Telework Policies. If an employer has been mandated by law to cease all in-person office functions and to perform work remotely, employers should consider drafting a policy on teleworking. Prior to drafting a telework policy, an employer should determine if it is equipped to offer telework to employees. In order for employees to successfully perform telework remotely, the employer must have the capability to provide technology and equipment to set up and support multiple employees working from remote locations, without risking the security of its network and confidential information. When teleworking is found to be unsuccessful, it is commonly the result of IT failure. Although most teleworking platforms and software may not function with the same ease and speed as if employees were working in the office, employers should coordinate with their IT provider to ensure that they will be ready and capable to address any issues that arise as quickly as possible.
Employers must also determine how to offer and administer telework in a manner which does not violate anti-discrimination laws. Unfortunately, teleworking is not conducive to support every employee’s job functions and duties. If employers are not able to offer temporary telework to all employees, employers must be mindful to avoid a potential claim that the employer only offered telework to certain employees based upon a protected category such as age, race, or sex. To avoid such a claim, employers should offer teleworking based on certain criteria including job duties, department needs, seniority, or any other non-discriminatory factors.
A telework policy must also communicate the employer’s expectations at the outset of the telework arrangement. The policy should set forth the expected hours of work, the manner in which work product is to be communicated to the appropriate recipient, and how employee productivity will be measured. Further, employers may want to address any required security measures employees must take if employees are using personal devices to perform work remotely. The policy should also note the temporary nature of the telework assignment in light of the current health crisis. Employers may choose to require employees to sign a document acknowledging their receipt and understanding of the employer’s telework policy and the employee’s duties and obligations under such policy.
Overtime Policies. Employers may also want to draft a policy addressing the employer’s policies on overtime for non-exempt employees working remotely. The policy should provide clear guidance on how non-exempt employees are expected to document their time records and should explicitly state that non-exempt employees must obtain authorization to work overtime prior to performing that work. Employer may also want to emphasize in the policy that employees will be compensated for all time spent performing unauthorized overtime work; however, non-exempt employees performing overtime work without authorization will be subject to discipline.
I-9 Procedures for Remote Work. In response to the COVID-19 National Emergency Declaration, the U.S. Department of Homeland Security (the “DHS”) announced temporary modifications to the Form I-9, Employment Eligibility Verification process and enforcement actions. The requirement that employers must physically review employee identification and employment authorization documents when completing the Form I-9 has been temporarily halted. Employers who have been required to cease all in-office functions may inspect the Form I-9 Section 2 documents remotely and will have 3 business days after resuming normal operations to physically inspect and retain copies of the Section 2 documents. Employers may remotely inspect and review Section 2 documents over video chat, fax, or email, etc. within the usual 3 days of hire. The DHS has stated that this change is to remain in effect through the earlier of May 20, 2020, or 3 business days after the termination of the National Emergency Declaration. When completing Section 2 of the Form I-9 when the employer resumes normal operations and conducts a physical review of the original documents provided by the employee for remote verification, employers should enter the phrase “COVID-19” in the “Additional Information” field, together with the notation “documents physically examined on” followed by the date of actual physical examination.
Confidentiality and Information Security Policies and Procedures. Depending on the nature and subject of work performed remotely, employers should consider drafting and implementing a confidentiality policy. The policy should set forth explicit parameters as to what information employees may access remotely and which employees are authorized to view certain documents containing confidential information. Employers should also determine what, if any, security measures must be taken to ensure the company’s proprietary information is protected while employees perform telework remotely. If employees are using personal devices to work from home, the policy should address the employer’s security protocols and any inspection rights the employer may have with regard to those devises.
Families First Coronavirus Response Act Policies and Procedures. Under the Families First Coronavirus Response Act (“FFCRA”), which took effect on April 1, 2020, most U.S. private employers are required to provide paid leave to employees for certain COVID-19-related reasons under the Emergency Paid Sick Leave Act (“EPSL”) and expanded paid leave under the Emergency Family and Medical Leave Expansion Act (“FMLEA”).. Since the FFCRA applies to most private employers with fewer than 500 employees, employers may choose to implement policies and procedures regarding the FFCRA. The Department of Labor (“DOL”) advised that employers should count all active employees, including full- and part-time employees, as well as employees on leave, temporary employees who are jointly employed with another employer, and day laborers provided by a temporary agency. However, independent contractors are not counted to determine whether an employer is subject to the FFCRA. To determine whether the
FFCRA is applicable to your business, you must count the number of employees that are working for you as of the date the requesting employee’s leave is to be taken.
Under the EPSL under the FFCRA, employers are required to provide up to 2 weeks (80 hours) of paid sick leave if an employee is unable to work (or perform work remotely) due to a need for leave for one of the following reasons:
1. Subject to a federal, state or local quarantine or isolation order related to COVID-19;
2. Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. Is caring for an individual who is subject to an order federal, state or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
5. Is caring for his or her child because the school or place of child care has been closed, or the child care provider is unavailable due to COVID-19 precautions;
6. Is experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services.
Employees are eligible for EPSL on their first day of employment. EPSL for reasons 1-3 entitles the employee to paid sick leave at their regular rate of pay up to a maximum of $511 per day and leave for reasons 4-6 entitles the employee to paid sick leave at two thirds the employee’s regular rate of pay, up to a maximum of $200 per day.
The FFCRA expands Family Medical Leave Act (the “FMLA”) to provide leave to employees to care for a child as a result of school or child care closings due to COVID-19. Employees may be eligible to take up to 12 weeks of FMLA leave under the FFCRA. Employees must have worked for the employer for 30 days in order to qualify for the expanded leave. Employees are entitled to a total of 12 weeks between the regular FMLA and the FMLEA. The first two weeks of FMLEA is generally unpaid, however, an employee may elect to use their entitlement under EPSL (reason number 4 above) for pay at two thirds of their regular rate of pay not to exceed $200 per day, or use their own accrued PTO for full pay, or be unpaid. After that, and for the remainder of time available under FMLEA, an employee will receive two thirds of their regular rate of pay up to $200.00 per day.
New York State COVID-19 Paid Sick Leave Policies and Procedures. On March 18, 2020, Governor Andrew M. Cuomo signed emergency legislation taking immediate effect and guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of COVID-19. All New York State Employers are required to provide sick leave to employees who have been subjected to mandatory or precautionary orders of quarantine or isolation issued by New York State, the department of health, a local health board, or any other governmental entity authorized to issue such order related to COVID-19. An employer’s size and net income dictates the duration of an employee’s leave and whether an employee’s leave will be paid or unpaid.
· Employers with 10 or fewer employees (as of Jan. 1, 2020) and net income of less than $1 million, must provide employees with at least 5 days of unpaid sick leave, and then unpaid sick leave until the termination of any quarantine or isolation order. During the period of mandatory or precautionary order of quarantine or isolation due to COVID-19, an employee shall be eligible for NYS paid family leave and disability benefits.
· Employers with 10 or fewer employees (as of Jan 1, 2020) and net income of more than $1 million or employers of 11-99 employees, must provide employees with at least 5 days of paid sick leave, and then unpaid sick leave until the termination of any quarantine or isolation. After the five days of paid sick leave from the employer, an employee shall be eligible shall be eligible for NYS paid family leave and disability benefits.
· Employers with 11 to 99 employees (as of Jan. 1, 2020) must provide at least 5 days of paid sick leave, and then unpaid sick leave until the termination of any quarantine or isolation. After the five days of paid sick leave from the employer, an employee shall be eligible for NYS paid family leave and disability benefits.
· Employers with 100 or more employees (as of Jan. 1, 2020) must provide at least 14 days of paid sick leave, and then unpaid sick leave until the termination of any quarantine or isolation. (The number of paid days is calendar days, and the pay required should represent the amount of money that the employee would have otherwise received for the 12-day period.)
PMP is here to help employers interpret, draft and implement policies based on the emergent federal and state laws adopted as a result of the COVID-19 pandemic. If your company is interested in drafting new policies and procedures, please do not hesitate to call the HR directors at PMP for assistance.