Category: Commentary & Opinion

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How to choose which remote work employees to bring back

coronavirus, remote work, COVID-19, remote workforce

For the past year, an astounding 44 percent of employees have been working remotely full time, and two-thirds of employees have done remote work at least one day per week. With vaccination rates on the rise and offering a light at the end of the pandemic tunnel, employers are starting to plan for bringing employees back to the physical workplace.

These decisions involve a lot of key questions an employer needs to answer in planning for where employees will work in a post-vaccine, post-pandemic world.

Here are four questions to think about.

1. How have employees performed during the pandemic while working remotely?

Has an employee been less productive, as productive, or more productive? Have they stayed connected and in communication? Can you trust them to continue to work remotely, or do they need closer monitoring? Have you gotten more productivity out of employees during the pandemic because of the resulting blurring of work time and personal time (i.e., if one’s home is now the workplace, do they ever really disconnect from working)?

2. What is an employee’s preference?

Do they want to continue working remotely, would they prefer to return to a physical office or workspace or do they want some type of flexible or hybrid arrangement? Do they have long commutes that eat into their available working time, and will remote work create greater productivity as a result?

3. Does remote work makes sense for your business moving forward?

How interactive do your employees need to be in performing their jobs? Is their work highly collaborative, and being with people, in person, will assist in getting the job done quicker and at a higher quality? Or does your business involve production processes that cannot be done or effectively managed remotely? Or can employee “get it done” just as well without being face-to-actual-face with others?

4. What about high-risk employees and working parents?

COVID-19 more disproportionately severely impacts older people and people with certain underlying health conditions. And, working parents who lost child care during the pandemic had other reasons to remain at home. Thus, separate from stay-at-home order and social distancing rules that have kept everyone home, these employees have a greater reason to have worked remotely and remain remote. As individuals are vaccinated and schools and childcare reopen, these concerns should melt away, but employers still need to be mindful of not discriminating on account of age, disability, and parental/caregiver status as they bring employees back to work and reintegrate them into the workplace.

COVID-19 has changed how most businesses think about work from home. That genie is likely never going back in the bottle. Each business will have to answer all of the above questions in deciding what work from home looks like for them and their employees as we move into a post-pandemic world and workplace.

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Employers facing lawsuits for failing to pay for pre-shift COVID-19 screenings

VF Corp., COVID-19, mask, education

In the early days of the COVID-19 pandemic, I asked this question: “Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?”

My answer was a legal, “Probably,” and a moral, “Definitely.”

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.

But since this is a legal blog, we might as well take a fresh look at the legal issue, courtesy of a recently filed lawsuit against The Merchant of Tennis Inc., a San Bernardino, California, racquet sports retailer. According to Law360, among other wage and hour violations, José Hernandez Solis claimed that his former employer illegally failed to pay employees for their time spent undergoing

COVID-19 temperature checks at the beginning of the shifts.
Law360 points out that Walmart faces similar allegations in another recently filed California lawsuit. According to that lawsuit, Walmart failed to pay its employees for the 30-45 minutes spent each workday for COVID-19 temperature screening and questioning.
Legally, the standard, per SCOTUS’s decision in Integrity Staffing Solutions v. Busk, asks whether the pre-shift activities are “integral and indispensable” to an employee’s principal activities (“necessary to the principal work performed” and “done for the benefit of the employer”). It’s hard to fathom a situation during a pandemic in which pre-shift health screenings don’t meet this standard.
I think employers getting sued over this issue have real (and expensive) exposure. Don’t join them. Do the legal thing. Do the right thing. Pay your employees for this time.
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CDC allows large employers to establish vaccination sites

COVID-19, vaccine, flu

The CDC released guidance permitting large employers to establish temporary sites to vaccinate employees.

The CDC on March 16 said that employers should consider opting for an on-site vaccination program if they have a large number of employees with predictable schedules and enough space to set up a pop-up clinic while still allowing for COVID-appropriate social distancing.

Employers should consider pushing employees to off-site vaccination clinics if they have a smaller number of employees, employees with flexible or non-predictable schedules, mobile employees who don’t have one worksite, or employees who’d prefer not to have their employer administer their vaccine.

Employers who choose to set up a vaccination site still must follow the EEOC’s guidelines on managing vaccines under the ADA, Title VII, and GINA (which I summarized here).

Bravo to the CDC for implementing policies to encourage as many employees to get shots in their arms as quickly as possible. It’s the only way we are going to stay ahead of the more contagious (and perhaps more deadly) variants and beat this pandemic. To this end, I highly recommend that you check out the CDC’s COVID-19 Vaccine Communication Toolkit for Essential Workers, in addition to these 5 tips on building vaccine confidence in your workplace:

  • Encourage your leaders to be vaccine champions. These leaders should reflect the diversity of the workforce. Invite them to share with staff their personal reasons for getting vaccinated and remind staff why it’s important to be vaccinated.
  • Communicate transparently to all workers about vaccination. See Key Things to Know, Frequently Asked Questions, and Myths and Facts for up-to-date information.
  • Create a communication plan. Share key messages with staff through breakroom posters, emails, and other channels. Emphasize the benefits of protecting themselves, their families, co-workers, and community. This fact sheet is available in numerous languages.
  • Provide regular updates on topics like the benefits, safety, side effects, and effectiveness of vaccination; clearly communicate what is not known.
  • Make visible the decision to get vaccinated and celebrate it! Provide stickers for workers to wear after vaccination and encourage them to post selfies on social media.

Now please do your family, friends, coworkers, me, and society in general a huge favor and get vaccinated as soon as your state allows you to do so. We are all counting on you.

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Please pay your employees for time off related to the COVID-19 vaccine

paid time off, PTO report

Earlier this week, the House passed an extension of the FFCRA as part of its $1.9 trillion COVID-19 stimulus bill. (I’ll cover its details in a future post, but if you’re curious now, head over to Jeff Nowak’s FMLA Insights.)

One of the new measures in this proposed extension is the inclusion of leave taken by an employee to obtain a COVID-19 vaccine or recover from any injury, disability, illness or condition related to the vaccine.

Bravo! But here’s the thing. Until this passes and becomes law, and even if it doesn’t become law, employers should be paying employees for time off related to the COVID vaccine. At least for now, vaccine appointments are scarce and employees who are eligible to get vaccinated must take appointments when they can get them. Many will need to get their vaccines during the workday. Moreover, post-vaccination, some employees will have a reaction serious enough to keep them house-bound for a day or so.

The way through the end of this pandemic and returning our lives to normal is by getting enough shots in arms as quickly as possible. As employers, want to encourage our employees to get vaccinated.

We don’t want employees to feel like they have to choose between obtaining a vaccine and obtaining a paycheck. Some will choose poorly. By paying employees for time off from work related to COVID-19 vaccinations, we are making the decision that these vaccines are a priority, and that we are not standing in our employees’ way from obtaining them as soon as possible.

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Employee grievances including wage theft, COVID-19 concerns come to a head for one brewery

beer, brewery

The sign on the door of Platform Beer’s Columbus, Ohio, taproom reads: “The entire Platform Columbus crew has quit. The taproom is closed until further notice. Thank you!”

The employees and their former(?) employer are battling it out on Twitter.

-vs-

Oliver Northern, the employee leading the walkout, told Alive Columbus that “employees started seriously discussing walking out about a week ago, frustrated by a growing list of grievances that he said the company had not taken steps to address.” He added that they initially intended to use the walkout as a bargaining tool with management, but that conditions had gotten so bad that no one had any interest in remaining with the company no matter its response.

What does it all mean?

1. If these employees simply walked off the job in protest instead of quitting their jobs, an alphabet soup of employment laws would have protected their jobs. The NLRA (protected concreted activity), FLSA (wage and hours), and OSHA (safety) are just a few examples of anti-retaliation protections these employees would enjoy. Because, however, these employees quit, these anti-retaliation measures are largely moot (although I could craft an argument that post-employment retaliatory acts such as defamation could still trigger one or more of these statutes).

2. This employer has a massive PR mess. No matter how meritorious or genuine the employees’ claims, the employees thought enough of them to quit their jobs en masse. An employer simply cannot allow these issues to fester until they boil over into a mass protest. If an employer doesn’t know that its employees have these concerns, then that employer’s managers and supervisors aren’t doing their jobs. They are your eyes and ears, and they must understand their role as such.

Moreover, open-door policies and other prophylactic measures aren’t worth their weight if you don’t take them (and the issues employees bring to you) seriously.

 

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How much does it cost an employer for not following COVID-19 safety rules?

construction, mask, mobile technology, COVID-19

OSHA has cited a Missouri auto parts manufacturer for failing to implement and enforce coronavirus protections, which ultimately lead to an employee’s death. The details, from OSHA’s news release.

Two machine operators … who jointly operated a press tested positive for the coronavirus just two days apart, in late August 2020. The two workers typically labored for hours at a time less than two feet apart; neither wore a protective facial mask consistently. Ten days later, two more workers operating similar presses together tested positive. On Sept. 19, 2020, one of the press operators fell victim to the virus and died.

The total penalty was $15,604. For someone who died during a global pandemic because of his employer’s irresponsibility.

Since the pandemic started, OSHA has issued citations arising from more than 300 inspections for violations relating to coronavirus. The average penalty is $13,101.27.

While I understand that OSHA lacks a specific standard covering most COVID-19 issues, these numbers seem awfully low. Look, I’ll be the first one to tell you that more government regulation and control is a bad thing.

But, if employers aren’t motivated by the carrot to take COVID-19 seriously (that being, having a healthy and safe workplace with employees who believe you care about their welfare), then perhaps they need the stick. Some $13,000, or $15,600 when someone dies, however, seems like a pretty small stick.

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Prepare for the glut of COVID-19 whistleblower tag-along claims

fulfillment center, distribution center, COVID-19

The headline reads, “Ex-Manager Sues Ample Hills in Lawsuit Alleging Harassment and Unsafe COVID-19 Protocols” (boldface/emphasis mine).

Here’s the lede:

Bryce Mottram, a former general manager at one of quirky ice cream purveyor Ample Hills’ scoop shops, has filed a lawsuit in New York Eastern District Court alleging that he was fired from the company in retaliation for speaking up about instances of sexual harassment and unsafe COVID-19 workplace protocols at the company.

I firmly believe that for the next year-plus, just about every employment-related lawsuit will contain a COVID-19 whistleblower tag-along claim.

In other words, employees will sue for discrimination and safety-related retaliation, or harassment and safety-related retaliation, or breach of contract and safety-related retaliation, or fill-in-the blank and safety-related retaliation. I’ve already seen it happen in cases, and it makes an already complicated employment dispute that much more complicated and dangerous.

This likely reality means that employers must double down on implementing and enforcing COVID-19 safety rules in the workplace. Have a written COVID-19 safety policy and strictly enforce it. If you don’t know what should be in this policy, OSHA recently published a terrific guide.

  • Separate and send home infected or potentially infected people from the workplace.
  • Implement physical distancing in all communal work areas, including remote work and telework.
  • Install barriers where physical distancing cannot be maintained.
  • Suppress the spread of the hazard using appropriate and properly worn face coverings.
  • Improve ventilation.
  • Provide the supplies necessary for good hygiene practices.
  • Perform routine cleaning and disinfection.
These points are just a start, and I recommend you consult with OSHA counsel or a COVID-19-knowledgable safety consultant to draft and implement your plan (including training your employees).
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Employee time off for the COVID-19 vaccine

COVID-19, vaccine, flu

At some point over the next few months, some (most?) of your employees will receive the COVID-19 vaccine.

Depending on the rules of your state, the nature of your business and the age or medical issues of your employees, some may already have. I’ve previously covered the legal issues surrounding the vaccine, here, here, and here. Today I want to cover a practical issue — time off related to the vaccination.

1. Please offer your employees paid time off to obtain both doses of the vaccine. To reach herd immunity (the only thing that will end this pandemic), we need between 75 and 85 percent of the population to be vaccinated. We want to make it easier for employees to be vaccinated, not more difficult. Please don’t make employees choose between their paychecks and a vaccine. The hour or two you will pay for the amount of time they spend getting vaccinated will pale in comparison to the weeks off they will need if they catch the virus.

2. Understand that a certain percentage of your employees will have a reaction to the virus and be too sick to come to work in its immediate aftermath. The most common side effects, which most commonly follow the second dose, include pain at the site of the injection, painful, swollen lymph nodes in the arm where the vaccine was injected, tiredness, headache, muscle or joint aches, nausea and vomiting, fever or chills. For some, these side effects will mirror the virus itself in causing a high, debilitating fever. These side effects typically last no more than 24 hours. If I’m you, I’m telling employees that if they experience side effects you will provide a paid day off for recuperation. Again, we want to have policies that encourage employees to get shots in arms, not forcing a choice between a paycheck and a vaccine.

This pandemic won’t end until enough people are vaccinated. Employers, do your part by having policies in place that encourage as many vaccinations as possible.

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Have you felt the pain of a wage-and-hour investigation or lawsuit?

wage-and-hour
For the past three years, the Department of Labor has been trying to get employees PAID for their unpaid overtime and minimum wages.
That’s PAID, as in the Payroll Audit Independent Determination program, a creation of the Trump administration that allowed employers to self-report FLSA violations to the Department of Labor without risk of litigation, enforcement proceedings, or liquidated damages.

As of last week, however, the PAID program is history, as the DOL announced its immediate end.

From the DOL’s news release:

“Workers are entitled to every penny they have earned,” said Wage and Hour Division Principal Deputy Administrator Jessica Looman. “The Payroll Audit Independent Determination program deprived workers of their rights and put employers that play by the rules at a disadvantage. The U.S. Department of Labor will rigorously enforce the law, and we will use all the enforcement tools we have available.”

Pay close attention to that last sentence: “The U.S. Department of Labor will rigorously enforce the law, and we will use all the enforcement tools we have available.” The era of federal agencies playing nice with employers through education and outreach is over. At least for the next four years, businesses should expect agency priorities to be enforcement, not education.

This means that if you have not recently audited all of your employment practices, your time is running out.
In the context of the FLSA, the question is not whether companies need to audit their wage and hour compliance, but whether they properly prioritize doing so before someone calls them on it.
It is immeasurably less expensive to get out in front of a potential problem and audit on the front-end instead of litigating or settling a claim on the back end. The time for companies to get their hands around these issues is now, and not when employees, their lawyers, or the DOL start asking the difficult questions about how employees are paid.
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As new COVID-19 variants double down on transmissibility, OSHA steps up preventative measures

COVID-19, vaccine, flu
“Wear a mask and stay 6 feel apart.” It might sound like Groundhog Day to keep repeating this mantra. It’s also the most basic and most important steps we can take to remain safe, healthy and COVID-free.
Last week OSHA published new guidance for employers about mitigating and preventing the spread of COVID-19 in the workplace. While I recommend you read it, understand it and adopt its teachings in your workplace as best practices to keep your employees safe and healthy, I want to draw your attention to this language.

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

COVID-19 is strengthening. New variants of the virus are making it more transmissible and potentially more virulent. Now is not the time to loosen COVID safety rules, especially around the most basic of steps we must take to remain safe and healthy—masks and physical distancing. This holds true even if your employees are vaccinated, as science does not yet know if the vaccine prevents the transmission from person-to-person.
The vaccine does offer us a light at the end of the very long and dark COVID tunnel, but we cannot allow it to give us a false sense of security. COVID-19 is fighting back; we must continue to fight back, too.