You don’t need us to tell you that it’s not an easy time to be an employer.  With ever growing concerns over employee safety, business operations, costs, and complying with new and rapidly evolving legislation as a result of COVID-19, getting your business through the next day can seem overwhelming enough.  However, it is important to remember that the current crisis will eventually pass.  And when it does, the last thing you’ll want to do is defend against a class or collective action lawsuit, particularly when it could have been easily avoid  To help make sure this doesn’t happen, we have identified below five important issues to consider as part of your COVID-19 response.  [*Note: For a comprehensive analysis of employment-related COVID-19 issues and how to navigate them, please check out our COVID-19 response site at https://www.bakerlaw.com/Coronavirus-COVID-19].

Make sure your telecommuting non-exempt employees are recording all their time, including boot-up/boot-down time

It goes without saying that if you are one of the many employers who have non-exempt employees working from home, they need to be paid for all their worktime done at home.  However, it is important to remember that compensable worktime includes things such as logging into and out of computer systems for the day – processes which can be unexpectantly delayed and complicated in a mass work from home situation.  Therefore, it is crucial that you reiterate in writing that all such time is compensable, and that your non-exempt employees have a way to record such boot-up and boot-down time.  One option is to allow telecommuting employees to record their time on paper or e-mail and make them responsible for submitting that time for payment.  You should also ask your employees if they are having any issues logging in/recording time as part of your regular check-in sessions.

If you want to “furlough” exempt employees, make sure they are not performing any work

More and more employers are turning to unpaid “furloughs” where groups of employees go on unpaid leave for weeks or even months.  If this becomes necessary, it is essential that you make sure your furloughed exempt employees are not doing any work.  If they do, even if it is just responding to business e-mails or stopping in for a status meeting, they may be legally entitled to be paid for that entire week.  This can be emotionally difficult for many exempt employees who may still want to help the company during the furlough period, so clear and written communication is essential.  Proactive steps you can and should take to further prevent against unauthorized work includes taking back company cellphones and laptops and disabling log-in credentials and access badges.

Your duty to accommodate under the ADA still applies to your work-at-home employees

In 2009, the EEOC issued a guidance document titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” in response to the H1N1 pandemic.  This document was recently updated in response to the COVID-19 pandemic, and is a must read for employers looking for ADA guidance in today’s environment.  https://www.eeoc.gov/facts/pandemic_flu.html.  One point that the EEOC makes that may not be intuitive to all employers is that “[i]f an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.”

In other words, your duty to accommodate and engage in the interactive process does not stop just because your employees are telecommuting.  Be sure to reach out to the employees you are currently accommodating to see what if any accommodations they may need while they work from home.

Don’t play fast and loose with counting your “employees” just to avoid the Families First Coronavirus Response Act

If you are an employer with fewer than 500 employees, you are probably aware that you will likely soon have new (and expensive) employee leave obligations under the Families First Coronavirus Response Act (“FFCRA”).  If not, take a few minutes to read our FAQs at https://www.bakerlaw.com/alerts/the-families-first-coronavirus-response-act-faqs-for-employers.  You may have also thought that if you got “creative” with counting your employees, you may be able to get over the 500-employee threshold and avoid these new obligations all together.

Our advice – be very careful about admitting joint-employer or single enterprise status just to avoid the FFCRA, particularly since it has a finite life.  If you are counting employees from separate entities that are merely divisions or operating units of the same corporation, they are likely already a single enterprise.  However, if you take a more aggressive approach with entities that may not be a single enterprise to avoid paying these new benefits, you may create the possibility of inadvertently admitting that these operations are integrated and, thus, create legal exposure under a host of other laws including (but not limited to) FLSA, FMLA, ERISA and Title VII that did not otherwise exist. The Department of Labor has yet to issue regulations regarding how aggregation might work, leaving uncertainty as to the elements and details that will need consideration. Not to mention that if you are wrong, you could face a future class action for not providing the FFCRA benefits as required.

In short, this is an issue that will require an individualized analysis and decision for each employer and should be performed in consultation with your attorneys.  That analysis should consider (among other things):  (1) if the entities are already being treated as a single enterprise; (2) the cost of compliance with the FFCRA; and (3) the risk of possibly implicating other employment statutes.

Follow OSHA and CDC Recommendations For Maintaining A Safe Workplace And Establish Clear, Written Policies

It is inevitable that plaintiff lawyers will bring class actions against employers alleging that their client(s) became infected with COVID-19 in the workplace and that the employer did not do enough to prevent it.  This is just another reason why following government guidelines and recommendations regarding workplace efforts to stop the spread of COVID-19 and implementing clear, effective and common-sense workplace policies is essential.  Specifically, enforcing social distancing, being vigilant about keeping employees with potential COVID-19 systems out of the workplace, limiting at-work staffing to a minimum, and providing ready access to disinfectant and office cleaning supplies will make it more difficult for a plaintiff attorney to Monday morning quarterback your COVID-19 prevention efforts.

The bottom line: Make sure your COVID-19 response plan is not creating a risk of future employee class/collective actions 

This article was first published in Law360 on March 27, 2020.