the future. For now, it will need to be the only safe way to ensure the

beneficiary’s needs are met.

Overall, the greatest lesson learned from our peers’ responses is flexibility is key; for both the

organization and the beneficiaries. Much like flexibility was mandatory when the virus started it

will continue to be required as recommendations continue to change. Flexibility is something

that Pooled Trust organizations are already familiar with as they regularly work within the

federal and state systems that actively change the rules and beneficiaries that continue to

challenge us daily.