Reopening: Key Employment Law Issues To Consider

Fox Rothschild LLP

Fox Rothschild LLP

As employers throughout the country plan to resume operations based on state reopening orders, it is important to be mindful of the ways COVID-19 will continue to impact the workplace. Below are several key employment law issues of which employers should be aware of as they move forward with reopening.

Workplace Requirements in State Reopening Orders

States and localities are beginning to issue new or amended executive orders providing for phased reopening plans, which include certain health and safety requirements for reopening businesses. Employers should watch for requirements with employment law implications in these orders, including requirements to accommodate employees who are considered high risk for COVID-19 complications or who have child care obligations. Some of these requirements may expand employees’ rights beyond existing state and federal law. For example, Colorado’s Safer at Home Order requires employers to provide reasonable accommodation to, and prohibits employers from discriminating against, employees who show symptoms of COVID-19 or have been in contact with a known positive case of COVID-19. Because these orders vary state to state, employers should understand these types of requirements in all locations where they operate.

Employee Complaints Protected by Whistleblower Laws

As more employees return to the physical workplace, employers should be prepared to respond to employee complaints regarding COVID-19 and be mindful of the appearance of retaliation. Not only may employers have a duty to address those concerns consistent with their obligations under OSHA, but these types of reports could constitute protected conduct under state whistleblower laws as well. Underscoring this point, earlier this month the Department of Labor issued a reminder to employers that it is illegal to retaliate against workers for reporting unsafe and unhealthful working conditions during the coronavirus pandemic.

For example, Minnesota’s Whistleblower Act (MWA) generally protects from retaliation employees who report in good faith a violation or suspected violation of any federal or state law, statute, rule or regulation. The MWA also contains other protections, including for employees who refuse to perform an action they believes violates the law. Employers should be mindful that legal regulations and rules issued by federal and state agencies regarding COVID-19 can form the basis of an employee’s whistleblower report. To avoid these types of claims, employers should be sure to take all employee complaints regarding COVID-19 seriously, and investigate and address them where appropriate.

In addition, most private sector employees have certain rights to act together and discuss, protest and/or otherwise address work-related issues outlined in the National Labor Relations Act, which are covered in this client alert.

Ongoing Obligations to Provide Paid or Unpaid Leave as Result of COVID-19

As summer ramps up, employees may be inclined to use paid time off (PTO) for family vacations or other personal reasons. But employees may also have ongoing needs for sick or family leave for COVID-19-related reasons in the coming months, as public health officials forecast a potential second wave of COVID-19 transmissions in the fall. Employers have continued obligations to provide paid or unpaid sick leave to employees for certain COVID-19 related reasons, even if employees exhaust paid sick leave for personal reasons.

For example, employers with 500 or fewer employees that are subject to the Families First Coronavirus Response Act (FFCRA) are required to provide employees with paid sick time for qualifying reasons related to the COVID-19 outbreak. Because paid leave under the FFCRA is in addition to other paid time off or sick leave provided by an employer’s policies, employers will still need to provide eligible employees with paid sick leave under the FFCRA even if they have otherwise exhausted their PTO or sick leave for other reasons.

Employers should also be cognizant of continued obligations under state and local paid sick leave laws. Many of these laws provide employees with paid sick leave to take care of a child or other family member in certain circumstances. These types of leave requests may continue even as child care operations ramp up in the coming weeks and months. For instance, certain operations may be required to shut down temporarily due to a COVID-19 outbreak, or may request an employee’s child stay home because of an illness, which may prompt more time off requests. Be mindful that these types of requests may be covered by state and local sick leave laws.

Document New Employment Conditions

As employees return to work, employers may make additional adjustments to the terms and conditions of their employment, including changes to hours and pay. Employers may also offer new or updated benefit programs as a result of COVID-19.

Employers should ensure they properly document these changes and provide employees with required notices under federal and state law. Many states have wage and hour laws that require advanced written notice of changes for certain employment actions, such as salary reductions. States are also enacting new legislation in the wake of COVID-19 that provides for additional notice requirements, including providing employees with information about their right to file for unemployment compensation. Proper documentation is legally required in certain circumstances but it is also a good business practice that can help avoid unnecessary litigation if employee wage and hour disputes arise.

Wage & Hour Implications on Changing Work Arrangements

As many reopening orders follow a phased approach with ongoing restrictions, employers may consider bringing employees back in limited capacities, or continuing certain work-from-home or flexible scheduling arrangements. While these types of creative arrangements can be a great way of getting employees back to work, they carry wage and hour implications.

For instance, in accordance with reopening orders, employers may consider allowing some employees to return to the physical workplace to perform limited tasks but to continue performing administrative tasks from home. Employers should keep in mind the general principle that exempt employees are to be paid for the entire workweek during which they perform any amount of work, unless a specific deduction applies. Therefore, even if there is only a limited amount of work for exempt employees to perform upon their return, employers should be careful not to deduct exempt employee pay.

On the other hand, be sure to clearly communicate with nonexempt, hourly employees about the hours they are expected to work and provide a way for them to track the work remotely, including breaks and overtime, to ensure employees are properly paid.

Decisions to restructure your workforce can also present misclassification issues. The Fair Labor Standards Act (FLSA), which includes requirements regarding employee pay, provides an exemption from its minimum wage and overtime requirements for certain employees. To qualify for an exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis not below the FLSA salary threshold (which is currently $684 per week).

Employers considering restructuring certain positions as a result of COVID-19 (such as requiring employees to take on additional job duties or cross-training employees in different tasks or jobs) should review any restructured positions to ensure they are properly classified as exempt or nonexempt. Spending some additional time to ensure employee positions are properly classified can avoid potential costly wage and hour litigation down the road.

Implementation of COVID-19 Workplace Safety Policies

Employers reopening their workforce should consider creating a set of COVID-19 workplace safety policies and training their employees and supervisors on them. Most states and localities have issued COVID-19 reopening plans, many of which require employers create and implement COVID-19 preparedness plans or certain safety policies in order to reopen.

Regardless of whether they are mandated by local law, it is prudent for employers to implement such policies to foster a safe and productive workplace. The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) also recommend doing so. Below is a list of key areas employers should consider including in their COVID-19 policies:

  • Employee health and wellness checks, including temperature checks, and a protocol for responding to employees diagnosed with COVID-19, who are experiencing symptoms consistent with COVID-19 or who have been exposed to a person with COVID-19 or similar symptoms;
  • Social distancing measures, including requirements that employees remain six feet apart in the workplace, staggered shifts to avoid overcrowded work areas and options for conducting work and meetings remotely;
  • Wearing certain personal protective equipment (PPE) in accordance with the employer’s industry and the job duties of the employee, as well as considerations regarding whether face coverings or masks should be worn and in what circumstances;
  • Whether and in what circumstances non-employees such as customers or other visitors can visit the workplace;
  • Restrictions on non-essential business travel and a requirement that employees report any personal travel to high-risk countries or areas in order to determine quarantine requirements;
  • Enhanced cleaning and sanitation measures as recommended by the CDC;
  • Recommended hygiene practices for employees in the workplace based on CDC guidance.

While some of these policies, such as encouraging employees to remain six feet apart when at work are simple and carry very low legal risk, others are more complicated and can present some legal challenges. For example, employee wellness and temperature checks may help provide accurate information regarding whether it is safe for employees to return to the workplace, but outside of the pandemic they are risky practices. Temperature checks are considered a medical examination under the Americans with Disabilities Act (ADA). Generally, the ADA limits employers’ ability to conduct medical examinations and inquires to limited circumstances, and therefore, such practices must be implemented in accordance with confidentiality obligations under the ADA. Employers creating and implementing COVID-19 workplace safety policies should consult with counsel regarding the legal implications of such policies and to ensure they adhere to state and local reopening orders.

These are important general considerations for employers to be aware of, but nuances may vary based on state and local legal developments.See the links below for articles on individual states.

Additional Information

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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