Making Green Mean “Go” Rather Than “Oh No” for Employers

Posted on

By: Leah K. Sell, Esq.

Most states have lifted certain COVID-19 mitigation limitations and businesses have understandably been eager to resume or expand operations. Employers, however, face many new challenges that may have them putting on the breaks and saying “Oh No” rather than “Go” as they try to drive their business forward.

Some of the most common issues and questions that arise for employers involve:

Changing Regulation and Recommendations

Employers have a duty to provide a safe and healthy workplace that is free from known hazards pursuant to the Occupational Safety and Health Act (OSHA). Part of complying with that safe workplace duty is following the most recent requirements and recommendations set forth by OSHA, CDC, and state and local departments of health (DOH), as well as other relevant agencies. This can be difficult for employers as the regulations and recommendations are updated frequently.

It is important that employers develop a proper health and safety plan that includes language that the employer will follow these updated guidelines. It is also imperative that the employer determine who, either internally or externally, will monitor, update and implement the updated requirements and regulations.

Determining Risk and Exposure

Often this can feel like a logic game: Larry saw Mo, Mo saw Curly, Curly has COVID-19 but never saw Larry. Who has to stay home and for how long? When do you have a duty to tell another employee they have potentially been exposed? And how do you do this while maintaining employee privacy?

Many of these answers are fact-dependent and must be based upon the updated CDC and DOH guidelines regarding case classification, contacts, and self-quarantine/isolation guidelines. Employers must have a well-written and communicated policy regarding exposure prevention, including encouraging employees to stay home, and risk management, such as what to do in the event of exposure. Employers must understand, or work with someone who understands, when persons or the workplace are at risk or exposed based upon the most recently updated guidelines and what actions must be taken.

Paid Leave

For the first time, many employers must now provide federal paid leave under the Families First Coronavirus Response Act (FFCRA). FFCRA paid leave can quickly become complicated in terms of its eligibility, applicability, calculations, and exemptions. For instance, is an employee whose spouse is seeking medical treatment eligible? What documentation may the employer request? How long and how much pay does the employer have to provide?

The first step is determining if the employer and employee are FFCRA eligible. If they are, then the employer should have already posted or provided notice to employees regarding the paid leave entitlements. Employers should then design a system for consistently reviewing, granting or denying, and documenting leave requests for FFCRA, including recent updates, and for calculating leave. Any use of exemptions should be carefully considered and also documented. Documentation will be important not only in the event of an audit or a claim but also when the employer takes the dollar for dollar tax credit for any FFCRA paid leave against their federal quarterly employment taxes.

Work From Home

Many businesses moved to a work from home model which allowed the continuation of operations. It also presents unique challenges for employers. Even while working from home, non-exempt employees still must record and be paid for all time worked. In certain jurisdictions, employees also must continue to take meal and rest breaks. An exempt employee is entitled to full payment for any week in which they engage in work, even if minimal, with few exceptions.

Managers must therefore balance trying to keep employees productive and on task, with trying to prevent employees from performing any “off the clock” or other unauthorized work. Employers should implement work from home policies that outline the necessity of employees continuing to follow workplace procedures, including time and record keeping measures.

Navigating the Intersection of Laws

Each issue employers face will likely invoke more than one regulation. For instance, when an employee reports that they cannot report to work because of a compromised immune system, employers must consider not only FFCRA, but also the Americans with Disabilities Act and any local equivalent. The employer must engage in the interactive process to determine if there is an accommodation, including telework or leave, that would allow the employee to perform the essential functions of their job. If applicable, the employer also must consider the Family Medical Leave Act, and any similar leave entitlements, that may be triggered once the employer is on notice of a serious medical condition. Even a single issue may present multiple considerations; employers must thoroughly document the exploration and proper procedures engaged in to address each matter, including review and compliance with updated regulations and recommendations.

There are sure to be speed bumps along the way, but by reviewing the updated regulations and recommendations, understanding the changing developments, drafting and applying policies in an equal and non-discriminatory manner, communicating effectively with employees, and being adaptable as conditions develop, employers can make green mean go rather than oh no.

If you have any questions regarding employment-related legal issues related to COVID-19, paid leave, or any other employment-related legal issue, please contact Leah K. Sell. Leah Sell is an Associate with Leech Tishman, and a member of the firm’s Employment & Labor, Corporate and Litigation Practice Groups, as well as the Cannabis and LaunchPad subgroups. She is based in the firm’s Pittsburgh office and can be reached at 412.261.1600 or lsell@leechtishman.com. 

Leech Tishman’s Facebook Page: https://www.facebook.com/leechtishman

Leech Tishman’s Twitter: https://twitter.com/LeechTishman 

Leech Tishman’s Company Page on LinkedIn: https://www.linkedin.com/company/leech-tishman 

Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, cannabis, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.