From implementing telecommuting into work routine to maintaining flexible work hours, navigating the new normal as a result of the COVID-19 pandemic has not been easy for many HR professionals.
HR concerns with COVID-19 have made it increasingly difficult to maneuver through the legal side of things. HR professionals have scrambled to answer: What are the most critical issues? Where should I focus my attention and resources?
Undoubtedly, working from home has come with its share of challenges. To guide HR professionals on their legal-related concerns, here are some of the most frequently asked questions that lawyers get regarding the pandemic and employee work options, including work-from-home accommodations.
1. Will telecommuting set a precedent for future instances where employees will seek working remotely as an accommodation under the Americans with Disabilities Act (ADA)?
Many attorneys say the answer to this question depends on a few different factors. Post-pandemic, an employee seeking work from home arrangements as an ADA accommodation may use the effectiveness of working remotely amid COVID-19 to prove that onsite work is not always necessary.
Throughout the pandemic, many companies have actually been proven successful in implementing telecommuting. If workers can accomplish all of their essential duties productively, this most likely serves as evidence that remote working does not impose any challenges.
However, suppose the company solely provided telework opportunities as a necessity during the pandemic at the expense of essential duties. In this case, company leaders can argue that telecommuting poses a hardship and that onsite work is necessary.
To further support the argument that onsite work is necessary, employers can take the following actions:
Let your employees know that telecommuting accommodations are only provided as a response to the pandemic. Be understanding with your team and advise them that the company knows that employees will not be able to perform all the essential functions of their role in a remote setting.
When your company is ready to bring employees back into the workplace, notify them that you look forward to the resumption of their essential job functions, including those that may have been put on pause during the pandemic.
Revisit your onsite employees' job descriptions. Edit certain job descriptions accordingly by including an explanation of why onsite work is essential in specific roles and functions.
2. If schools will not reopen in the fall or if they follow a hybrid model with in-person and remote learning, will there be work flexibility for employees with children?
It is no secret that child care during COVID-19 has been difficult for many parents who work. As they work in full-time jobs from home, many parents have also had to assume the role of an educator as they help children with at-home schoolwork.
Currently, there is still some uncertainty regarding where schools stand for the 2020-2021 academic year. Regardless of whether schools reopen in the fall, employees must know where their company stands on the matter and what type of leave they will be entitled to under federal, state, and local laws.
The Families First Coronavirus Response Act (FFCRA), which applies to employers with fewer than 500 employees, provides two leave options related to child care during COVID-19: emergency paid sick leave or expanded medical and family leave. Employees can use both types of leave, but only for up to 12 weeks of leave.
An additional caveat for these types of leave: Another "suitable individual," including a co-parent, co-guardian, or childcare provider, must not be available to provide childcare.
As schools contemplate reopening, there have been more questions surfacing regarding flexibility for employees with children. For example, if a school reopens for in-person instruction, will FFCRA leave be available for employees who choose the remote learning option for their child?
In this case, many lawyers speculate that the answer will most likely be NO. For parents to be eligible for the FFCRA leave, the school or childcare facility's physical location must be closed. The only exception is if the school or facility begins operating under a reduced capacity or hybrid model, in which location is only open certain days of the week to comply with social distancing guidelines. In this case, the employee has no choice but to choose remote learning for their child, so they may be eligible for FFCRA leave.
Employees should plan and have these conversations with their employers long before the school year begins. This will help them get a better idea of how school reopening plans may impact their work schedules and whether remote working remains an option for that employee.
3. What are the best practices for compensating employees for any work from home expenses incurred during the pandemic?
The new work from home normal has presented a set of important questions, including whether employers should compensate employees for any costs incurred while working remotely.
Some states require employers to reimburse employees for any costs associated with their employment duties. The Fair Labor Standards Act requires employers to reimburse employees for any expenses that would result in compensation below the federal minimum wage.
To minimize litigation exposure, many lawyers recommend that employers evaluate their employee reimbursement practices and refine or develop legally compliant policies for these situations. These policies could include a requirement for advance approval for any expenses over a specific amount.
4. Can I tell employees over the age of 65 to work from home for their health and safety?
Many lawyers agree: The answer to this question is a hard NO. Initially, the Centers for Disease Control and Prevention (CDC) reported that people over the age of 65 were at high risk of developing severe illness from COVID-19. The CDC further reports that the risk of severe illness actually increases with age. This means that those in their 70's are at a much higher risk than those in their 50's.
However, even if their intentions are good and that they want to protect employees, employers should not exclude older employees from the workplace because they are at a higher risk of illness than younger employees. In fact, the Equal Employment Opportunity Commission has stated that employers who exclude employees from returning to the workplace based on age violate the Age Discrimination in Employment Act.
Nevertheless, some state and local sick-leave laws may require an employer to reasonably accommodate an employee who specifically requests a work from home accommodation for COVID-19 based on their age. Regardless, lawyers recommend accommodating all employees despite their age. If working remotely is not an option, employers should provide employees with unpaid leave.
How can HR professionals tackle COVID-19 legal questions?
Post-COVID-19, HR professionals will most likely be approached with a wide range of legal questions pertaining to everything from childcare to flexible work hours. They must be equipped with sufficient answers to all types of questions to provide employees with the support they need.
At Infinity Consulting Solutions (ICS), we aim to help all of our clients find peace of mind as they begin opening their doors and returning to work after the wave of challenges brought on by COVID-19. Contact us today to learn more about our consulting services.