To say that the COVID-19 pandemic has been an unprecedented challenge for all of us is such an understatement that it’s almost trite. Yet, the past two weeks alone have certainly raised countless “Interesting question…I never considered that” scenarios in even the most established and long-standing areas of HCM and employment law.
Fortunately, state and federal government agencies have been incredibly responsive with helpful guidance and quick action to clarify employers’ responsibilities under both existing and new legal requirements. With these resources in hand, we are able to provide some general guidance on five of the most common HCM questions we’ve encountered during the COVID-19 pandemic.
Managing pandemic illness in the workplace commands a particularly delicate balance between employers’ need to provide a safe and productive work environment and employees’ expectation of and rights to privacy and freedom from discrimination.
Because COVID-19 is a treatable, transitory condition, it generally would not be considered a “qualified disability” under the standard interpretation of the Americans with Disabilities Act (ADA).
However, in addition to prohibiting employers from discriminating against employees for their status as an individual with a disability, the ADA also limits the inquiries an employer can make into an employee’s medical status. For example, taking an employee’s temperature is generally considered to be a restricted “medical examination” and is only permissible where all similarly situated employees are tested and there is a business-related reason for doing so.
Under the current public health emergency, the EEOC has relaxed this standard and confirmed that employers may make additional inquiries related specifically to COVID-19 symptoms and may also take employees’ body temperatures. (With this in mind, employers should also note that not all individuals with COVID-19 will exhibit the same symptoms, or any at all). Additional guidance on the scope of inquiries that are permissible, including helpful questions and answers, is available from the agency.
While employers are currently permitted to collect more information, appropriate recordkeeping measures for that information still apply. Information related to an employee’s symptoms or temperature may be considered a medical record under the ADA, so should be maintained according to those requirements. Also, note that disclosures may be required in some jurisdictions before certain information can be collected.
While many employers search for means to help their staff remain productive and on payroll, demand for essential services may have other employers overwhelmed, understaffed, and, perhaps, equipped to offer employment to workers who have been displaced from their jobs.
Hiring employers that are operating remotely should be aware of new guidance from the U.S. Department of Homeland Security temporarily permitting remote employment eligibility verification for employers and workplaces taking “physical proximity precautions due to COVID-19.”
Specifically, employers with no employees physically present at a work location will be temporarily permitted to review employees’ identity and employment authorization documents remotely—for example, via video, e-mail, or other methods.
This workaround is considered to be temporary, though. Once normal operations resume, employees who were onboarded using remote verification must complete in-person verification (whether at the employer or via the employer’s authorized agent) within three business days.
Even employers with years of experience managing distributed and virtual workforces sometimes grapple with ensuring their employees are being compensated correctly. When the lines between work life and home life blur, so does the concept of “on the clock” vs. “off the clock.”
During the current public health emergency, not only are more employees experimenting with working from home, but those employees may also find themselves more “on call” than before. Employers must be especially vigilant in ensuring that nonexempt employees are tracking—and employers are paying for—all hours worked.
Further, though federal law may permit some leeway when an employee spends an occasional “off-the-clock” minute or two performing an insignificant task, such as quickly checking e-mail while making morning coffee, some states’ laws require closer tracking. For example, recently adopted Overtime and Minimum Pay Standards in Colorado require non-exempt employees to be paid for all time worked, down to the minute.
In addition to paying employees for time worked, employers may share some responsibility for business expenses incurred by remote workers. For example, California law requires employers to reimburse workers for any “necessary expenses” incurred in order to perform his or her job, while federal law requires employers to cover tools, equipment, and business expenses that would reduce a non-exempt worker’s earnings below the minimum wage.
The U.S. Department of Labor has provided additional helpful guidance to employers with questions about the interaction of the federal Fair Labor Standards Act (FLSA) and the business realities of a pandemic such as COVID-19.
First, let’s talk compensation. Under the FLSA and most state-law equivalents, non-exempt workers are generally only entitled to compensation for time worked. When a non-exempt employee is not working, there is usually no compensation required, though of course there’s a possible exception under some state and local laws that I’ll cover below.
However, for salaried exempt workers a different set of rules apply. These employees must generally be paid their entire salary for any workweek in which they perform work. So, if exempt employees are still working—perhaps doing less, but still working—then they remain entitled to their full salary for the week (otherwise they risk losing their exempt status, which may entitle them to overtime and back pay).
As for that exception to the “no compensation for non-exempt workers” detail, some states and localities have predictive scheduling laws that require covered non-exempt employees to be paid when their work hours are reduced or cancelled. A key detail for employers to be aware of, here, is that some of these predictive scheduling laws also have exceptions for emergency situations that are beyond the employer’s control—for example, a public health emergency.
If you are operating in an area with a predictive scheduling law, take a quick peek at your Department of Labor’s website to see whether they have issued guidance on the interplay of predictive scheduling and COVID-19. Both Oregon and California have clarified the exceptions of their predictive scheduling laws amid Shelter in Place and State of Emergency orders.
Finally, should a furlough become a layoff—that is, extend beyond what could be considered temporary—this may trigger notice requirements under federal and state Worker Adjustment and Retraining Notification (WARN) Acts. Some states, such as California, have issued guidance that their standard WARN notice requirements will be relaxed for reductions that occur due to COVID-19, and others may follow. Employers forced to consider layoffs should review the requirements as needed.
There’s good reason to be confused, and even overwhelmed, by the various leave requirements, not the least of which is because so many factors must be considered to even know where to start.
For example, an employee’s entitlement to leave, and whether that leave must be paid or not, will depend not just on the size and location of your organization, but also on the reason(s) for which the employee needs to take leave. Plus, the details are changing—generally expanding—nearly every day as lawmakers try to aid workers amid closures of non-essential business operations.
Though we can’t provide a one-size-fits-all response for each specific leave patchwork, we can offer a plan of attack for assessing responsibility.
First, before wading into the leave requirements at all, consider whether your employees can perform their jobs remotely. For example, if you have a healthy employee who simply needs flexibility to be available to care for a child who has been displaced from school or day care, the best solution for all involved may be a work-from-home arrangement. (Note: Most of the emergency leave entitlements that have arisen out of COVID-19 emergencies do not require leave for employees who are able to telework.)
For workers who can’t continue working, once you’ve assessed the general reason leave is needed, begin at the federal level, which has most recently been expanded to include two types of emergency leave for COVID-19-related reasons under the Families First Coronavirus Response Act. As enacted, this law provides employees of organizations with fewer than 500 workers with leave for several COVID-19 related reasons, including the employee’s own quarantine or medical diagnosis needs, quarantine of other individuals for whom the employee must provide care, and for certain child care needs when children are displaced from school or day care. Details and compliance resources on this law’s application are still forthcoming, so employers may wish to regularly visit the Department of Labor’s COVID-19 and the American Workplace portal for more assistance, including helpful Frequently Asked Questions.
Employees who have been diagnosed with COVID-19, or who are required to provide care for a covered family member with COVID-19, may also be eligible for FMLA for their own serious health condition or need to provide care. The DOL has provided topical guidance on how the FMLA applies to COVID-19 diagnosis.
Additional leave entitlements may also be available under state and local laws. Both New York and Colorado have enacted special emergency leaves for employees who are complying with orders to quarantine or self-isolate or for employees experiencing flu-like symptoms and who are awaiting testing. New York employers who are not covered by the federal law will need to consider whether this new state law applies.
Plus, don’t forget the existing paid sick and family leave entitlements that many states and localities already have in place. While some states are adopting additional emergency leaves, other states and cities have opted to clarify that their existing leave programs should be made available to employees with COVID-19-related needs. (Examples include California, New Jersey, and Seattle. New Jersey also provides a helpful side-by-side chart analyzing which leave entitlements various COVID-19 related needs fall under.)
As we all navigate this public health emergency and changing context of the workplace together, the ability to adapt and be agile to changes, both in laws and in general practices that best support the health and safety of our workers and our communities, will be a priceless resource.
To contribute to this flexibility, we will continue to provide support and guidance, as well as thought leadership, on a myriad of COVID-19-related topics in our COVID-19 Central portal.
Disclaimer: The information provided in this post is provided for informational purposes only and should not be relied upon or construed as legal advice and does not create an attorney-client relationship. You should review with your legal advisors how the laws identified in this post may apply to your specific situation.