TXBIZ & LITTLER

COVID-19 RESPONSE WEEKLY SERIES

The COVID-19 pandemic has significantly impacted today's workforce, creating numerous issues that must be quickly addressed by employers. Circumstances and legal guidance change on at least a daily basis, making it difficult for employers to stay abreast of the issues and maintain legal compliance. Join us each week for training sessions to ensure you are up-to-date with the rapidly changing climate and information critical to running your business.

Practical Advice for Employers Call Notes

What you need to know right now

Legislation not retroactive, does not apply

Effective April 1

If covered, must post FFCRA poster ex. mail, email, post in workroom, etc.

There are two posters – non-Federal poster must be posted as of 4/1/20

 

Overview of Leave Provisions

ESPA vs. FLMA+ 

 

ESPA – six reasons as to eligibility for the first 80 hours

Shelter in Place orders 

 

FMLA+ - must have been with you for 30 days

Only one reason – school closure

Applies to private employers less than 500

Less than 50 employees – exempt from providing paid leave, but must prove exemption: unclear as to who or when, but presumed DOL

Still must post poster 

 

Still able to do legal organizational changes, must be defensible and able to explain 

 

Wage and Hour Basics

All time worked from home must be compensated

Non-exempt employees are only required to be paid for the hours worked, but expected to be on-call time

Establish a written policy on reporting and recording time 

Breaks much be non-interrupted or must pay for interrupted breaks 

Written certification of time worked with breaks documented

Create telework policy, create as temporary to avoid confusion, clearly will not work from home forever; include workplace injuries

Hours reduction – wage and hour obligations still apply including hazard pay and overpay, meeting and training, and unapproved overtime; must pay, but can discipline later

Any reduction in hours must reflect an equal reduction in compensation

Cannot deduct salary from non-exempt unless voluntary

Can reclassify an employee to reduce to half-time

Shared Work Plan

Designed to incentivize reduction in hours

Provides a greater unemployment benefit

Does not require a one week waiting period

Hours can be reduced 10-40 %

Must be TWC approved

 

The Live Count – no, an employee already gone wouldn’t be affected, but if they came in and out, they would be counted

 

Temp workers – denying leave to temp health care provider employers, read regulation in slides

 

Documentation requirements – only requires name of physician, nothing required beyond that 

 

Business Restructuring Call Notes

Business Restructuring Options - reduction in pay, hours, furlough, layoff

 

Furlough vs. layoff – furlough not a legal term that involves reducing the days or weeks that an employee may work, while a layoff can be temporary or permanent

 

Where to start – planning ex. who should be involved, assess, plan and be thoughtful to ensure you have the right people involved; run by legal counsel if possible. Keep it as a need to know basis, and look into protecting communications with an attorney

 

What is our business justification for taking action? Determine furlough vs. layoffs and define the business justification

 

Communications with employees – reasoning, scheduling, managing information vs. rumor, and honesty; always act with employees in mind, consistency, and provide transparency. Be careful in providing information on unemployment benefits and allow the Texas Workforce Commission to take the lead on estimating benefits or amounts, huge risk employers do not want to create

 

Layoff Notice – reduces the hours of work for 50+ workers by 50% or more for each month in any 6-month period

· Business with 100 or > workers who work at least a combined 4,000 hours per week

Worker Adjustment and Retraining Act requiring a 60-day notice of certain plan closings and mass layoffs

· Facility or unit closing that affects at least 50 EEs

· Layoff of 500+ at single site

· Layoff 50-499 if = 33% of workforce at single site

· Does not apply to a job loss of less than 6 months

· Be aware of state law mini-WARNs

 

Unforeseeable Business Exception – applies when a closing or layoff is caused by business circumstances that were not reasonably foreseeable as of the time the notice would have been required

· No UBC exception in some state mini-WARN acts

 

Older Worker Benefits Protection Act – for employees 40 and over if offering severance in exchange for a release of claims

· Specific language in release

· Form with decisional unit data

· Seek legal guidance

 

Disparate Treatment/Impact Analysis – analyze composition of selected groups:

· Disparate treatment (e.g. intentional discrimination)

· Disparate impact (e.g. disproportionate impact on a protected group, even if the selection criteria are neutral)

 
 

Issues from Working from Home Webinar Call Notes

Should we be worried about off the clock claims?

  • Employers must be sure they are paying all hourly employees for all of their work

  • Failure to pay could lead to a wage and hour violation

  • Unfortunately, not seeing a pause on litigation

  • Telework and telecommuting policies needed to be in place, it is not too late to put in place a formal written policy

    • Including work expectations and schedule, overtime policy, documentation

 

What happens when employees are working through technology issues?

  • Those are compensable hours and are working through technology issues to support the workplace.

 

Are we required to reimburse employees for home office expenses?

  • Could be potential wage and hour issue under federal law if the reimbursement amount is disproportionately large

  • No reimbursement laws in Texas to reimburse

 

What is the proper procedure if employees fail to return work equipment?

  • Consider a Telecommuting Agreement

  • Consider a payroll deduction authorization permitted under Texas law, but not in all states

 

What are your employees doing to ensure confidentiality while working from home during COVID-19?

  • Make sure your IT Department is involved through equipment or downloading or transmitting information

  • Remind employees about confidentiality policies

What to do when a telework employee requests a sick day?

  • Employees can use sick days when working from home

  • Unlikely, but theoretically possible

 

How are workers’ compensation claims handled during teleworking?

  • In general, an employee working at home is “working”

  • If the employee is injured while working at home, you should cover the claim

 

What do employers need to do about ADA Accommodations?

  • There may be additional accommodations you need to provide

  • If you have an ADA question, does not mean that you do not need to go through the process or provide equipment

  • What about when it is time to return to work? It’s a good time to talk about return to work issues

    • When will we return to work?

    • What if an employee is scared to return?

    • Not technically qualified, but needs to be considered to help bolster an argument to continue support return to work for those hesitant to return

  • Anticipating guidance from the EEOC and TWC

 

Parting thoughts

  • Managers are your front-line workers to address questions and supervision of employees

  • Remind managers of policies/resources

  • Make sure managers are communicating with their direct reports

 

How to best ensure against claims?

  • Evaluate employee performance

  • Ensure managers are communicating deadlines

  • Ensure managers are providing appropriate feedback

Returning to Work Call Notes

Who should be on your return to work team?

  • HR, PR, Legal, Gov’t Relations

  • Make sure you are aware of any industry specific requirements

 

How to evaluate if you should reopen

  • Do we have enough business to support opening to 100%?

  • Are you negotiating with cleaning companies for routine and regular cleanings?

  • Beware to not create any possible defenses for those at a possible high-risk of contraction 

 

May an employer exclude staff from an invitation to return to work?

  • Must go through the interactive process on if they can remain on leave and address the concern if they are fearful of returning to the workplace to defend yourself against an ADA claim

  • Keep who you call for a staff recall confidential; ensure the methodology remains objective

  • Be sure to seek legal aid on your criteria

 

What should you do for employees who refuse to come back to work?

  • Must understand what is causing concern and if there is a protection or leave availability available

    • No childcare

    • Over 65

 

Could you open yourself up to union activity? Yes, especially if an employee participates in a concerted activity. This is activity that is ripe ground for a union to come in and take action against the employer.

 

Suggested responses:

  • “We are operating a safe workplace. We are operating in accordance with state and local safety and health guidelines. There are currently no recognized health or safety hazard in our workplace.” 

 

What if an employee refuses to return to work?

  • You do not have to pay them

  • You do not have to let them take PTO or vacation

  • They may be eligible for state or local mandatory sick leave

  • They are not qualified for FFCRA EPSL (unless they otherwise meet one of the six reasons for qualification)

  • This should disqualify them from unemployment.

What about concerted refusal to return to work?

  • The NLRA protects all employees

  • The NLRB exists to protect the rights of private-sector employees under the NLRA to join together, with or without a union, to improve their wages and working conditions.

What if you offer work and they actually accept?

  • For those returning after a break in service, plan should address all HR requirements that were required when originally hired

  • Develop training and orientation programs for returning workers

 

Have an exposure control plan, including protocols for:

  • Sending employees home

  • Instituting contact tracing to identify other employees

  • Cleaning the workplace

  • Recordkeeping

 

Screening workers:

  • Develop a health screening protocol for workers

    • Temperature checks or thermal imaging 

    • Health screenings 

    • Consider privacy and recordkeeping issues

    • Screening time is compensable time

 

Testing:

  • Who should be tested?

  • Send any positives home for 14 days

 

What happens with employees who claim they were infected at work?

  • Go through contact tracing conversation

  • Notify workers’ compensation and log in OSHA log for someone claiming this is a workplace incident

 

Masks - Yes, employers may require masks. 

  • Accommodations for persons who claim inability

    • Deaf

    • Beards for religious reasons

  • Who provides the coverings?

  • Dress code

  • If they do not have a legitimate reason, employers may discipline employees for failing to comply

 

2020 COVID-19 Wrap Up: An Update on the Fluid Pandemic Response Call Notes

Primary Exposure – Action Steps

Texas Guidance – OSHA reversed guidance that there is a heightened requirement for reporting cases of COVID-19 that is work related

 

Labor Relations

National Labor Relations Act – 1935 similar circumstances to today with unemployment rates and fear in returning to work. Allows protections for employees

  • Current state of unions – at an all time low, but using these uncertain time sot recruit new members

  • Protects concerted activity regarding the terms and conditions of employment

 

What other issues might cause employees to engage in concerted activities?

  • To vote for a union is to vote against their employer or supervisor

  • Increased Union Activity can consist of safety, access to PPE, Hazard Pay, Furloughs/Layoffs, Paid/Unpaid Leave

  • Narrow Exceptions – protect against disparaging attacks, egregious or opprobrious, disloyal, maliciously false statements

 

What can employers do about concerted activities?

  • Communicate – listen

  • Resolve issues

  • Maintain credibility

  • Provide accurate and timely information

What we can’t we do about concerted efforts?

  • DO NOT threaten, interrogate, promise, spy

 

Notable strings attached to lending program for mid-size US business include:

  • Honoring CBAs (page 523); and

  • Remaining “neutral” in any union organizing effort (page 524)

 

What’s Next?

  • More virtual organizing

  • Mail ballot elections

  • Collective bargaining by teleconference

  • Arbitrations by teleconference

  • Income inequality – COVID-19 pay increases should be retained

  • Paid sick leave should be adopted, continued

  • Immigration reform

 

Final Thoughts

  • Be open and willing to change, implement change, embrace change

  • Stay in shape, maintain balance, be confident in your ability to cross the finish line

 
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