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5 Things Employers Should Consider When Maintaining Telework During COVID-19 And Beyond

May 15 - Posted at 10:00 AM Tagged: , , , , , , , ,

The COVID-19 pandemic has had an unprecedented impact on the workforce, shuttering businesses, prompting mass layoffs, and compelling speedy transitions to remote work. If your company has rushed to implement a temporary remote work practice to accommodate the sudden need for social distancing, or if you have seen the benefits of telework and now choose to maintain what was initially intended as a temporary remote work plan, this article will provide you guidance on the long-term maintenance of remote work plans. Specifically, this article discusses whether work can be performed remotely, the value of up-to-date remote work policies, hours worked considerations, and how to effectively manage remote employee performance and remote worksites. 

1. Which Positions Are Appropriate For Remote Work?

You can measure the viability of remote work in a position by evaluating the feasibility of (a) performing all job functions remotely; (b) modifying the position to exclude non-remote job functions; or (c) modifying the position to be partially remote. In making this determination, and in addition to weighing the health and safety of employees and the community in the current circumstances, you may consider:

  • The need to interact in-person with others to perform the job;
  • Whether upfront technological costs are outweighed by long-term remote work benefits;
  • Security needs and the ability to maintain security remotely;
  • How a position becoming remote affects other employees; and
  • Predictability of job needs.

Once you decide whether remote work is appropriate and for what period, you should clearly articulate the type of telework arrangement that is acceptable (long-term, short-term, or partial). In partial telework-eligible positions, you should clearly define which job duties may be performed remotely and which require an employee to report in person. Maintaining clear rules and expectations is essential to managing remote workers for pay, leave, and discipline purposes, discussed in more detail below.   

2. Do You Need To Institute Or Update Your Remote Work Policy?

You would would be well-served to have an up-to-date remote work policy. A clear, written policy is a great way to set remote work expectations for your employees and keep them up to date on your company’s official policies and procedures established in response to the COVID-19 pandemic. If you instituted a remote work policy specifically for COVID-19 and intended it for short-term use, or if you utilized an existing telework policy that did not specifically contemplate COVID-19, your policy may need tweaking.

A remote work policy should specify required work hours, meal/rest periods, time and attendance records, and whether employees must obtain permission prior to working outside of work hours (or working overtime), and how that permission should be obtained. It is important to fully consider all your needs and options when instituting a remote policy, so you should contact legal counsel before drafting or updating yours.  

3. How Should You Track Time Of Remote Workers?

In order to track the working time of your remote workers, it is key to have a defined process to ensure accurate records. For example, you may require that employees have an established schedule, keep track of their own hours, and request from management permission to deviate from the established schedule for any reason. Such flexible work schedules may be difficult to manage and require a detailed analysis of the employee’s time and the employee’s leave to determine an employer’s obligations on any given day. Thus, it is important to emphasize to employees that they should be diligent with adhering to established schedules, but there should be an open dialogue for addressing deviations. 

You should also properly determine what kind of time is compensable. It is not always obvious when an employee’s time must be included as hours worked. The following examples represent a few scenarios where the answer could require a more fact-specific analysis:  

  • On-call time: Is the employee waiting to be engaged or engaged to wait? This oftentimes depends on the extent to which the employee cannot use the time for their benefit.
  • Unauthorized time: Do you have a policy prohibiting unauthorized time, and does it apply to “overtime” in the legal sense, or “extra hours”? The time must be included as hours worked, but the employee may still be disciplined for working without permission.
  • Commuting: Though generally commute to work time is not compensable, a non-exempt employee who might telework but must come to the office before or after teleworking for some portion of the day may need to have the intervening travel included as hours worked.
  • Salaries: Exempt employees who must be paid on a salary basis and work any portion of a week are generally entitled to pay for the entire week. However, there are some exceptions to this rule. Similar, but different, exceptions may apply to other employees with salaries or guarantees.

You should choose one method for tracking time and apply it uniformly across employees to the extent possible. Inevitably though, because there is no one best method for tracking employee time in all situations, the process will vary by employer, and even by position. Additionally, there might be some flexibility with respect to teleworking employees interrupted for COVID-19 reasons. Accordingly, you should consult with counsel if you have specific questions regarding what constitutes compensable time or the best methods to track compensable time in a given situation.

4. How Do You Manage Employee Performance Remotely?

Successful managers are consistent in applying policies and maintaining open communication with their employees. Specifically, you should ensure that you regularly:

  • Meet with remote workers by phone or video conference to establish measurable goals for employee performance, review employee performance, and listen to and address any employee concerns. After these meetings, you should document the conversation in a follow-up email to the employee.
  • Maintain up-to-date written policies, including remote work, confidentiality, and security policies. Employees who have a written guide to your expectations will be better prepared to work productively in the home environment and meet management’s expectations.
  • Check in with employees regarding time tracking, contemporaneously document any time policy deviations, and notify the employee of violations through the timekeeping system or by email.
  • Provide support to employees, including working technology and IT services.
  • Discipline employees who fail to follow established policies. However, when imposing discipline, be careful to consider whether doing so would be discriminatory or retaliatory depending on the reason for the policy violation.

You should diligently document any departures from established policy, timekeeping or otherwise, at the time the violation occurs or is discovered. You should also not fear pursuing discipline just because an employee is remote – you discourage misconduct by consistently disciplining employees who abuse telework and deviate from established policies. Conversely, employees who request accommodations in their work schedules for COVID-19 related or other protected reasons should be accommodated to the extent possible.

5. How Do You Maintain Remote Worksites?

You may be liable for injuries on the job even if they occur at a remote worksite. It is therefore important to ensure that teleworkers’ remote worksites are safe and suitable for a productive workday. Employees who are responsible for setting up their own worksites may fail to anticipate safety hazards or may not be concerned about safety risks. This could result in worksite arrangements that are prone to injury, including wire tripping hazards and non-ergonomic workstations.

Accordingly, it is prudent to establish remote worksite guidelines in your remote work policies that indicate your expectations of employee worksite set up and maintenance. You may also ask your managers to conduct periodic checks on an employee’s remote workspace by phone or video conference to ascertain whether they are complying with your expectations. These checks are also useful in discerning whether employees need any technological assistance or tools that would allow them to perform their job functions more efficiently, and whether any business expenses call for reimbursement. If you discover policy violations, you can correct the violations and, if necessary, impose discipline to deter future infractions.

Conclusion

Not every position is perfect for remote work. However, with careful consideration of work needs and position functions, you can take advantage of the many technological tools available and maintain a productive remote workforce. By diligently maintaining two-way discourse with remote employees and educating employees with clear, written, and up-to-date policies, you can ensure that your company is using remote work to its full potential.

Returning Employees To Work Following Unemployment Requires A Tailored 10-Step Plan Of Action

May 14 - Posted at 8:30 AM Tagged: , , , , , , , , , , , , ,

As businesses gradually begin to ramp up and bring employees back to work, you may soon need to figure out what to do when employees who are receiving unemployment benefits refuse to return to work. After all, they may be reluctant or disincentivized to return to the job, especially if they can turn down your offer and still collect robust unemployment benefits.

As with all unemployment issues, the solution may differ from state to state – and employee to employee. But while the answers will vary depending on your workplace and individual employee circumstances, you can take steps now to put yourself in the best position to respond to such situations. We recommend an individualized 10-step plan of action to minimize your return-to-work headaches.   

The $600 Dilemma

With the enactment of the CARES Act, employees qualifying for unemployment benefits are in line to receive an additional $600 benefit payment over and above the regular unemployment payment. This benefit is courtesy of the federal government program and continues through July 31, 2020. In many situations, however, the additional $600 benefit has created a disincentive for employees to return to work. This phenomenon has caused a dilemma for many employers (and employees) as businesses start to reopen.

At the lower end of the economic scale, many workers are receiving more from unemployment than they would earn from their regular wages. However, to remain eligible for unemployment benefits in all but a few circumstances, individuals who have been placed on a temporary layoff related to the COVID-19 pandemic must return to work if called back. And since most state unemployment agencies require or request that you notify them when you call an employee receiving unemployment back to work, the agency will likely deny ongoing benefits unless the employee can demonstrate good cause for refusing the offer.  

“Good Cause” And High-Risk Employees

The determination as to what constitutes good cause for the job refusal, however, will be viewed in light of the COVID-19 pandemic and will be subject to agency review. The U.S. Department of Labor and many states have emphasized that an unreasonable fear over the risk of contracting the virus in the workplace is not enough to constitute good cause, and state agencies will likely deny unemployment claims if this is the only reason offered. 

Several states, however, including Washington, Colorado, Alaska, and Texas, have already adopted rules outlining when an employee’s refusal to return to work may rise to the level of good cause. These rules generally protect unemployment benefits for “high risk” or “vulnerable” employees, such as workers over 65 or with underlying medical conditions.

For example, Texas Governor Abbott has directed the Texas Workforce Commission to continue providing benefits even when the employee refuses an offer of suitable employment where (1) the employee is 65 or older or at higher risk for getting very sick from COVID-19; (2) the employee has a household member at high risk; (3) the employee or a household member has been diagnosed with COVID-19  (and not recovered); (4) the employee is under quarantine due to close contact or exposure to COVID-19; or (5) the employee has child care responsibilities and the school or daycare is closed (and employee has no available alternatives).  

10-Step Return-To-Work Plan To Minimize Unemployment Concerns

Given the complicated issues created by the COVID-19 pandemic, you should be careful to consider the best approach for your workplace and employees. A thoughtful and transparent return-to-work process will help ensure employee safety and boost morale. Here is a 10-point plan you should implement to ensure a smooth return-to-work for your organization.

  1. In all cases, the first step is to develop a plan of action to reopen the workplace that provides a safe work environment for the returning employees. The plan should be consistent with guidelines for return to work developed by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC). OSHA requires employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The plan should include an assessment of risk based upon employee exposure levels to COVID-19 in the workplace, which will vary based upon the workplace and job. For example, a risk assessment will be different for an employee returning to an office setting (low risk) versus the risk to a worker on an assembly line (high risk). The risk assessment should also consider federal, state, and local laws to address high-risk or vulnerable employees.
  2. Create and disseminate a return-to-work communication that outlines all the steps you are taking to comply with the recommended safety protocols, including policies to address high-risk and vulnerable employees.
  3. As noted above, each state is approaching return-to-work situations differently. You should carefully assess the guidelines that apply to your operation before making any decisions regarding an employee’s refusal to return to work or continued employment.
  4. Continue to permit alternative work, including telework or work at an alternative location where feasible, and providing partial employment and work share opportunities.
  5. Clearly communicate the details of any return-to-work offer in writing (start date, hours to be worked, wages, job duties and location). 
  6. If a return-to-work offer is rejected, develop a plan to address for-cause job refusals, including consideration of high-risk and vulnerable employees.
  7. If required, report any refusal to return to work to your state unemployment agency.
  8. Be sure to document an individual’s refusal of an offer to return to work. This is particularly important if you have taken out loans under the Paycheck Protection Program. The Treasury Department recently indicated that an employer’s loan forgiveness amount will not be reduced if the employer’s written offer to rehire is refused.
  9. If an employee expresses concern about returning to work, keep the lines of communication open and try to determine and address any concerns, if possible. If applicable, engage in the interactive process to determine whether a reasonable accommodation can be made before requiring the employee to return to work.
  10. Consider implementing a short-time compensation (STC) program, often called a shared work or workshare program, which allows employers to retain employees on a reduced schedule, while unemployment benefits make up some of the difference in income. 

What Else Should Employers Do?

As you begin the process of reopening, you may want to familiarize yourself with several alerts courtesy of Fisher Phillips LLP : 

FFCRA Documentation and Record Keeping: What Employers Need to Know

April 06 - Posted at 1:31 PM Tagged: , , , , , , , , , ,
The close of March and open of April 2020 brought in both Q2 of 2020 and some updated guidance from the U.S. Department of Labor (DOL) and the U.S. Internal Revenue Service (IRS) on the documentation needed for leaves under the Families First Coronavirus Response Act (FFCRA). The DOL’s Regulations, called a temporary rule, include substantial guidance related to the information an employer should (and in some cases must) obtain from an employee requesting leave. The DOL updated its FFCRA Questions and Answers (DOL Q&As) as well in conjunction with its Regulations.

When read in conjunction with the FAQs published by the IRS on March 31, 2020 (“IRS FAQs”) regarding the employer tax credits associated with paid FFCRA leave, the DOL’s Regulations answer some questions, but leave others unanswered. Somewhat surprisingly, the Regulations do not mention specific documentation for certain types of leave available under FFCRA, such as a copy of the doctor’s order or advice to quarantine or isolate. Any records that are required must be retained by the employer for a period of four years. 

Records Related to Small Employer Exemption

If a small employer decides to deny emergency paid sick leave or expanded family and medical leave to an employee whose child’s school or place of care is closed, or whose childcare provider is unavailable (which is the only type of leave a small employer can deny), the employer must document the basis for the exception. 

Although the employer should not send this documentation to the DOL, it should retain such records for its own files.

Information Supporting Reasons for Leave

The Regulations require that employees requesting leave provide their employers a “signed statement,” in addition to the documentation (and information) noted below, which must contain the following: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. The Regulations also outline what an employee must provide his or her employer for each qualifying reason for leave. The information required for each qualifying reason is summarized below.
 
  • Leave because of a federal, state, or local quarantine or isolation order related to COVID-19. The employee must supply the employer with the name of the government entity that issued the order.
  • Leave because a health care provider advised the employee to quarantine or self-isolate due to concerns related to COVID-19. The employee must supply the employer with the “name of the health care provider who advised” the employee to quarantine or self-isolate due to concerns related to COVID-19. Note that these “concerns” are limited to three COVID-19-related situations:  (1) the employee has COVID-19; (2) the employee may have COVID-19; or (3) the employee is particularly vulnerable to COVID-19. Although the Regulations do not state it is required, employers may want to at least include these situations on their request forms to show that the leave is being requested – and provided – for a covered reason.
  • Leave because the employee is caring for an individual who is subject to an order by a federal, state, or local official to quarantine or self-isolate or who has been advised by a health care provider to quarantine or self-isolate due to concerns related to COVID-19. The “individual” to whom the employee is providing care must be an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-isolated. For this type of leave, ‘‘individual’’ does not include persons with whom the employee has no personal relationship. Although not specifically required by the Regulations, this detailed definition implies the need to request information regarding the relationship, and the collection of such information is supported by the IRS FAQs. As with similar leaves for the employee’s own circumstances, the employee must supply the employer with the name of the governmental official or entity that issued the quarantine or isolation order or the name of the health care provider who advised the individual for whom the employee is caring to self-quarantine due to concerns related to COVID-19. If the leave relates to advice from a health care provider, the same limited “concerns” noted above also apply to this form of leave, and employers may want – at a minimum – to include that list on their request forms to show that the leave is being requested for a covered reason.
  • Leave because the employee is caring for his/her son or daughter whose school, place of care or childcare provider has been closed, or the childcare provider of such son or daughter is unavailable, for reasons related to COVID-19. An employee must supply the employer with (1) the name of the son or daughter for whom the employee is caring; (2) the name of the school, place of care or childcare provider that has closed or become unavailable; and, (3) a representation that no other suitable person will be caring for the child during the leave.
    • NOTE: The answer to IRS FAQ No.44 notes that, in order to receive a tax credit for the paid sick leave or expanded family and medical leave for this reason, if the child is older than 14 and the leave is during daylight hours, the employee must provide a statement that special circumstances exist requiring the employee to provide care.
The Regulations do not list any additional information required for the purpose of a leave taken because the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

The Regulations state that employers may not require documentation beyond what is allowed for by the Regulations. In addition to the information specified above, the Regulations state generally, that employers may also request additional information or documentation needed to support a request for tax credits pursuant to the FFCRA. According to the IRS, employers are not required to provide leave if employees requesting leave fail to provide “materials sufficient to support the applicable tax credit.” Taken together, the Regulations and the IRS FAQs suggest that employers can require the information specifically listed under the FCCRA Regulations and any specific information that the IRS requires for a tax credit (such as the information noted above concerning children older than 14). Requiring anything beyond those categories potentially violates the FFCRA.

Notably, if an employee fails to provide the required information or documentation, the employer must provide that employee an opportunity to correct the error and provide the required documentation before denying the request for leave.

What Employers Need to Keep (and for How Long)

An employer is required to retain all documentation provided to support the need for leave for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his or her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain such information for four years also. Similarly, if an employer denies an employee’s request for leave pursuant to the small business exemption, the employer must document its authorized officer’s determination that the criteria for that exemption are satisfied and retain such documentation for four years.

The Regulations and the IRS FAQs also explain what documents the employer should create and retain to support its claim for tax credits from the IRS. Employers must maintain the following records for at least four years: 
 
  1. Documentation to show how the employer determined the amount of emergency paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including “records of work, telework and qualified sick leave and qualified family leave;”
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
  3. Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
  4. Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
  5. Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.
Although the DOL’s Regulations and the IRS’s FAQs appear to be in agreement regarding the documentation needed to support an employer’s claim for tax credits from the IRS, we expect more detail from the IRS on this topic in the near future. We hope the additional detail from the IRS provides more clarity on categories 1, 2, and 5 of the records that need to be retained by employers. A more detailed explanation of how employers may claim tax credits, and what information will be needed, can be found at https://www.irs.gov/forms-pubs/about-form-7200 and https://www.irs.gov/pub/irs-drop/n-20-21.pdf.

We continue to monitor future guidance from the DOL and IRS and other legislation that may affect employers during this challenging time. 

DOL Throws COVID-19 Curveball In Latest Guidance Suggesting Shut Down Employees Won’t Qualify For Leave

March 30 - Posted at 10:19 AM Tagged: , , , , , , , , , ,

The Department of Labor (DOL) continues to update its guidance document on implementation of the Families First Coronavirus Response Act (FFCRA), and the latest update caught many employers by surprise. The updated document released by the agency appears to suggest that employees who cannot work because their businesses are subject to a government shutdown order or they are ordered to shelter at home will not qualify for Emergency Paid Sick Leave or Emergency FMLA. This clarification should now be integrated into employers’ plans for developing best practices and compliance tools to deal with the rapidly changing situation.

Last week, the DOL issued FAQs that covered the effective date of the FFCRA (April 1), how to calculate whether your business meets the 500-employee threshold, whether the law will be retroactive in nature, and how the Emergency FMLA and Emergency Paid Sick Leave provisions should be applied in leave situations caused by school closures. In the latest update, DOL covered several additional issues you will want to review to ensure compliance. 

Employees Forced Home By Shutdown Orders Alone Excluded From Paid Leave?

The DOL’s guidance appears to suggest that if employers send home workers and stop paying them, these workers are not entitled to paid sick leave or expanded family and medical leave if the “employer closes [the] worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.” This would be true whether the closure occurs before or after April 1st, the effective date of the law, and even if workers requested leave prior to the closure.

Similarly, if an employer closes its business while workers are already out on Emergency Paid Sick Leave or Emergency FMLA, it must still pay for any paid sick leave or expanded family and medical leave used before the closure, but it has no further obligation to provide Emergency Paid Sick Leave or Emergency FMLA as of the date of the closure.

Instead, the agency directs workers to determine whether they are eligible for unemployment insurance benefits, pointing them to their state workforce agency or unemployment insurance office for specific eligibility questions. The guidance also reminds workers that they will not be eligible for unemployment insurance if their employer is still paying them pursuant to a paid leave policy or state or local requirements.

Furlough v. Layoff: Distinction Without A Difference?

Questions have also been raised over the difference between “furloughs” and “layoffs.” For purposes of paid sick leave or emergency family and medical leave, DOL’s updated comments appear to suggest that the agency equates “furlough” to any layoff where employees are no longer working. And, as explained above, furloughed employees are not entitled to Emergency Paid Sick Leave or Emergency FMLA regardless of whether their employment has officially ended.

Certification Confusion

As of late Thursday (3/26/2020), the FAQs posted on the DOL’s website instructed all employers to maintain detailed documentation about any Emergency Paid Sick Leave or Emergency FMLA taken by their workers in order to later prove eligibility for tax credit reimbursement. But, by late Friday evening (3/27/2020), the answer changed. The DOL now says employers must collect documentation in support of leave “as specified in applicable IRS forms, instructions, and information.” To date, the IRS has not yet released any such certification forms.

The DOL also says that employers can require workers to provide additional documentation in support of Emergency FMLA taken to care for children whose school or place of care is closed, or if a child care provider is unavailable, due to COVID-19-related reasons.  This could include a notice of closure or unavailability from a school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed from an employee or official of the school, place of care, or child care provider.  

The Reality Of Telework

The DOL also provided a series of questions and answers addressing the increasing reality of compulsory telework around the nation and its interplay with FFCRA benefits. The agency indicates that employers can adjust typical work schedules to accommodate remote workers, and so long as the employees are able work their regularly scheduled hours, such workers would not be eligible for Emergency FMLA or Emergency Paid Sick Leave.

But, if a worker is unable to work remotely or otherwise perform work the required hours because of one of the qualifying reasons, then the employee would be entitled to take Emergency Paid Sick Leave. Similarly, if because of COVID-19 related reasons an employee is unable to perform teleworking tasks or work the required teleworking hours because of a need to care for a child whose school or place of care is closed, the worker would be entitled to take Emergency FMLA.

Intermittent Leave

Finally, the DOL confirmed that employees may be able to take Emergency FMLA or Emergency Paid Sick Leave intermittently while teleworking – if the employer agrees. If an employee is unable to telework their normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act, an employer may agree to allow an employee to take paid sick leave on an intermittent basis while teleworking. Similarly, if someone is prevented from teleworking their normal schedule of hours because they need to care for a child whose school or place of care is closed, or their child care provider is unavailable because of COVID-19 related reasons, an employer may allow the employee to take Emergency FMLA leave intermittently while teleworking.

Intermittent leave can be taken in any increment, provided that the employer and employee agree. For example, if you agree on a 90-minute increment, an employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking. “The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs,” the DOL’s updated Q&A says, “and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.”

As for intermittent leave for those workers able to work at a job site, this would depend on the reason the employee is taking the leave and whether the employer agrees. Emergency Paid Sick Leave in non-telework situations must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because an employee:

  • Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • Is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Once paid sick leave for one or more of these qualifying reasons begins in a non-teleworking situation, employees must continue to take paid sick leave each day until they either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because FFRCA’s intent is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

However, if an employee and employer agree in non-telework situations, Emergency Paid Sick Leave can be taken intermittently to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. Similarly, Emergency FMLA can be available in such a situation with an employer’s permission and when an employer can agree upon such a schedule with a worker.

Conclusion

While much confusion remains, and further clarity on these and other points will need to be made by DOL, this updated guidance begins to flesh out some of the more complicated issues that have been vexing those employers trying to figure out how to comply with the new law come April 1, 2020. Still, you should expect further revisions and clarifications as the agency – and employers – begin the process of implementing this unprecedented, new law. You should not be surprised if you see the FP COVID-19 Taskforce publish additional explanations on this and other aspects of the CARES Act.

We will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate.

Two items to bring to your attention today:

1. Latest COVID-19 relief bill was passed by Senate last  night. This bill was passed to help funnel funds into the US economy to assist workers and businesses survive the pandemic. The bill has not yet passed the House or been signed by the President. We are working on a summary of key points and will get those out once it’s though the house.

2. FFCRA Poster- The DOL published a Families First    Coronavirus Response Act notice you are required to post. You can download the poster here. 
 
When sharing electronically with staff, you may wish to remind them that it does not currently appear that county-required “stay at home” requirements qualify as a “quarantine or isolation order”. 
 
 Below we condensed and included some of the questions & answers the DOL provided regarding the posting.  Call us with any questions. 
 
Q. Where do I post this notice? If most of my workforce is teleworking, do I electronically “post” this notice?
 
Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.
 
Q. Do I have to post this notice in other languages that my employees speak? Where can I get the notice in other languages?
 
You are not required to post this notice in multiple languages, but the Department of Labor (Department) is working to translate it into other languages.
 
Q. Do I have to share this notice with recently laid-off individuals or new applicants?
 
No, the FFCRA requirements explained on this notice apply only to current employees, including new hires.
 
Q. I am a small business owner. Do I have to post this notice?
 
Yes. All employers covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA (i.e., certain public sector employers and private sector employers with fewer than 500 employees) are required to post this notice.
 
Q. Our employees must report to our main office headquarters each morning and then go off to work at our different worksite locations.  Do we have to post this notice at all of our different worksite locations?
 
The notice needs to be displayed in a conspicuous place where employees can see it. If they are able to see it at the main office, it is not necessary to display the notice at your different worksite locations.

Q. Our company has many buildings. Our employees report directly to the building where they work, and there is no requirement that they first report to our main office prior to commencing work. Do I have to post this notice in each of our buildings?

Yes. Where an employer has employees reporting directly to work in several different buildings, the employer must post all required federal notices in each building, even if the buildings are located in the same general vicinity (e.g., in an industrial park or on a campus).

Transparency is a Must in the Electronic Age

March 07 - Posted at 3:01 PM Tagged: , , , , , , , , , , , , , ,

The infamous internal memo concerning eliminating telework at Yahoo was never intended for public release. At the top of the memo the call for privacy was clearly defined as “Proprietary and Confidential Information- Do Not Forward”. However, despite Yahoo’s directive, the memo was leaked on a blog post on February 22, 2013. This leak resulted in a lot of online attention – most of it bad. But it is not the first time a firm’s information has been leaked online and it will not be the last.

 

Recently, a Groupon CEO tweeted “I was fired today”. As a British entertainment retailer was announcing that it was laying off nearly 200 employees, a member of the company’s social media team took to Twitter and posted “We’re tweeting live from HR where we’re all being fired! Exciting!!”.

 

It is an aspect of the business world now. From layoffs to policy changes, decisions and information that was intended only for the eyes of your staff may actually be shared with the world via social media now.

 

The question- what is management to do?

 

Be Transparent and Proactive

 

To be transparent is to be clear and concise about expected or even suspected changes that have the potential to be controversial and could cause issues internally with your staff. Employer privacy is very limited and you can not realistically control what someone posts on their blog, Facebook, or Twitter account. Corporate bad news has a way of seeping into the limelight online.

 

“In the era of social medial and social sharing there’s almost no such thing as a truly internal e-mail announcement,” said Curtis Midkiff, director of social strategy and engagement at SHRM. “There are ways to share confidential information with your employees, but e-mail may not be the most appropriate because it is not a truly private form of communication. You can put as may disclaimers as you want, but when you push send…you always have to be prepared for it to fall in the wrong hands. You should almost pre plan that the e-mail may be seen by unintended audiences.”

 

One way to pre plan and be proactive is to break the news on social media sites yourself first. For example, Zappos CEO often tweets memos to employees from his Zappos Twitter account. He did so a few years ago when the company announced layoffs.

 

Another good rule of thumb? Try to limit surprises by including workers in decision early on, if at all possible. There are different obligations depending on if the company is a public or privately held company, but the more input that employees feel they have the better they will handle change in the long run.

 

Companies can try to soften the blow of bad news by keeping employees in the loop and telling them that change is coming. They can educate their employees on the process so that when the memo actually comes out, they are expecting it and do not freak out and leak it online.

 

Bad news is never good news and you can strive to be as transparent as possible with information. However, business leaders often have to make difficult and unpopular decisions and it can, in the end, become difficult to manage the emotions or reaction of one employee.

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