In the first section of the webinar, questions surrounding human resources (HR) and legal situations were asked to Whitney Brown, HR and legal advisor for Lehr, Middlebrooks, Vreeland & Thompson, P.C.
Q: As a matter of current Federal Employment Law, must employers permit employees to work from home as a result of a COVID-19 diagnosis?
According to Brown, the short answer is no.
“Under the federal Americans with Disabilities Act (ADA), a COVID-19 diagnosis would not be a disability,” says Brown. “For someone to be entitled to a reasonable accommodation, they have to have a disability. However, certain disabled employees may have their condition exacerbated by contracting COVID-19, and those employees may be entitled to disability accommodation.”
Brown says to always remember that when it comes to providing someone with an accommodation for any disability or considering what is and is not reasonable for your workplace, it’s always an individualized, case by case assessment.
As we are all experiencing, business conditions are subject to change and what might have been reasonable two weeks ago may no longer be reasonable.
Q: As a matter of current Federal Employment Law, what should an employer consider prior to agreeing to work from home arrangements?
“Non-exempt workers are paid for time and actually working,” says Brown. “So, it is very important that we’re always communicating to non-exempt employees working remotely that they must report all time worked.”
Brown stresses the importance of clearly communicating with your workforce that you are not setting an ongoing entitlement and that this is something particular to the times we are in.
She adds that you want to apply work from home arrangements in a non-discriminatory way, which does not mean everybody in every position gets to work from home; it simply means that in identifying the individuals who are going to be allowed to work from home that only business justifications are used, such as if most of their workload can be done from home.
Brown also recommends considering how payment and credit card information will be encrypted for those working from home.
Be sure to communicate to employees the rules they should follow while working remotely. Remind them never to save sensitive work information to their personal computer and to keep everything on the company VPN. Brown says to force employees to have strong passwords and educate them on the dangers of phishing scams.
Finally, Brown recommends considering cybersecurity insurance, especially if you’re about to make a large number of your employees work remotely.
Photo: PixabayIf you are drafting a temporary remote worker policy, Brown recommends incorporating the following text into the document:
“Due to the unusual circumstances in our community caused by COVID-19, we are [assigning/permitting] you to work remotely for a temporary period [at your request and/or on a trial basis]. We are [assigning/permitting] remote work at this time, even though some of your job’s usual essential functions may not be able to be completed remotely.”
Q: As a matter of current Federal Employment Law, what should an employer consider if facing a downturn?
“If you are looking at reducing hours in work, for non-exempt employees, this is pretty straightforward,” says Brown. “They only have to be paid for their hours worked. For exempt employees, you generally have to keep them at the same salary, and, of course, if you are going to claim someone is exempt, you always have to pay them at the minimum federal and any applicable state threshold.”
Brown says if you make the assessment that there’s a long term negative impact on your business, you can do a reorganization of job duties, adjust titles and pay accordingly. She says it’s also possible to do across the board cuts, but they need to be done in consultation with the labor council due to the fact that the Department of Labor (DOL) can take a hard look at those and you want to make sure communications about those are consistent.
If you choose to perform a reorganization, Brown says to make sure you identify a long term, good faith reason why the reorganization is necessary, as it can’t be a week to week determination.
Brown says to be aware of any federal Worker Adjustment and Retraining Notification (WARN) Act and any state mini WARN Acts triggers that might affect you.
In general, this will apply to you on the federal level if you have 100 or more full-time workers or enough employees performing 4,000 hours a week.
If you do find yourself in a layoff situation where certain employees will be kept and others won’t, you may want to consider having an attorney analyze and guide you on the evaluative procedures that will be implemented to keep employees.
“In your communications, be decisive, be realistic and do try not to be hurtful,” says Brown.
Q: What is going on with the Families First Coronavirus Response Act?
Brown says on Monday, March 16, there was an amendment to the act that significantly changed it.
The key provisions are that these only apply to employers with fewer than 50 employees. The effective date is not longer than 15 days after the enactment, and these have an automatic self-destruct clause of Dec. 31, 2020.
The first key provision is the Emergency Family and Medical Leave Expansion Act, which is only for employees who are unable to work and telework because their child (18 years or younger) has been impacted by a childcare or school closure related to the COVID-19.
Photo: PixabayEmployees are eligible if they’ve been on payroll for 30 days. There are no minimum hours worked requirement, and they do not have to be full time. It is a 12-week entitlement, and the first 10 days are unpaid but are likely to be covered by the Emergency Paid Sick Leave Act.
Brown says subsequent days are paid at 2/3 the employee’s regular rate of pay for the number of hours the employee would have normally been scheduled to work, up to a cap of $200 per day and $10,000 in the aggregate.
“The Secretary of Labor may issue regulations that exempt businesses with fewer than 50 employees if providing leave would jeopardize the viability of the business as a going concern,” says Brown.
Employers of fewer than 50 employees in a 75-mile radius cannot be subject to civil suit for damages.
The second key provision is the Emergency Paid Sick Leave Act, which provides paid sick leave to employees unable to work due to:
- Federal, state and local quarantine or isolation order related to COVID-19
- Health care provider has told employee to self-quarantine related to COVID-19
- Employee has symptoms of COVID-19 and is seeking a medical diagnosis
- Employee is caring for an individual subject to a quarantine or isolation order or who has been told by a health care provider to self-quarantine
- Employee is caring for a child under 18 years old due to child care provider or school closure related to the COVID-19 health emergency
- Employee experiencing substantially similar conditions as specified by Secretary of HHS, in consultation with Secretaries of Labor and Treasury.
Brown says full-time employees are entitled to 80 hours of paid leave, and part-time employees are entitled to the number of hours they work, on average, over a two week period. There is no carryover, and an employer may not require an employee to use any existing paid time off (vacation, sick, etc.) policy in place of this one or prior to this one.
Q: If landscaping companies are not set up as a business to work remotely and don’t have the laptops and technology to do so, what would you recommend?
While Brown admits there are many “what ifs” surrounding that question, a few options are to implement a rotating shift layoff or a reduction in force style layoff.
Overall, she says it’s an individualized discussion that needs to take place based on how much business you have in the hopper you can keep and the qualifications of your employees.
“We are seeing some employers relax the use of paid leave, and that is something you could look at doing,” says Brown. “If you feel like you’re in a space of more uncertainty, you may want to tell people we’re going to furlough you for two weeks, enable you to use an extended illness benefit or something else that our personal policy doesn’t normally permit the use of.”
Check back tomorrow for part two where we’ll hear more about safety and cleanliness practices, insurance policy tips, updates with government affairs and creating a communication plan with your customers and employees.
