managing workplace issues during the covid-19 pandemic By: Jonathan landesman, cohen seglias, pallas greenhall & furman
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whole new set of laws have been implemented at the federal and state level during the COVID-19 pandemic. Employers need to understand these laws to manage their employees and avoid legal liability. This article will detail some key issues that every employer needs to recognize. Unemployment Compensation
Many contractors wonder whether a laid-off or furloughed employee who refused to return to work will continue to be deemed eligible for unemployment compensation benefits. The answer is no. When an employer recalls an employee to work following a layoff or furlough, the employer should do so in writing to confirm that work is available and that everything possible is being done to ensure a safe working environment. If the employee refuses to return to work after receiving this notice, in most cases it is appropriate to deem the employee to have voluntarily resigned his employment. In these circumstances, the Department of Labor should determine that the employee voluntarily quit and is ineligible for benefits. Paid Sick and Paid Family Leave Effective April 1, 2020, employees working for employers with fewer than 500 employees are eligible for paid sick leave and paid family leave under the Families First Coronavirus Response Act (FFCRA). Employees are eligible for up to 80 hours of paid sick leave (up to $511 per day) when they are sick with the coronavirus or have been quarantined. Sick leave is also available for employees caring for a household member with coronavirus (capped at $200 per day). Thus, when an employee is sick, taking care of a sick family member, or quarantined, the employee is eligible for FFCRA sick leave or, as noted above, can file a claim for unemployment compensation benefits. That being said, em-
In addition, the FFCRA provides up to 12 weeks of paid family leave (at $200 per day) when an employee is required to stay home to care for a child whose school or daycare is closed because of the coronavirus. To provide some relief on this issue, the DOL has issued guidance on the rules for providing leave when the employee is not the primary child caretaker and when the child is 14 or older. Taking Temperature and Other Inquiries The Equal Employment Opportunity Commission issued guidelines saying that, in most cases, it is legal to take an employee’s temperature when he reports for work. Although thermometers are not always calibrated perfectly, most employers use 100.4 degrees as a hard cutoff. Instead of scanning employees for their temperature, a growing number of employers are having their employees fill out a questionnaire every morning when reporting for work. The questionnaires vary, but most seek information about the employees’ temperature, confirmation that the employees are not experiencing flu-like symptoms, and that no one in their household has been experiencing flu-like symptoms or tested positive for coronavirus. Whether your company is taking temperatures or asking employees to complete a questionnaire, one trap to avoid is failing to pay employees for all their compensable hours. Although the Department of Labor has not implemented specific regulations on this issue, based upon already existing regulations and legal precedent, the safe bet for any employer is to count any time spent by hourly, non-exempt employees standing in lines, completing surveys, or having their temperatures taken as compensable hours worked even if done before the start of the workday.
Labor Relations
Historically, to be eligible for unemployment compensation benefits, a claimant was required to certify that he was ready, willing, and able to work, and that work was unavailable. Now, under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), a claimant can receive unemployment compensation benefits if he is unable to work because he is ill with coronavirus, caring for a household member with coronavirus, or quarantined by a physician. In addition, the CARES Act provides claimants with an additional $600 per week through July 31, 2020 and extends benefits for an additional 13 weeks for a total of 39 weeks of benefits in most states.
ployers should not lay off or furlough employees because they have requested time off that would qualify under the FFCRA.
Telework Many employers have permitted their office employees to work from home during the pandemic, especially while statewide stayat-home orders remain in place. But what should an employer do when things begin to normalize and their business reopens? What if an employee who is not sick and is not requesting a leave of absence covered by the FFCRA asks to continue working from home because he is concerned? In some states, including New Jersey, executive orders ordering businesses to close their facili-
Utility & Transportation Contractor | june| 2020 35
