Coronavirus – Page 7

April 8, 2020June 29, 2023

If you require employees to wait in line for a coronavirus fever check, pay them for waiting

Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.”

To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period.

Since this is a legal blog, however, I might as well look beyond common sense and examine the laws impacted by this issue—the ADA and the FLSA.

The ADA typically prohibits employers from taking employees’ temperatures as an unlawful medical examination. Because the WHO has classified coronavirus as a pandemic, however, just about all medical exam issues under the ADA are temporarily moot. According to the EEOC, among other coronavirus prevention measures, employers may measure employees’ temperatures. This issue, at least for now, is pretty cut and dry.

The FLSA issue is a little more nuanced. In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing “preliminary” (pre-shift) and “postliminary” (post-shift) activities that are “integral and indispensable” to an employee’s principal activities. What activities are “integral and indispensable?” Those that are (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”

In Busk, for example, the Court held that post-shift security screenings were not “integral and indispensable” for an Amazon warehouse employee, because such screenings are not “an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment,” and the employer “could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.”

According to the Bloomberg Law article, employers could look to Busk to argue that pre-shift temperature checks, even if mandatory, are not “integral and indispensable” and therefore can be unpaid. (For what it’s worth, I think a just as good, or better, argument is that preliminary temperature checks to protect employees from a deadly virus are integral, indispensable, and compensable.)

Busk or no Busk, this isn’t a “what does the law allow” issue; this is a “what’s right is right” issue. If you’re requiring your employees to queue in a line to take their temperature before you’ll let them enter the workplace, pay them. Don’t be cheap and don’t count pennies.

Your employees are scared. They are risking their own personal health and safety, and that of everyone who lives in their homes, to keep your essential business up and running. They could just as easily stay home, limit their exposure, and collect unemployment.

What they need is your compassion, not your penny-pinching. Times are tough for everyone. I get it. But your business shouldn’t go belly up if you pay each employee for a few extra minutes of time each day, especially when the federal government is going to reimburse you through your Paycheck Protection Program loan. (You did apply for your loan, right?)

At the end of this pandemic, many businesses will no longer exist. If there’s such a thing as karma, one of the deciding factors in which ones survive will be how they treated their employees.

* * *

Don’t forget that I’ll live on Zoom tomorrow, April 9, from 11:30 am – 12:30, open paid sick leave and eFMLA issues, and taking your coronavirus questions. And Norah has said she will drop in and share another song. You can access the Zoominar here: https://zoom.us/j/983559955

April 6, 2020April 6, 2020

Coronavirus Update: We CARES about unemployment

The past two weeks have seen a record 10 million new unemployment claims. This number does not even include many of the millions more who have had their hours or wages cut as businesses continue to struggle with the realities of operating in a world turned upside down by coronavirus. Sadly, we should expect this situation to get a lot worse before it starts to get better.

Thankfully for each worker unemployed or underemployed as a result of coronavirus, the CARES Act provides significant financial relief. It contains the following seven unemployment expansion and enhancement provisions.

1. Pandemic Unemployment Compensation (FPUC) — This program provides funding for an additional $600 per week in unemployment benefits through July 31, 2020, for any individual who becomes unemployed, partially unemployed, or unable or unavailable to work or telework because of any of the following coronavirus related reasons:

- The individual has been diagnosed with coronavirus or is experiencing symptoms of coronavirus and seeking a medical diagnosis.
- A member of the individual’s household has been diagnosed with coronavirus.

- The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with coronavirus.

- A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the coronavirus public health emergency and such school or facility care is required for the individual to work.

- the individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the coronavirus public health emergency.

- The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to coronavirus.

- The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the coronavirus public health emergency.

- The individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of coronavirus.

- The individual has to quit his or her job as a direct result of coronavirus (which one could interpret as covering employees who quit out of fear of contracting coronavirus).

- The individual’s place of employment is closed as a direct result of the coronavirus public health emergency.

Additionally, this program contains a non-reduction rule, which prohibits states from changing how they compute regular unemployment benefits to reduce the average weekly benefit amounts or the number of weeks of benefits payable to impacted employees.

In Ohio, this means that a minimum wage employee with no dependents would see his weekly unemployment benefit increase from $171 to $771 (an annualized salary of $40,092), and an employee with three dependents maxed out on unemployment would see his weekly benefit increase from $647 to $1,247 (an annualized salary of $64,884).

Because of this substantial increase, I am worried that many employees will decide that they are better off (either financially or for health-related reasons) quitting their jobs and collecting unemployment, leaving essential employers with huge labor gaps to fill to maintain basis minimum operations. For this reason, essential employers should be communicating with their employees on a daily basis about all of the steps they are doing to ensure, as best as possible their employees’ health and safety.

2. Pandemic Unemployment Assistance (PUA) — This program provides unemployment compensation through December 31, 2020, for individuals who are self-employed, seeking part-time employment, or who otherwise would not qualify for regular unemployment benefits because of one of the above-listed coronavirus related reasons.

3. Emergency unemployment relief for governmental entities and non-profit organizations — This program provides federal reimbursement of state unemployment payments made to governmental entities and non-profit organizations through December 31, 2020, regardless of whether the unemployment claim is related to coronavirus.

4. Temporary full federal funding of the first week of compensable regular unemployment for states with no waiting week — Through December 31, 2020, states that waive any waiting periods and provide unemployment benefits to applicants during their first week of unemployment will receive 100 percent federal funding for benefits paid during that initial week.

5. Emergency state staffing flexibility — States as provided flexibility through December 31, 2020, to modify their unemployment compensation laws and policies with respect to work-search requirements, waiting weeks, good cause standards, and employer experience rating. Ohio, for example, has eliminated its work-search requirement and waiting periods, and is not counting coronavirus related unemployment claims against an employer’s experience rating.

6. Pandemic Emergency Unemployment Compensation (PEUC) — This program provides up to 13 weeks of additional unemployment benefits through December 31, 2020, for individuals who have exhausted all rights to regular unemployment compensation under state or federal law or have no rights to regular unemployment compensation under any other state or federal law. The law requires individuals seeking PEUC benefits to be able to work, available for work, and actively seeking work. States, however, are required to offer flexibility in meeting the “actively seeking work” requirement for individuals unable to search for work because of coronavirus, including illness, quarantine, or movement restrictions.

7. Temporary financing, agreements, and grants for Short-Time Compensation (STC) — This program provides pro-rated unemployment benefits for up to 26 weeks through December 31, 2020, to employees who have had their hours reduced in lieu of layoff.

April 1, 2020June 29, 2023

The rise of the sick, distressed and oppressed worker

Why does it take an international pandemic that costs tens of thousands of lives to reveal the worst in some employers and government leaders who put themselves ahead of the welfare of workers?

OK, that broke one of Rick’s cardinal rules of writing: Never lead your story with a question. But in this case, I think a question, rhetorical as it is, embellishes the senseless selfishness of some of the world’s largest and wealthiest corporations that treat its workers as if they are nothing more than disposable widgets.

Let’s start with Amazon, which of course owns Whole Paycheck — oops, upscale grocery chain Whole Foods. According to the Wall Street Journal, a Whole Foods workers group urged employees to call in sick on March 31 after seeking health care coverage for its part-time workers and paid leave for all workers who must isolate or self-quarantine as a result of coronavirus. Whole Foods employees also sought improved workplace safety measures including hazard pay and sick pay for employees who may be sick but haven’t been tested for the coronavirus.

We’ve seen a similar corporate insensitivity on the part of grocery delivery service Instacart. Some employees stayed off the job March 30 demanding greater pay and better access to disinfectant and paid leave.

Really, Instacart and Amazon, is it asking too much to provide these workers with more humane working conditions? You’ve both amassed fortunes on the backs of these low-paid employees. As you and dozens of other retailers desperately seek to hire thousands of new employees, providing them with a bottle of hand sanitizer and paid leave if they are sick is the least you could do for your workers who are being lauded nationwide as heroes.

And frankly, it never occurred to me just a few short weeks ago as Instacart shoppers scurried past me filling brown paper bags with spaghetti sauce and Cinnamon Toast Crunch cereal that these workers would be risking their health and safety for customers. I’m guessing it never crossed their minds, either.

Yet here we find ourselves. As an insidious virus ravages our population, we now come face-to-face with an age-old standoff between labor and employer. I won’t quite say that the downtrodden workers will throw off their chains and “expropriate the expropriators,” but these companies need to quickly understand that the coronavirus is creating a radically new workplace.

While it’s just mind-boggling to consider hazard pay for hourly grocery store employees, the sad reality is these people are on the front lines spending hour after hour, day after day restocking shelves and being downright pleasant to customers — any one of whom could be a ticking time bomb spreading COVID-19.

In fact, big-box grocer Costco is among the companies (Target and Walmart, too) that are temporarily doling out extra money to its employees. Costco is paying $2 more per hour from March 2 to April 5 for its U.S. workers.

But even that temporary perk comes at a price. A family member employed by Kirkland, Washington-based Costco now understandably lives in fear of contracting the virus.

She was extremely grateful when the memo came from corporate leaders about the temporary bump in pay. Three weeks later, however, it was clear that working in an essential job among the public was taking an emotional toll on her.

She was literally crying the other night as she told me that she knows two people who have died from the deadly virus. The reality that it lurks in any customer she comes in contact with has set in.

The bump in pay was appreciated, but what is the cost? The physical toll on first responders has been apparent for several weeks. We are just now awakening to the mental and emotional anguish these employees are revealing. I doubt any retail employee ever envisioned themselves as a first responder.

As my colleague Andie Burjek so adeptly penned recently, “COVID-19 clearly has severe and potentially deadly physical symptoms. But that doesn’t mean mental health is something that can be sidelined for now.”

I don’t think I am overstating here, but governments and employers across the globe need to set aside their differences and undertake drastic measures to salve the emotional and physical needs of workers. As New York Gov. Andrew Cuomo said recently, COVID-19 is colorblind.

“This virus doesn’t discriminate — it attacks everyone, and it attacks everywhere,” Cuomo stated March 30. “There are no red states, and there are no blue states, and there are no red casualties, and there are no blue casualties. It is red, white and blue. If there was ever a moment for unity, this is it.”

I opened this post with a question so I’ll close with one, too.

Is unity among government and business leaders to ease the burden on the world’s working people too much to ask?

April 1, 2020June 29, 2023

Coronavirus update: The mechanics of the tax credit for paid family and sick leave under FFCRA

employment law, labor law, overtime records

One of the questions I have received the most since the passage of the Families First Coronavirus Response Act is how employers claim the tax credit available under the Act for paid leave provided to employees.

Late on March 31, the IRS published a detailed list of FAQs explaining all of the mechanics of this tax credit. I want to focus on the key employment law piece of these FAQ, how an employer should substantiate its eligibility for tax credits, i.e., the documentation you need to keep.

The IRS discusses this important issue in Questions 44–46. I’ll break it all down for you here.

What information should an “Eligible Employer” (a business with fewer than 500 employees) receive from an employee to substantiate eligibility for the sick leave or family leave tax credits?

The IRS says that an employee’s leave request must be in writing and must include:

The employee’s name;
The date(s) for which leave is requested;
A statement of the coronavirus related reason the employee is requesting leave and written support for such reason; and
A statement that the employee is unable to work, including by telework, for such reason.

Also read: A Q&A and the DOL’s FFCRA notice

Additionally, for a leave request based on a quarantine order or self-quarantine advice (the employee’s or someone else’s for whom the employee is providing care), the employee’s statement should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

For a leave request based on a school closing or child care provider unavailability, the statement from the employee should include:

The name and age of the child (or children) to be cared for;
The name of the school that has closed or place of care that is unavailable; and
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.

Also, note that there is a cut-off age at age 13 for care during daylight hours. An employee unable to work or telework during daylight hours because of a need to care for a child age 14 and older must also provide a statement that special circumstances exist requiring the employee to provide care.

Additionally, for all paid leave under the FFCRA for which an employer claims a tax credit, the employer must also provide:

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.
Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages.
Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
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).

Employers must keep these records for at least four years after the date the tax becomes due or is paid, whichever comes later, and should be available for IRS review.

I encourage all employers to have a conversation with their accountant and/or tax lawyer before filing your next quarterly payroll taxes to make sure you are claiming this exemption correctly.

March 31, 2020October 18, 2024

Communicate mental health resources to employees during the COVID-19 outbreak

mental health, resources, health care, etc.

COVID-19 clearly has severe and potentially deadly physical symptoms. But that doesn’t mean mental health is something that can be sidelined for now.

Parents with children they must homeschool are feeling the stress of working, teaching and having little to no free time to take care of themselves. People who have certain mental illnesses may find themselves especially vulnerable in times of social or physical distancing.

And employees on the front lines like health care workers, delivery people and grocery store employees may find themselves stressed due to the nature of their jobs and having a greater risk of interacting with people who have COVID-19.

“With the workplace a defining part of many individuals’ lives, managing employee morale and mental health, as well as providing resources and support to help them cope, is understandably top of mind with employers,” said Brad Hammock, co-chair of employment law firm Littler Mendelson’s Workplace Safety & Health Practice Group and a leader of the firm’s COVID-19 Task Force, in a press release.

While businesses must manage many other legal and operational issues, progressive employers are also focusing on resources and means of support to help employees cope, according according to a recent report from Littler.

According to the Centers for Disease Control and Prevention, people who may respond more strongly to the stress of the COVID-19 crisis include those are especially vulnerable to the virus (older people and those with chronic diseases), children and teens, people with mental health or substance abuse issues and caregivers and health care providers who are helping others deal with health issues.

The CDC provides ways to cope with mental health issues — including taking breaks from watching the news, making time to unwind and connecting with loved ones. But the workplace has a role as well.

Also read: Mental health in low-wage workers

HR plays a central role in tempering employees’ feelings of anxiety, according to Human Resource Executive. “Remind employees that every single person in the organization, including the CEO, is facing unprecedented upheaval, fear and uncertainty — and that the only way to get through this is by pulling together and supporting each other like never before,” the article advised.

Further, while employee assistance programs have generally been underutilized, now is an ideal time to communicate the usefulness of EAPs to employees, according to HRE. EAPs address personal and professional challenges that employees may face, including financial problems, substance abuse issues, grief, family issues and stress. These areas of one’s life are also areas that could be greatly impacted by the COVID-19 outbreak, the article noted.

Nonprofit news organization Marketplace suggests that employers offer and communicate the availability of telehealth mental health care. It also noted that accessible, affordable care is important. For example, Starbucks is offering all U.S.-based employees and their family members with access to 20 free therapy sessions starting April 6. These sessions are available through video appointments as well as in-person appointments.

Also read: The Mental Health Parity Challenge

The Canadian Mental Health Association advises that employers communicate in a reassuring manner. “Know that work will likely be impacted — work will slow down, necessary travel may be canceled. Reassure staff that expectations will shift accordingly, and that’s OK. The company will get through this.”

Organizations can also refer employees to reports indicating that most people who become infected with the virus will recover, the Canadian Mental Health Association noted. They can also emphasize with employees that they know this is a stressful time and that it’s OK to feel anxious.

Onsite health clinics present unique challenges for employers during a pandemic

virtual care, health care systems, onsite clinics

In normal times, accessing health care on the property of an employer is a convenience. However, during the COVID-19 pandemic, such access may stoke safety and hygiene concerns. Patients are supposed to avoid getting medical care unless it’s necessary in order to avoid coming into contact with the virus, and even accessing shared surfaces like biometric time clocks can put employees at risk.

According to Mercer, 17 percent of U.S. employers with at least 500 employees offer primary care through onsite or near-site clinics. During the COVID-19 outbreak in which people must social distance, employers may come across unique challenges with their onsite clinics and need to strategically rethink how to manage them

Mercer’s Worksite Clinic Consulting practice created a guide to manage employer-sponsored clinics during the pandemic.

The guide focuses on best practices to mitigate risk for employees and patients, respond to staffing limitations, identify supply chain barriers and “optimize the interest of public health.” The top six steps are:

Review and update existing plans.
Don’t make staff or patients sick.
Protect staff and patients by implementing new ways of working.
Prepare for absenteeism of staff.
Communicate, communicate, communicate.
Review and address any contractual requirements.
Regulatory considerations.

Just like larger health care systems, all employer health clinics and health workers must be prepared to evaluate and manage risks related to COVID-19. Proper infection-control equipment is a must, and clinic workers must know how to “safely isolate, transport and quarantine potential patients.”

Reducing the number of people requiring face-to-face examinations is necessary and can be accomplished via telehealth phone calls or video appointments.

Clinic staff members may get sick or need to take time off to care for a sick family member. Preparing for staff absenteeism doesn’t necessarily mean employees can’t work just because they can’t visit the clinic. Organizations can “repurpose clinical staff confined to their homes to be part of a virtual care team,” the guide stated. “This team can work together remotely to triage and serve patients via telephone or video visits to forestall the need for an in-person visit.”

Organizations can also support older staff members or those with health conditions by providing them virtual assignments only.

Meanwhile, communication is a key factor in all these steps. Employers should plan to communicate with their staff at least once a day regarding the status of COVID-19 in their community and within their organization, according to the guide. What’s especially important to communicate is how the company is dealing with various issues and challenges brought on by the outbreak.

Also read: During COVID-19 outbreak, utilize internal communications in your company crisis plan

Some communications best practices for employer clinics include:

Establish an emergency response command task force — all departments represented, reporting to the C-suite.
Establish a clinical response team, physician led — a team of clinicians who can track Centers for Disease Control and Prevention and World Health Organization information and summarize and distribute it to employees.
Communicate with the employee population regularly via a patient app.
Post information on the intranet and include information for appointment scheduling, the nurse call hot line and telehealth.
Educate employees on slowing the number of patients to not overwhelm the health care system.
Track lessons learned for post-pandemic response debriefing and process improvement.

COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our GPS clock in tool for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will provide a personal, online walkthrough of our platform to help you get started. It can be fully deployed in 1-2 days.

March 31, 2020June 29, 2023

Coronavirus Update: Employers, PLEASE don’t take your employees’ stimulus checks

One employer is an anomaly, two is a trend that must be stopped.

Last week, I nominated for the Worst Employer of 2020 an unnamed national restaurant chain that was reported to be stealing (the company called it “absorbing”) its employees’ CARES Act stimulus checks by reducing their scheduled hours in a pro-rata amount.

Now, another employer has been outed with similar plans.

According to KXAN, an unnamed national company advised its employees that it would be preemptively deducting funds from their paychecks based on the amount each employee anticipated receiving in their stimulus check.

The worker said his company emailed a form titled “Employee Acknowledgement of ‘Government Assistance’ Pay Reduction” to some staffers on Wednesday. “In response to the economic crisis that is affecting all of us due to the coronavirus pandemic…(company name redacted) are hereby enacting the Employee Emergency Compensation Fund,” the letter stated.

The agreement would put workers under a “temporary compensation reduction that is in line with the assistance that it receives from the federal government related to the COVID-19 pandemic.” By signing the agreement, the company’s employees would have their paychecks between April 6 and April 20 cut by 100% of any money received under the stimulus bill.

The company would also take half of the $500 stipend allotted for dependents under the bill.

The Lost Ogle identified the company as Oklahoma City-based ImageNet Consulting, and further reported that after public outcry it has delayed the plan. The company’s President/CEO Pat Russell sent the following email to his employees:

As a result of the few inquiries we have this week, I wanted to make the following points of clarification with regard to the Employee Emergency Compensation Program that was announced and specifically for those employees who have not already sacrificed with immediate pay reductions.

First, the plan will not go into effect until the earliest of April 6th and, there will be no pay reduction for the paycheck received on that date.

Second, it appears that Congress is very close to passing sweeping legislation to provide relief to companies like ours and to individuals. … If we can determine ways to minimize the amount of sacrifice that we have asked everyone to make, we will do so and amend the plan accordingly.

That last paragraph is his email is really important. The CARES Act contains key payroll and other relief to small and mid-size businesses, known as the Paycheck Protection Program. It allocates $350 billion to businesses with less than 500 employees through low interest (and, in some cases, fully forgivable) loans to help pay payroll, rent and utilities.

There are ways to keep your business operational and solvent without “absorbing” your employees’ stimulus checks. They need that money to live. Moreover, in the very same Act that makes those stimulus checks available, the government also makes available for businesses Paycheck Protection Program loans. Use those loans to help your business stay afloat during these trying and difficult times. Don’t absorb the money that’s meant specifically for your employees. It’s just plain wrong.

For more information on how your business can obtain funds through the Paycheck Protection Program, contact me and I’ll put you in touch with an attorney on our Coronavirus Response Team.

March 30, 2020June 29, 2023

Coronavirus Update: More answers from the DOL on the FFCRA, and another Zoominar

On March 26, the DOL published a second round of FAQs (numbers 15-37) answering more questions on the operation of paid family and sick leave under the Families First Coronavirus Response Act.

Here’s what the DOL has to say:

1. Employers are entitled to require documentation from employees in support of their need for paid family leave or paid sick leave under the Act. This documentation includes a copy of the Federal, State or local quarantine or isolation order, written documentation by a health care provider advising you to self-quarantine, or a notice of closure or unavailability from a child’s school, place of care, or child care provider. Employers are also required to retain this documentation. Note, however, that the requirement of medical documentation is contrary to the CDC’s recommended best practices, for fear of overburdening our already stressed medical system and providers.
2. Intermittent paid family leave and paid sick leave are allowed under the Act in any increment, but only if the employer agrees and if the employee is unable to telework their normal schedule of hours because of one of the qualifying reasons for leave under the Act. Note that the DOL is encouraging “employers and employees to collaborate to achieve flexibility and meet mutual needs,” and that it “is supportive of such voluntary arrangements that combine telework and intermittent leave.’
3. An inability to telework means a complete inability to perform the job remotely. If an employer and employee agree, for example, that the employee will work the normal number of hours, but outside of normally scheduled hours (for instance early in the morning or late at night), then the employee is able to work and leave is not necessary.
4. If an employer closes prior to April 1, its employees are not eligible for paid family or sick leave. Employers that close after April 1 are only required to pay employees for family or sick leave taken under the Act through the date of closure.
5. Employees on furlough or temporary layoff are not eligible for paid family leave or paid sick leave under the Act. Further, employees cannot use paid family or sick leave for hours not working because of a reduced work schedule.
6. Employees may not use their employer’s available paid time off to make them whole during a paid leave provided by the Act unless the employer expressly agrees. In other words, because FFCRA leave is capped, and may result in an employee receiving less than full pay, the Act does not permit employees to substitute other paid leave during FFCRA leave to make them whole.
7. Employers cannot require that employees use available paid time off to make them whole during a paid leave provided by the Act.
8. Employers are always free to provide employees more paid leave than the Act requires, but cannot claim any tax credit for the excess leave.

As for questions still left unanswered, my friend Jeff Nowak at FMLA Insights fills us in.

It’s still not clear from yesterday’s guidance who gets to make the ultimate call on whether the employee can telework and what happens if/when the employee objects to telework. We could use more guidance there.

What rules will DOL apply to exempt small businesses with fewer than 50 employees when the law’s requirements would jeopardize the viability of the business? [Me: this is a biggie]

Will DOL give guidance to employers with fewer than 25 employees as to how they comply when they cannot return an employee to an equivalent position.

I’ll be discussing these FAQs, along with answering all of your coronavirus-related employment law questions live on Zoom, Monday from 1-2 ET: https://zoom.us/j/856368874.

There will be plenty of room for everyone, as I’ve bumped the capacity to 500. And don’t forget, Norah promised she’ll drop by to share a song with everyone. Come for the info, stay for the music.

March 26, 2020

Coronavirus Update 3-26-2020: A Q&A and the DOL’s FFCRA notice

Yesterday I held my first Zoominar. (Is this an actual word, or did I just make it up?) I opened up my Zoom room for the first 100 people to join and ask any coronavirus-related employment law questions they wanted. I shared #MyQuarantineHaiku (see below), saw some familiar faces, met some new old friends, and answered dozens of questions.

If you weren’t able to join or couldn’t get in, you can watch it here:

Also yesterday, during my Zoominar, the DOL published its required Employee Rights poster for the Families First Coronavirus Response Act. You must post it alongside your other employment law posters no later than April 1, and email it to those employees that are currently working remotely. But you might want to brush up on your PDF editing skills before you do so, because the DOL’s model poster has a big ol’ typo. In describing the paid leave entitlement for employees taking time off to care for children, the DOL lists the maximum dollar cap as $12,000 instead of $10,000. A big mistake, and one we will assume the DOL will fix soon. (Thanks to Eric Meyer for pointing this out to me.) You can also bring it to the DOL’s attention on one of its FFCRA twitter chats, or on the online forum it is hosting.

Two more things. First, I will be hosting another Zoominar this coming Monday, March 30, from 1 – 2 pm. And this time I won’t be caught off guard by the questions about how my daughter’s band, Fake ID, is weathering the coronavirus storm. In fact, she’s promised to join and perform a song for everyone. You’ll be able to access the Zoominar here.

Finally, #MyQuarantineHaiku.

Day-time pajamas

I don’t have hair to pull out

Night-time pajamas

Be well and stay safe. I’ll see everyone tomorrow.

March 25, 2020April 11, 2023

The impact of COVID-19 on hourly and low-wage workers

shift scheduling for hourly restaurant workers, shift swap

One thing COVID-19 has done in the United States is put a spotlight on how a pandemic impacts lower wage hourly workers versus salaried, higher-earning employees.

With a limited number of coronavirus tests currently available, many wealthy Americans, celebrities and politicians have been able to get tested for COVID-19 and get results quickly while cutting less affluent people in line. While insurers have waived the copay to get tested for the virus, patients still have to pay for treatment, which could result in thousands of dollars of medical bills. As Time noted, one uninsured patient owed $34,927.43 for her treatment.

“While most people infected with COVID-19 will not need to be hospitalized and can recover at home, according to the World Health Organization, those who do need to go to the ICU can likely expect big bills, regardless of what insurance they have,” the article stated. “As the U.S. government works on another stimulus package, future relief is likely to help ease some economic problems caused by the coronavirus pandemic, but gaps remain.”

Amid the COVID-19 outbreak, workers who need paid sick days the most have the least, wrote Elise Gould, senior economist at the Economic Policy Institute, in an EPI article. Only 30 percent of the lowest-paid workers — many of whom are hourly workers in the service industry — have the ability to earn paid sick days, and these are the workers who typically have contact with the public.

These workers also typically are the ones who can’t work from home. According to the U.S. Bureau of Labor Statistics, among 25 percent of full-time workers who earn the least, only 9.2 percent have the option to work from home compared to the 61.5 percent of employees who earn the most.

Also read: The role of businesses in addressing public health outbreaks

Some companies have been positive in their response to COVID-19. Microsoft decided to continue to pay all its hourly service providers their regular pay while the company has reduced service needs. Walmart also announced that workers would receive up to two weeks pay should they be quarantined or test positive for the virus.

According to a Willis Towers Watson survey of 805 companies polled the week of March 16, 72 percent of employers will continue to pay hourly workers who test positive for coronavirus. Similarly, 54 percent will also pay hourly employees who have cold or flu-like symptoms and choose to stay home. Less promising, only 36 percent will continue paying hourly workers when they stay home because they don’t have child care.

Meanwhile, other companies have decided that mass layoffs are necessary so its out-of-work employees can collect unemployment benefits and return to their old job “when this extraordinary episode ends.”

Unemployment benefits may be helpful. But while a common occurrence in the face of the COVID-19 pandemic is more people getting laid off, more than 50 percent of employees get health coverage through work. Former employees have to worry about regular finances like rent and food while also figuring out what to do once they’ve lost their employer-provided health insurance.

Laid-off employees can sign up for Affordable Care Act coverage, but they need to avoid common, easy mistakes, according to the USC-Brookings Schaeffer Initiative for Health Policy, which provides laid-off employees guidance to find a new insurance plan. For example, short-term insurance coverage can be misleading for consumers, the report noted. This type of health plan may not cover costly services like hospital visits and often doesn’t protect people with pre-existing conditions.

In light of the unique issues facing low-wage and hourly workers, there are certain best practices companies can consider. According to Gallup, these best practices include:

Approving additional budget for supplies or additional paid time off.
Granting paid time off for symptomatic employees, employees who must care for family members who are diagnosed with COVID-19, and/or employees with diagnosed cases of COVID-19.
Permitting unlimited unpaid time off without penalty.
Paying for time spent under quarantine.
Communicating employer-sponsored insurance and other relevant benefits.
Making revisions to employee compensation and benefits policies.

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