COVID-19 has caused many challenges in the workplace. Employees are working from home, working hybrid schedules, and conducting meetings by Zoom and other “not in person” methods.
While things in today’s workplace range from fluid to uncertain to sometimes chaotic, employers are not relieved from complying with federal and state employment laws and requirements. There is no “COVID-19” exception to Title VII. Employers must still comply with federal and state employment rules that existed prior to COVID-19. With this in mind, employers need to make sure they are operating their businesses in a manner that allows them to defend the types of claims and allegations that often occur in the workplace.
Employees are performing substantial work while not in the “office.” This work is often performed at home. For employees who are subject to overtime requirements, time records must be kept to ensure that employees are paid properly. Employees who are not in the office may perform (or claim they are performing) more “off the clock” work. Wherever the work is performed, employers are required to make sure all time worked is accounted for and paid.
Employers should make sure that time worked is verified by both the employee and the employee’s supervisor, by making sure weekly records are signed by both and that the amount the employee is paid is consistent with the verified records. While this is more difficult when employees are not in the workplace, it must be done.
Even though an employee may be working from home, there are still workplace policies that are routinely at issue. Is the employee turning in reports on time or otherwise timely completing his or her tasks? Is the employee timely participating in Zoom meetings or conference calls? For employees on hybrid schedules, are they coming to work as required? The potential examples of what employees should or should not be doing greatly exceeds the scope of this writing, but the point is that normal workplace rules and requirements should be enforced.
Disciplinary write-ups must be done, and information that would lead to promotions, raises, or any type of discipline must be documented. Employers that have had the misfortune of having to defend employment-related lawsuits know the importance of documentation. The reality is that if it is not in writing, many will doubt whether it happened, so it is critical to continue to document employee performance and misconduct.
AMERICANS WITH DISABILITIES ACT AND WORKERS’ COMPENSATION CLAIMS
Employees who work from home may need reasonable accommodations. For example, a hearing-impaired employee may require some type of hearing assistance to be able to work from home. Employees with mobility or back or leg issues may require a special or different chair in their home. The scope of any potential accommodations exceeds the scope of this writing, but employers need to go through an interactive process with disabled employees who are working from home in order to determine reasonable accommodations.
Employees can have workers’ compensation compensable injuries even though they are not at the office. It does not take a lot of imagination to come up with some reasonable scenarios of an employee injuring him- or herself while working at home, nor does it take much imagination to come up with some less reasonable potential injury scenarios. Regardless, for workers’ compensation purposes, employers must keep up with and stay on top of injuries that could implicate workers’ compensation coverage even if those injuries do not occur in the actual office or workplace.
LEAVE RULES AND POLICIES
The Families First Coronavirus Response Act (FFCRA) contains specific categories of leave for employees. The FFCRA’s categories generally provide some leave for employees caring for children whose school or daycare is closed due to COVID-19, employees who are subject to a quarantine order, employees who are seeking a medical diagnosis related to COVID-19 or who have been advised by a healthcare provider to quarantine, and employees caring for certain individuals who may have to quarantine or isolate due to COVID-19. It is very important that employers document these areas of leave so that employees cannot abuse rights provided under the FFCRA.
The employer’s standard workplace leave policies may also come into play for any leave situation, and any leave taken pursuant to company policy should be documented in the normal course of business. Family and Medical Leave Act leave periods should also remain as they would be in the ordinary course of business.
While it is more difficult to keep up with leave situations for employees working remotely, employers should do all they can to document any leave period in order to avoid disputes about how much leave an employee is entitled to or any “double dipping” situation.