Tribal employers are confronted with the difficult decision of inviting employees back to the tribal workplace to provide the needed services to their tribal members and communities and reopen the businesses which fund those governmental programs.  When a tribal employer reopens those governmental operations (essential government functions and enterprises) are there policies which should be created or modified to address these unique times?  The answer is yes and here are some draft policies for your review and consideration.  Remember, one size does not fit all so do not use any of this form language without first getting analysis from tribal leaders, human resources and in-house legal.

Before reviewing form policies, a brief analysis regarding the standard of care or the application of reasonable standards is in order.  In part, tribal sovereignty means that each tribe should define standards for itself which reflect the unique histories, traditions, customs and goals of the tribe.  Most employers, including tribal employers, did not have a plan for the virus.  Without a plan which incorporated reasonable standards there is little for tribal employers to reach for in dealing with the question of reopening.  Therefore, it is reasonable to look at the standards developed by the other sovereigns in evaluating this question and determine if those standards are reasonable for application to the tribal employer.  Accordingly, rules and guidances developed by the federal sovereign are incorporated herein.  To the extent that a state or local government near the tribe has a reasonable standard for the tribal employer’s consideration, that local standard can be considered.

Contents

Equal Employment Opportunity

Preference

How should tribal employers address pay issues in this extraordinary time?

Hazard Pay & Overtime

Implementing a teleworking agreement

Sample Employee Questionnaire to Evaluate Employee for COVID-19

Workplace Safety Policy (Option 1)

Workplace Safety Policy (Option 2)

Workplace Safety Policy (Option 3)

Call In Protocol (COVID Version)

Authorization of an Employee with a COVID-19 Diagnosis

Announcing an Employee is Diagnosed with COVID-19 (Employee Named)

Announcing an Employee is Diagnosed with COVID-19 (Employee Not Named)

___________________________________

Equal Employment Opportunity

The Tribe grants equal employment opportunity to all qualified persons without regard to race, color, religion, sex, sexual orientation, age, disability or national origin.

Comment:  Since Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act generally do not apply to tribal employers, how tribes define equal employment opportunity is a question of tribal sovereignty which will likely generate different answers to this question.  Accordingly, the above same policy is generic and does not control how specific tribes will answer this question.  This policy is relevant when the tribal employer decides which employees will return at what time.  As tribal employers return their employees, there may be difficult decisions regarding who returns, and if the return is in phases, some employees will return sooner than others.  Tribal employers do not make decisions influenced by the tribal employer’s definition of protected classifications.

Preference

The people of the Tribe and its members are talented and dedicated workers.  To best serve its citizens, the Tribe first seeks workers from the Tribe and surrounding community in the following order:

Member

Parent/spouse of a Member

Native American

Preference shall only be used to break-the-tie between two or more candidates for employment, promotion or lay-off.

Preference shall be used to recruit, hire, train, recall, reassign, promote and lay off employees of the Tribe. The Human Resources Department is responsible for monitoring the preference policy. Disciplinary action will occur for supervisors who do not adhere to this policy.

Comment:  The policy above is generic and therefore tribal employers should consult their preference laws and policies and apply them in making decisions regarding the return of employees.

How should tribal employers address pay issues in this extraordinary time?

Remember there is an argument the Fair Labor Standards Act applies and an argument it does not apply.  If tribal employers follow the FLSA or meet its standards, non-exempt employees shall be paid for all time worked whether that time is in the tribal office or while the employee works off-site.  It is imperative that non-exempt employees track their working time (in and out of the office) and report it to the employer.  The policy which addresses this requirement should compel employees to record hours worked every day (contemporaneous record-keeping) which includes recording break times and meal times.  The policy should require employees to perform no work during break and meal periods.  If the employer requires pre-approval for employees working overtime, the policy should address that as well.

For exempt employees, the salary basis test requires employers to not penalize a paycheck when employees are not working parts of workdays, but that general rule has several exceptions.  Generally speaking, if an exempt employee works part of a day the employee receives a full day’s pay, but if an exempt employee misses a full day or more, in some instances the employer is not required to pay the exempt employee for the time missed.  Now if the employee misses a full day’s work because of illness, the employee is still paid from a wage substitute like PTO or sick pay.  This summary does not address all the nuances of exempt employee pay.

Hazard Pay & Overtime

This may or may not be a typical policy issue but it is a compliance issue to be aware of if the tribal employer pays hazard pay.  If hazard pay is provided, it impacts the regular rate calculation for overtime compensation for non-exempt employees.  Here is a portion of 29 C.F.R. Section 778.207(b):

Nonovertime premiums. The Act requires the inclusion in the regular rate of such extra premiums as nightshift differentials (whether they take the form of a percent of the base rate or an addition of so many cents per hour) and premiums paid for hazardous, arduous or dirty work.

Implementing a teleworking agreement

Some employees will continue to work from home and if the tribal employer does not have a teleworking agreement, now is a great time to create one.  This is SHRM’s form agreement slightly modified:

Employee Information

Name: ____________________________________ Hire date: __________

Job title: _____________________________________________________

Department: ___ _____________________________________________

FLSA status:      __ Exempt        __ Nonexempt

This temporary telecommuting agreement will begin and end on the following dates:

Start date: _______________            End date: _______________

Temporary work location: ________________________________________________

Employee schedule: _____________________________________________________

The employee agrees to the following conditions:

The employee will remain accessible and productive during scheduled work hours.
Nonexempt employees will record all hours worked and meal periods taken in accordance with regular timekeeping practices.
Nonexempt employees will obtain supervisor approval prior to working unscheduled overtime hours.
The employee will report to the employer’s work location as necessary upon directive from his or her supervisor.
The employee will communicate regularly with his or her supervisor and co-workers, which  includes a weekly written report of activities.
The employee will comply with all rules, policies, practices and instructions that would apply if the employee were working at the employer’s work location.
The employee will maintain satisfactory performance standards.
The employee will make arrangements for regular dependent care and understands that telecommuting is not a substitute for dependent care. In pandemic circumstances, exceptions may be made for employees with caregiving responsibilities.
The employee will maintain a safe and secure work environment at all times.
The employee will allow the employer to have access to the telecommuting location for purposes of assessing safety and security, upon reasonable notice by the Tribe.
The employee will report work-related injuries to his or her manager as soon as practicable.
The Tribe will provide the following equipment: __________________________

______________________________________________________________

The employee will provide the following equipment: _________________________

______________________________________________________________

The employee agrees that the Tribe’s equipment will not be used by anyone other than the employee and only for business-related work. The employee will not make any changes to security or administrative settings on the Tribe’s equipment. The employee understands that all tools and resources provided by the Tribe shall remain the property of the Tribe at all times.

The employee agrees to protect the Tribe’s tools and resources from theft or damage and to report theft or damage to his or her manager immediately.  The employee agrees to comply with the Tribe’s policies and expectations regarding information security. The employee will be expected to ensure the protection of proprietary information accessible from their home offices.

The Tribe will reimburse employee for the following expenses: ______________________________________________________________

Employee will submit expense reports with attached receipts in accordance with the Tribe’s expense reimbursement policy.

The employee understands that all terms and conditions of employment with the Tribe remain unchanged, except those specifically addressed in this agreement.
The employee understands that management retains the right to modify this agreement on a temporary or permanent basis for any reason at any time.
The employee agrees to return the Tribe’s equipment and documents within five days of termination of employment.

Employee signature: _____________________ Date: ____________________

 

Manager signature: ______________________  Date:______________________

 

Human resources signature: ________________ Date: ______________________

Sample Employee Questionnaire to Evaluate Employee for COVID-19

In the past 24 hours, have you experienced:

Fever: __ Yes __ No

Fatigue: __ Yes __ No

Cough: __ Yes __ No

Sneezing: __ Yes __ No

Aches and Pains: __ Yes __ No

Runny or Stuffy Nose: __ Yes __ No

Sore throat: __ Yes __ No

Diarrhea: __ Yes __ No

Headaches: __ Yes __ No

Shortness of breath: __ Yes __ No

Have you recently been in close contact with anyone who has exhibited any symptoms?

__ Yes __ No

Have you recently been in contact with anyone who has tested positive for COVID-19?

__ Yes __ No

Have you recently traveled to a restricted area that is under a Level 2, 3, or 4 Travel Advisory according to the U.S. State Department? Including: China, Italy, Iran, and most countries in Europe.

__ Yes __ No

Workplace Safety Policy (Option 1)

The health and safety of the Tribe’s employees is the number one priority.

Thermal Cameras. Points of entry will be limited to allow the security team to conduct non-invasive temperature checks utilizing thermal cameras. Anyone displaying a temperature over 100.0°F1 will be taken to a private area for a secondary temporal temperature screening. Employees confirmed to have a temperature over 100.0°F will not be allowed entry to the property and will be directed towards appropriate medical care.

Physical Distancing. Employees will practice physical distancing by standing at least six feet away from other people.  Employees will be reminded not to touch their faces.

Hand Sanitizer. Hand sanitizer dispensers, touchless whenever possible, will be placed at employee entrances and contact areas. Hand lotion will be provided in touchless dispensers for employees.

Signage. Signage will be posted throughout the property reminding employees of the proper way to wear, handle and dispose masks, use gloves (in positions deemed appropriate by medical experts), wash hands, sneeze and to avoid touching their faces.

Employee’s Responsibilities.  Employees are vital for an effective sanitation and health program.

Hand Washing. Correct hygiene and frequent handwashing with soap is vital to help combat the spread of virus. All employees have been instructed to wash their hands, or use sanitizer when a sink is not available, every 60 minutes (for 20-seconds) and after any of the following activities: using the restroom, sneezing, touching the face, blowing the nose, cleaning, sweeping, mopping, smoking, eating, drinking, going on break and before or after starting a shift.

COVID-19 Training. All employees will receive training on COVID-19 safety and sanitation protocols with more comprehensive training for certain employees like healthcare, public safety and maintenance.

Personal Protective Equipment (PPE). Appropriate PPE will be worn by all employees based on their role and responsibilities. Training on how to properly use and dispose of all PPE will be mandatory. Every employee entering the workplace will be provided a mask and required to wear that mask while on property. Gloves will be provided to employees whose responsibilities require them as determined by medical experts.

Workplace Safety Policy (option 2)

The Tribe continues to monitor the workplace and add safety measures based on guidances from various government organizations.

Unless otherwise notified by your direct supervisor, you are required to wear a face covering at work. A face covering is generally a cloth, bandana, or other type of material that covers an employee’s mouth and nose.  Remember that wearing a face covering can help prevent the spread of the disease, but only in addition to other measures that you should be taking in the workplace, such as frequent hand washing, cleaning and sanitizing frequently-touched surfaces, and practicing social distancing.

If you feel sick or if you are experiencing any symptoms of COVID-19 (fever, cough, difficulty breathing, chills, headache, muscle pain, sore throat, or loss of taste or smell), let your supervisor know, go home immediately, and contact your healthcare provider for additional guidance.

To get the most benefits from a face covering:

Make sure it completely covers your nose and mouth.

Read the directions for use (if provided).

Wash your hands before and after removing it.

Try not to touch your face when you adjust it throughout the day.

Keep cloth coverings clean by washing daily, or more often if contamination occurs.

Don’t let others wear your face covering.

Keep it away from machinery that it could get caught in.

If using disposable face coverings, do not reuse them, and throw them away in appropriate trash receptacles.

Do not lay your face covering on any surface that may contaminate either the covering or the surface.

Do not use the face covering if it is damaged or has holes, unless it is the only face covering you have access to.

If you have any questions about the use of masks or face coverings in the workplace, contact Human Resources.

Workplace Safety Policy (Option 3)

The Tribe considers the health and safety of its employees and their families our priority. With that in mind, the Tribe provides you with the following information regarding the COVID-19. The Tribe will continue to monitor COVID-19 and will provide updates to you with changes.

Business Travel

Option 1: At this time, we are still operating in a “business as usual” mode and are authorizing business travel as it is needed. However, if you are concerned about traveling, raise your concerns to your supervisor. We will work with you to devise plans to accomplish what needs to be accomplished from your home base if doing so is feasible.

Option 2: We are temporarily suspending [all/specific] business travel until [further notice/specific date]. Speak with your supervisor if you have any questions about cancelling planned travel.

Remote Work

Option 1: If your job allows and you’d prefer to work from home for a period of time, speak with your direct supervisor about making arrangements.

Option 2: The nature of our work/certain positions may make remote work unfeasible. See the “illness and sick leave” section below for guidance. If you have specific concerns, speak with your supervisor.

Family Needs

If you have children who are impacted by a school closing (or may be impacted by one in the future) and this presents a hardship, let your supervisor know. If you are able to work from home to accommodate family needs, we support you with this flexibility with the caveat that you are expected to maintain your high level of performance when working remotely.

Keeping the Workplace Safe

The protocol for protecting yourself and others in the workplace against COVID-19 is outlined by the Centers for Disease Control and Prevention (CDC) guidelines. These are simple everyday practices that can be used both at home and in the workplace to protect against bacteria and viruses:

Wash your hands frequently;

Cover your coughs and sneezes with a tissue or the inside of your elbow; and Avoid touching your face.

In addition, clean personal workspace items that are frequently touched, such as your desk, computer mouse, and keyboard, with cleaning spray or wipes.   Sanitizers and cleaners are available in every work area.

Illness and Sick Leave

If you feel any signs of illness, the Tribe encourages you to work from home if your position allows. If you have a fever and cough, notify your direct supervisor and stay home until you receive medical care and recover. The Tribe urges you to stay home and use your sick time if you do not feel well or for preventative care should you feel the need. Speak with your supervisor if you have specific questions about telecommuting or absences so that your workload can be distributed or deadlines updated.

See the sick leave policy for additional information.

Personal Travel

Employees are asked to report all personal travel from and to [CDC Warning Level 3 countries, Alert Level 2 countries, etc.] to Human Resources as soon as possible. This includes your return from any of these countries within the past 14 days and all planned future travel.

Household Risks Related to the Workplace

If someone lives in your household who has been diagnosed with coronavirus, or has traveled to and returned from a [CDC Warning Level 3 country/identified countries of heightened risk as determined by the CDC], or who will do so in the near future, notify Human Resources as soon as possible.

Potential Office Closures

While the Tribe does not foresee the need to close any of its offices at this time, the Tribe will communicate with all employees should things change. It is a good idea to take your laptop chargers and peripherals home with you after work so you are prepared to work from home if needed.

Thank you for your flexibility and understanding. If you have specific questions or concerns, speak with your supervisor.

Call In Protocol

The employer can ask employees questions about the need for leave so the employer can determine the employer’s responsibilities and the employee’s opportunities regarding leave.  To avoid certain claims from an employee, prudent employers ask a standard protocol of questions of all employees seeking any type of leave.  During a pandemic, ADA-covered employers (tribes are typically not covered) may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Here are some of those questions:

Do you have fever, chills, cough, shortness of breath, or sore throat?

If the answer is “yes” the call should be routed to Human Resources.  If the answer is “no,” ask:

What is the reason for the requested leave?

If the reason is a medical condition, what parts (essential function) of your job are you unable to perform?

Do you intend or have you seen a medical provider for the injury or illness?

Have you previously taken leave for this condition?

When do you expect to return to work?

Authorization of an Employee with a COVID-19 Diagnosis

AUTHORIZATION

To Disclose COVID-19 Diagnosis or Exposure

I understand that the Tribe strives to protect the privacy of its employees and an aspect of privacy involves the disclosure of an employees medical or health information. In the interest of the health of my co-workers and others with whom I may have had contact on my worksite, however, I authorize the ABC Tribe’s Human Resources Department and/or senior management to disclose to employees at my worksite and to others, i.e., clients, visitors, customers, whom I may have encountered at my worksite, that I have tested positive for the COVID-19 virus or that I have been exposed to the virus by being in close contact with someone who is believed to be infected with the virus. The ABC Tribe advised me that I am not required to do so and that there would be no adverse consequences to my employment if I chose not to do so. Further, the ABC Tribe did not seek to coerce or pressure me to permit the disclosure.

In disclosing this information, the ABC Tribe will take reasonable measures to keep my name and identity confidential to the extent possible, though I recognize that circumstances may require identifying me as the infected or exposed individual to properly warn others so they may take precautionary measures and help prevent further spread of the virus, and that there are times when it is not possible to inform others they may have been exposed to the virus without them learning that it was through contact with me.

This authorization expires on [INSERT DATE], after which the ABC Tribe will no longer be authorized to disclose this information. I have been advised that I have a right to receive a copy of this authorization.

___________________________________ _______________________

Signature of individual Date

_____________________________________

Printed name of the individual

SIGNING THIS AUTHORIZATION FORM IS VOLUNTARY

Announcing an Employee is Diagnosed with COVID-19 (Employee Named)

The Tribe learned that Shirley Smith has tested positive for/contracted the novel coronavirus, COVID-19. Ms. Smith works in the Tribe’s enrollment office.

If you develop flu or other related symptoms, please contact your medical provider, and do not come to work. Notify Human Resources immediately.

The Tribe has gathered the names of those employees that worked in close proximity to Ms. Smith over the previous 14 days. If you have not been contacted regarding this matter and you have had contact with Ms. Smith in the last 14 days, contact Human Resources immediately.  Those employees that have had contact with Ms. Smith should first consult and follow the advice of their healthcare providers or public health department regarding the length of time to stay at home. If those resources are not available, the employees should remain at home for 14 days after last exposure. If they develop symptoms, they should remain home for at least seven days from the initial onset of the symptoms, and three days without a fever (achieved without medication) and improvement in respiratory symptoms (e.g., cough, shortness of breath).

The health and well-being of our employees is paramount. Out of an abundance of caution, we are closing the enrollment office on [DATES]. While the office is closed, we will clean and disinfect the enrollment office.

All enrollment employees with remote work capabilities are expected to work from home while the office is closed. Each employee should consult with their manager for additional instructions. Should you have any questions or concerns, please contact Human Resources.

Announcing an Employee is Diagnosed with COVID-19 (Employee Not Named)

The Tribe learned that one of our employees has tested positive for/contracted the novel coronavirus, COVID-19. The employee works in the Tribe’s enrollment office.

If you develop flu or other related symptoms, please contact your medical provider, and do not come to work. Notify Human Resources immediately.

The Tribe is not identifying the employee who tested positive for the virus, however, the Tribe has gathered the names of those employees that worked in close proximity to the employee over the previous 14 days. Those employees should first consult and follow the advice of their healthcare providers or public health department regarding the length of time to stay at home. If those resources are not available, the employees should remain at home for 14 days after last exposure. If they develop symptoms, they should remain home for at least seven days from the initial onset of the symptoms, and three days without a fever (achieved without medication) and improvement in respiratory symptoms (e.g., cough, shortness of breath).

The health and well-being of our employees is paramount. Out of an abundance of caution, we are closing the enrollment office on [DATES]. While the office is closed, we will clean and disinfect the enrollment office.

All enrollment employees with remote work capabilities are expected to work from home while the office is closed. Each employee should consult with their manager for additional instructions. Should you have any questions or concerns, please contact Human Resources.