DOL Issues Guidance on Postings in Remote Work Environments

Telework has touched so many things in our world, and now the Department of Labor is reacting with some common sense guidance.  When so many workers are at their homes, how does an employer comply with the many (many) governmental requirements to post notices about employee rights?  Prior to COVID, the employer would post them in the break room.  But now, the “break room” is in each employee’s own home.

On December 29, 2020, the Wage and Hour Division of the DOL issued some guidance addressing the laws under its control.  Its general principles are as follows:

Laws that require a poster to be posted continuously (e.g., the wage and hour or FMLA poster):  The DOL will consider electronic posting an “acceptable substitute” if: (1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer via electronic means, and (3) all employees have readily available access to the electronic posting at all times.  If an employer has both in-person workers and teleworkers, the DOL recommends both traditional hard copy posting and electronic posting such as on a company intranet.

Laws that require individual notices (such as the Service Contract Act):  The DOL will accept electronic delivery “only if the employee customarily receives information from the employer electronically.”

Generally, the DOL requires that the employer provide access to anything electronically posted and that it communicate to the employees about this access.  Employees know they can walk to the break room and see the posters.  In a new world of telework, employees need to receive communications about the location of, and how to access, this information electronically.  If the information is on the intranet, but no one knows of it, it is of no use and the DOL will not consider it properly posted or available to the employees.  The guidance has additionally law-specific information if you want to read more.

COVID Relief Bill Provides Additional FFCRA Paid Leave Opportunities

On December 27, 2020, the President signed the “Consolidated Appropriations Act, 2021” which included in it the “Coronavirus Stimulus & Relief” bill. Amongst its many provisions, the bill amended the Families First Coronavirus Response Act. As a quick reminder, the FFCRA provided for two types of paid leave to be provided by covered employers to eligible employees.

The FFCRA provided for Emergency Paid Sick Leave of up to 80 hours if the eligible employee suffered any one of six reasons, all related to COVID-19. The paid leave was at the employee’s regular rate or at 2/3 of the regular rate depending upon the reason for the leave. This 80 hours was available between April 1 and December 31, 2020.

The FFCRA also provided for Expanded Family Medical Leave of up to 12 weeks, the latter 10 of which were paid at 2/3 of the employee’s regular rate, when in essence an eligible employee could not work or telework because their child could not go to school or child care due to COVID-19 closures. This leave was available between April 1 and December 31, 2020.

To ease the burden on businesses (who were largely businesses employing fewer than 500 employees), the law provided that the amounts paid by the employer could be recouped through a payroll tax credit.

These descriptions are a shorthand introduction to talk about 2021.

What do these December 27 amendments to the FFCRA mean for your business as you enter the New Year? The amendments hold the FFCRA in a suspended state through the first quarter of 2021. More specifically, the amendments act as if both the “Emergency Paid Sick Leave Act” and the “Emergency Family and Medical Leave Expansion Act” are in this suspended state through March 31, 2021, allowing employers to voluntarily extend these benefits if they choose. The “carrot” for employers to do so is that the IRS will continue to allow employers to utilize the payroll tax credit as if these laws did not expire on December 31, 2020, but on March 31, 2021.

The following scenarios exist for employers who are covered under the FFCRA beginning January 1, 2021.

Emergency Paid Sick Leave

Option One. Stop providing Emergency Paid Sick Leave (the up to 80 hours) to your employees on January 1, 2021. This is required through December 31, 2020, but not after. If you have employees currently on this leave, we suggest you notify them of this decision. (It is important you take inventory now to ensure you have properly paid everyone through December 31 and claimed your payroll tax credits.)

Option Two. Voluntarily continue to offer the Emergency Paid Sick Leave through March 31, 2021, and continue to utilize the payroll tax credit. The same rules apply; for example, as to whether a business is covered, as to the eligibility of an employee, as to the daily maximums, etc. Most importantly, the rule that an individual may only take up to 80 hours (for a full time employee defined as regularly scheduled to work 40 hours per week) applies. For example, if you have a full time employee who took 80 hours of Paid Sick Leave in November 2020, that employee has no additional Paid Sick Leave to take in 2021. In a second example, if a full-time eligible employee took 20 hours of Paid Sick Leave in 2020, they would have 60 hours remaining to take in the first quarter of 2021. Finally, although there is no specific requirement in the law, if you choose to continue to offer this, you might want to keep the poster posted through March 31, 2021, to assist in your communications.

Emergency Family and Medical Leave

Option One. Stop providing the additional leave as outlined in the Emergency Family and Medical Leave Expansion Act – up to 12 weeks, the latter 10 of which are paid at 2/3 pay. This is required to be provided only through December 31, 2020. If you have employees currently on this leave, you probably want to give them notice. They may be eligible for other forms of leave, including possibly unpaid traditional FMLA leave. (Additionally, take time to ensure you have properly paid all eligible employees and claimed your payroll tax credits.)

Option Two. Voluntarily continue to offer this leave through March 31, 2021. Again, the same underlying rules apply. The change is that, if an employer chooses, it can act as if the law did not expire on December 31, 2020, but instead expires on March 31, 2021. To encourage employers, the law is continuing the employer’s ability to claim the payroll tax credit for the Paid Family Medical Leave benefits paid under this law through March 31, 2021.

The government did not give employers a lot of time to digest this option. Because it is voluntary, you will not be penalized if you opt not to do it. Of course, with the payroll tax credit, many employers may find it an easy choice to continue offering the benefits. But you must choose, and both questions appear to be “either/or” propositions:

  1. Will you stop the benefits under the Emergency Paid Sick Leave Act on December 31, 2020, or will you extend them through March 31, 2021?
  2. Will you stop the benefits under the Emergency Family and Medical Leave Act on December 31, 2020, or will you extend them through March 31, 2021?

Either way, communicating your decision to your employees will be key, especially in light of the amount of press over the legislation.

THE END OF 2020 DRAWS NEAR…WHAT DOES THAT MEAN FOR THE FFCRA?

There is much debate about what is to come as the end of 2020 draws near.  Certainly we all hope for good news on the medical front with steady progress being made towards vaccines and treatments.  But the impact of COVID-19 continues to wreak havoc on other parts of our lives, including our workplaces.  State and local governments continue to debate the appropriate level of restrictions.  The CDC continues to update its guidance as the science continually evolves on this new virus.  Employers continue to make the best decisions they can. 

One of the laws that passed in March 2020 that impacted employers was the Families First Coronavirus Response Acts (FFCRA).  The FFCRA generally applies to private employers employing fewer than 500 employees and to public employers.  It provides for paid leave for COVID-19 related events; up to 80 hours for six COVID-19 related categories and up to an additional 10 weeks for leave when employees have no childcare/school for their child(ren) due to COVID-19.  The Department of Labor is charged with investigations and enforcement. (You can check your poster or consult legal counsel for the many nuances of this law.)

As was true of virtually everything about COVID-19 in March, the FFCRA was enacted quickly and then underwent many changes.  But one thing has not (yet) changed and seems unlikely to change at this point. The FFCRA applies only to leave taken between April 1 and December 31, 2020

What does this mean?  Assuming Congress and the President do nothing regarding this before December 31, consider the following:

1.         Now would be a good time to look back over the absences that have occurred from April 1, 2020, through December 31, 2020 (the effective period of the law).  Did you properly permit and pay for absences covered by the FFCRA?  If you did not, consider fixing it now before year end.

2.         The FFCRA provides that amounts properly paid under the FFCRA would be reimbursed by the federal government through tax credits.  Now is the time to ensure your business has done what it needs to do to take advantage of the tax credits.

3.         It is unlawful to discharge, discipline, or otherwise discriminate against an employee who takes leave under the FFCRA or who pursues their rights under the FFCRA.

We cannot know what 2021 will bring, but every employer covered by the FFCRA should take time in December of 2020 to review its compliance with this law and to maximize its use of the tax credits if applicable.  Seek competent legal and/or tax advice as needed.

By Kristen L. Brightmire, kbrightmire@dsda.com   

GET OUT THE OKLAHOMA VOTE – WHAT EMPLOYERS NEED TO KNOW

The season is upon us.  No, not the holidays.  The election season.  And this year, things seems to be happening sooner than ever.  Oklahomans who requested an absentee ballot are already voting, but voting by absentee ballot does not impact Oklahoma employers. Voting in person may.

Here is what Oklahoma employers need to know about the rights of employees to vote in person.

  • Where and when can a registered Oklahoma voter vote in person?

Early in-person absentee voting is available in the county where the voter is registered.  The dates and times for early in-person voting statewide are:

            October 29      8:00 a.m. until 6:00 p.m.

            October 30      8:00 a.m. until 6:00 p.m.

            October 31      9:00 a.m. until 2:00 p.m.

In-person voting is permitted on election day as well:

            November 3    7:00 a.m. until 7:00 p.m.

  • Does an employee have a protected right to time off work to vote?

Generally, yes, an employer is required to provide 2 hours of time off (without penalty or loss of pay) for the employee to vote “on the day of the election or on a day in which in-person absentee voting is allowed;” in other words, on any of the days mentioned above.  You may require your employee to provide “proof of voting,” but realistically what is that?  It is a low bar.  Perhaps they bring you the “I Voted” sticker.  Often, employers go on the honor system. (Employers should not press for any information as to the employee’s political leanings.)

There are lots of caveats to this general rule, so read on.

  • Will the employer ever be required to give more than 2 hours off?

Yes.  If it would require more than 2 hours to vote because the employee’s voting place is so far from work, the employer must provide “sufficient” time off to vote.

  • Must the employee request the time off?

Yes.  If an employee wants time off to vote, the employee must give 3 days’ advance notice.

  • Must the employer always grant the requested time off to vote?

No.  If the employee’s work day begins 3 hours or more after the polls open or if the employee’s work day ends 3 hours or more before the polls close, the employer does not have to grant the time off.  This is because it is presumed 3 hours will be sufficient time to allow the employee to vote.

Additionally, the law allows an employer to “change the work hours to allow such three (3) hours before the beginning of work or after the work hours” so the employee can vote without the employer granting any time off.  In other words, with that 3 days’ advance notice, you may be able to adjust an employee’s work schedule to both allow for a full work day and for 3 hours before or after that workday while the polls are open.

  • Can the employee request when they want to vote?

They can request when they want to vote, but they cannot dictate it.  The employer may “select the days and hours” when the employee is allowed to vote.  As noted in the prior section, this is because the employer has the right to adjust work schedules to allow for a full work schedule and 3 hours before or after that work schedule for the employee to vote.

This law tries to balance both the employer’s need to keep work moving and the employee’s right to cast a vote without suffering any penalty.

EEOC GUIDANCE ON OPIOID ADDICTION AND THE ADA

It is well known that the United States has an ongoing opioid addiction crisis.  The Equal Employment Opportunity Commission (EEOC) has issued two publications addressing this crisis.  These publications do not have the force of law, but they do represent a clear expression of the EEOC’s views.  While directed to employees and health care providers, we recommend employers read them as well.  The information communicated can aid employers, especially as courts continue to shine a light on the “interactive process” mandated by the Americans with Disabilities Act (ADA).

EEOC’s Assistance to Employees

Its first publication, “Use of Codeine, Oxycodone, and other Opioids: Information for Employees,” is designed to educate employees about how opioid use or addiction may be protected under the ADA.  The publication goes over some of the general rules, such as

  • An employer can fire, refuse to hire, or discipline an employee based upon the current illegal use of opioids.
  • An employer can fire, refuse to hire, or discipline an employee for current use of opioids if federal law requires this (most common example would be DOT regulations).
  • Otherwise, an employer cannot automatically disqualify an employee for current legal opioid use without considering if there is a way for the employee to safely and effectively do the job; in other words, engage in the interactive process.

Some may question that third bullet point, but it is true.  Opioids are often legally prescribed drugs, no different than any other prescribed drugs.

The EEOC also addresses additional scenarios such as a person taking opioids to treat pain, a person enrolled in a Medication-Assisted Treatment program for opioid addiction which program requires the taking of an opioid medication, and a person with a diagnosed opioid addiction (including related diagnosis such as PTSD or major depression).  It addresses and instructs on “reasonable accommodation” and the “interactive process.”

EEOC’s Assistance to Health Care Providers

Its second publication, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” the EEOC speaks directly to the employee/patient’s health care provider as to their role in this process.  At the outset, the guidance explains that the definition of a disability under the ADA is quite different than the definition of disability used under other laws, such as the one used for Social Security disability benefits.  The guidance also briefly explains the concept of “reasonable accommodation.”

The health care provider is told – as was the employee – that the current illegal use of drugs, including opioids, is not protected by the ADA.  The health care provider is advised that a patient who was, but no longer is, addicted to opioids, but who needs treatment to avoid a relapse may be entitled to a reasonable accommodation under the ADA.

Perhaps most helpful, the health care provider is instructed as to what type of information is to be provided to the employer.  The categories include:

  • The health care provider’s professional qualifications and the nature and length of the relationship with the patient/employee
  • The nature of the patient/employee’s medical condition
  • The patent/employee’s functional limitations in the absence of treatment, with specific guidance about any impact on a major life activity  (notably, the guidance tells health care providers that it is not sufficient to simply provide an employer with routine work restrictions such as “no operating heavy machinery”)
  • The need for a reasonable accommodation
  • Suggested accommodation(s) if known

While some employers may balk at this, don’t.  In practice, employers suffer more often from the lack of information they receive from health care providers than from receiving “too much” information.  Armed with this information (sooner rather than later), the employer and employee can have a more fruitful exchange as to whether a reasonable accommodation is required.

Takeaways for Employers

The mere mention of the word “opioid” often conjures up stories on the evening news.  It shouldn’t.  As demonstrated by this guidance, when you are in the role of employer you must look past the headlines and consider each case on its own.  A person taking opioids may in fact be taking them illegally in which case you would take certain steps.  However, there are also a host of other possibilities.

As is true in all situations involving the ADA and an employee’s medical condition (be it physical, mental, or emotional), the employer must take it one step at a time, avoiding any inclination to jump to conclusions without the necessary objective facts.  This is what the law requires.  This often means several (sometimes slow and painstaking) steps.  If you need assistance in working through the interactive process, you should seek competent employment counsel.

EMPLOYERS MUST TRACK HOURS WORKED EVEN WHEN THOSE HOURS ARE “TELEWORKED”

The Department of Labor (DOL) issued guidance August 24, 2020, to remind employers of their obligation to keep accurate records of the time worked by non-exempt employees to ensure that non-exempt employees were paid for all time worked.  The DOL did so in light of the tremendous increase in employees teleworking. 

The regulations addressing this topic have remained largely unchanged for more than fifty years, but the world in which we work is dramatically different.  The three regulations forming the basis of the DOL’s guidance, and a plethora of judicial decisions, read:

Continue reading

BACK-TO-SCHOOL TIPS FOR EMPLOYERS DURING COVID-19

It’s August in Oklahoma. Families would ordinarily be buying school clothes and supplies, getting their children ready to head back to school. But there is nothing ordinary about 2020.

Oklahoma has no statewide mandate regarding schools. Across the state, school districts, charter schools, and private schools are making decisions – even as of this writing – as to whether and how to start the school year. Some schools have moved up their start date while others have pushed it back. Some schools will have in-person instruction five days a week, while others will have students in-person only on certain days, and others will have distance learning exclusively. Even for schools offering in-person instruction, many have suspended their afterschool care programs. And, of course, every parent has been told there could be changes.

While this is an extraordinary challenge and disruption for the parents and children of Oklahoma, it is likewise a challenge and disruption for Oklahoma employers. No article can address all of the scenarios Oklahoma families will face as they navigate these issues, but we wanted to touch upon the topic in hopes of preparing employers. Continue reading

WHEN COVID-19 COMES TO TOWN, YOU NEED A CRISIS RESPONSE PLAN.

Unless you are totally “off the grid,” you have heard news of the Coronavirus, more specifically COVID-19.  While one must not overreact as there is more unknown than known about the virus, as a business owner, Human Resources professional, or manager, you have a responsibility to your workforce to be appropriately prepared for this as you would any other possible disruption such as a flood or an ice storm.  This article will not provide you definitive answers.  Each of you will have different considerations.  It will provide you with a road map of things to consider.  We strongly encourage you to think about these things sooner rather than later.  While it is likely you will never need to implement a crisis response plan, it is better to have one ready than to be caught with none. Continue reading

FEDERAL CONTRACTORS SUBJECT TO NEW “BAN THE BOX” LAW, BUT YOU HAVE TIME TO PREPARE

If you are a federal contractor, you need to be aware of a new law.  If not, this serves to remind us all of the growing trend in favor of “ban the box” legislation.

In December 2019, President Trump signed into law the “National Defense Authorization Act for Fiscal Year 2020.”  Tucked into that law is the “Fair Chance to Compete for Jobs Act of 2019” otherwise known as the “Fair Chance Act.”  This law applies to federal agencies as well as to defense contractors (neither of which will be defined in this article).

Generally speaking, if you submit a bid to a federal executive agency for work, you will be required to comply with this law.  Continue reading

Drug Testing Case Involving Sudafed May Foreshadow Decisions for Medical Marijuana

Richard Turner was a crane operator for Phillips 66.  On April 24, 2017, he was selected for a random drug test under Phillips 66’s drug and alcohol testing policy.  On April 27, 2017, he was involved in a workplace accident and was tested again pursuant to the employer’s post-accident policy.

Turner’s April 24 test revealed a confirmed positive for amphetamines.  He produced a letter from his doctor that he was taking Sudafed.  He argued this explained the positive, claiming it was a false positive.  Nevertheless, he was terminated. Continue reading