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by C.J. Marwitz
August 13, 2020
by C.J. Marwitz
August 13, 2020
While employees and employers alike have been eager (for months now) to get back to work as it used to be, the reality is that the workplace has changed — and possibly for the long term. Speculation abounds that this "new normal" will persist until there is a widely available and effective vaccine. This leaves employers in limbo — juggling the new day-to-day legal concerns and practical difficulties, such as enforcing proper social distancing and addressing refusals to return to work, while trying to maintain productivity and profitability to keep businesses afloat.
Advance planning for how to face potential challenges (some of which are described below) before they arise will allow companies to react thoughtfully, rather than impulsively, and provide the tools to remain vigilant and flexible.
This is really the crux of the challenges surrounding return to work for most employers while the number of COVID-19 cases continues to rise, largely based on spread by asymptomatic carriers. As a result, keeping the workplace safe once employees physically return (coupled with being transparent about precautions taken in order to alleviate employee concerns) is of utmost importance.
Employers need to be proactive about mitigating the risk of exposing employees to infection in order to slow the continued spread of COVID-19 and to prevent a second wave of cases once the first wave subsides. This includes engaging in the practices that have been discussed and written about ad nauseam for the past few months, such as making physical modifications in the workspace to reduce contact, changing work schedules to limit the number of employees physically present in the office at one time, encouraging social distancing, and continuing an enhanced cleaning regime while also providing employees with cleaning supplies (such as wipes and hand sanitizer) to allow for more frequent cleaning of high-touch surfaces.
Because of the highly contagious nature of COVID-19, employers covered by the Americans with Disabilities Act (ADA) have a little more leeway than usual when it comes to employee health. Employers may ask employees whether they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or a sore throat. Employers are also permitted to conduct daily health checks, such as taking employees' temperatures. But to comply with the ADA, employers must still maintain all such information as a confidential medical record.
In the event an employee reports a confirmed or suspected case of COVID-19, the employee should be sent home and should not return to the workplace until the employee meets the CDC-recommended guidance for discontinuing isolation. There are symptom-based and test-based strategies for both symptomatic and asymptomatic persons, and since the guidance has changed during the pandemic, it is important to review current guidance when discussing return to work with an employee following home isolation.
OSHA requires employers to record COVID-19 exposure when the illness is a confirmed case of COVID-19, is work-related, and meets the general recording criteria (i.e., inpatient hospitalization or fatality). Because of the difficulty of determining work-relatedness, OSHA is exercising enforcement discretion to assess employers' efforts in making these conclusions.
In evaluating whether an employer has complied with this obligation and made a reasonable determination, OSHA will look to the following: (1) the reasonableness of the employer's investigation into work-relatedness, (2) the evidence available to the employer, and (3) the evidence that COVID-19 was contracted at work. Make sure any investigation complies with OSHA's recommendations in order to reduce the potential for a citation down the road.
When an employee is sent home because of a suspected or confirmed case of COVID-19, another step in the process is determining whether the employee is entitled to paid leave. The Families First Coronavirus Response Act (FFCRA) may not be as prevalent in the news as it previously was, but it is still in effect until the end of 2020.
The FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions apply to certain public employers and to private employers with fewer than 500 employees (though small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability, but not for illness). So if an employee needs time off after testing positive for COVID-19 (or for any of the other qualifying reasons), remember to determine whether the employee is eligible for paid leave under the FFCRA and to check whether state law provides for additional paid leave.
Thus far, refusals to return to work have come in many shapes and sizes, but for employers, the key question to ask when an employee expresses a desire not to return is "Why?" How to proceed will depend on the answer.
If an employee points to earning more on unemployment than the employee would earn by returning to work, this is not a legitimate reason to refuse to return. On the other hand, if an employee expresses a fear of returning to work, this needs to be explored.
A generalized fear will not be enough to permit the employee to continue working remotely (unless allowed by the employer), but an employee who is scared and has been advised by a health care provider to isolate because the employee is in a vulnerable category should be evaluated differently.
If, for example, an employee expresses a concern about returning to work because the employee relies on public transportation and fears it will be crowded, explore options with the employee, such as a later start time.
Employers are encouraged to be flexible in responding to employee concerns where there is an easy and reasonable fix and ADA-covered employers certainly must dive deeper if an accommodation is requested due to a disability.
What if an employer knows an employee suffers from a disability that makes the employee more vulnerable to contracting COVID-19 and wants to require the employee to continue working from home?
This is not permissible. An employer cannot unilaterally ban an employee with an underlying condition from coming to work unless the employee's disability poses a direct threat to the employee (which is a high burden).
And the same goes for pregnant employees and employees who fall into the higher-risk category based on age. Employees must be permitted to make their own decisions about return to work and can ask for an accommodation if needed.
And finally, everyone's favorite topic — wage and hour laws. Given the financial impact the pandemic and resulting shutdown have had on businesses, many employers have made or will make adjustments to employee pay. When making reductions to a nonexempt employee's hourly rate or salary, it is crucial to ensure the employee still receives at least minimum wage for each hour worked.
Similarly, if an exempt employee's salary has been or will be reduced, most employees must still make at least $684 per week to maintain the exemption. When revenues pick up, employers should also be careful when making favorable adjustments to employee compensation. If a "make whole" payment or an incentive bonus is made to a nonexempt employee, for example, it will have to be added back into the regular rate for calculation of overtime.
And, employers should avoid regularly changing salaries of exempt workers, as this starts to look like the salary was reduced due to the quantity of work performed (which is impermissible).
The more prudent path is to leave an exempt employee's salary as is for at least a quarter. The same goes for making changes to an employee's exemption status — which should be closely monitored to ensure exempt duties are still being performed, as job duties may be in flux during this time.
For example, if an exempt manager has been primarily performing the duties of a nonexempt worker due to a reduction in force, the worker may no longer qualify for the executive exemption. But if the manager is temporarily changed to nonexempt, be thoughtful about changing the classification back (and avoid doing so too quickly).
In light of all that is happening right now, employers have a lot on their plates. It is crucial to put solid processes in place for addressing the challenges discussed here (as well as the many other legal and practical considerations currently in play) to allow for a thoughtful response when one (or more) inevitably hits.
This requires staying up to date with regularly changing guidance from a variety of sources, communicating with employees and managers, and documenting precautions taken in the workplace — all on top of performing regular job duties. When this is too much to juggle, reach out to an employment lawyer for help so no balls are dropped during this challenging time.
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