WE ALL MADE IT TO THE END OF THE YEAR! Amidst some of the worst working conditions - almost all unexpected and unprecedented - you displayed calmness, compassion, and the ability to all become, by necessity, functioning “lawyers.” Learning much of what we had to master in 2020 was often like drinking from the proverbial firehose, so please give yourselves a GOLD STAR for adapting to constantly changing rules and working conditions. Let’s all hope that extra knowledge can go to waste by some point in the new year and that we can get back to focusing on more mundane matters like avoiding liability at holiday parties.
To avoid drenching you in more from the firehose, I offer three special topics requiring prompt attention, each of them stemming from COVID because, alas, such are our times.
OPTIONAL CONTINUATION OF FFCRA PAID LEAVE:
I am sure you have been following the developing saga of the new federal aid and stimulus legislation. There are many financial pieces relating to unemployment benefits, PPP loans, benefit plans, and tax measures, but one important component relating directly to real life, real time workplace operation is the treatment of the FFCRA. Paid leave under FFCRA became available in April 2020 and was originally set to sunset on December 31, 2020. Under the new legislation, employers can opt to provide paid FFCRA leave in 2021 and continue to use tax credits to cover the cost through March 31, 2021. Continuing FFCRA paid leave past December 31, 2020 is not mandatory. Make that decision (very) soon. If discontinuing, you will need to inform employees currently using FFCRA paid leave that such leave is now over and that other options must be considered. Plus, you need to know how to respond to that first employee asking for time off for a COVID reason in 2021.
Choosing to offer FFCRA leave between January 1, 2021 and March 31, 2021 does not grant employees new allotments. Rather, FFCRA leave would continue to be available to those who have not already used up their original allotments.
However, employers who offer traditional FMLA leave based on a calendar year basis (not a rolling year basis) may find themselves offering more than the original maximum of twelve weeks of EFMLA if employees are granted a brand new twelve weeks of FMLA leave effective on January 1, 2021 under the normal company FMLA program. Also keep in mind, of course, that traditional FMLA may cover the employee’s situation even if the business chooses not to extend FFCRA into 2021 if the business offers traditional FMLA and that employee is eligible.
REMOTE WORK POLICIES:
If it has become apparent that remote work will be a long-term aspect of your operations, be sure you have a written policy in place to set expectations and manage risk areas. Even if you are an employer who fights the idea of a handbook, you can live with a policy to clearly communicate expectations in an area where confusion often occurs. If you have cobbled together a practice using a hodgepodge of emails and ad hoc decisions during 2020, now is a good time to memorialize what has worked best for you in one place.
A solid remote work policy should cover these subjects, along with others unique to your operations:
Report all time worked. No working off the clock;
Work schedule (hours the employee is expected to be working, g., 8:00 a.m. – 5:00 p.m., with an hour for lunch);
Expectations for reporting periods of unavailability during scheduled work hours;
Handling associated special expenses;
Overtime restrictions (g., no working over 40 hours without advance permission);
Requirements for in-office time at the actual business location;
Confidentiality concerns, including limitations on printing and downloading; use of personal electronic devices for business purposes; and, securing materials when not in active use.
COMPANY COVID VACCINATION PLANS:
Start considering whether you will require employees to take the COVID vaccine after the vaccines are readily available. Mandatory vaccination programs present many thorny issues – and moving pieces. Should your program be optional? Will you offer incentives? If so, what kind?
Before requiring vaccinations, consider availability. You will need to assess where your employees fall within the prioritized vaccine roll-out phases. In other words, if you require vaccination by a certain date, can the employees actually get the shots? Monitor vaccine distribution plan websites and secure information from your state health department about prioritization. Keep in mind that priority may depend on individual employee health conditions (which is sensitive, legally protected medical information) if your entire workforce is not prioritized due to the nature of the work.
Begin designing a process to address individual objections based on legally protected grounds such as disability/medical condition and religious beliefs. You may also face objections based on political opinion.
Keep in mind that handling the exchange of information about medical concerns is tricky business at all points in the process, so give yourselves a refresher on what you can ask and when. I suggest starting with the EEOC’s guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov). See Section K.
Under what circumstances will exemptions be granted? How can you accommodate objecting employees? (Again I suggest looking to the EEOC guidance as a starting point.) How will you take precautions to protect co-workers?
Will you pay for the vaccinations if they are not fully covered under your group health insurance? Will you make them available at the workplace? Or, will you require employees to choose their own provider and produce evidence of immunization?
After the company has made its decisions about the central framework, you will need a written policy or procedure to inform your team and set the groundwork for uniform enforcement. Lots to think through and nail down….
I sincerely hope the new year is good to everyone, bringing good health, happiness, and renewed prosperity.
NOTE: As always, nothing in this blog is legal advice and does not form an attorney-client relationship. Always consult qualified legal counsel to make the best decisions for your unique circumstances.