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How To Balance School Re-Openings And COVID-19 Workplace Leave: FAQs For Employers

August 28 - Posted at 11:00 AM Tagged: , , , , , , , , , ,

As the summer draws to a close, schools are announcing their re-opening plans, which vary widely across states and localities. Some schools plan to remain open several days a week and direct students to attend remotely the other days. Others will split classes into morning and afternoon sessions, allowing students attending in the morning to participate remotely at home for the rest of day and vice versa. Still others will require physical attendance at all times, while some will choose to operate entirely under a remote learning model.

In light of these different reopening plans, employers need to understand how the Families First Coronavirus Response Act (FFCRA) affects the leave rights of employees for each of these different types of school schedules. The below serves as a list of answers to frequently asked questions related to the issues you could face as schools begin to reopen.  

The Basics: FFCRA Leave Benefits For Working Parents

Under the FFCRA, eligible employees are entitled to Emergency Paid Sick Leave (EPSL) and/or expanded family and medical leave (EFML) if they are unable to work or telework because they need to care for their son or daughter if (a) the child’s school or place of care is closed, or (b) the child care provider is unavailable, due to COVID-19-related reasons. The FFCRA regulations provide that an employee may take leave to care for their child only when the employee needs to, and actually is, caring for the child. The Department of Labor (DOL) has advised that “generally, an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian, or the usual child care provider — is available to provide the care the employee’s child needs.”

Frequently Asked Questions

1. Is a child’s school or place of care deemed “closed” for purposes of the FFCRA if it has moved to online instruction or to another model in which children are required to complete assignments at home?
Yes. If the physical location where an employee’s child received instruction or care is closed, the school or place of care is deemed “closed” for purposes of the EPSL and EFML. The DOL has instructed that this is true even if some or all instruction is being provided online or whether, through another format such as “distance learning,” the child is still expected or required to complete assignments. But this seemingly does not contemplate a hybrid model (discussed below) and likely pertains only to those circumstances where the child is not reporting to a physical location. Also note that in order to be eligible for FFCRA leave, employees must still certify that there is no other suitable person that can care for the child.

2. Is an employee entitled to FFCRA leave if they choose to keep the child at home or have the child homeschooled even though the child’s school is open?
No. The DOL has stated that employees do not need to take leave if their usual child care provider is available to provide care. But if the school is operating on a reduced capacity due to COVID-19, which then necessitates remote learning for the child, FFCRA leave could be available. See DOL guidance on summer camps

3. Would an employee qualify for FFCRA leave if their child’s school is open but the employee chooses remote learning based on a doctor’s recommendation due to the child’s vulnerability to COVID-19?
EFMLA is likely not available to the employee because the child’s school is not closed. The employee might be eligible for EPSL if they can demonstrate that they are taking leave to care for a person who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 (permitted reason #4 under EPSL). It is unclear however, whether a recommendation for remote learning is the same as a recommended self-quarantine for purposes of the FFCRA.

4. Will employees be eligible for FFCRA leave if a child’s school is operating on a hybrid model (whereby children are to alternate between physical attendance and remote learning)?
Likely yes. While this scenario is not specifically addressed in the statute or DOL guidance, one would argue that the child’s school is technically “closed” to that child on the days when the child is required to participate via remote learning. Thus, if the employee cannot work or telework during those days, they should qualify for FFCRA leave.

It is uncertain, however, whether a parent may take the leave consecutively or intermittently to coincide with the days and times the child is home remote learning. If the child’s school requires them to attend school daily (e.g., child attends school half of the day and spends the other half remote learning), leave is likely to be taken consecutively. If, on the other hand, the child’s schedule requires the child to physically attend school only on certain days of the week, leave is likely to be taken intermittently. Note that while the DOL regulations mandate employer consent for intermittent leave, a New York federal court recently struck out this requirement as unreasonable.

5. Would an employee qualify for FFCRA leave if the child’s school is open but the child’s before or after school program is closed?
Yes. The DOL defines a “place of care” as a physical location in which care is provided for the child. The physical location does not need to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.

6. Can an employer deny FFCRA leave to an employee who previously teleworked while the child’s school was closed but intends to request leave if the child’s school remains closed for the fall?
No. The DOL has made clear that simply because an employee has been teleworking despite having their children at home does not mean the employee is prevented from now taking leave to care for the child whose school is closed for a COVID-19-related reason.

7. Can more than one parent take paid sick leave or expanded family and medical leave simultaneously to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?
No. An employee may take EPSL or EFML leave to care for their child only when they need to, and actually are, caring for the child if they are unable to work or telework as a result of providing care. Generally, employees do not need to take such leave if a co-parent, co-guardian, or the usual child care provider is available to provide the care the child needs.

8. Can an employee take paid FFCRA leave to care for a child who is 18 years old or older?
It depends. EPSL and EFML leave may only be taken to care for an employee’s non-disabled child if they are under the age of 18. If the employee’s child is 18 years of age or older with a disability and cannot care for themselves due to that disability, the employee may take EPSL and EFML leave to care for the child if their school or place of care is closed or the child care provider is unavailable due to COVID-19-related reasons and the employee is unable to work or telework as a result. Additionally, EPSL is available to care for an individual who is subject to a federal, state, or local 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. If an employee has a need to care for a child age 18 or older who needs care for these circumstances, the employee may take EPSL if they are unable to work or telework as a result of providing care. But in no event may the employee’s total paid sick leave exceed two weeks.

9. Can an employee use EPSL for child care purposes if the employee already used up their 80 hours of EPSL for other permitted purposes?
No. The DOL regulations state that employees are entitled to only a one-time use of 80 hours of EPSL, regardless of the reason. However, if an employee has not exhausted their full EPSL allotment, they may use the remaining time for other permitted reasons.

10. If a new employee has used up their EPSL leave allotment while employed at their previous employer, are they entitled to another 80 hours of EPSL leave with the new employer?
No. The DOL regulations specify that any person is limited to a total of 80 hours of EPSL. An employee who has taken all such leave and then changes employers is not entitled to additional EPSL from their new employer. However, an employee who has taken some (but fewer than 80 hours of) EPSL and then changes employers is entitled to the remaining portion of such leave from their new employer, but only if the new employer is covered by the FFCRA.

11. Can employees use EFML leave if they have already exhausted all of their FMLA leave allotment for the benefit year?
No. An employee may only take a total of 12 workweeks for FMLA or EFMLA reasons during the employer’s designated benefit year.

12. Does EFML contain the same limitation contained in the FMLA that requires spouses who work for the same employer to share the 12 weeks of leave (instead of each getting 12 weeks)?
No. Under 29 CFR 201(b), spouses who work for the same employer can be required to share a combined 12 weeks of FMLA leave to bond with their new child or care for their own parent with a serious health condition. The EFMLA does not provide for the same carveout. But keep in mind that while both employees who work for the same employer would each be eligible for EFMLA leave, they would likely not be able to both take leave to care for their child since they have to certify that there is not alternative suitable caregiver. 

13. What supporting documents must employees provide to their employers for FFCRA purposes?
When requesting EPSL or EFML leave, employees must provide the following information to their employers, either orally or in writing:

  • Employee’s name;
  • The date(s) for which employee requests leave;
  • The reason for leave; and
  • A statement that the employee is unable to work because of a FFCRA qualifying reason.

If the employee requests leave because they are subject to a quarantine or isolation order or to care for an individual subject to such an order, they should additionally provide the name of the government entity that issued the order. If the employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, they should also provide the name of the health care provider who gave the advice.

If the employee requests leave to care for a child whose school or place of care is closed, or child care provider is unavailable, they must also provide:

  • The name of the child;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement that no other suitable person is available to care for the child.

Notably, a New York federal court recently held that supporting documentation may not be required as a precondition for FFCRA leave. Thus, employers should ensure documentation is not required to commence the leave under the FFCRA. Supporting documentation can be submitted after the leave has commenced.

Labor Department Issues Guidance On Tracking Employees’ Teleworking Hours

August 27 - Posted at 11:27 AM Tagged: , , , , , ,

The U.S. Department of Labor just released a Field Assistance Bulletin (FAB) to provide employers with guidance regarding their wage and hour obligations to track the hours of employees working remotely or teleworking. Importantly, while the August 24 FAB directly speaks to employers’ Fair Labor Standards Act (FLSA) requirements under remote work arrangements that have arisen amid COVID-19, it also applies to all other telework or remote work arrangements. This guidance may be especially useful to employers who are new to the remote work world.

The Basics: What Does Federal Law Require?

As a reminder, the FLSA requires that an employer compensate employees for all hours it “suffers or permits” them to work. This means that employees must be compensated for time that may be unscheduled, but during which the employee still performs work. Thus, if an employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. 

A challenge for employers is preventing work that it does not want performed. Notably, the employer cannot rely exclusively on its stated policy. Indeed, the guidance notes that it is not easy to define when an employer “has reason to believe that work is being performed.” The FAB reinforces that employers are not required to compensate employees for work they do not know about and have no reason to know about. 

New Challenges Raised By Remote Work

Rather, employers are only required to compensate employees for hours worked that are based on “actual knowledge” or “constructive knowledge” of that work. Employers will be deemed to have “actual knowledge” of employees’ regularly scheduled hours and through employee reports or other notification “actual knowledge” of the hours worked. Employers might be deemed to have “constructive knowledge” if it could have acquired information regarding additional work done through the exercise of “reasonable diligence.” 

Importantly, the FAB clarifies that “reasonable diligence” is limited to what the employer should have known, not what it “could have known.” This means employers are not necessarily required to “cross-reference” phone records or otherwise review other non-payroll records to determine whether or not employees were working beyond their scheduled hours, especially during these remote work times. 

What Should Employers Do?

Instead, you should provide employees with a process and procedure to report hours worked, particularly to ensure that unscheduled hours also are recorded. If the employee fails to utilize the process or procedure, you might be able to make an argument that the employee has prevented you from satisfying your obligation to compensate employees and thwarted your efforts to prevent unwanted work. Thus, you may be able to avoid FLSA liability for failing to compensate employees for work performed that you did not know about and that the employee didn’t advise you about. 

You should review your remote work and telework policies to ensure that they provide clear guidance to employees about your expectations regarding schedules and working hours. You should also implement a policy or procedure by which employees can report work that was performed outside their regularly scheduled time frames or their recorded hours.

Conclusion

Overall, you should exercise reasonable diligence to ensure that you capture all hours worked (whether scheduled or not, just as they must for employees working onsite). But you can take some solace in the USDOL’s guidance reminding us all that “constructive knowledge” is not without limits.

4 Common COVID-19 Misunderstandings That Could Place Your Company At Legal Risk

August 23 - Posted at 12:23 PM Tagged: , , , , , , , , ,

Throughout the COVID-19 pandemic, the Centers for Disease Control and Prevention has issued constantly changing guidance for employers that many view as complex, confusing, and impractical. In its perplexing web of guidelines, the CDC recommends that companies take several actions to protect workers from contracting COVID-19, like self-isolating sick employees, quarantining exposed employees, screening employees for symptoms prior to work, and installing partitions to protect public-facing employees.

Given their complexity, some of these directives are often not fully understood by companies. Further complicating matters, many of the recommendations have never been previously undertaken by employers, leading to misapplication. Worst of all, other guidelines are simply not feasible for some employers, leaving them with the tough decision of not following the CDC directive in order to stay in business.

Unfortunately, ignoring or misunderstanding these confusing guidelines, like the four commonly misinterpreted guidance listed below, could lead to legal risks for your company.

1. Returning Exposed Employees To Work Too Early After A Negative Test

Of the innumerable companies that have sought our assistance during the COVID-19 pandemic, the most common misunderstanding of CDC guidance we see involves returning to work employees who have been directly exposed to COVID-19 too early following a negative test. Employers falling under the CDC’s general business guidance (not critical infrastructure employers) should quarantine employees for 14 days since their last direct exposure to a confirmed or suspected COVID-19 case, defined as being within 6 feet of the infected person, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, until the infected person is released from self-isolation (“6-15-48”).

Critically, the 14-day quarantine period cannot be cut short by a negative test due to the lengthy incubation period of COVID-19. This is an often-misunderstood CDC guideline, which even the agency has recognized:

Note that recommendations for discontinuing isolation in persons known to be infected with SARS-CoV-2 could, in some circumstances, appear to conflict with recommendations on when to discontinue quarantine for persons known to have been exposed to SARS-CoV-2. CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.

Thus, an exposed employee cannot return to work during the 14-day quarantine period following a negative COVID-19 test received on, for example, day three, seven, or 12 of that period. Returning exposed employees too early due to a negative test could lead to preventable COVID-19 infections if co-workers are exposed to individuals who should be quarantined and develop the virus after a negative test.

2. Miscalculating The Appropriate Quarantine Period For Those Exposed To An Infected Household Member

Along those same lines, employers often misunderstand CDC guidance when calculating the length of the quarantine period for a worker who has been exposed to an infected spouse or household member. The key here is that the 14-day quarantine period does not begin until the last day the employee was directly exposed, using the 6-15-48 analysis above, to the spouse or household member prior to the infected person being released from self-isolation. Thus, if the employee is directly exposed to the spouse or household member on days one through 10, the quarantine period does not begin until day 10.

Accordingly, the worker may ultimately miss 24 days of work, instead of 14, if directly exposed to the spouse or household member every day until the spouse is released from self-isolation. The CDC addresses this confusing guidance here, noting that the exposed employee should stay home until 14 days have elapsed after the last exposure.

3. Not Notifying Employees Of A Confirmed COVID-19 Case In Your Workplace

The Fisher Phillips COVID-19 litigation tracker has been following closely the number of lawsuits filed with COVID-19-related claims. The prevalence of claims relating to an employer’s failure to notify employees of a confirmed case of COVID-19 in the workplace is a troubling trend. Throughout the pandemic, transparency by employers has been a critical tool in maintaining positive employee morale. Failure to do so can lead to negative consequences, including not only lawsuits, but Occupational Safety and Health Administration (OSHA) complaints and employees refusing to work, as well.

Although it may not be clear to some employers, the CDC recommends not only informing directly exposed employees (6-15-48) of a confirmed COVID-19 case in the workplace, but also to inform other “employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).” The CDC defines “possible exposure” to COVID-19 as those who do not meet the 6-15-48 parameters. Thus, when a confirmed COVID-19 case occurs in your workplace, remember to inform those employees who worked near the infected worker (e.g., the same hallway, area, or corridor), even though they weren’t directly exposed.

4. Incorrectly Believing That Wearing Face Coverings Trumps The 6-15-48 Analysis

When analyzing whether an employee has been exposed to an infected co-worker, employers often misconstrue the impact of wearing face coverings to prevent the spread of the virus. Although the CDC recommends wearing masks to slow the spread of COVID-19, whether employees are wearing masks while directly exposed (6-15-48) to an infected person does not change that analysis. The determination of whether someone should be quarantined for 14 days does not change if the individuals at issue are wearing masks, another point of confusion specifically clarified by the CDC:

Note: This is irrespective of whether the person with COVID-19 or the contact was wearing a mask or whether the contact was wearing respiratory personal protective equipment (PPE).

To ensure the safety of your workers, remember to quarantine all employees who meet the 6-15-48 analysis, even if they were wearing a face covering while exposed.

Legal Risks For Not Following CDC Guidelines

Although CDC guidance is not a law or regulation, such guidelines can be construed by OSHA and the courts as the legal standard that defines what actions a company should take to protect its workers during this unprecedented time. In fact, the Assistant Secretary for the U.S. Department of Labor has already indicated that OSHA could rely upon the general duty clause, which the agency can enforce in the absence of a standard on point, to enforce the CDC’s guidelines for employers on COVID-19.

If your company fails to follow a CDC guideline, it could receive a citation under OSHA’s general duty clause and, if classified as willful (e.g., reckless disregard for, or deliberate indifference towards, employee safety), the maximum penalty for each citation would be $134,937. Keep in mind that state OSHA plans, not regulated by the federal government, can adopt emergency COVID-19 regulations, which have the same impact as any other OSHA regulation, and enforce those against employers who fail to comply with them. Virginia recently became the first state adopt such a regulation, which includes notification requirements that vary from those of the CDC.

Although it is an evolving area of the law, claimants’ counsel will argue to courts that the violation of a CDC guideline is evidence of negligence, willfulness, or intent on behalf of the employer. Plaintiffs’ counsel will assert that the CDC guideline has established the level of care or duty owed to an employee or other claimant, and that the duty was breached by the company.

This argument will be made regardless of the jurisdiction, venue, or type of claim, including workers’ compensation claims, claims filed directly by an employee seeking recovery above and beyond workers’ compensation benefits, and those filed by third-parties (e.g. visitors, employee spouses) against companies. To protect your company from such claims, remember to follow these steps to minimize your exposure.

Can Employers Use COVID-19 Waivers To Limit Liability?

May 28 - Posted at 10:00 AM Tagged: , , , , , , ,

With employees returning to work and companies reopening their doors to customers, employers are looking for ways to limit liability related to potential COVID-19 cases contracted in the workplace. To do so, many are considering waivers for not only their employees, but also for customers. Such waivers, however, are somewhat limited in their effectiveness and employers should consider the pros and cons before attempting to implement them. You may also want to consider an alternate strategy that may offer you some of the assurances you seek without many of the negatives associated with waivers.

No waiver or other attempt at limiting liability can replace the need to maintain a safe workplace. You should start by ensuring you are in strict compliance with local orders, state regulations, and guidance from government agencies like the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity Commission (EEOC), and local health authorities.  

What Are Waivers?

The term waiver has more than one meaning. In this context, employers may look to a waiver and releases of liability agreement consisting of a series of contractual provisions to mitigate certain risks of liability. Such an agreement not only includes a waiver clause, but also includes additional protective provisions like clauses for assumption of risks, covenants not to sue, and identification. If enforceable, they would eliminate liability for the risks discussed within.

Employee Waivers

Waiver agreements between employers and employees are traditionally disfavored due to the unequal bargaining power between them, as employers typically have superior bargaining power. In most states, such waivers do not apply to gross negligence or willful, intentional, or wanton conduct, as employers cannot waive such liability.

Employee waivers are even further limited due to workers’ compensation statutes, where states generally require medical expenses, lost wages, and rehabilitation costs be provided to employees injured in the course and scope of their employment. For work-related injuries, employees generally cannot waive their worker’s compensation claims. Although it may be difficult for employees to prove they contracted COVID-19 at work, some states (like California) have created a rebuttable presumption that workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system.

Waiver agreements with employees do not protect employers from OSHA complaints or enforcement action when a workplace is dangerous. However, the president recently signed an executive order directing federal agencies, like OSHA, to make exceptions for employers who attempt in good-faith to follow agency regulations during the COVID-19 pandemic, which may ease some concerns about agency actions.

Practically speaking, waivers may discourage employees from returning to work and hinder restarting operations as a result. They may also result in negative reactions and publicity concerns, as has occurred in several instances across the country already.

But due to the COVID-19 pandemic, it remains unclear whether courts and states will allow employers to enforce waiver agreements in this unprecedented time. Regardless of whether you decide to institute COVID-19 waivers to your returning workforce, you should develop return-to-work plans including steps to train employees on any exposure danger, how to eliminate those dangers, and best practices to stay safe.  

Customer Waivers

Waivers for your customers may limit your company’s liability associated with COVID-19, but they may also hurt your business. Employers must carefully decide if the benefits of liability waivers for customers outweigh their drawbacks for their business. Some positives aspects of customer waivers include that they:

  • May limit or prevent certain liability, like that in common negligence suits.
  • Can highlight safety efforts and communicate risks to your customers.

However, customer waivers have downsides too, as they:

  • Do not apply to willful, intentional, or wanton conduct or gross negligence. Consequently, they are less effective at preventing all forms of negligence claims.
  • Only apply to language specified in the waiver and must be carefully drafted. Broad examples likely will be ineffective.
  • May not apply to entire industries that have a duty to the public in states like California, Colorado, and Washington.
  • May scare customers away to competing businesses or cause them to question the sanitation, safety, or integrity of your business.
  • Could create negative press in conventional news and online.
  • May require refund of membership fees to those clients who refuse to sign.

Evaluating how a waiver will affect your business requires you to look at your industry, business, and geographic area, as well as how your customers or the public will react. Customers generally do not expect to sign a waiver before shopping or dining in a restaurant.  But waivers are common in potentially dangerous activities, like extreme sports, where adding a COVID-19 clause may go unnoticed.  Overall, customer waivers could impact businesses in more ways than simply mitigating their liability, so businesses must first consider potential unintended consequences.

Other Strategies: Notices And Questionnaires

Alternate routes to limiting liability may be more beneficial than waivers for many businesses. Businesses may avoid the potentially ominous effect of forcing customers to sign waivers by using questionnaires or notices.

A questionnaire asks entrants to the premises questions about whether they have any of the symptoms of COVID-19 or were exposed to it. A questionnaire could also communicate the employer’s reasonable actions to comply with government guidelines for sanitation, social distancing, mask wearing, and other efforts that the employer uses to keep their guests and employees safe. This strategy could allow the employer to show it took affirmative steps to exclude sick people from its workplace. 

But businesses still need to consider how their customers will react to such a questionnaire. Implementing a questionnaire may deter some customers who find it an impediment or feel it invades their privacy, while others may feel safer coming to your business because you screen everyone who enters.

Notices provide a more streamlined approach, communicating the same information as a questionnaire about the business’ steps to keep its premises safe, without requiring the individual to physically sign away any perceived rights. Communicating the rules and restrictions without asking questions or for a signature, notices require fewer steps from employers and customers than waivers and questionnaires.

Either approach requires employers to provide a handout or post signage at all entrances to the building that broadcast safety information and reasonable actions and prohibit sick or exposed persons from entering the building. These strategies allow people to feel safer and accept the risks when they enter the workplace.

Choosing A Strategy

Waivers have limited but potentially valuable benefits if enforceable. Employers should weigh those benefits against the potential impact on their business and carefully consider all their options, such as questionnaires or notices that communicate information and allow guests to assume risk.   

No strategy can eliminate a company’s obligation to take reasonable actions to protect its employees and customers. The CDC, OSHA, and state or local authorities publish guidelines and guidance that businesses should follow. Demonstrating you followed such guidance will be the best proof your company acted reasonably in responding to COVID-19 risks.

Whether an employer institutes employee or customer waivers, they should develop written plans to reopen that include training for their employees on these guidelines and that document their efforts to comply. Ignoring these guidelines will make workplaces less safe and potentially expose employers to civil suits and government enforcement actions.

What Should Employers Do?

As you begin the process of reopening, you should familiarize yourself with several alerts from a national labor law firm: 5 Steps To Reopen Your Workplace, According To CDC’s Latest Guidance. You should also keep handy the 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens in the event you learn of a positive case at your workplace. For a more thorough analysis of the many issues you may encounter from a labor and employment perspective, we recommend you review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.

These 3 Numbers Offer A Simple Way To Understand Contact Tracing In The Workplace

May 27 - Posted at 10:49 AM Tagged: , , , , , ,

Perhaps the most challenging aspect of encountering a suspected or confirmed case of COVID-19 among your employees as you reopen your business is identifying those employees who worked near the infected worker – and thus must also be quarantined. Luckily, there is a simple numerical sequence you can remember that will enable you to follow the CDC contact tracing guidelines for general businesses: 6-15-48.

You will need infected employees to identify others who worked within 6 feet of them, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, or later.

Remembering these three numbers will offer you an easy way to navigate the CDC’s often complex and confusing guidance.

Determine Who Worked Within 6 Feet Of The Infected Employee

The first step requires you to inquire with the infected employee about those who worked within close proximity of them. The CDC generally defines a direct exposure to COVID-19 as an individual who is a household member with an infected person, intimate partner with an infected person, or an individual who has had close contact (< 6 feet) for a prolonged period of time with an infected individual.

For Those Who Worked Within 6 Feet, Was It For 15 Minutes Or More?

Another challenge for employers during this pandemic has been the constantly changing guidance from government agencies on how to address various workplace topics. The CDC’s definition of “prolonged period of time” is no exception. The current CDC guidance on this issue states that “recommendations vary on the length of time of exposure, but 15 minutes of close exposure can be used as an operational definition.” Thus, after identifying the employees who worked within six feet of the individual worker, you should determine if any remained within that proximity of the sick employee for 15 minutes or more.

Was The Direct Exposure For A Prolonged Period Of Time During The 48 Hours Before The Infected Employee Exhibit Symptoms Or Later?

The CDC defines the key period of time for determining if an employee was exposed to an infected worker as the “period from 48 hours before symptoms onset until” the infected employee is cleared to discontinue self-isolation. For purposes of contact tracing, the key here is to look at the 48 hours before the sick employee had symptoms and was still working in the workplace. If a sick employee worked on Monday and Tuesday, started showing symptoms at 8:00 a.m. on Wednesday, and immediately left the workplace, you should look for employees working near them starting at 8:00 a.m. on Monday.

Ask The 6-15-48 Employees To Remain Home For At Least 14 Days

After following the above three steps, you have identified the 6-15-48 employees. Although asking the sick employee to identify these workers is likely the best contact tracing tool, you may want to check video surveillance to confirm the accuracy of the 6-15-48 employees the sick worker identifies.

Once identified, the CDC guidance for non-critical businesses provides that the 6-15-48 employees should take the following steps:

  • Stay home until 14 days after last exposure and maintain social distance (at least six feet) from others at all times
  • Self-monitor for symptoms
    • Check temperature twice a day
    • Watch for fever, cough, or shortness of breath
  • Avoid contact with people at higher risk for severe illness(unless they live in the same home and had same exposure)
  • Follow CDC guidance if symptoms develop

If your company is part of the nation’s critical infrastructure, you may follow different CDC guidelines in lieu of quarantining 6-15-48 employees who are asymptomatic. However, all companies can use the guidance above to identify exposed, or 6-15-48, workers.

Conclusion

As orders allowing businesses to reopen continue to be issued, you will face new legal and practical challenges in the workplace. Addressing confirmed COVID-19 cases in your workplace will unfortunately become reality for many employers. Now is the time to prepare for such an event. This a constantly evolving area, with new guidance being issued nearly every day. 

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 : 

New IRS Guidance Impacting Cafeteria Plan Election Changes and FSA Grace Periods and Rollovers

May 13 - Posted at 3:56 PM Tagged: , , , , , , , , , , , , , , ,

This week the IRS released two new sets of rules impacting Section 125 Cafeteria Plans.  Notice 2020-33 provides permanent rule changes that include an increase in the amount of unused benefits that Health FSA plans may allow plan participants to rollover from one plan year to the next.  Notice 2020-29 provides temporary rules designed to improve employer sponsored group health benefits for eligible employees in response to the coronavirus pandemic.  The relief provided under each notice is optional for employers. Employers who choose to take advantage of any of the offered plan options will be required to notify eligible employees and will eventually be required to execute written plan amendments.

Notice 2020-33 modifies the amount of annual rollover of unused benefits that Health FSA plans may offer to Plan participants.  Up until now, rollovers have been limited to $500 per Plan Year.  The new rule sets the annual rollover limit to 20% of the statutory maximum annual employee Health FSA contribution for the applicable Plan Year.  Because the statutory maximum is indexed for inflation, most years it increases (in mandated increments of $50).  

The notice provides that the increased rollover amount may apply to Plan Years beginning on or after January 1, 2020.  Because the corresponding annual Health FSA employee contribution limit for those Plan Years is $2,750, the annual rollover limit may be increased up to $550.

The relief provided under Notice 2020-29 falls into two major categories, both of which apply only for calendar year 2020.  First, the IRS introduces several significant exceptions to the mid-year change of election rules generally applicable to Section 125 Cafeteria Plans. Second, the notice contains a special grace period which offers Health Flexible Spending Arrangement (FSA) and Dependent Care Assistance Program (DCAP) Participants additional time to incur eligible expenses during 2020.

The temporary exceptions to mid-year participant election change rules for 2020 authorize employers to allow employees who are eligible to participate in a Section 125 Cafeteria Plan to:

  1. make a new election to participate in employer sponsored group health plan coverage if the employee originally declined coverage at open enrollment (depending on if the insurance carrier will allow);
  2. change coverage options previously elected during open enrollment;
  3. drop group coverage for covered family members or themselves if they will be replacing the coverage for the impacted individual immediately with other coverage;
  4. make a prospective election to add, change or drop a Health FSA election; and
  5. make a prospective election to add, change or drop a DCAP election.

None of the above described election changes require compliance with the consistency rules which typically apply for mid-year Section 125 Cafeteria Plan election changes.  They also do not require a specific impact from the coronavirus pandemic for the employee.

Employers have the ability to limit election changes that would otherwise be permissible under the exceptions permitted by Notice 2020-29 so long as the limitations comply with the Section 125 non-discrimination rules.   For allowable Health FSA or DCAP election changes, employers may limit the amount of any election reduction to the amount previously reimbursed by the plan.  Interestingly, even though new elections to make Health FSA and DCAP contributions may not be retroactive, Notice 2020-29 provides that amounts contributed to a Health FSA after a revised mid-year election may be used for any medical expense incurred during the first Plan Year that begins on or after January 1, 2020.

For the election change described in item 3 above, the enrolled employee must make a written attestation that any coverage being dropped is being immediately replaced for the applicable individual.  Employers are allowed to rely on the employee’s written attestation without further documentation unless the employer has actual knowledge that the attestation is false.

The special grace period introduced in Notice 2020-29 allows all Health FSAs and DCAPs with a grace period or Plan Year ending during calendar year 2020 to allow otherwise eligible expenses to be incurred by Plan Participants until as late as December 31, 2020.  This temporary change will provide relief to non-calendar year based plans.  Calendar year Health FSA plans that offer rollovers of unused benefits will not benefit from this change.

The notice does clarify that this special grace period is permitted for non-calendar year Health FSA plans even if the plan provides rollover of unused benefits.  Previous guidance had prohibited Health FSA plans from offering both grace periods and rollovers but Notice 2020-29 provides a limited exception to that rule.

The notice raises one issue for employers to consider before amending their plan to offer the special grace period.  The special grace period will adversely affect the HSA contribution eligibility of individuals with unused Health FSA benefits at the end of the standard grace period or Plan Year for which a special grace period is offered.  This will be of particular importance for employers with employees who may be transitioning into a HDHP group health plan for the first time at open enrollment.

As mentioned above, employers wishing to incorporate any of the allowable changes offered under Notices 2020-29 and 2020-33 will be required to execute written amendments to their Plan Documents and the changes should be reflected in the Plan’s Summary Plan Description and/or a Summary of Material Modification.  Notice 2020-29 requires that any such Plan Amendment must be executed by the Plan Sponsor no later than December 31, 2021.

Notice & Documentation Requirements Under the New Paid Sick and FMLA Leave Law

April 22 - Posted at 2:00 PM Tagged: , , , , , , , , , , ,
Many employers have multiple questions on the requirements for documentation on the new paid leave programs available under the FFCRA, so we have summarized them here for you.
 
Now that you have the ever-changing jist of how the Emergency Paid Sick Leave and Expanded FMLA work, we need to make certain you obtain the correct documentation to ensure you can claim the tax credit.
 

Proper Timing for Requesting Leave

For employees that need to take leave due to school/childcare closures, where the leave is foreseeable, they must provide notice as soon as practical.

When leave is for any other reason, employers can only require notice after the first workday the employee is on leave.   KEEP IN MIND – notice from an employee’s spokesperson, such as a family member, must be accepted if the employee is unable to provide notice personally.
 
What information do you need to collect?
  1. Employees name
  2. Date of leave request
  3. Qualifying reason, and
  4. Oral or written statement that the employee is unable to work due to qualifying reason
Although oral notice is sufficient, you may wish to consider using a leave request form to maximize compliance.
 

What documentation must employee provide to prove need for leave?  

It will depend on the reason for the leave:
  • Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order
  • A health care provider advises an employee to self-quarantine: the name of the health care provider who advised the employee to self-quarantine.
  • Employee caring for an individual subject to a quarantine order or been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the self-quarantine.
If an employee has requested leave to care for a child whose school is closed or childcare is unavailable:
  • Employee must provide the name of the child, name of the school, place of care or child care provider that has become unavailable (keep in mind this could be family or a friend), and a representation that “no other suitable person will be caring for the child during the period the employee is taking leave

Steps to Reopening Your Workplace

April 21 - Posted at 2:40 PM Tagged: , , ,
Yesterday, the CDC released guidance for assisting employers in making decisions to reopen (or reopen for high risk employees) during the COVID-19 pandemic.

Besides continuing to follow recommendations issued by the state and local health departments, you can consider these 5 steps: 

  1. Preliminary Questions Before Reopening

According to the CDC guidance, you should consider three questions when deciding whether to reopen:

  • Are you in a community no longer requiring significant mitigation?
  • Will you be able to limit non-essential employees to those from the local geographic area?
  • Do you have protective measures for employees at higher risk (e.g. teleworking, tasks that minimize contact)?

CDC states you should only consider reopening if you can answer “yes” to all three questions.

  1. Take Recommended Safety Actions

Once you feel comfortable that your organization can satisfy the three preliminary questions, you should next adopt the CDC’s recommended safety actions. They include:

  • Promoting healthy hygiene practices;
  • Intensifying cleaning, disinfection
  • Practice Social Distancing (e.g., small static groups, no large events);
  • Canceling non-essential travel, and encouraging alternative commuting and telework;
  • Spacing out seating (more than six feet) and staggering gathering times;
  • Restricting use of any shared items (phones, tools, etc) and spaces; and
  • Training all staff in the above safety actions
  1. Implement Safeguards for Ongoing Monitoring Of Employees

Next, before reopening, you should implement safeguards for the ongoing monitoring of employees. They include:

  • Encouraging employees who are sick to stay home;
  • Establishing routine, daily employee health checks;
  • Monitoring absenteeism and having flexible time off policies;
  • Having an action plan if a staff member gets COVID-19; (we’ll have a blast next week to address this)
  • Creating and testing emergency communication channels for employees; and
  • Establishing communication with state and local health authorities.
  1. Prepare Your Physical Workspace For Reopening

The final step before you reopen your doors involves preparing your location for the reentry of workers, customers, guests, and other visitors. The CDC has released guidance for cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes. Review this guidance when implementing cleaning procedures at your facilities after shelter-in-place orders are lifted. 

  1. Maintain Vigilance
Your work is not done once you open your doors and welcome back your workers. The CDC recommends that you maintain routine cleaning and disinfection procedures after reopening to reduce the potential for exposure.
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