COVID-19 is creating unprecedented challenges for employers that are struggling to keep their businesses afloat while protecting the health and safety of their employees. Staying abreast of the flurry of evolving pandemic paid leave laws and guidance issued by federal, state and local public health authorities can be daunting. Over the last few months, we have provided updates to assist your organization navigate its legal obligations and will continue to do so.
This update summarizes recent guidance from the U.S. Department of Labor (DOL) on the application of the Families First Coronavirus Response Act (FFCRA) paid leave benefits to employees who miss work to care for children who are remote learning; DOL guidance on how to properly track work hours for teleworking employees; and requirements for AZ businesses that have returned employees to the workplace.
DOL Issues Guidance re Application of FFCRA Paid Leave Benefits to Remote Learning Situations
The FFCRA entitles employees to take up to 12 weeks of paid time off to care for a child due to school closure. The DOL clarified that, for FFCRA purposes, a school closure applies when a school is physically closed, but is providing remote instruction to an employee’s child. An employee is eligible for FFCRA paid leave benefits in this situation if the employee is needed to care for the child during the remote learning time. However, FFCRA benefits are not available in situations when the child’s school offers students the option of live or remote learning and the employee chooses to keep his/her child home out of a fear the child may contract COVID-19.
DOL Issues Guidance re Employer’s Obligations to Track Teleworking Employees’ Hours of Work
Before the pandemic, some businesses offered employees teleworking as a discretionary and occasional benefit. Post-pandemic, teleworking has become the norm for most business, and likely will continue even after the pandemic subsides. Therefore, it is important that employers set expectations with employees about the teleworking arrangement, preferably in a detailed teleworking agreement. One topic that should be addressed is proper time-keeping procedures for non-exempt (hourly) employees to minimize the risk of a claim that the employee was not compensated for all hours worked. The DOL has provided guidance on this topic. This guidance reminds employers that, under existing federal law, employers must pay employees for all hours worked, whether performed in the office or away from the office. Employers must count the time as hours worked if the employer knows or has reason to believe that the work is being performed, even if they did not authorize the work be done. When employees telework, it becomes even more difficult for employers to keep tabs on employee work time. According to the DOL, employers can defeat a claim that they knew or should have known an employee was working “off the clock” by implementing a simple, user-friendly process for employees to report their scheduled and unscheduled work time and make it clear that employees will be compensated for all hours worked, even unscheduled hours. According to the DOL, “if an employee fails to report unscheduled hours worked through such a procedure, the employer is generally not required to investigate further to uncover unreported hours.”
COVID-19 Guidance for AZ Businesses
As more and more businesses transition employees back to the workplace, it is advisable to refer to the Maricopa County Guidance for Businesses (attached) and the AZ Dep’t of Health’s (AZDH) list of “Requirements” (attached) for recommendations/directives on how to maintain a healthy workplace. Pima County Health Standards for businesses can be found here (https://webcms.pima.gov/cms/One.aspx?portalId=169&pageId=577827). The directives include:
- Policies – Develop and implement policies that adopt guidance from the CDC and other public health authorities to mitigate the spread of COVID-19.
- Social Distancing and Masks: Implement and enforce physical distancing requirement of at least 6 feet between employees and/or customers. For businesses where social distancing is not possible, masks are required. Staff working in public places (such as public transit, restaurants and stores) must wear masks at all times.
- Symptom Monitoring – The AZDH requires (and Maricopa County encourages) employers to implement symptom monitoring practices for all employees prior to the start of their shift that should include, when “possible,” temperature checks.
- Quarantining – Require employees who tested positive for the virus or have COVID-19 symptoms to stay home and not return until they have met return to work criteria established by public health authorities. Exceptions exist for employees deemed essential workers.
- COVID-19 Testing – According to the County, “employers should NOT require a COVID-19 test result or a health care provider’s note for employees who are sick to validate their illness, to qualify for sick leave, or to return to work.” The AZDH issued the same prohibition on testing, but gives employers the discretion to request a doctor note from an employee as a condition of returning to work. Due to this conflicting guidance, you should consult with counsel before mandating a negative test result before an employee can return to work.
Please contact us if you need assistance implementing these requirements.