Top Employer Return-To-Work Considerations: Part 3

By Adam Cohen, Michael Hepburn, Laura Taylor, Deepa Menon, Caitlin Naylor and Bonnie Burke
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Law360 (May 8, 2020, 5:40 PM EDT) --
Adam Cohen
Adam Cohen
Michael Hepburn
Michael Hepburn
Laura Taylor
Laura Taylor
Deepa Menon
Deepa Menon
Caitlin Naylor
Caitlin Naylor
Bonnie Burke
Bonnie Burke
History repeats itself, of that we can be sure. Employers should capitalize on lessons learned from the pandemic as well as any down time they have now (as business ramps up) to put in place measures that will help them handle with fluidity any future pandemics or other emergencies. 

In part one of our return-to-work article, we explored some of the general workplace considerations of which employers should be aware, and in part two we discussed employee benefits considerations.

Part three will examine some workplace considerations and guidelines to address future situations.

Remote Working — Equipment

Even if operations resume, it is possible that employees may be required to work remotely until COVID-19 is brought under control. Today's technology has facilitated such remote work.

However, employers should look at their equipment shortfalls and see how those additions or replacements can be both integrated into the office and removed for home office environments. Software, such as phone systems with conferencing capabilities, may need to be updated. Server access and storage may need to be expanded, updated or secured. Training on all new additions should be a priority so that employees know how to use the tools given to them.

Recall that some states do not allow employers to pass along the costs of doing business to employees, so employers may have to reimburse employees for business-related expenses, including reasonable internet connection and cellphone use. Employers should be cognizant not to allow the cost of work-related tools, equipment or expenses to reduce an employee's wages below the minimum wage.

Remote Working — Policies

Employers should consider issuing policies  stand-alone policies and/or updated handbook policies  that explain employer expectations about working from home. Better yet, obtain telecommuting agreements from employees working remotely.

These agreements can give the employer a means of communicating its needs and requirements while extracting promises from employees that they will dedicate their time to their job duties (an attached job description is helpful); will be available to their employer between certain hours on certain days via phone or email; will take proper precautions to safeguard the employer's confidential information and trade secrets; will return all equipment that the employer has provided to the employee; and will abide by all the policies and procedures of the employer whether they are in the office or working remotely. 

Remote-working employees should be reminded to take any meal and rest breaks otherwise required for in-office work shifts and ensure that nonexempt employees accurately track all time worked. Employees should continue to confirm that work time has been properly paid, immediately raising any errors found in pay stubs or pay previews to human resources. 

Employers may want to look at workers' compensation policies and ensure proper coverage if all or most of the workforce is working outside the office or might, under certain circumstances. Remind employees working from home that the employer's policies against using certain drugs and alcohol while on the job apply whether they are working in the office or remotely. This reminder may become particularly important during the fall and winter holiday season.

Remind employees as they work remotely that anti-bullying and harassment policies remain in effect, particularly as they pertain to social media platforms, and that employees can and will be disciplined for failure to comply.

Other Policies

Employers cannot anticipate every possibility when it comes to emergency situations but a business continuity plan can be an important tool when disaster strikes. Consider having a business continuity plan that will cover a variety of circumstances like natural disasters, man-made disasters, pandemics and other emergencies. 

Employees must know whom they should contact or who might be contacting them and how. Employers should know how to distribute equipment and work to employees who may not be able to get to the office to pick up necessary items.

When the Families First Coronavirus Response Act, or FFCRA, introduced the extended Family and Medical Leave Act provision that was applicable to employers that are not typically covered by the FMLA, those smaller employers were unprepared to address employees' requests for leave and may be equally unsure how to handle those employees' return to work.

Based on this experience, employers with fewer than 50 employees may want to have an FMLA policy that states it is not effective unless and until the employer has 50 or more employees or is required by emergency measures, such as the FFCRA. They may want to have on hand any forms employees typically need to complete, including a request for leave and fitness for duty form and provide at least minimal training to their human resource professionals.

Employers may want to review all leave policies to ensure that they are not only compliant with rapidly changing laws (such as the paid sick leave provision set forth in the FCCRA), but allow employees to remain home when they are sick. Policy stacking may allow employees the ability to quarantine as needed but may leave employers short-staffed. A comprehensive review is recommended.

Contracts

Employment contracts typically guarantee a certain level of income and occasionally allow for reductions under certain limited circumstances. Going forward, employers may want to add language that gives them the flexibility to reduce income, including nondiscretionary bonuses, under emergency circumstances.

Language may include who will make the determination (such as a board or certain appointed entities) when federal, state or local emergencies are declared. Severance, notice or garden leave provisions may also require a fresh look to allow for emergency situations without triggering severance or notice clauses. Other agreements, such as equity agreements, may require modest modifications to allow employers the flexibility needed to address emergencies while managing cash flow.

Safety

As we approach cold and flu season in the fall, employers may consider continuing safety protocols. Federal, state and local governments and agencies may continue to issue directives and guidance that should govern employers and will likely continue to stress social distancing in the workplace and refraining from gatherings in employee common areas like kitchens, break rooms, lounges and conference rooms.

Employers should also consider what other safety protocols will look like, including the provision of any legally mandated protective personal equipment. What will a routine fire drill in an office building look like? What about holiday gatherings? Employers may continue to limit business travel and request that employees taking personal travel should quarantine upon return.

We also recommend that employers assess their employees' exposure to the infection, and in line with the Occupational Safety and Health Administration's (or the equivalent state plan's) recommendation, determine if the exposure is low, medium, high risk or very high risk. Any safety protocols should take the exposure levels into consideration, and the employer should maintain an appropriate protective personal equipment. 

As employees return back to work, employers are also increasingly likely to face some trepidation from employees regarding their workplace safety. If an employee believes that he or she is not safe at work due to a specific reason, employers must institute internal policies regarding how such concerns will be handled, including any containment measures or reasonable accommodations.

Employee Benefits

As employers plan for the future, they should assess their current employee benefits policies and offerings, and identify any gaps in benefit plan offerings and, in particular, review the benefit plans that employees needed most during the crisis. Employers will want to consider what questions or concerns employees raised and determine which benefit plans functioned as intended or if there were any patterns identified in employee usage or needs.

Telehealth

Employers that offered access to virtual health care and other telemedicine benefits should determine whether those services were utilized and consider whether the services benefited their employees. Even after the pandemic, telemedicine may continue to be a critical component of health care as a way to treat individuals without exposing others to infections, as well as save time and provide greater accessibility to medical professionals.

Employers may consider expanding their telehealth program offerings if employees appreciated these benefits during the crisis. Employers considering expanding telehealth benefits should keep in mind that the relief under the Coronavirus Aid, Relief, and Economic Security Act allowing high-deductible health plans, or HDHPs, to provide employer-paid telehealth services before an employee's deductible is satisfied is temporary and applies to plan years beginning before Jan. 1, 2022.

Employers may want to watch how employee usage of telehealth shifts over the next year and a half, and to the extent necessary, plan for the shift back to the pre-CARES Act world where HDHPs will need to require the employee to pay the cost of telehealth before an employee meets their deductible, and ensure that any changes are communicated to employees.

Medical Benefit Plan Design Choices

As employees return from the current experience, employers may also find that employees will take a more conservative approach to health care in the future. For example, employees may consider opting for a plan with first-dollar coverage, increasing both the employee's and employer's costs.

If the costs are unduly burdensome, the company may want to consider eliminating certain plan options that do not make financial sense to keep in place. Employees are also likely to have more questions regarding their options.

Employers should be prepared to educate employees as to the cost differences between plans. In doing so, employers should consider whether to offer incentives to encourage employees to enroll in the HDHP option, such as employer contributions to a health savings account.

Disability Benefits

Employers may want to revisit their short-term and long-term disability policies. These policies may not have been drafted with a global pandemic in mind, and employers will want to review the eligibility and coverage terms of these policies and determine whether any changes are needed for employees to take advantage of these benefits, as well as manage employer costs and obligations.

Employee Engagement

Working remotely can lead to social isolation, allowing stress and anxiety to go unchecked. Wellness incentives, such as online wellness competitions and team-building projects, can be a way to build employee engagement and also encourage healthy activities.

Employer-provided mental health programs, such as employee assistance programs, can also make a positive impact. These types of programs can increase employee productivity by keeping employees engaged and helping them cope with stress, which in turn benefits both employees and employers.

Tailoring Benefits to a New Reality

As employee behaviors shift over the coming months, employers may need to reallocate resources to maximize effectiveness. For example, employers may consider whether funds devoted to nominal bonus programs would be better used if reallocated to one of its critical benefits. Similarly, employers who offer public transportation benefits may consider offering alternative options, such as paid on-site parking or other fringe benefits, to employees who express concern about virus exposure.

Employers that make contributions to their employees' retirement plan accounts should review their contribution obligations. If a plan provides for nondiscretionary matching or nonelective contributions, consider amending the plan to provide for a discretionary contribution on a go-forward basis to allow flexibility and help avoid possible cash flow problems. Of course, some employers may wish to retain these programs in order to maintain a plan's safe harbor status.

Past experiences are valuable tools with which to build new futures. While employers should not conduct their businesses in constant fear of a catastrophic business interruption, they are currently well-positioned to implement procedures that will allow them to navigate future emergencies more smoothly and confidently. This three-part series of articles was designed to help employers think about the lessons learned and think about ways to improve future reactions when emergencies strike.



Adam Cohen and Michael Hepburn are partners, Laura Taylor, Deepa Menon and Caitlin Naylor are associates, and Bonnie Burke is a staff attorney at Eversheds Sutherland.

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.

For a reprint of this article, please contact reprints@law360.com.

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