March 24, 2020
By: Kimberly Klein
Governor Andrew Cuomo has required 100 percent of workers for non-essential businesses to work remotely through April 19, 2020. What can employers do to best manage their workforce and remain productive? Here are some commonly asked questions and answers to help employers navigate this new normal.
Wage and Hour Issues
Yes. Under the Fair Labor Standards Act (FLSA), employers are required to pay non-exempt workers (those paid minimum wage and overtime) for all hours worked. As a result, employers should continue to require non-exempt employees to record their time daily, including clocking in and out at the beginning and end of each day and during meal breaks. Employers should also remember that all break periods under 20 minutes must be paid. In short employers must track the hours of non-exempt workers even when they work from home.
Although not required to do so, employers may choose to track the hours of salaried, exempt employees as a way to manage how employees are working virtually. Generally, exempt employees must receive their full salary in any week in which they perform work, subject to narrow exceptions (exempt workers are not required to be paid their salary in weeks in which they perform no work).
Employers should have overtime policies in place and advise employees that hours worked over 40 in a workweek must be pre-approved in writing by a manager or supervisor (non-exempt employees must be paid time and half for hours worked over 40 in a workweek even if prior written approval was not obtained). Similarly, employers should work with employees to establish hours of work and clearly communicate expectations (e.g., 9 a.m. to 6 p.m. with a one hour lunch break). Non-exempt employees should be told that all devices must be turned off at the end of the work day and cannot be checked before or after work hours, including email and text. If an employee continuously ignores the employer’s overtime policy, disciplinary action may be taken.
No. Businesses cannot require employees covered by the FLSA to pay, or reimburse the employer, for items that are business expenses of the employer if doing so would reduce the employee’s earnings below the required minimum wage. Employers should also be prepared to provide (or reimburse employees for) any necessary equipment the employer requires the employee to use to perform his/her job from home if the employee does not already possess the equipment.
Now that my workforce is working remotely, do employers still have responsibilities if an employee reports that they have COVID-19, have symptoms of the virus, or have come into contact with someone who was diagnosed with COVID-19?
Yes, depending on the timing. Employers who learn that an employee may have exposed others in the workforce to COVID-19 have obligations to those other employees to provide warning. Employers should take steps to alert individuals who may have come into contact with the ill employee, while also being mindful of their obligation to keep confidential the ill employee’s identity and medical records. Employers may ask questions necessary to confirm whether the employee is experiencing COVID-19 symptoms (e.g., fever, chills, cough, shortness of breath, or sore throat). However, once an employee has been out of the workplace for several weeks and appears to have contracted COVID-19 after beginning to work remotely, this obligation arguably becomes moot.
Employers have to navigate a slew of leave laws. If an employee exhibits some symptoms but can still perform work, they should continue to do so. If the employee is unable to work as a result of the Coronavirus, the following leave laws come into play:
- In New York State, employers with ten or fewer employees must provide unpaid sick leave to any employee “subject to a mandatory or precautionary order of quarantine or isolation issued by the state” until the termination of the quarantine or isolation period (New York COVID-19 Sick Leave Law). Employers with 11 to 99 employees and employers with 10 or fewer employees with a net income of more than one million dollars in the previous tax year must provide five days of paid sick leave and unpaid leave until the quarantine or isolation period ends. Employers with 100 or more employees must provide 14 days of paid sick leave during the quarantine or isolation period. The paid sick leave is in addition to any sick leave already accrued by the employee. Once the employee is able to work again, the employee must be restored to his/her previous role with the same terms and condition of employment (there must be no retaliation). An employee may also use the paid sick leave to provide care to the employee’s minor dependent child who contracts the virus.
- For employers with 99 or fewer employees, after the paid sick leave is used, employees may be eligible for disability (DBL) or paid family leave (PFL) under New York law for the remaining period of quarantine or isolation due to illness. Employees must apply for these benefits, which may be paid concurrently beginning on the first full day of the unpaid period of sick leave, with weekly caps of $840.70 for PFL and $2,043.92 for DBL. For employers with 100 or more employees, the 14 days of paid sick leave is expected to cover the mandatory or precautionary quarantine or order of isolation. If eligible, there is no waiting period for the DBL payment.
- On March 18, 2020, the federal government passed the Families First Coronavirus Response Act (the “Act” or “FFCRA”), which generally applies to employers with fewer than 500 employees and offers paid sick and family leave to employees. The Act provides for two weeks (up to 80 hours) of paid sick leave capped at $511 per day (or $5,110 in the aggregate) if the employee is unable to work because of COVID-19. Employers of healthcare providers or emergency responders may elect to exclude employees from eligibility for leave under the Act, as may certain employers with fewer than 50 employees. Employers will get the money back in a payroll tax credit. The Act is effective through December 31, 2020.
- As noted, other laws such as disability leave, New York City Earned Safe and Sick Time Act (ESSTA), the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act, as amended (ADA) may be triggered depending on the situation and the severity of the illness. In addition, although it is currently unclear whether employees would qualify for Worker’s Compensation if they contracted the Coronavirus in the workplace, there is no rule prohibiting employees from applying for the benefit.
Again, various leave laws can apply.
- As noted above, New York COVID-19 Sick Leave Law applies to employees who may need to provide care for a minor dependent child of the employee who becomes sick as a result of the virus.
- The mandated sick leave under the FFCRA can also be used to care for an individual who is subject to quarantine or for a child whose school or child care provider is closed because of COVID-19. In such circumstances, the employee will be paid two-thirds of their regular rate of pay up to $200 per day (or $2,000 in the aggregate) over the two week period.
- The FFCRA also expands the FMLA to provide for paid family leave for employees who have been employed for at least 30 days by an employer with less than 500 employees (with some exceptions). Employees can receive 10 weeks of paid FMLA leave at two-thirds their regular rate of pay capped at $200 per day ($10,000 in the aggregate) if the employee is unable to work because of COVID-19-related childcare issues (e.g., school closures). The first two weeks of the expanded FMLA leave are not covered, but paid sick leave, if applicable, can be applied.
- PFL can also be used to care for a dependent child under mandatory quarantine or isolation order. Others leave laws, such as the ESSTA and other provisions of the FMLA may apply as well, depending on the circumstances.
To the extent employers can limit remote access to confidential information, such protections should be implemented. Employees should also be required to continue to follow best practices, including locking their computer screen any time they are away from their computer, including meal, bathroom and other break times, and securing all confidential data, including healthcare information, social security numbers, credit card information, home addresses or telephone numbers, personal electronic mail addresses, Internet identification names or passwords, driver license numbers.
Check Insurance Policies
Yes. Employers may still be liable if an employee working remotely is injured while working at home. Apart from contracting the virus, if an employee is injured during work hours (e.g.., “slip and fall”), they may be eligible for Worker’s Compensation so employers should check their insurance policies to make sure remote workers are covered. Likewise, employees should be required to immediately report any injury that occurs during the workday. Although the Department of Labor’s Occupational Safety and Health Administration has not issued regulations regarding teleworking, employers of 100 or more employees are required to keep records of work-related injuries and illnesses.
Employees should also be required to have homeowners or renters insurance which covers work performed on behalf of the employer.
We are here to help you navigate these and other issues. Should you have questions, please contact Kimberly Klein, (212) 554-7853.