Author: Andie Burjek

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Employee claims his remote work request got him fired

remote workers, stressed out

An employee suffers from high blood pressure and lives with his 81-year-old mother. He’s an engineer and began working from home for his employer in mid-March when his state shut down non-essential businesses. His employer, however, remained open, and several weeks later required him to return to in-person work in the office. He refused, requesting continued work from home. The company refused that request and fired him for job abandonment. The employee sued for disability discrimination.

The employer argues that the employee’s high blood pressure is not a disability warranting accommodation, and it has no obligation to accommodate the employee because he lives with his elderly mother.

Also read: Permanent working from home works well if you have the right technology

As to the latter argument, the employer is likely correct—it doesn’t have to accommodate an employee because of the employee’s association with someone with a disability, even if that family member falls into one of the COVID-19 high-risk groups.
I also think, however, that this employer may have issues with the denial of the employee’s work-from-home request for his own alleged disability. It’s possible that this employee was entitled to work from home as a reasonable accommodation. We don’t know, however, because the employer never asked for any medical information from the employee as to the need for the request.
According to Tchankpa v. Ascena Retail Group, “Employers are entitled to medical documentation confirming the employee’s disability and need for accommodation.” If on-site attendance is presumed to be an job essential function (as noted by the Tchankpa court) then an employer would have to consider offering an accommodation to meet that essential function. Telework might be one such accommodation. But the employer won’t know that unless it engages in the interactive process with the employee.
And that’s where this employer failed. The employee asked for an accommodation and the employer refused it without consideration and without gathering the necessary information from the employee.
So, yes, you might be able to deny an employee’s work from home request. To be clear, in most cases I don’t think you should. But it is possible. You just have to do it the right way, which will always include the interactive process to determine if the employee is disabled and if the request is medically indicated to permit the employee to perform the essential functions of the job. For high-risk employees with a doctor’s note, however, denying the request takes a huge legal risk.
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CDC now recommends that people wear cloth face coverings in public

COVID-19, coronavirus, mask

As COVID-19 cases spike nationwide, and the CDC warns that we have “way too much virus” to control the pandemic, that same agency just released new guidance recommending that people wear cloth face coverings when in public.

The highlights:
  • CDC recommends that people wear cloth face coverings in public settings when around people outside of their household, especially when other social distancing measures are difficult to maintain.
  • Cloth face coverings may help prevent people who have COVID-19 from spreading the virus to others.
  • Cloth face coverings are most likely to reduce the spread of COVID-19 when they are widely used by people in public settings.
  • Cloth face coverings should NOT be worn by children under the age of 2 or anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
workforce management procedures, covidFor reasons that still baffle me, the use of cloth face coverings is a political issue, and not a science issue. Since this issue has become politicized to the point of endangering people’s lives, let’s look at, and debunk, the counterarguments people use against wearing masks in public.
1. A mask won’t stop me from catching COVID-19.
You are correct. A mask won’t stop you from catching COVID-19. But they will stop you from spreading it to someone else. The science is clear and irrefutable—if a majority of us wear masks when in public, we’d reduce the spread of this virus to an acceptable level, and if all of us do so we’d effectively stop the spread outright. If you don’t want to wear a mask for yourself, wear one to protect your family members, your friends, your co-workers, and others.
2. I’m not sick. 
Just because you don’t feel sick doesn’t mean that you’re not carrying COVID-19. It could also mean that you are a pre-symptomatic or asymptomatic carrier of the virus who could still nevertheless transmit it to someone else. You aren’t wearing the mask to protect yourself; you’re wearing it to protect others.
3. I’m not high-risk for Covid-19 complications.
Just because you are younger or lack any of the underlying medical conditions that places you at higher risk of Covid complications doesn’t mean that those you come into contact are as well. Think of your friends and family members, the friends and family members of your co-workers, and the friends and family members of those with whom you come into contact at the grocery store or anywhere else in the world. Again, you aren’t wearing the mask to protect yourself; you’re wearing it to protect others. (Do you sense a theme here?)
 
4. I have a constitutional right not to wear a mask.
No, you don’t, no more than you have a constitutional right to enter a business without wearing a shirt or shoes, to drive without a seatbelt, or to smoke on an airplane. The government can require you to wear a mask when outside of our house to protect the health and safety of others during a pandemic, period. If a government can’t maintain rules to keep us healthy and safe, why have a government at all?
5. Wearing a mask will harm my health. 
No, it won’t. People incorrectly claim that masks decrease the wearer’s oxygen intake, increase their inhalation of toxins and carbon dioxide, and cause their immune system to shut down. These claims are simply not true. If they were, doctors, nurses, and other medical staff in operating rooms would be falling ill daily. If you have a legitimate disability that a facial covering would negatively impact, the ADA might provide you some relief in the form of a reasonable or public accommodation. Otherwise, science simply does not support the claim that masks will harm the health of a healthy person. Moreover, if you think it’s hard to breath wearing a mask, you’ll really think it’s hard to breathe with your lungs drowning in fluid while on a ventilator.
6. Masks are part of a government conspiracy to control me and my actions.
Seriously? Do I even need to discuss this argument? Talk to me when you remove your tinfoil hat.
The bottom line: wear a mask.
If we simply wash our hands, and maintain an appropriate amount of social distance and wear a mask when around others, we’d all be able to go about some semblance of our normal lives. And since that’s all what we all want to do, why do some make this issue so damn hard?
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Judge hands McDonald’s a whopper of a rebuke for its COVID-19 response

chief people officer McDonald's

A month ago I reported on a novel lawsuit filed against McDonald’s Corporation in which the plaintiffs sought to have the fast-food conglomerate’s alleged failure to comply with health guidance and provide PPE to its employees declared a public nuisance.

chief people officer McDonald'sLast week, the judge granted the plaintiffs a preliminary injunction, concluding that they were likely to succeed on the merits of their claims. In so ruling, he concluded that the company fell short in its obligation to keep safe its employees and its customers.

Also read: When employees return to work, consider these guidelines

An issue in the case was McDonald’s exception to its face-covering and social distancing policy, which states, “Please note that individuals may be closer to each other than 6 feet, and pass each other momentarily, as long as it’s not for a period of 10 cumulative minutes or more.”

The court did not find that policy was reasonable (or likely to be lawful) under any set of circumstances during this pandemic.

McDonald’s has created an environment that leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families and the public as a whole and conflicts with the Governor’s Order on social distancing potentially undoing any good it has done as we fight this incredibly contagious disease. …
“Trying your best” in a pandemic can still cause substantial interference with the public health in a pandemic, especially when employees are not expected to remain 6 feet apart for periods of less than ten minutes. Defendants’ inability to ensure that employees are appropriately covering their face when not 6 feet apart is unreasonable given the magnitude of the potential consequences. …
McDonald’s social distance training is not in compliance with the Governor’s Order, nor has the Court been made aware of any CDC guidance that supports McDonald’s 10 minute exception to social distancing protocol. …
This potentially hazardous combination contradicts the Governor’s Executive Order and Illinois public safety guidelines on social distancing which require people to maintain a 6 foot distance from each other or wear a mask. The current McDonald’s environment leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families, and the public as a whole and conflicts with the Governor’s Executive Order.
This is the opinion of one judge in one state court on a novel legal theory. However, it does illustrate that employers are taking some (a lot of?) legal risk if they ignore, flout, misstate, or misapply state or local safety and reopening rules. Learn the rules for your jurisdiction, and train your managers and supervisors on them so that they can enforce them to keep everyone as safe (and legally compliant) as possible.
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Keys to effectively managing a remote workforce

employee communication

Today’s growing remote workforce has transformed our way of working and created a new normal that’s far from ordinary. This shift in how we work has created the need for new strategies and tactics for effectively reaching and engaging employees remotely. 

As some companies claim remote working is here to stay, workforce leaders and business managers must develop and hone remote workforce management skills, identifying and refining ways to ensure employees feel supported and can continue working effectively outside the office. 

Understand your employee base and communicate accordingly

coronavirus, COVID-19, remote workforceRemote working isn’t a new concept, but the broader shift to remote working caused by the COVID-19 pandemic is unique. Employees who are accustomed to working from home or enjoy remote working will thrive during this time. Others will struggle to successfully navigate their new work environment. 

Show grace to employees and colleagues who you know are struggling to adapt. As a workforce leader, it’s your job to ensure employees feel supported and are poised for success, regardless of their unique situation. Avoid taking a one-size-fits-all approach to communication.  

Regardless of communication style and preferences, schedule regular video and/or phone check-ins with your team and employees. Face-to-face communication is more important now than ever before. Video conversations with employees you might not see face-to-face, whether that’s because you sit in different offices or your workstreams don’t frequently overlap, can help you forge strong relationships across your entire organization. 

Provide resources to meet employee needs

Understand your team’s needs and put resources in place to help meet them. Host virtual town halls, consultation sessions and webinars on important issues impacting both your organization and the world. Whether that’s celebrating diversity to promote unity or offering support for working parents, do your best to provide the right resources for employees.

In addition to identifying specific needs, remaining cognizant of the work/life balance is crucial. Share what you’re doing to maintain a healthy work/life balance. Suggest outlets for your team to relieve stress and disconnect, whether that’s through exercising, meditating, reading, cooking, painting or volunteering. 

Knowing they have your support in maintaining a definitive work/life balance  — even if that means taking a break during working hours  — is key to positively impacting your employees’ mental and emotional well-being. Although more employees are working from home and many travel restrictions are in place, you should also encourage your team to fully sign off by using their vacation days (as available and in line with company policy). 

Maintain open lines of direct communication

When working remotely, it’s important for employees and colleagues to know that you’re available even though they can’t come to your office or meet in a conference room. Communicate the times of day you’re typically available and your preferred methods of virtual communication.

 I’ve developed a system with my supervisor: If my boss sends me a text message, the ask needs to be addressed immediately, while an instant message is less urgent. If I want to schedule an ad-hoc meeting, it should be scheduled for early morning. Communicate to employees the best time and ways to reach you, and be virtually available when you say you will be.

This goes both ways. At a time when homes have become home offices, developing an understanding of your employees’ schedules and demonstrating your support will go a long way. Is there a window of time when their child is napping and that’s when they prefer to schedule meetings? Do they like to unplug in the afternoon, perhaps to take a walk with their dog? 

Work to understand your employees’ schedules, and do your best to support them.

Employee management through effective communication

Managing a remote workforce effectively comes from truly knowing your employees and working hard to meet them where they are. During this tumultuous time, when possible, keep it light. Share a piece of good news, a poem, story or quote that’s meaningful to you. Look on the bright side and encourage employees and colleagues to do the same.

Being a constant in your employees’ lives, communicating with them, listening to them and building real connections is key to successful leadership today and every day. 

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Why an absence program is vital for any organization

software, compliance

Absence management programs and policies are increasingly significant for organizations, especially as more leave laws pass on a local, state and federal level. Managers dealing with absences from their staff must know what their company’s absence program means for their own role and responsibilities. 

Creating an absence program or policy can be complicated, and there are several types of leave that must work with each other. For example, how does a company’s paid time off policy align with paid family leave laws, short-term disability plans or the Family and Medical Leave Act? What if employees are using PTO when they should be using short-term disability?

Here is some guidance for employers who want to put something more formal in place and stay up-to-date on changing leave laws.

Creating a strong foundation

The foundation of any absence management program is that it takes into account all the local, state and federal leave laws that an organization must follow. Before a company decides what it wants to do, it must understand what it has to do, said Maura McLaughlin, partner with law firm Morgan, Brown & Joy, LLP. Different laws may have different employee count thresholds, for example. 

There are many types of leave, and as new leave laws come into effect, organizations should look at their current policies in case an update is necessary, McLaughlin said. 

Staying up to date with new laws can be done a few different ways, said Simon Camaj, absence and disability practice leader at Mercer. A company can outsource management to a carrier/vendor whose job it is to stay informed on the leave law landscape. A company could potentially rely on three parties together — a vendor partner, a consultant partner and in-house counsel — to make the best decisions. Meanwhile, if a company keeps decisions internal and relies on its in-house counsel, that’s more burden on the attorneys.  

It’s up to a company to make the best decision for themselves, but there are costs and benefits either way. 

From must-haves to nice-to-haves 

The next step is deciding how your company wants to address those areas where the law offers organizations some discretion or flexibility, McLaughlin said. How will the company decide on accruals for paid sick leave — lump sum or hours worked? Does the company want to make a certain type of leave paid rather than unpaid? What else does the company want to offer? 

These decisions depend on the culture of the organization and what resources it has, McLaughlin said. What is common to see in the absence program or policy of many companies, though, is longer bereavement leave than the law requires and paid parental leave in states where it is not required. 

Documentation and communication 

What an organization also must consider is how it will document the necessary information for its records and communicate to employees what forms or notices they must fill out for different types of leave.

The onboarding process is one area where employees may be informed about their company’s absence management policies, McLaughlin said. Here they can learn who they go to when they must take time off or some type of leave — their manager, HR or someone else? They can also learn the correct modes of communication to reach out to that person, whether that’s a phone call, email or something else. 

Manager training

Finally, McLaughlin said, organizations can train managers and HR professionals to make sure they know what signs to take notice of that may signal a potential upcoming absence. Is an employee exhibiting some behavior that may predict that this person may be eligible for FMLA leave? For example, an employee may say something along the lines of, “I was in the hospital overnight” or “I need to be on bedrest for just a few days.” While these might not lead to any prolonged absence, if they do managers can be prepared, having considered the employee’s absence or potential reasonable accommodations beforehand. 

This training can also stress that managers cannot retaliate against employees and teach managers how to handle an absence in a non-discriminatory way. A major absence management challenge is managers being able to manage employees consistently so it doesn’t look like discrimination, McLaughlin said. 

How this type of training is conducted depends on what internal resources an organization has, McLaughlin said. It can come from an internal training function or from external training. Either way, there can be a baseline training session along with refreshers as laws or company policies evolve. 

The significance of absence management 

An absence program is vital to an organization. Managers don’t want to fall into the mistake of not managing this until it’s too late, McLaughlin said.

“You may have [an employee] who has not been held accountable, and now you’re at a point of it just being a real problem from an operations and business perspective. But you have no documentation of the fact that it’s been a problem or that you’ve given them all the leave they’re entitled to. And now you have a problem that could have been [avoided,]” she said. 

 

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Employee scheduling after the COVID-19 pandemic

remote work, mask

Employee scheduling was getting a facelift even before COVID-19, and in the aftermath of the pandemic, employers have even more to think about when it comes to scheduling employees.  

The 2010s brought a number of state or local predictive scheduling laws into effect, giving employees much needed stability but complicating the scheduling process for managers. Meanwhile, the COVID-19 pandemic highlighted the lack of sick or paid leave for many hourly workers and the struggles employers go through when employees can’t come to work fo COVID-19-related reasons.

David Kopsch, principal consultant at Mercer, explained the major employee scheduling issues employers are encountering and ways to address those challenges.

Also read: Leave management should be as simple as submit, approve and hit the beach

software, compliancePredictive scheduling laws across the United States

In a nutshell, these predictive scheduling laws require employers to notify employees in advance of what their schedules will be. Some cities require as low as 72 hours notice while others require as high as two weeks. 

The goal is to reduce uncertainty in employees’ schedules so that they can plan for responsibilities like child care, school or other jobs.   

Also read: How far in advance must a work schedule be posted?

The most frequently discussed part of these laws is the advance notice on schedule, Kopsch said, but they also contain many other provisions, like recordkeeping requirements and providing compensation for schedule changes.

Something else significant in these laws are rules that let employees have a certain amount of time off between the end of the last shift and the beginning of the next one, Kopsch said. For example, if an employee closes shop around 10 p.m., the same employee is not opening the site at 6 a.m. There are safety reasons for this, but these rules also exist to ensure that employees get enough sleep or rest between shifts. 

While making the lives of employees easier, these laws have also added another layer of complexity for managers who must create schedules. 

COVID-19 complications to employee scheduling

With the pandemic, hourly employees are facing a variety of situations in which they may not be able to come into work. They may be sick or suspect that they may have the coronavirus. They may face child care lapses due to school closures or other circumstances. 

This can hurt employees’ wages and has the potential to impact their eligibility for bonuses, overtime or benefits, Kopsch said. Employers also face extra pressure when employees don’t come into work. 

Some employers may need to adjust their staffing models due to COVID-19, Kopsch said. As businesses start reopening, one reality is that they may have to spend more time in the mornings cleaning and sanitizing the location. Perhaps the business will have to be open less hours during the day and run on a reduced schedule, which also has the impact of a reduced workforce or giving employees less hours.    

Also read: Shift scheduling strategies can be improved through technology

Communication with payroll providers 

Managers must ensure they are communicating with their payroll provider through this all. 

“In these times of reduced schedules, there’s more interaction with payroll providers and technology to update the systems and adjust for the changes in how the workforce is working and coming to work,” Kopsch said. 

For example, he noted a tactic some retailers are using in which they’re paying hourly workers slightly higher wages or offering some type of bonus to motivate and retain employees. 

“If you introduce a new pay element, that’s one more item that you have to ensure [that you’re being] compliant. And that goes back to working with a payroll provider,” he said.

Also read: Shift schedule templates are a basic food group to workforce management

Communication with employees

Managers can also take on certain best practices to keep employees engaged and in the loop. Clearly communicating open and closing times is important. Also, make sure to be clear when employees should arrive for their shift. There may be extra precautions to take before their shift starts, like sanitizing or training. 

Reopening a business after the pandemic is complicated, and clear communication can help simplify it.

Technology can also simplify the communication between employers and employees. 

“We’re seeing technology as something being reviewed more and more by employers as a way to support employees as well as a way to communicate with them and help them understand what is available in terms of what schedules are available and getting and receiving communication.,” Kopsch said.

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How far in advance must a work schedule be posted?

time off, PTO, scheduling

Predictive scheduling laws have changed the way many businesses make their schedules. While there are many details in these rules — like record keeping requirements and providing compensation for schedule changes — what people most talk about is employers’ responsibility to provide employee schedules in advance.

Also read: Shift swap software empowers managers and employees to take charge of scheduling

The purpose of these laws is to give employees more predictability and stability, providing them a chance to plan ahead. If they know their work hours in advance, they will more likely be able to plan for a second job, child care or other responsibilities that must be planned in advance.

Still, these laws mean that businesses must stay compliant with new regulations, and for employers with multiple locations across the country, they may have different rules to comply with. Following is some of the basic information about each of these laws. 

Also read: Employers grapple with laws about work schedules

How far in advance must a work schedule be posted?

The timing varies. Currently, there are several laws in cities across the United States. Four cities in California have predictive scheduling laws: San Francisco, Emeryville, San Jose and Berkeley. Other cities and municipalities include New York, Seattle, SeaTac and Philadelphia. Chicago joins these July 1, 2020.

Meanwhile, Oregon is the only state with such a law in effect, while New Hampshire and Vermont have more limited scheduling-related laws.

These laws have specific stipulations for which businesses must comply to the rules, and they also have many other details employers must be familiar with. However, looking at this from a more basic point of view, here is how much notice employers whom the laws apply to must give employees in each location:

  • San Francisco: 14 days notice; went into effect March 1, 2016. 
  • Emeryville: 14 days notice; went into effect July 1, 2017.
  • San Jose: No advance notice component, but employers must offer additional hours to existing, qualified part-time employees before hiring more employees; went into effect March 13, 2017.
  • Berkeley: No advance notice component, but employees may request flexible or predictable working arrangements twice per year and after a major life event.
  • New York: 14 days notice; went into effect Nov. 26, 2017.
  • Seattle: 14 days notice; went into effect July 1, 2017.
  • SeaTac: No advance notice required, but employers must offer additional hours to existing, qualified part-time employees before hiring more employees   covers only large hospitality employers and transportation employers.
  • Philadelphia: 10 days notice; went into effect April 1, 2020. 
  • Chicago: 10 days notice; goes into effect July 1, 2020.
  • Oregon: 14 days notice; went into effect August 8, 2017.

Complying with predictive scheduling laws

How far in advance must a work schedule be posted? These regulations provide clear numbers on the minimum employers must do, but that doesn’t mean they can’t go above and beyond that.

Employees are beginning to return to work after months of quarantine. The conversation around predictive scheduling will have to evolve because of the coronavirus, said Ari Hersher, partner at Seyfarth law firm. Employers can begin improving on the communication they have with employees.

“Employers should do what they can to communicate as far in advance about their anticipated schedule as possible,” he said, adding that the clients he works with that are subject to predictive scheduling laws give up to 21 days notice on schedules. 

Managers can communicate scheduling in advance and explain the flexibility needs of the business at the same time, creating an open line of communication between employer and employee.

“Employers can say, ‘We’ll give you 30 days notice, but please understand that our scheduling needs are volatile,’ ” he said. “People should [try to] understand each others’ needs and be mindful of them.”

David Kopsch, principal consultant at Mercer, agreed that giving more notice will benefit employers right now. The return-to-work environment is stressful. Employers must create employee work schedules without knowing what sort of customer demand to expect, and some employees may be fearful to return to work in a customer-facing job.

Organizations can provide schedules to employees up to four weeks in advance, Kopsch said. From there, they can call and confirm with employees three weeks in advance, make whatever changes are necessary and officially post the schedule two weeks ahead of time, which would allow employers to comply with any of the predictable schedule laws. 

“We are seeing much more communication coming from employers, and what [employers] are sharing with us is employees like it,” Kopsch said. “They like this high level of communication. They like the engagement and the concern and empathy that employers are demonstrating,”

 

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Paycheck Protection Program Flexibility Act brings loan forgiveness changes

COVID-19, coronavirus, public health crisis

On June 5, 2020, President Trump signed into law the Paycheck Protection Program Flexibility Act of 2020. The PPPFA —  as its name suggests — offers greater flexibility for employers receiving loans under the CARES Act’s Paycheck Protection Program (PPP) by extending time frames, expanding exemptions and modifying other PPP terms affecting potential loan forgiveness and repayment. 

Here are the key provisions of the PPPFA: 

Extended “Covered Period” for Using Loan Proceeds

Under the PPP, borrowers needed to spend PPP loan proceeds on approved expenses within a period of eight weeks to potentially qualify for loan forgiveness. The PPPFA expands this period so that borrowers may now spend their PPP loan funds (a) over a period of 24 weeks from the origination of the loan, or (b) by December 31, 2020, whichever is earlier. 

Also read: How to reduce compliance risk

Borrowers are, of course, still free to use the original eight-week covered loan period in the PPP or “alternative payroll covered period” provided in the U.S. Small Business Administration (SBA) loan forgiveness guidance. (A link to the earlier client alert discussing SBA loan forgiveness guidance appears here.)   

Reduced Percentage of Loan to be Spent on Payroll for Forgiveness

The PPPFA states that 60 percent of PPP loan proceeds need to be spent on payroll costs in order for a borrower to obtain forgiveness, leaving 40 percent which can be spent on qualifying non-payroll expenses. 

Also read: Employers grapple with laws about work schedules

This is a reduction from the 75 percent/25 percent split which had come from the SBA guidance and should give employers some welcome flexibility to spend a greater amount of loan proceeds on rent, mortgage payments and other qualifying non-payroll expenses. 

Employers should note, though, that the language of the PPPFA indicates that if an employer does not spend 60 percent of loan proceeds on payroll costs, it will not be eligible for forgiveness of any portion of the loan. As there have been questions as to whether such a significant change from the PPP was intended, Morgan, Brown & Joy will continue to monitor future developments in this area. 

Expanded Exemptions from Loan Forgiveness Requirements

The PPP provided that an employer who had experienced a reduction in either employee headcount or employee salaries between February 15, 2020 and April 26, 2020 (30 days after enactment of the CARES Act) could receive forgiveness if it eliminated any reduction in headcount and salary by June 30, 2020. The PPPFA extends this June 30 date to December 31, 2020.  

Employers should not, however, be lulled into thinking that they can simply restore salary levels and headcount in a single stroke on December 31 and achieve full forgiveness. The requirement of spending 60 percent of loan proceeds on payroll will require forethought about restoration of staff levels and timing of payroll costs incurred and paid. 

The PPPFA also expands exemptions from the reduction to loan forgiveness corresponding to a reduction in the number of full-time equivalent employees. An employer who has experienced a reduction in FTE employees after February 15 will not see a reduction in loan forgiveness based on FTE count if it can in good faith document: 

  1. That it has been unable to rehire individuals who were employed by the business on February 15, 2020 and also unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020; or
  2. That it is unable to return to the same level of business activity at which it was operating before February 15, 2020 due to compliance with requirements or guidance from the U.S. Secretary of Health and Human Services, CDC or OSHA between March 1 and December 31 relating to standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19.  

Five-Year Repayment Period for New Loans

For PPP loans made on or after the effective date of the PPPFA (June 5), borrowers will have a period of at least five years to pay off the portion of any loan which is not forgiven. For loans made before the PPPFA effective date, lenders and borrowers may, but are not required to, mutually agree to modify the terms of an existing loan to include a minimum five-year period for repayment of any unforgiven amounts. 

Extension of Loan Deferral Period

The PPPFA also expands the six-month loan deferral period created by the PPP. Repayment of a PPP loan (including principal, interest and fees) is now deferred until after the SBA has determined the borrower’s loan forgiveness amount and remitted that amount to the lender. For borrowers who do not apply for forgiveness within 10 months after the last day of the covered period, repayment of the loan begins at the expiration of that 10-month window.  

Finally, in addition to the above, the PPPFA allows recipients of PPP loans to participate in the deferral of certain payroll taxes as provided by the CARES Act, which PPP borrowers had previously not been eligible to do.  

The changing landscape of PPP guidance is only one of the many challenges employers face as businesses reopen and a greater number of employees return to work. Employers should consult their attorneys for assistance as legal concerns arise in workplaces in the COVD-19 era. 

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Absence management is increasingly vital for managers to understand

shift scheduling, technology, custom fields

Absence management — the program and policies in place that control absences due to injury and illnesses — is a vital part of workforce management. Employees miss work for a variety of reasons, and managers must make sure they are on top of employee absences and keeping the business running.

That being said, there are certain aspects of absence management that tend to elude managers. Simon Camaj, absence and disability practice leader at Mercer, said that understanding intermittent disability claims is an area in which many managers lack understanding. 

Also read: Leave management should be as simple as submit, approve and hit the beach

This is problematic for both managers and employees. Employees may have a valid claim and a condition that allows them to take time off intermittently to tend to their condition. But a manager is running a business, and they must understand that their employee can legitimately take that time off and still be able to manage their business in that employee’s absence. 

Intermittent versus continuous claims 

A continuous claim happens in a situation where an employee needs short-term disability leave for a finite amount of time. They may, for example, not be at work for six weeks straight, giving the employer the opportunity to plan around their absence and prepare for their return. This is relatively straightforward, Camaj said. 

What often complicates disability leave for employers, though, is when an employee is physically present at work but eligible for intermittent leave. As the UC Santa Cruz human resources team explains, an intermittent leave may allow an employee to take time off in separate periods of time due to a single illness or injury, rather than one continuous period of time. Leave may include periods from an hour at a time, a day at a time or multiple days in a row, the HR guidance added.  

Communication between employees and managers is the biggest challenge here, Camaj said. Leave policies may not be clear on the role of the manager and employee regarding intermittent leave. 

Also read: Employers grapple with laws about work schedules 

The relationship between management and company leadership
Company decision makers should be clear on what the organization’s time off and employee leave strategy is and how it fits into what the organization is trying to accomplish.

“If you’re going to offer something to employees, they will naturally consider using it,” Camaj said.  “And you have to balance that with certain business goals and priorities.”

It must be made clear in the policy and communicated to both employees and managers what their role is in this absence management procedure, he said. Who does an employee call when they need to take their intermittent leave? What are they personally responsible for? Meanwhile, managers must know what rights employees have to take intermittent time off and what their strategy is to modify the schedule in case that happens.

Whichever absence management administrator or vendor a company uses has a role here and a responsibility to communicate important information to employees and managers, Camaj said. How does the administrator communicate with the employee who has the legal right to take a certain type of leave? How do they engage with the managers in charge of these employees? 

A paradigm shift 

There’s been a paradigm shift recently where there’s more awareness from employers of the importance of leave management and of employees being able to balance their work and personal lives and health, Camaj said. Evidence of this change includes the expansion of paid parental leave and caregiver leave laws across cities and states. 

”This is employers looking at employees and saying, ‘They’re at different stages of their lives and we have to meet people where they’re at.’” he said. “The paradigm shift is employers are seeing leave of absences as employee health events, and if you do a better job at managing leave as a health event, you have stronger productivity, and it helps everybody. It’s not just a leave program you have to have, It’s a strategy.” 

Also read: Time off policies promote convenience while enhancing engagement

This trend will continue, he said, as employee leave grows increasingly more complex with new local or state laws concerning paid time off and paid leave. The issues employers have managing employee absences are not going away. Still, Camaj said he’s seeing more employers step up to the plate.

”We have a greater focus where employers are looking at their leave policies; managers and employees are trying to understand what they have; and vendors are finally at a point where they’re trying to simplify and support leave administration in general with technology,” he said. “As an industry we’re making progress, but this is only going to continue becoming a bigger focus.” 

 

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Can you force employees who participate in George Floyd protests to quarantine without pay?

Yesterday I discussed the legalities of placing on an unpaid leave of absence employees who engaging in leisure mass gatherings outside of work.

What about employees who you discover gathered in mass to protest George Floyd’s murder and racial injustice? There are legitimate concerns that the mass protests taking place in cities around the country will cause an acceleration of COVID-19 spread and a spike in cases. Can you place protesting employees on an unpaid leave of absence to quarantine before they return to work?
The TL;DR answer is “yes.”
The longer answer has a couple of key exceptions and other nuances.
1/ Public employees enjoy some First Amendment protections work. In the private sector, Connecticut prohibits employers from disciplining or firing employees for exercising their First Amendment rights. California, New York, and the District of Columbia ban political affiliation and activity discrimination. New Mexico and South Carolina ban discrimination based on political opinions. And Colorado and North Dakota more broadly limit an employer from restricting any lawful off-duty activities by employees. In any of these cases, I’d have concerns about taking an adverse action against an employee for participating in a peaceful political gathering. (For rioters and looters, all bets are off no matter what.)
2/ Title VII might offer additional protections for protesters, but only if an employer treats employees of one race (say, for example, its African-American employees) more harshly than employees of another race. If an employer treats all employees the same by requiring anyone protesting to take a mandatory two-week unpaid leave of absence, then Title VII won’t offer much help.
3/ The National Labor Relations Act’s protections for employees who engage in “protected concerted activity” likely have zero application, for the reasons I discuss here.
This issue, however, is a lot more nuanced than, “The law says I can send employees home without pay while they quarantine, so I will do so for anyone engaging in behavior outside of work that placed them at risk for COVID-19.” There is no easy answer to this question. I believe that you are taking a risk of injecting COVID-19 into your workplace if you allow these employees to return to work on the heels of protesting (no differently than returning a weekend mass-gathering partier). The question is whether you pay them for their time off. You have two options, which depend on where you come down on the safety vs. racism spectrum:
1/ Treat George Floyd protesters no differently than any other person who gathers in a large group outside of work by sending them home for two weeks without pay. The safety issues are identical. Mass protesters could turn into super-spreaders of the virus, including in your workplace. We are still in the midst of a pandemic, and no matter how large of a problem system racism is, and no matter how awful George Floyd’s murder was, we cannot lose sight of the big coronavirus picture, lest we have another spike in cases and lose even more lives.
2/ Pay George Floyd protesters for their mandatory leaves of absence. These employees were not getting their weekend jollies on, but were exercising their political dissent over a vitally important issue. You can take a stand as an employer against the racism over which they were protesting by paying them for their mandatory LOA quarantine. It also prevents your company from being painted as pro-racism by a viral online mob based on a perception (accurate or not) that you are punishing these employees for protesting this important issue.
Me? I’m longing for a day when we don’t need to even have this discussion because both the pandemic and racism are history.