Author: Brett Holubeck

Remote Work and COVID-19

Published by Brett Holubeck on April 8, 2020

Things are not fine. Like really not fine. Work is not normal. Employees are trying to take care of their kids, work, find toilet paper (and other household goods), and maintain some kind of normalcy in light of the COVID-19 pandemic.

Remote work is a benefit that a lot of employees want in normal times. In the time of COVID-19, remote work is a smart way to protect employees that do not physically need to be present at work. Prior to this outbreak, CNBC published an article and stated that one “Gallup survey found that 43% of Americans work from home occasionally and according to Quartz ‘5.2% of U.S. workers completely worked at home in 2017.”’

Many people desire to work from home, but the coronavirus has given many employees the chance they never had before. The result of the COVID-19 pandemic may indeed include a surge of flexibility for workers and greater opportunities for them to work from home.

For those of you that are concerned about the effects on the productivity of your workforce. One company did a two-year experiment with its employees. It had one group work from home and another group came into work. As stated by Scott Mautz on Inc. Magazine, they found:

[An] astounding productivity boost among the telecommuters equivalent to a full day’s work. Turns out work-from-home employees work a true full-shift (or more) versus being late to the office or leaving early multiple times a week and found it less distracting and easier to concentrate at home.
Additionally (and incredibly), employee attrition decreased by 50 percent among the telecommuters, they took shorter breaks, had fewer sick days, and took less time off. Not to mention the reduced carbon emissions from fewer autos clogging up the morning commute.

However, 50% of the workers did not want to work from home all the time as they did not like the isolation. Employees want the opportunity to get to know their coworkers and be a part of the team. It may be best for employers to limit remote work to 2 or 3 days per week while requiring employees to come into the office for the other days.

However, for now we are isolated and if we are working, it’s likely from home. With the current pandemic in full swing, here are some things to consider right now.

Managing Remote Work

Managing employees when you see them on a daily basis is difficult enough. It becomes even more tricky to manage employees that you do not see (especially in light of the lockdowns from the coronavirus).

To manage employees properly, you must set clear expectations. For some employees, this will be relatively easy. A lawyer may be expected to answer emails, phone calls, and draft motions just like they would normally do in the office. Little may change for them. It looks different for other employees. Some employees that are a part of teams or work closely with other employees regularly may need to set up Zoom, Microsoft teams, or other video conference meetings to discuss their progress, reassign projects, and determine how everything will be integrated with what work has been done.

There are many ways that companies attempt to monitor employee progress and assign tasks.

Some are using software to track when an employee is active at the computer. These usually measure when an employee is active on their computer, but often does not give much more useful information.
Other companies are having employees make a report back to their managers at the end of each day with the work that they completed.
More tech savvy companies are using project management software like Trello to assign and manage projects. One positive thing that may come out of this is that more companies may recognize various tools that they can use to assign projects to individuals that will hopefully allow more employees to work remotely.

Maintaining Culture

One of the biggest problems with remote work is learning how to intentionally and thoughtfully maintain a workplace culture that is welcoming without employees being in the same place. People can quickly tell whether someone actually cares about them and whether they are a part of the team. There are a lot of horror stories about companies neglecting remote employees especially during the onboarding process. In light of the pandemic, showing your employees you actually care about their well-being and the well-being of those they love is pivotal. Managers need to ask employees how they are doing; they should ask whether their kids and loved ones are okay and if there is anything they can help with.

Managers need to have ways to connect with the employees. They should have meetings with the employees, encourage employees to openly communicate, and give employees the opportunity to provide feedback to managers on how things are going and whether any changes need to be made to the work. Supervisors must set expectations on how employees should communicate with them (is there a set time to call or contact them when they will be able to separate themselves from any family members that are nearby). Companies should also set up a virtual place for employees to communicate (like a Slack channel). A slack channel or other platform is a great way for employees to have a virtual water cooler to be able to keep in contact with each other (even sharing gifs and other funny images).

Some employees may not want to tell their bosses their issues over the phone or by email. You need other ways to solicit feedback from employees in an anonymous way. https://www.sli.do/ and similar anonymous polling software can be a great way to have employees share information that they may feel uncomfortable about or are afraid that someone may retaliate against them.

Companies should also reiterate that their Human Resources personnel is available to address any problems. HR should also reach out and connect with employees that are now working remotely. It is HR’s job to discover and address employee issues and concerns. The only way to do this effectively for remote workers is for HR to reach out to them. There is no longer an opportunity for employees to walk into HR’s office or to bring up an issue as HR personnel are walking throughout the facility.

Employers may also benefit from virtual town halls where they give messages to their employees about the direction that the company is going in and address employment concerns that are relevant for all employees. A platform like sli.do also allows employers to gather questions in real time or before an event, and allows employees to submit both with their name or anonymously.

It may be harder to keep tabs on what employees are feeling and how well they are doing in the current situation. You need to encourage them to let you know what they need especially now. It is a very difficult time for a lot of employees. Even if the employees are not afraid of losing their jobs, they may have a spouse that lost a job or a family member that is having problems. Supervisors need to let their team members know that employees can talk with them with any concerns.

Remote Employee Pay Issues

Many companies are struggling with managing pay issues for employees that have never done remote work.

For salaried exempt employees your pay structure does not change when they work remotely. They are guaranteed the same salary no matter the number of hours that they work (that is assuming that they do any work in a week and a limited exception does not apply).

One of the main issues with nonexempt salaried employees is making sure that they do not work over 40 hours a week. Time tracking software is essential to ensure that the employee is not working more time than they are supposed to work or that they are compensated if they are working. Some companies have installed software on computers to do this and many programs can be installed remotely if the employee was recently given a computer.

The biggest problem comes from what should be done with hourly workers. Off the clock work can be incredibly problematic and difficult to track. All companies should have a written policy that states that these employees are not to work off the clock, must report their hours accurately, and cannot work overtime without approval. Employees should sign and date this policy. Employers still need to pay employees that work overtime without approval but can discipline the employee.

Again, timekeeping software is the best option to measure how long these employees work, but other methods (including employees tracking and reporting their own hours) can be used if the software cannot be bought and set up.

Confidential Information

One of the most important considerations for companies that have telecommuting employees is protecting information. This not only means making sure that a hacker does not steal the information, it also means that employees do not take confidential information. Companies must be careful with how employees are transmitting information at home. Many programs have remote logins that can be used to securely view sensitive information even when the person is on their personal Wi-Fi.

All companies should take steps to protect their data by having a cybersecurity policy, purchasing and encouraging employees to use a virtual private network (more commonly known as a VPN), and installing encryption software on company computers.

I-9 Verification Issues

Every employee must fill out an I-9 when they are first hired. Employers normally cannot complete the I-9 form remotely. Companies must review the applicant/new hire’s documents in person. With COVID-19 (the Coronavirus) raging, this is one rule that has been relaxed. Remote workers no longer need to present documents physically. Companies can now view the documents through video and write COVID-19 as the reason for the delay in physical inspection on the relevant part of the I-9. They will need to review the documents physically once this disaster is over.

You can read more about I-9 issues in this past article I wrote here.

Workplace Injuries at Home

OSHA, Remote Work, and COVID-19

OSHA requires employers to keep safe workplaces. However, OSHA has said: “OSHA will not conduct inspections of employees’ home offices. OSHA will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.”

Employers that allow employees to work at home should have a policy that requires telecommuters to state that they have a dedicated workspace where they can work at home and that the space is safe. In these current times, it is probably not possible to ensure that telecommuters have such a space, so companies must be aware of this risk.

Workers Compensation Issues

An employee that is injured when working from home could be entitled to workers compensation. An employee injury is typically covered by workers compensation insurance if the injury “arises out of and in the course of employment, regardless of the location the injury occurs.”

One of the most unbelievable workers compensation cases, was the case of a French man who died from a heart attack after having sex with a stranger on a business trip. A court found that his company was liable and his death was a workplace injury since it occurred on a business trip. The result likely would have been different in the US.

In the current case of remote workers, tripping over their dog could be an injury that would entitle them to worker’s compensation coverage or stepping and subsequently tripping on a Lego (which hurts a ton more than it should). Basically, the employee’s home is now their work environment and companies may be liable for injuries that occur there. Many companies need to check their coverage to ensure that these injuries are covered under their current policy.

One suggestion by SHRM to minimize liability for these injuries is to “[s]et fixed work hours and meal and rest periods for telecommuters. Doing so can help establish whether an injury was ‘in the course of’ employment.”’

Conclusion

These are not normal times to conduct remote work. Many companies are trying their best to quickly address issues as they arise and that really is the most important thing that they can do. All companies need to work with their employees, take feedback from them to improve the current remote work situation, and adjust the way that they are managing based on feedback. The next couple of months will offer a great opportunity for companies to improve their telecommuter policies and practices which ultimately will make many businesses better.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Documentation Required for Tax Credits for FFCRA Leave

Published by Brett Holubeck on April 1, 2020

Picture of a calculator to illustrate that employers will need to take certain steps to get the IRS tax credit for the paid sick leave and family and medical leave under the Families First Coronavirus Response Act. — Photo by StellrWeb on Unsplash

As of April 1, employees are eligible for the paid sick leave and expanded family and medical leave available under the Families First Coronavirus Response Act (FFCRA).

On March 31^st, the IRS published guidance (FAQs) on what employers must provide the IRS to support a claim for sick leave or family leave tax credits. The guidance also clarified that only one caretaker can take leave for a child whose school or childcare is closed, and if the child is 14 or older, the parent must provide an explanation of the special circumstances that require the employee to provide care to receive the tax credit (at this point it appears that you still must provide the paid FMLA leave under the FFCRA).

The relevant portion of the IRS guidance provided as FAQs (from questions 44-46) is quoted and explained below.

What Information Do Employers Need to Show Eligibility for the Sick Leave or Family Leave Credits?

An employer can show eligibility “for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:”

1. The employee’s name;
2. The date or dates for which leave is requested;
3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
4. A statement that the employee is unable to work, including by means of telework, for such reason.

If the Leave is Requested Based on an Order to Quarantine or Self-Quarantine Advice, then the Statement from the Employee Should Include:

1. the name of the governmental entity ordering quarantine or
2. the name of the health care professional advising self-quarantine, and,
3. if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

If the Leave is Based on the Closing of a Child’s School or Childcare, Then the Statement Should Include:

1. the name and age of the child (or children) to be cared for,
2. the name of the school that has closed or place of care that is unavailable, and
3. a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and,
4. with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

“What Additional Records Should an Eligible Employer Maintain to Substantiate Eligibility for the Sick Leave or Family Leave Credit?”

An employer should maintain the following records to show that an employee legitimately took paid sick leave or emergency FMLA and to show that they are eligible for the tax credit:

1. Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave.
2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages. See FAQ 31 (“Determining the Amount of Allocable Qualified Health Plan Expenses”) for methods to compute this allocation.
3. Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
4. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

How Long should an Eligible Employer Maintain These Records?

Employers “should keep all records of employment taxes for at least 4 years after the date the tax becomes due or is paid, whichever comes later. These should be available for IRS review.”

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Texas Employer’s Guide to COVID-19 (the Coronavirus)

Published by Brett Holubeck on March 24, 2020

Image of the COVID-19 (new Coronavirus) to illustrate what employers are dealing with. — Photo by CDC on Unsplash

It is a full-blown pandemic. Companies are actively trying to figure out the next steps that they will take in the current situation to keep their businesses operating and deal with employee issues.

There have been a ton of posts for various companies with what they can do. I have yet to see one that has some of the Texas specific issues that employers face. I’ve put together some resources and insights below for employers.

The Texas Workforce Commission (TWC) has put together some answers to commonly asked questions here.

The Equal Employment Opportunity Commission (EEOC) also has some guidance available for employers about the Americans with Disabilities Act and COVID-19.

Occupational Safety and Health Administration (OSHA) has published guidance on preparing for COVID-19 and a page with more information on COVID-19.

The Center for Disease Control and Prevention (CDC) has information on COVID-19 for employers. It also provided guidance on how employers should treat critical infrastructure workers who may have been exposed to someone with COVID-19.

The Department of Labor (DOL) also published guidance on the new Families First Coronavirus Response Act and other issues.

The DOL has also released some Questions and Answers on the Families First Coronavirus Response Act.

Beyond those resources, here are some common questions that employers have had and some of the most important issues for employers to consider.

Alternatives to Layoffs

Before you consider laying off employees please consider other options that you do have. It is a very tough situation right now for all businesses and people, but there still are some ways to help your workers.

One option is to reduce employee hours. Texas has a Shared Work program.

It is essentially a program where businesses reduce employee hours for affected employees by at least 10% but no more than 40% for at least 10% of the employer’s workers in that particular unit. Workers that experience a reduction in hours can then get partial unemployment to supplement their hours.

The program allows a business to keep its employees and supplement their wages while they continue to work.

You must apply for a shared work program online and can do so through this link.

Employers can also reduce employee pay (there may be special steps for exempt employees) or offer a voluntary early retirement or severance package for anyone that wants to take it.

Terminating Some Employees

If you are not triggering the WARN Act but are terminating some employees and are looking for criteria to use to determine which employees to lay off, then you can find some tips on being consistent in disciplining and terminating employees here. To prevent an employment law claim you need to make sure that you document the reasons for termination. If it is related to the economic downturn and/or COVID-19, then you can put that on their termination notice.

When you are laying off some of your workers but not all of them it is important to use criteria to determine who will and who will not be laid off so that your policy is not discriminatory. You should use some objective criteria like seniority, required skills, or other factors to determine who to terminate.

Plant/Facility Closings or Mass Layoffs

Employers with more than 100 employees are required to give notice to their employees, the state, any union (if the company is unionized), and the chief local government official when they shut down a facility or layoff more than 50 workers for more than 6 months under certain conditions. You can read more about conducting a mass layoff or plant closing and the requirements under the WARN Act in my earlier article.

Small Business Loans for Businesses Affected by COVID-19

Texas small businesses that are affected by COVID-19 may be eligible for loans to help their business during this time. You can learn more about applying for loans on the Texas Economic Development site and the US Small Business Administration site.

Restructuring Work and COVID-19

Many people are working from home at this time, but only 42% of workers have worked from home occasionally. The other workers need to be at work to do their jobs. Some of these workers like those in the restaurant industry may not be able to perform their normal work because the restaurant is shutdown. You have the option to shift them into doing food delivery or other work if it is available and they are willing to do it. Do not forget to train the employees and continue to see what else they need to do to be successful. Many of them will be performing duties that they had not been performing before. For example, you may need track and pay the delivery driver’s actual expenses or the IRS mileage reimbursement rate if their costs to deliver food will take them below the minimum wage.

Remote Work and COVID-19

Managing remote employees can be challenging. Here are a few things to remember while you have employees doing remote work that did not normally do so:

Be aware of and create a plan to deal with confidential information and cyber security issues. The employee’s spouses and children may accidently view information if the employee leaves their computer out. There may also be issues with the employee using their personal Wi-Fi to transmit sensitive materials and other issues.
Tracking time for hourly employees is essential to ensuring that you are properly paying your employees and not creating liability.
Workplace injuries that occur at home must be reported and companies will need to file a claim with their worker’s compensation carrier for injuries that the employees have.
Make sure voicemail and calls are being forwarded.
Ensure that the employee has access to company files that are stored on any shared server or on the cloud.
Put procedures in place to manage your team and ensure that work is completed.

I wrote a much more detailed post about what companies must consider for remote employees in light of COVID-19. You can read it here.

What Can You Ask an Employee that is Sick with COVID-19?

The EEOC stated that:

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Can You Send a Sick Person Home If They Have COVID-19?

Yes, you can send a sick person home when they are exhibiting the symptoms of COVID-19. You can also require that they stay home while they are exhibiting the symptoms of the coronavirus.

Can an Employee Refuse to Come to Work Even Though They Are Not Sick?

Maybe. An employee cannot be forced to work in an unsafe environment. If your business is not following the latest guidelines from OSHA and the CDC, then it is possible that the person could file an OSHA retaliation claim. There may also be ADA issues where an employee’s request for time off or to work from home needs to be accommodated or at least considered. They may also be entitled for leave to care for their child under the new federal rule if their child is no longer in school. You may allow the employee to use their PTO or go on an unpaid leave of absence.

If none of these situations apply, then you can let the employee go if the employee is simply refusing to work. You do need to follow your policy though and carefully consider the consequences of firing someone in this situation. Obviously, some employees (e.g. healthcare workers) are required to work with people that may have COVID-19 or be at a risk for exposure. Employers are right to take action to ensure that these employees work and to fire them if they refuse.

Can You Send Someone Home that May Have Been Exposed to COVID-19?

Companies can require employees to remain home if they have been to areas where the illness has been present or when they believe that the employee has been exposed to the virus. Companies must careful not to engage in discrimination and to be consistent in how they engage in the policy. There has been issues with some companies discriminating against people of Asian descent.

Returning to Work and COVID-19

You can require an employee to get a doctor’s note that an employee is fit to return to work when an employee has a positive test result for COVID-19.

It is likely better not to require the employee to get a doctor’s note. Under the current circumstances it may be very difficult to obtain a doctor’s note and may take valuable time away from the doctors. You may instead seek some documentation from a local clinic or other source to certify that the person does not have COVID-19. You can also use your best judgment to take an employee back to work after a certain period of time when they no longer have the disease.

Caring for Children That Are Out of School Because of School Closures

Many states have laws that allow parents time off to care for children that are not in school. The new legislation that was passed at the federal level also has a provision that provides parents that need to care for their children 10 weeks of leave paid at 2/3rds of their regular pay if they are unable to work because they need to care for a child under 18 whose school or day care provider is closed because of COVID-19.

There are a number of items that businesses must maintain to obtain the tax credits for this leave. You can read about it here.

Families First Coronavirus Response Act

The government passed the Families First Coronavirus Response Act, which requires companies with less than 500 employees (covered employers) to do the following as explained by the DOL:

Two weeks (up to 80 hours) of expanded family and medical leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of expanded family and medical leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

Moreover, as noted by the DOL, these covered employers must also provide the following benefit for employees that have worked for them for at least 30 days:

Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

To pay for this the government has stated that covered employers will be able to qualify for a dollar-for-dollar reimbursement through tax credits.

The law goes into effect on April 1, 2020. The provisions above will be in effect through December 31, 2020.

There are a number of items that businesses must maintain to obtain the tax credits for this leave. You can read about it here.

What Should You Do If An Employee Has COVID-19?

Other than sending the employee home if they test positive but have not had symptoms or otherwise were not home for some reason what should companies do? Companies are not required to shut down if an employee tests positive. The virus has been found to be able to live on plastic and metal surfaces for 2-3 days, so it may be prudent to wait for that time to pass before reopening the company. Another option is to thoroughly clean the work area of the employee that has been found to be positive with the COVID-19 virus. You should also ask the employee to inform you of who they were in contact with so that you can inform those employees that may have been contact with an employee (do not mention the employee’s name) so that they can take appropriate measures. Generally, you should not disclose the employee’s name as the ADA and other laws prohibit disclosing medical information. As noted by Joseph J. Lazzarotti, ADA regulation 1630.14(d)(4)(i) provides a few exceptions to treating an employee’s medical condition as a confidential medical record:

Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
Government officials investigating compliance with this part shall be provided relevant information on request.

These are narrow exceptions but may apply in your workplace. You need to carefully assess when they apply to your business if you intend to use them.

Employers May Also Benefit From Submitting a Mass Claim for Unemployment Benefits

Submitting a mass claim is a way to streamline the unemployment benefits process for your workers and to prevent businesses from receiving a ton of notices regarding unemployment claims. Companies can also submit severance and wage information to streamline the process for their employees. Normally, companies need to submit the claim at least 5 business days before the layoff occurs, but this has been waived in the current crisis. You can read more about Mass Claims on the Texas Workforce Commission site here and can file a claim here.

Companies with Labor Unions

Companies cannot make unilateral changes to a mandatory subject of bargaining (such as changing workplace duties, increasing paid time off benefits, or bargaining about the effects of a layoff). You can review my article on negotiating a collective bargaining agreement to determine your obligations to negotiate. There may also be rules about laying employees off within your collective bargaining agreement that you will need to review to apply them to your business (e.g. bumping rights).

Companies should be aware that the CARES Act (the COVID-19 stimulus bill) has a provision that requires companies with 500 to 10,000 employees that take a loan through the act to remain neutral in any union organizing attempt during the course of the loan. The Act does not define neutral, but this will likely be interpreted as requiring the company to follow similar requirements when the company signs a neutrality agreement during any organizing campaign. It would prevent the company from holding meetings, passing out literature, and even correcting misstatements that the union makes. Any company that needs a loan should carefully weigh this factor before applying.

Conclusion

We can do this. This will be a difficult time, but there is a way through this crisis. Employers need to do everything that they can to keep their business operating and keep their employees safe.

The information provided is my own and does not reflect the opinion of my firm or anyone else.