Do you have questions about how COVID-19 will affect your business?
In a live webinar on April 20, 2020, Luke Reese from Garrett Hemann Robertson, answered questions to some of the legal questions on the minds of employers during the COVID-19 crisis. Check out the discussion below from our live video webinar, and learn more about the legal aspects of this “new normal” that we’re in.
What if an employee refuses to come into work even though the employer has taken the CDC recommended measures for PPE and social distancing?
This is a question that a lot of my clients are wrestling with now. The reality is that — beyond legitimate health and safety concerns — there’s a lot of motivation for folks to stay at home. In other words, with the increased unemployment benefits, there is less financial incentive to come to work and work for the money.
If you’ve had to reduce your workforce because demand reduction, and now you’re looking to ramp back up and are trying to decide who to bring, the best advice I can give for this situation is to start with volunteers. This strategy will help you limit having to deal with this issue to the maximum extent possible. Identify what type of employee you’re going to need as you start to ramp back up, solicit who would like to come, and then the hope is that you’ll reduce the number of people who just flat-out refuse.
Once you exhaust that option, or if you’re at a point where you are at max capacity, and you have employees who are showing some resistance to work, the best advice I can give is to simply require employees to come back to work. As long as you are providing a safe work environment for your employees, you can require them to do so.
As the business owner or the employer, this decision is yours to make. Of course, you can’t force an employee to work. If they ultimately decline, that’s their choice. But if you’re providing a safe environment, you’re following the CDC recommendations, and you’re confident that you’re in line with the governor’s order about which companies can be operating and which can’t, you can tell an employee that if they’d rather not be there, then they’re effectively resigning. It’s a tough conversation to have.
Most of the time, when I get calls on this topic, the supervisor or the employer hasn’t actually talked to the employee in any real detail yet. When I encourage him to go back and get the specifics about why the employee is hesitant, what you’ll find is most people don’t want to sit at home and receive unemployment. They have legitimate concerns, and if you talk through those concerns, most people will come back to work.
As we start heading back to work, do you anticipate that employees will experience significant anxiety about being back in the office?
I expect there’s going to be a tremendous amount of anxiety and stress. But we should treat this issue just as we would treat any other health concern or accommodation issue.
Have the conversation about returning, solicit input from employees, and address those concerns. This is a practical way to deal with these issues.
From a liability standpoint, if you’re ever ultimately sued based on the decision that you make, you can show that you went through that interactive process, and you can document what that looked like. However, if you tell employees, “This is the way it’s going to be because I say so,” and you do not have those interactive meetings, you’re putting your business at risk for a lawsuit. By dealing practically with the return to the office, you not only ease fears and concerns, but you also protect your business from potential legal issues.
Can you talk about what the Families First Coronavirus Response Act (FFCRA) works when it comes to employee leave? And what about how it does or doesn’t affect other types of leave such as disability or worker’s compensation leave?
The short answer is that the emergency leaves that the FFCRA has put into place are different than any other types of leave. It’s a new benefit that is available to employees. It doesn’t replace or modify any other leaves that are out there. So, if you have an employee who happens to be finishing up a worker’s compensation leave, family leave, or leave for a health issue, you would welcome that employee back just as you usually would.
If you have somebody who is set to come back, but for a reason now protected under the FFCRA, you’d have to take a look at whether or not they’d qualify for additional leave under this legislation. The only other thing to keep in mind is the expanded family leave for folks who have to be at home because their children’s daycare or schools are closed. That leave is not in addition to other types of FMLA leave. If somebody needs to exhaust their FMLA leave to stay at home with their kids now, it may impact their ability to have additional leave later on in the year.
When it comes to salaried employees working from home but who are also limited in the number of hours they can put in due to family or other issues, how can we legally approach this situation?
In these cases, you do have a few options. First, you can reduce salaries during this time. The only limitation to this option is that if you go below $684 a week, the employee can no longer qualify as an “exempt employee,” so you’ll need to make sure that you adjust them to “non-exempt status” and treat them just like any other hourly worker.
Here’s something to note, though. When you change an exempt employee to a non-exempt employee, it can have a significant psychological impact. That is something that I would encourage you to avoid if at all possible. If it’s financially feasible for you to keep them their salary level, I think you avoid some of that additional anxiety and stress.
The other thing to keep in mind is that you must make these changes at the beginning of the week, specifically on that Sunday night transition into Monday. This is a mistake that several people have made just because they’ve been moving quickly through all of this turmoil. If your exempt employees work any time in a given week, they must be paid their salary for that week. So, if you’re going to be reducing wages — even if it’s temporary — make sure that you keep it above $684 a week, and make sure that you do it on that Sunday night transition into Monday.
Another option is to furlough in conjunction with the reduction in salary. You can say to these employees, “In recognition that we’re going to pay you less, we will expect less work from you.” You can also furlough by the week. I’ve seen companies who are letting their exempt employees work one week and then take the next week off unpaid.
Finally, a “softer” way to go about it is to encourage your exempt employees to use their PTO with the understanding that, when the restrictions are lifted, the exempt employees will be exceptionally busy. In other words, now is the time to relax and get some downtime in preparation for what lies ahead as businesses reopen their doors.
Speaking of reopening doors, as an employer, what do I need to prepare for when it comes to welcoming employees back into the office?
There are two things to think about as we start looking into bringing people back. The first is the safety aspect, and that really should be the focus. This means getting as much information as you can from the CDC, and other reputable sources, about what that looks like for your business.
You should also develop a written plan for how you’re going to facilitate the process. Of course, that plan is subject to change, but it’s essential to have a plan as your foundation before you take further steps. Ask questions like, “Am I going to implement split schedules so that I can have fewer people in the office?” or “Am I going to allow certain people to continue to work from home?” All of these decisions should be ironed out as much as possible before you start implementing them.
Once you focus on your business’s safety, then the next stage is to protect yourself against claims. There may be people who are disappointed with how or when they were reintroduced into the workplace. You want to make sure that you have a legitimate business reason for the decisions about who comes back, when they come back, and at what compensation levels. I would also share your rationale as clearly as possible with those who are affected. That way, if problems arise down the road, you’ll be in a position to defend your company.
COVID-19 Questions from the Audience
After the discussion, we opened questions up to the audience. Check it out below.
If an exempt employee misses full days when work is available, please confirm if we can require PTO use or whether it would be considered an unpaid day.
Yes, you can have the employee use a PTO day. If, for whatever reason, the employee rejects that, I would be careful about letting the employee take the day unpaid unless you get to the bottom of the reason for the rejection. However, if an employee says, “Hey, I’m overwhelmed. I know there’s work to do, but today I need to take a day off to take care of other things,” you would just treat it like any other PTO request.
Under the FFCRA, if you have an employee who needs to stay home with an 18-year-old high school senior who has an IEP for a communication disorder to aid and support the child for distance learning, would this be covered under the FFCRA reason number five?
If an employee requests to stay home because of their school-aged children whose schools are closed, just ask for the documentation to support it. If they can provide it, then allow them to work from home. On the other hand, if there’s acting suspiciously and who appears to be trying to take advantage of the crisis, you could scrutinize it more thoroughly, but I would reserve that very much to the exception.
If our company just recently hired new employees during the COVID-19 crisis, how would benefits play out? Would they qualify for unemployment benefits or work share during this time as well?
The short answer is that if you hire somebody and then they’re laid off, they’re going to be eligible for unemployment at some level; however, it’s just going to be minimized by the amount of time that they’ve been with the company. We need to keep in mind that you only need to work for a business for 30 days to qualify for the Emergency Coronavirus Relief Act leave as opposed to FMLA’s requirement of several months.
If an hourly employee is forced to take a reduction pay while still required to maintain a 40-hour workweek, are they able to reach out to the unemployment office to make up for the extra money they have lost due to the pay cut?
Probably not, although I wouldn’t discourage your employees from investigating it. There’s a distinction between, “We’re going to pay you less per hour but allow you to work full-time,” versus, “We’re going to continue to pay you the same hourly rate but there’s going to be a reduction in your hours.” When it’s a reduction in hours, the benefits are going to be there, for the most part. When an employee receives a reduction in pay but they continue to work full-time, this puts them at a disadvantage when it comes to unemployment benefits.
I understand EFML among FFCRA provides 12 weeks of leave for an employee. Can an employee add this 12 weeks to the 12 weeks provided through OFLA, for example?
The total is 12 weeks per year, despite which legislation you’re using. So, if an employee takes 12 weeks of leave under FMLA, they cannot take another 12 using FFCRA.
What about high-risk groups? Can we require them to return to essential businesses?
If an employee has a doctor’s recommendation stating that they’re high-risk and shouldn’t return to work, then you can’t force them to do so. I don’t know when that’s going to change, but it’s definitely the case right now.
If an employee is struggling with the difficulty of staying home and wants to come into the office to work despite the stay-at-home order, do we have to allow them to do that? We have other essential employees in our office already, and we want to maintain a workable and safe amount of at-the-office employees.
No. If you have a reason to exclude the person, and if their only reason for wanting to be in the office is to avoid the discomfort and stress of being at home, you can simply deny their request. It could become an issue if the employee’s reason for wanting to return to work is money-related (if, for example, they work on commissions and the office environment helps them be more successful). If that’s the case, you’ll need to have a firm and practical reason why you can’t allow them to return yet. By communicating this rationale to employees ahead of time, you may be able to head off some of the issues.
Have More Questions?
For more information about how to conduct your business and manage employee affairs during the pandemic, check out the other discussions from this panel by watching the full webinar here.
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