It did not take long for the Department of Labor to announce its first-ever settlement of a claimed violation of the Families First Coronavirus Response Act.
The DOLâs press release provides the details:
Bear Creek Electrical â an electrical company based in Tucson, Arizona â will pay one employee $1,600 for refusing to provide him sick leave under the newly passed Emergency Paid Sick Leave Act after health care providers ordered him to self-quarantine with potential coronavirus symptoms.
WHD investigators found that Bear Creek Electrical failed to pay the employee for what qualified as paid sick leave covering the hours he spent at home after the company received documentation of his doctorâs instructions to self-quarantine. The employer will pay the employeeâs full wages of $20 an hour for 80 hours of leave.⌠Bear Creek Electrical also agreed to future compliance with the FFCRA, which went into effect on April 1, 2020.
âThis case should serve as a signal to others that the U.S. Department of Labor is working to protect employee rights during the coronavirus pandemic,â said Wage and Hour District Director Eric Murray in Phoenix, Arizona.
Youâve been warned. If you are not providing your employees the paid coronavirus leave to which they are entitled, the DOL is watching.
It should not be a surprise that the benefits of an engaged federal workforce reflect the same rewards as private-sector organizations that tout high engagement figures.
Successfully engaging employees offer outcomes including higher retention, increased innovation and productivity. Organizations with an engaged workforce also often see decreased absenteeism. It is also a strong predictor of both job satisfaction and organizational commitment.
Yet studies show that federal employees often are driven more by a sense of commitment to public service than by financial incentives. Mika J. Cross, a federal workplace expert and vice president of employer engagement and strategic initiatives for job-search provider FlexJobs, said in a 2019 interview that there is a strong correlation between overall engagement and an employeeâs propensity to stay in government.Â
Mika J. Cross, VP-employer engagement and strategic initiatives, FlexJobs.
âThose who indicated they intended to stay are generally more engaged than their colleagues who arenât,â said Cross in an interview with the Federal Employment Law Training Group.
Cross elaborated in a recent email interview with Workforce that there are tangible differences between federal employees and the private-sector workers.
âThere is more flexibility with access and use of so many of the workforce collaboration tools and benefits that can help to foster higher levels of engagement,â Cross said of most private sector employers. âThere is more variety and creativity in benefits and rewards/recognition tactics to acknowledge good work.â
A 2015 study by the Office of Personnel and Management â the federal agency that manages the governmentâs civilian workforce â provides insight into the benefits of an engaged federal workforce.
Because federal employees often are motivated by a sense of altruism, a workerâs experience, as well as job security and better benefits, positively affects their engagement, the report notes. Yetthe unpredictability of the federal governmentâs fiscal environment â affected by factors includingan economic slump such as the current coronavirus pandemicâ are beyond the federal employeeâs and supervisorâs control. Budget uncertainty also has resulted in sequestration and furloughs.
âAn organizational climate with these kinds of uncertainties has the potential to undermine employee engagement efforts,â the OPM report states. Therefore, when targeting the benefits of an engaged federal workforce, âit is essential to consider external factors in addition to those that may be influenced by leadership and the individual.â
Proactive Personnel Engagement
The study also takes into account individual differences that are likely to influence an employeeâs tendencies toward engagement. Traits such as conscientiousness and proactive personality have been found to be related to engagement, the study notes. Individuals who exude initiative, perseverance and immersing themselves in their work demonstrate proactive personalities.
Cross reiterated in her 2019 interview the strong connection betweenoverall engagement and an employeeâs willingness to remain in government.Â
âThose who indicated they intended to stay are generally more engaged than their colleagues who arenât,â said Cross, a U.S. Army veteran known as the âPublic Service Passionistaâ who frequently provides expert testimony on Capitol Hill and speaks at numerous conferences.Â
Cross also told Workforce that engaging federal workers comes down to greater access and choice in workplace flexibility programs.
âOffer more variety of options in choosing flexible work schedule options, access to telework or remote work options and other supportive work/life resources,â she said. âInvest in the proper technology tools that increase efficiencies for accomplishing work, collaborating and communicating with customers, stakeholders and co-workers.â  Â
Supervisors can make a big difference in driving and promoting the benefits of an engaged federal workforce, Cross said in 2019.
âFocus on organizational citizenship behaviors, meaning inspire, encourage, motivate and reward employees for their discretionary behavior and positive activities that help contribute to the overall welfare of the organization, and that go well beyond simple job duties and work requirements,â she said. âOverall, supervisors can directly impact employee dedication, sense of purpose and their attachment to their mission and the organization.â
Communication Remains Key
Frequent check-ins to understand their teamâs personal and professional goals, listening and responding to how federal employees feel about their roles, and the work they do serving the American people should be part of regular conversations, she said.
Cross also offered tips that supervisors can implement to enhance the benefits of an engaged federal workforce.
Reinforce and explain the connection between an employeeâs actions, workload, projects and activities to the organizational and business unit vision.
Redesign work to encourage more autonomy, creativity and innovation.
Enforce effective performance management practices that focus on early course correction, learning and growing and always striving to be supportive, not dismissive or overly critical.
Offer and encourage using all the supportive employee and workplace resources that are available, such as onsite wellness programs, flexible work schedules, telework programs, employee advocacy and community affinity groups, financial literacy, continuing education and other workplace activities that help make a federal agency a better place to work.
Encourage frequent and open communication with employees; model and reward appropriate co-worker relationships.
There also are some basic communication strategies to follow, Cross said. Reinforce good behavior and ask employees about incentives that would engage them in a meaningful way.Â
âYou may be surprised to hear that an incentive for one employee may be a time off award, or ability to take a training course or attend a networking event during duty hours rather than a monetary bonus,â she said.
âAdditional flexibility in their work schedule or permission to telework more frequently; or for others, taking on a new assignment or gaining permission to work on a project outside of their normal position description may be a wonderful way to incentivize a job-well-done and inspire more creativity and innovation.â
Last week I took a stab at making sense of the messy and unclear rules surrounding the substitution of employer-provided leave (which, for the sake of simplicity, Iâll refer to as (âPTOâ) for paid sick leave (âEPSLâ) and expanded Family and Medical Leave (âEFMLAâ) under the Families First Coronavirus Response Act.
On April 21, the Department of Labor published its 5th set of FAQs discussing the FFCRA. Question 86 squarely addresses and clarifies the intersection between employer-provided paid leave and leave under the FFCRA.
1. An employer may not require that PTO run concurrently withâthat is, cover the same hours asâEPSL. 2a. An employer may require that PTO run concurrently with the paid weeks of EFMLA. PTO that runs concurrently with EFMLA will enable the employee to receive 100 percent of his or her daily pay plus the EMFLA benefit (two-thirds of her or her regular rate of pay, capped at $200 per day and $10,000 in total). Note, however, that the FFCRAâs payroll tax credit only reimburses the employer for the paid leave provided under the Act, not for any concurrent PTO applied. Once an employee exhausts all available PTO, EFMLA is continued to be paid out of the statutory two-thirds rate. 2b. Alternatively, an employer and employee may agree to top off the two-thirds EFMLA pay to an amount equal to 100 percent of the employeeâs regular pay. Again, the FFCRAâs payroll tax credit only reimburses the employer for the paid leave provided under the Act. 3. An employee may electâbut an employer may not require the employeeâto take EPSL or PTO (but not both) during the first two weeks of unpaid EFMLA.
Some 768 million days of paid time went unused by American workers in 2018. That time amounted to about $65 billion in value.
While those statistics point to an American workforce that is overworked, it also presents an underlying problem many workers face: an organizationâs time off policies that are poorly communicated, too complicated and overly cumbersome.
That could lead to employees shirking the system, which frustrates managers and angers payroll staff. Simplifying time off policies helps employers to more easily track their workforceâs vacation and sick time while allowing employees to take off the time they have earned.
Considering that some payroll systems are stuck in decades-old processes, an upgrade may sound easier said than done. But thatâs not the case.
Even if a time off policy is locked in a paper-based 1980s time warp thatâs as scary as Michael Jacksonâs âThriller,â employers can channel their âOld Town Roadâ and easily upgrade to a fresh, comprehensive 2020s system that promotes modern sensibilities through ease of use.
Here are four ways a tech upgrade canstrengthen your organizationâs PTO policy:
Simply simplify.
With a simplified time-off system, employees are more likely to take the time off they have earned and deserve. That leads to happier employees, which in turn leads to higher productivity. An updated time off policy includes features allowing employees to submit time off requests from any device at any time, making it a convenience rather than a cumbersome process.Â
Communicate your time-off policy capabilities.
Employees can be intimidated to take time off for whatever reason. And if they donât know that their employer has upgraded to an employee-friendly, mobile-enabled time-off system they are less likely to request earned PTO. Itâs clear that a rested employee is more productive. Your enhanced time off system also should provide an easy and effective way to communicate anything from a newly opened shift to a companyâs time off policies.
Paperwork is a relic of the past.
 A time off system that relies on technology rather than file folders and cold steel cabinets is not only a nod to a more mobile workforce but to the younger demographics of todayâs working population. A mobile-friendly time off policy makes it easy to manage PTO requests and sends the message that youâre encouraging employees â especially millennials and Generation Z â that they should use their time.
Build a more productive, trusting workforce.
By encouraging employees to take their time off, rather than obfuscating it through some dim, impermeable system, employers can enhance engagement, promote transparency and build trust. Such employee engagement tactics lead to a more positive work environment. Streamlining the PTO process makes it easier for employees to use their paid time off and leads to a more productive workforce.
An engaged, rested workforce leads to a more harmonious and productive workforce. A mobile-friendly leave management system also allows employees to better plan for their time-off needs, switch schedules and communicate with one another.Workforce.comâs intuitive leave management provides seamless operations and provides tie-ins to scheduling and payroll.
We all want to get back to work as safely and as quickly as possible.
One thing that would allow us to do this with confidence is widespread antibody testing, a quick blood test to reveal if one carries the COVID-19 antibodies from which an employer can presume exposure, immunity and a reasonable degree of safety for an employee to return to work.
This testing, however, raises two critical questions.
1. Can employers legally require it?
2. Should employers rely on it as an indicia of safety?
Can an employer legally require antibody testing?
The âcanâ question is easy to answer. According to the EEOC, because coronavirus is a âdirect threat,â employers have carte blanche to test employees, including antibody testing as a return-to-work condition.
The Americans with Disabilities Act prohibits an employer from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity, which includes when an employee will pose a direct threat due to a medical condition.
A âdirect threatâ is âa significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.â If an individual with a disability poses a direct threat despite reasonable accommodation, the nondiscrimination provisions of the ADA do not protect him or her, and disability-related inquiries and medical examinations are legal and permissible.
Per the EEOC, âAs of March 2020, the COVID-19 pandemic meets the direct threat standard,â because âa significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.â
Thus, because COVID-19 is a direct threat, employers absolutely can require antibody testing as a condition for an employee to return to work.
Should an employer rely on antibody testing as an indicia of safety?
The more difficult question is whether an employer âshouldâ require it and rely on it.
More than 90 companies have jumped into the market since the F.D.A. eased its rules and allowed antibody tests to be sold without formal federal review or approval.
Some of those companies are start-ups; others have established records. In a federal guidance document on March 16, the F.D.A. required them to validate their results on their own and notify the agency that they had done so.âŚ
Most of the tests offered are rapid tests that can be assessed in a doctorâs office â or, eventually, even at home â and provide simple yes-or-no results. Makers of the tests have aggressively marketed them to businesses and doctors, and thousands of Americans have already taken them, costing a patient roughly $60 to $115.
Rapid tests are by far the easiest to administer. But they are also the most unreliable â so much so that the World Health Organization recommends against their use.
These tests have a false-positive rate of 5 percent (or higher), a significant margin of error when you consider that in a community with a five percent infection rate youâd have as many false positive as actual positives.
Even labs that are marketing these antibody tests to employers are cautioning against their reliability.
This test hasnât been reviewed by the FDA. Negative results donât rule out SARS-CoV-2 infection, particularly in those who have been in contact with the virus. Follow-up testing with a molecular diagnostic lab should be considered to rule out infection in these individuals. Results from antibody testing shouldnât be used as the sole basis to diagnose or exclude SARS-CoV-2 infection. Positive results may be due to past or present infection with non-SARS-CoV-2 coronavirus strains, such as coronavirus HKU1, NL63, OC43, or 229E.
In other words, these tests arenât reliable because the FDA hasnât reviewed them, and because of risk of a strand of coronavirus other than COVID-19 flagging a false-positive result.
What does all of this mean?
First, employers should not and cannot rely on currently available antibody tests as the magic bullet to get employees safely back to work. They are simply not sufficiently reliable.
Third and finally, the government needs to ramp up the approval of reliable testing. Without readily available quick and reliable tests we are shooting in the dark by bringing employees back to work, and we will continue to spread infections no matter how many other steps businesses take to attempt safely to return employees to work.
The CDC recommends that employees who can work from home do so, and state stay-at-home orders are requiring telework whenever possible.
The larger questions, however, are whether COVID-19 will change our national outlook on the viability of telework, or when this crisis ends will businesses return to their pre-coronavirus telework hostility?
I hope itâs the former but I fear itâs the latter. And if itâs the latter, Tchankpa v. Ascena Retail Group, which the 6th Circuit Court decided in the midst of the growing coronavirus outbreak and just five days before the World Health Organization declared a viral pandemic, gives us some insight into the future issues.
Kassi Tchankpa, a database administrator for Ascena, seriously injured his shoulder while transporting laptops to work. The injury limited his ability to bathe himself, cook, wash dishes, open the refrigerator or drive normally. Yet, with a variety of accommodations from Ascena (such as arriving late or leaving early as needed to attend medical appointments and flexible scheduling), Tchankpa was able to work in the office for the first 10 months after his injury.
When he asked to work at his home three days per week as further accommodation (something he argued Ascena allowed other employees to do), the company balked. Tchankpaâs supervisor made clear that Tchankpa needed medical documentation to support his request for regular work from home.
Tchankpaâs doctor, however, never provided that documentation, and instead advised the company that Tchankpa could continue to work from the office as long as he took frequent breaks for his shoulder. Ascena thus denied the work-from-home accommodation request. As a result, Tchankpa quit and sued for disability discrimination.
The lack of documentation supporting Tchankpaâs telework accommodation request doomed his claim:
Employers are entitled to medical documentation confirming the employeeâs disability and need for accommodation. And Ascena invoked that right in early 2013. Yet Ascena did not receive documents discussing Tchankpaâs medical restrictions until October 2013. Far from showing a necessary accommodation, Dr. Stacyâs report stated that Tchankpa could work eight hours per day, five days per week. Without medical documentation showing that Tchankpaâs disability required work from home, Ascena had no duty to grant Tchankpaâs request. After all, we presume on-site attendance is an essential job requirement.
Thus, an employee seeking telework as a reasonable accommodation must provide a requesting employer documentation as to the medical necessity of that accommodation. This is true of any reasonable accommodation. Unless the need for a reasonable accommodation is painfully obvious, an employer never has to take an employeeâs word for it, and should always request medical documentation to support that need.
Which has nothing whatsoever to do with telework during this pandemic emergency. Everyone who can be teleworking should be teleworking, period, no questions asked.
The bigger question is what happens after we all return to our physical places of work. Currently, about half of employed adults are working from home. According to the Bureau of Labor Statistics, before coronavirus only 19.5 percent of the workforce performed some paid work at home. We should expect the numbers to meet somewhere in the middle after we are all allowed to safely return to work. Indeed, the Brookings Institute predicts that telecommuting will continue long after the pandemic ends.
While working from home hasnât been perfect over the past month, itâs still been work. With email, remote access, cloud storage and Zoom, Iâve been able (more or less) to accomplish everything Iâve needed to. Still, I miss my co-workers and canât envision doing this from-home thing on a permanent, full-time basis. But I can envision it a day or two a week.
So here are my questions on the heels of the Tchankpa courtâs declaration that âon-site attendance is an essential job requirement.â Is it still? If employees are currently working productively from home, will an employer still be able to make a future claim that on-site attendance is essential to those employeesâ jobs? Or will remote work finally take its rightful place alongside in-person work as accepted and acceptable?
While telecommuting has been the exception by a vast number, my hope is that the wall that has separated exception from rule will evaporate, as this pandemic has shown that we can productively work without being at work.
LAZ Parking has a corporate history straight out of a Netflix mini-series. And itâs shaped the companyâs culture and values ever since.
In the summer of 1981, Alan Lazowski was an aspiring college student trying to earn a little cash before his senior year at the University of Connecticut. Instead of looking for a job, he borrowed money from his grandfather and started a parking valet service for a local restaurant in Hartford, Connecticut. By summerâs end, he and two of his friends were managing five parking locations and had 30 employees.
Nearly 40 years later, Lazowski and his co-founders, Jeffrey Karp and Michael Harth, have grown that summer business into the second largest parking company in the country. LAZ Parking now has more than 13,000 employees and $1.4 billion in annual managed revenues, and operates more than a million parking spaces. Â
The founders attribute their success story in large part to their long standing goal: âCreate opportunities for employees and value for clients.â
Luis Henriques, general manager, LAZ Parking
That mission isnât just a sign on the wall. Leaders across the company genuinely care about everyone on the team, from part-time valets to senior executives. They treat hourly workers like they will be with the company forever, said Luis Henriques, general manager for LAZ in Hartford. âCreating opportunities for employees is our secret sauce.â
Henriques knows from experience. He started at LAZ in 1989 as a teen-ager parking cars on weekends. His vice president recognized his dedication, and when Henriques completed his associateâs degree the company offered him a night management position overseeing 100 employees. Today he is responsible for 20 managers and more than 850 employees.
âI grew up in this company,â he said. âIt is my family.â
LAZ leaders know that valet and parking attendant jobs arenât glamorous, and that most employees see these jobs as a temporary measure to earn some quick cash. But the company is doing everything it can to encourage them to stick around, said Andi Campbell, senior vice president of people and culture.
Campbell was hired in 2012 as director of talent with the primary goal to âfill the talent pipeline.â Soon after she moved into the people and culture role because LAZ leaders recognized that finding and keeping talent is all about the company culture.
Everyone Deserves a Second Chance
The emphasis on creating opportunities for employees is seen everywhere at LAZ, beginning with recruiting.
âWe are laser-focused on using data and KPIs to be sure we are getting people where we need them, and getting them into development,â Campbell said. âTo grow as fast as we are growing, we have to find really good people, which isnât always easy.â
The company hosts national job fairs in 20 cities twice a year and actively recruits everyone from college students to recent parolees.
âWe are very big on second chances here,â said Henriques. He noted that while many companies wonât give previously incarcerated people an opportunity, LAZ believes these candidates can be great assets to the company. âThey paid the price for what they did, and our experiences with them have all been positive.â
Once hired, employees are immersed in company culture from day one, so people know right away that the job can be more than just a temporary gig.
The LAZ onboarding process includes a variety of events, including Get Connected, a lunch and learn where employees meet with local, regional and national managers to talk about the company and opportunities beyond the front line.
âOur CEO always says that leaders are the ambassadors of the company,â Henriques said. âYou have to take time every day to listen to your people. Thatâs what makes us different.â
Andi Campbell, SVP People & Culture, LAZ Parking
The company is also quick to celebrate its employees. Managers hand out Rave Cards that acknowledge employees who do excellent work, and the company throws elaborate end of the year parties for front line workers.
âRecognition is a big part of motivation,â Henriques said. âItâs how we say thank you to our staff.â
It Starts With Management
Campbell also makes sure that managers have the training and guidance to promote the companyâs values in every employee interaction. This is key to the companyâs engagement strategy.
âIf you want to improve employee well-being, or safety, or engagement, it all comes down to how managers manage their people,â Campbell said. âFront-line workers donât know the VPs, but they do know and trust their managers, so the key to change is at that mid-level.â
Whenever the company wants to address a corporate issue or encourage a certain behavior, it starts with manager training. Campbell has launched a series of learning programs over the years that align with corporate strategy, including how to meet the needs of front-line workers, how to prevent safety issues, and how to identify and promote high performers. Along with core workshops or live training events, she also provides frequent communications with management tips, access to coaching clinics, and a catalog of online training that managers can access any time. âWhen you teach people how to lead teams on the ground, thatâs how you move the needle.â
One of the most successful efforts has been around teaching managers to be effective coaches, mentors and advocates for their people. Managers like Henriques are taught to always be on the lookout for passionate employees who might be LAZ management material.
When they identify these high performers, they can nominate them to attend LAZ University, an 10-week business management program that prepares aspiring hourly workers for management roles. Attending the training is considered an honor, and it draws attention to the companyâs commitment to growth â both for employees selected for training, and those who see them move up the ranks, Henriques said.
Local and regional managers are also encouraged to suggest employees for management roles where positions open up. Henriques has promoted five people in the last nine years. âTheir co-workers see that and recognize the opportunities are there.â
Hugs Not Handshakes
All of these values have been part of LAZ from the beginning, and are constantly reinforced by Lazowski himself. âHe really cares about people,â said Tina Cyr, accounts payable director. Lazowski takes the time to learn everyoneâs name, and is always available for a chat or a hug. âWe are big huggers around here,â Cyr said.
Tina Cyr, accounts payable manager, LAZ Parking
Cyr was initially surprised by the warmth she felt after coming to LAZ from a much more corporate environment, but she quickly embraced it. âThere is something really special about a genuine family culture,â she said. âIt really feels like they put people before profits.â
While the company may have a touchy-feely approach to engagement, they also keep a close eye on results. Campbell tracks data on every program she initiates, and sets key performance indicators to measure success.
That helps her prove the impact of her programs, and to tie culture investments to bottom-line results. Most recently, efforts to improve safety and wellness have helped the company reduce its per employee per month healthcare claim costs, despite being in a rapid hiring phase.
âWe see wellness as a huge opportunity for LAZ,â she said. It lowers costs, reduces absenteeism, and reinforces the companyâs commitment to employee wellbeing.
The company has also seen engagement numbers steadily rise, and its turnover has dropped below 17 percent for salaried employees, and 70 percent for hourly workers.
âFor the hospitality industry, those numbers are amazing,â Campbell said.
LAZ may have a unique culture and history, but Campbell believes that it can be replicated. The key is to make culture part of everyoneâs responsibility, she said. Whether a company is trying to figure out how to improve retention, promote wellness, or drive bottom line results, when leaders factor employee needs into their business decisions, they make choices that allow a positive corporate culture to blossom.
âIt sounds simple,â she said, âbut thatâs how we connect culture to everything we do.â
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We used to fill our time running our kids all over the place for various lessons, rehearsals, and gigs. Now, however, we have a lot of down-time, with nothing to do. So how am I filling my time when Iâm not working? (Which, btw, Iâve been doing a lot of over the past month.)
1. Walking ⌠a lot. We are walking a ton of miles. As in 4 to 6 miles per day. The rings on my Apple Watch are very happy. Partly because we have two high-energy dogs (one being an 11-month-old puppy) that canât go to daycare to tire themselves out. And partly because what else are we going to do? Let me make a few observations from my miles of walking. First, thank you to most for maintaining social distance. People (more or less) have been really good about keeping six feet of separation. Secondly, people have been really nice to each other. Lots of, âHow are yousâ from total strangers (from a socially acceptable distance). Third, it appears that many people do not think kids can carry or catch COVID-19. Because Iâve seen lots of kids playing together in close groups (basketball, football, walking, etc.). Parents, I know this sucks for your kids. Itâs going to suck more if they transmit this virus to each other. Please, letâs try to maintain social distance for a few more weeks, and we can all start to get back to normal socializing again (although itâs going to take me a while to feel comfortable shaking someoneâs hand or getting in an elevator).
2. Cooking and baking. Because we always seem to be running around a lot, we are always grabbing food out. We must eat out four times a week. Without nowhere to go, Iâve been cooking every night. Iâve also been baking (a combination of comfort and nesting, I think). The cooking is starting to get old. I really do love to cook, but I also love the option of not cooking. When this is all over, I think Iâll be exercising that option a bunch. Also, if anyone wants the worldâs greatest gluten-free chocolate chip cookie recipe, hit me up.
3. Grazing all day. One of the downsides of working from home (aside from the a-hole puppy who barks, and goes crazy, and generally likes to annoy us and his big sister) is the easy availability of food and constant snacking. Thankfully, no. 1 above makes up for these added comfort calories.
4. Virtual cocktail hours. Since we canât connect with people in person, weâve been connecting remotely via Zoom. We have weekly check-ins with family (real and our Fake ID band family). Weâve also connected with friends as far as the West Coast and as near as across the street. Itâs been a great (albeit different) way to keep in touch and re-connect. And, cocktail hour.
5. Slowing way down. One of the unintended benefits of sheltering at home is that we have been forced to sloooooow down. No longer running to and from place to place, we have the time to sit and play a family game or watch a family movie (***** for “Almost Famous,” even though I forgot that Kate Hudson shows her boob; ***1/2 for “Onward,” not one of Pixarâs best, but still enjoyable and sweet.) Itâs not like we werenât connected as a family pre-coronavirus, but this has forced us to reconnect in a good way. And no one is sick of anyone else ⌠yet.
Bloomberg Law asks whether employers are âresponsible for paying workers for the time it takes to record their body temperatures before entering the workplace.â
To me, this question doesnât 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 issueâthe ADA and the FLSA.
The ADA typically prohibits employers from taking employeesâ 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 employeesâ 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 âpreliminaryâ (pre-shift) and âpostliminaryâ (post-shift) activities that are âintegral and indispensableâ to an employeeâs principal activities. What activities are âintegral and indispensable?â Those that are (1) ânecessary to the principal work performedâ and (2) âdone for the benefit of the employer.â
In Busk, for example, the Court held that post-shift security screenings were not âintegral and indispensableâ for an Amazon warehouse employee, because such screenings are not âan intrinsic element of retrieving products from warehouse shelves or packaging them for shipment,â and the employer âcould have eliminated the screenings altogether without impairing the employeesâ ability to complete their work.â
According to the Bloomberg Law article, employers could look to Busk to argue that pre-shift temperature checks, even if mandatory, are not âintegral and indispensableâ and therefore can be unpaid. (For what itâs 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 isnât a âwhat does the law allowâ issue; this is a âwhatâs right is rightâ issue. If youâre requiring your employees to queue in a line to take their temperature before youâll let them enter the workplace, pay them. Donât be cheap and donât 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 shouldnât 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 thereâs such a thing as karma, one of the deciding factors in which ones survive will be how they treated their employees.
* * *
Donât forget that Iâll live on Zoom tomorrow, April 9, from 11:30 am â 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
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)Â â 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 individualâs household has been diagnosed with coronavirus.
The individual is providing care for a family member or a member of the individualâs 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 individualâs 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 employeesâ health and safety.
2. Pandemic Unemployment Assistance (PUA) â 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.
5. Emergency state staffing flexibility â 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 employerâs experience rating.
6. Pandemic Emergency Unemployment Compensation (PEUC) â 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 âactively seeking workâ requirement for individuals unable to search for work because of coronavirus, including illness, quarantine, or movement restrictions.
