The Covid-19 pandemic is running rampant not just through the US, but almost the entire world. It is imperative that workforce providers examine practices and review contracts while also complying with government rules and regulations.

SIA spoke with some employment attorneys to gain insight on some possible best practices.

“I think the real challenge with staffing companies and that kind of temporary labor is the fluctuations in the industry,” Aaron Holt, labor and employment attorney with Cozen O’Connor, told SIA. “If a bunch of different employers are quarantined, there is probably not going to be a lot of work for those staffing companies in the near term. Having a way to stop-gap that or to get through the lean times when there is not a lot of work is really important.”

Hygiene protocols: Communicate with your clients regarding protocol and confirm you are both on the same page. By now, all organizations should have hygiene protocols in place, and it is important to communicate these practices to your temporary workers before sending them on assignment. At the most basic level, these should include cough etiquette, handwashing and staying home when sick. 

Attorney Janette Levey Frisch advises staffing firms talk with the client, or host company, to find out what policies they currently employ. “What are they doing to keep their workplace safe and secure?” she said. “And if there is an issue, both [the staffing firm and the client] should be working together and talking to each other.”

Policy review: Consider modifying current or existing policies relative to both sick leave and mandatory illness reporting.

“Typically, there are a lot of strings and prohibitions on asking employees about their medical history or their current medical condition,” Aaron Holt, labor and employment attorney with Cozen O’Connor, told SIA. “That said, there are exceptions to that in the event there are direct threats to the workforce or to that employee.” Narrowly tailored medical questions and required medical exams are allowed but must be based upon a reasonable business justification — and a pandemic event qualifies, he explained.

Firms that offer sick leave to their contingents should examine the text of the policy and consider possibly altering it on a temporary basis; for example, employees might be able to take a negative PTO balance.

Health and mandatory temperature checks: If the contingent workers are in financial need, they may be tempted to take assignments when they are sick. “And that’s a problem,” Holt said. “That is something that employers and staffing companies need to think about how to address and mitigate where they can.”

Relevant medical information employers may require during a pandemic includes temperature checks at facilities. However, employers cannot discriminate against employees based on national origin, race or any other protected class. For example, an employer could lawfully require temperature checks for all employees, but not single out temporary workers, Asian employees, older workers or those with underlying medical issues.

Force majeure contract clause: What happens if a staffing provider cannot provide needed workers because of the Covid-19 outbreak? Levey Frisch suggests ensuring that a force majeure clause is included in the contract. The provision excuses a party from not performing its contractual obligations that becomes impossible or impracticable, due to an event or effect that the parties could not have anticipated or controlled; in other words, an “Act of God.”

“If they have a force majeure clause, then I think it’s a good argument that [the Covid-19 pandemic] qualifies,” Levey Frisch said. “It would be hard for either side to win on a breach of contract claim.”

SIA’s website has a list of relevant links for information relating to Covid-19 from reputable resources.