Here are some key considerations for employers as the workplace begins to reopen
On Monday, May 18, Miami-Dade and Broward counties will begin phase one of Florida’s COVID-19 gradual reopening of the economy. The plan will allow restaurants and retail stores to reopen at 50% capacity. Employers should have a plan in place for the reopening of the workplace. In implementing a plan, employers should be mindful of any state or local directives.
Key considerations for employers include ensuring a safe workplace, ADA-compliant COVID-19 testing, paid leave requirements, compliance with requirements for loan forgiveness, overtime and wage claims, and potential employee discrimination.
Workplace safety should be the primary concern of employers when reopening the workplace. Employers should ensure they are in compliance with all Occupational Safety and Health Act and Centers for Disease Controls and Prevention safety regulations when bringing back furloughed employees or rehiring employees. Additionally, employers should prepare to implement social-distancing measures in the workplace. Examples of these protective measures include staggering work schedules, allowing employees to work on weekends, continuing the option of teleworking, permitting returns to be voluntary, limiting workplace occupancy levels, and spreading out and disinfecting work spaces. Employers should consult the CDC’s detailed guidance on reopening the workplace during the COVID-19 pandemic.
Employers should be aware that testing employees for COVID-19 could qualify as a medical inquiry under the Americans with Disabilities Act. Such testing is only permitted if the inquiry is job-related and consistent with business necessity. The EEOC recently issued guidance stating that employers may require employees to undergo a COVID-19 test before entering the workplace without violating the ADA. Employers considering COVID-19 testing of employees should consult the EEOC’s guidance and choose reliable and accurate testing.
In March, Congress passed the Families First Coronavirus Response Act (FFCRA), which requires employers with fewer than 500 employees to provide employees with paid leave for reasons related to COVID-19. Employers should review these paid leave requirements and ensure that they have properly determined the eligibility of their employees. Employers may be subject to a claim of retaliation for mishandling the provision of paid leave under the FFCRA. Additionally, the FFCRA requires employers to post a notice of the FFCRA in a conspicuous place on its premises. Employers should ensure compliance with this requirement.
Many employers received Paycheck Protection Program loan funds to float payroll costs during an eight-week period. The Small Business Association requires that at least 75% of loan funds be spent on payroll costs, as opposed to rent payments, utility payments, and other non-payroll costs. The total amount of loan forgiveness will be reduced by a reduction in the number of employees or a reduction in employee salaries. Employers should consult employment counsel to ensure they are in compliance with the specific requirements for loan forgiveness.
The COVID-19 epidemic presents many new timekeeping challenges for employers. Employers should continue to maintain accurate records of hours worked by employees during the COVID-19 pandemic. The requirements of the Fair Labor Standards Act continue to apply to employees who telework. Employers should be wary of the potential reclassification of previously exempt employees based on a change of the employees’ duties during the pandemic. Employers may consider allowing exempt employees to continue to work remotely during the pandemic.
When bringing back furloughed employees or rehiring employees, employers should avoid decisions that could be perceived as discrimination based on age, gender, disability, or other factors. For example, if an employer decided not to bring back pregnant employees right away, the employer could be vulnerable to a discrimination claim. Employers should also keep in mind that employees that took leave under the FFCRA are protected from retaliation.
Andrew M. Gordon is a partner with Hinshaw & Culbertson, with offices in Miami and Fort Lauderdale. Gordon is on the City of Fort Lauderdale Working Group to develop a plan for reopening businesses and amenities. He focuses his litigation practice in the representation of management-side labor and employment matters. agordon@hinshawlaw.com. M. Megan Coughlin is also with Hinshaw. She counsels employers on a wide range of labor and employment matters. mcoughlin@hinshawlaw.com.
This story was originally published May 15, 2020 at 7:01 AM with the headline "Here are some key considerations for employers as the workplace begins to reopen."