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Law360 (March 27, 2020, 12:21 PM EDT) --
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| Gilbert Brosky |
However, it is important to remember that the current crisis will eventually pass. And when it does, the last thing you'll want to do is defend against a class or collective action, particularly when it could have been easily avoided.
To help make sure this doesn't happen, we have identified five important issues to consider as part of your COVID-19 response.
Make sure your telecommuting nonexempt employees are recording all their time, including boot-up and boot-down time.
It goes without saying that if you are one of the many employers who have nonexempt employees working from home, they need to be paid for all time worked at home. However, it is important to remember that compensable work time includes things such as logging into and out of computer systems for the day — processes which can be unexpectedly delayed and complicated in a mass work-from-home situation.
Therefore, it is crucial that you reiterate in writing that all such time is compensable, and ensure that your nonexempt employees have a way to record such boot-up and boot-down time. One option is to allow telecommuting employees to record their time on paper or email and make them responsible for submitting that time for payment. You should also ask your employees if they are having any issues logging in/recording time as part of your regular check-in sessions.
If you want to furlough exempt employees, make sure they are not performing any work.
More and more employers are turning to unpaid furloughs where groups of employees go on unpaid leave for weeks or even months. If this becomes necessary, it is essential that you make sure your furloughed exempt employees are not doing any work.
If they do, even if it is just responding to business emails or stopping in for a status meeting, they may be legally entitled to compensation for that entire week. This can be emotionally difficult for many exempt employees who may still want to help the company during the furlough period, so clear and written communication is essential.
Proactive steps you can and should take to further prevent unauthorized work includes taking back company cellphones and laptops, and disabling login credentials and access badges.
Your duty to accommodate under the ADA still applies to your work-at-home employees.
In 2009, the U.S. Equal Employment Opportunity Commission issued a guidance document titled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act" in response to the H1N1 pandemic. This document was recently updated in response to the COVID-19 pandemic, and is a must-read for employers looking for ADA guidance in today's environment.[1]
One point that the EEOC makes that may not be intuitive to all employers is that
In other words, your duty to accommodate and engage in the interactive process does not stop just because your employees are telecommuting. Be sure to reach out to the employees you are currently accommodating to see what if any accommodations they may need while they work from home.[i]f an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.
Don't play fast and loose with counting your employees just to avoid the FFCRA.
If you are an employer with fewer than 500 employees, you are probably aware that you will likely soon have new (and expensive) employee leave obligations under the Families First Coronavirus Response Act, or FFCRA.[2] You may have also thought that if you got creative with counting your employees, you may be able to get over the 500-employee threshold and avoid these new obligations altogether.
Our advice — be very careful about admitting joint employer or single enterprise status just to avoid the FFCRA, particularly since it has a finite life. If you are counting employees from separate entities that are merely divisions or operating units of the same corporation, they are likely already a single enterprise.
However, if you take a more aggressive approach with entities that may not be a single enterprise to avoid paying these new benefits, you may create the possibility of inadvertently admitting that these operations are integrated and, thus, create legal exposure under a host of other laws — including (but not limited to) the Fair Labor Standards Act, Family and Medical Leave Act, Employee Retirement Income Security Act and Title VII — that did not otherwise exist.
The U.S. Department of Labor has yet to issue regulations regarding how aggregation might work, leaving uncertainty as to the elements and details that will need consideration. Not to mention that if you are wrong, you could face a future class action for not providing the FFCRA benefits as required.
In short, this is an issue that will require an individualized analysis and decision for each employer and should be performed in consultation with your attorneys. That analysis should consider (among other things): (1) if the entities are already being treated as a single enterprise; (2) the cost of compliance with the FFCRA; and (3) the risk of possibly implicating other employment statutes.
Follow OSHA and CDC recommendations for maintaining a safe workplace and establish clear written policies.
It is inevitable that plaintiff lawyers will bring class actions against employers alleging that their client(s) became infected with COVID-19 in the workplace and that the employer did not do enough to prevent it. This is just another reason why following guidelines and recommendations from the Occupational Safety and Health Administration and Centers for Disease Control and Prevention regarding workplace efforts to stop the spread of COVID-19, and implementing clear, effective and common-sense workplace policies is essential.
Specifically, enforcing social distancing, being vigilant about keeping employees with potential COVID-19 symptoms out of the workplace, limiting at-work staffing to a minimum, and providing ready access to disinfectant and office cleaning supplies will make it more difficult for a plaintiff attorney to Monday morning quarterback your COVID-19 prevention efforts.
The bottom line: Make sure your COVID-19 response plan is not creating a risk of future employee class/collective actions.
Gilbert P. Brosky is a partner at BakerHostetler.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.eeoc.gov/facts/pandemic_flu.html.
[2] If not, take a few minutes to read our FAQs at https://www.bakerlaw.com/alerts/the-families-first-coronavirus-response-act-faqs-for-employers.
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