Yes, we recommend you investigate. A company always has some inherent liability in relation to discriminatory or harassing comments or behavior. The level of liability usually correlates to the nature, severity, and context of the comments, the position of the employee who made them, and what the employer does or does not do about it.
Since you have knowledge of a potential situation, we recommend you investigate the matter and take appropriate disciplinary action if it turns out your anti-harassment policy was violated. As you conduct the investigation, document the discussions you have as well as your findings, and reassure those you interview that their participation will not result in retaliation.
Unless an employee was out on job-protected leave, such as FMLA or EFMLA, you are not required to return them to their original position or to an equivalent one (or bring them back at all). Given the impact of COVID-19 on business operations across the country, it’s not surprising that organizations may need to restructure their teams to stay afloat or remain competitive. That said, if employees who were furloughed or laid off are asked to come back to a job that feels to them like a demotion, they may be less inclined to accept the offer or may be less engaged in the new role than they were in their previous job.
If you need to restructure their position, it will be helpful to explain why that was necessary. People are generally much more accepting of change if they understand it, and less likely to claim discrimination if you’ve given them your business-related reason for the decision.
We recommend extreme caution when deciding to replace an employee who refuses to work because of concerns about COVID-19. Generally, employees do not have a right to refuse to work based only on a generalized fear of becoming ill if their fear is not based on objective evidence of possible exposure. However, under the current circumstances, where COVID-19 continues to be a threat across the country, we think it would be difficult to show that employees have no reason to fear coming in to work, particularly but not exclusively in a location with a shelter-in-place rule. Returning employees may also have certain rights under state and federal law. Here are few things to keep in mind:
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- Recalled employees may have a right to job-protected leave under a city ordinance, state law, or the federal Families First Coronavirus Response Act (FFCRA). See our overview of the FFCRA. (Clients Only)
- Employees who are in a high-risk category — either because they are immunocompromised or have an underlying condition that makes them more susceptible to the disease — may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) or state law if their situation doesn’t qualify them for leave under the FFCRA (or if they have run out of that leave). It would be a reasonable accommodation under the circumstances to allow the employee to work from home or take an unpaid leave, if working from home is not possible.
- Employees who live with someone who is high risk are not entitled to a reasonable accommodation under federal law, but we strongly recommend allowing them to work from home if possible or take an unpaid leave. Otherwise, they may decide to quit and collect unemployment insurance. If you want to keep them as an employee, being compassionate and flexible is your best bet.
- Under Occupational Safety and Health Administration (OSHA) rules, an employee’s refusal to perform a task will be protected if all of the following conditions are met:
- Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so;
- The employee refused to work in “good faith,” which means that the employee must genuinely believe that an imminent danger exists;
- A reasonable person would agree that there is a real danger of death or serious injury; and
- There isn’t enough time, because of the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
Check state and local law to see if additional protections may apply.
Instead of replacing employees who express fear at this time, we recommend that you consider methods to encourage employees to come to work and to help put their minds at ease.
Consider emphasizing all of the safety methods you have put in place (such as scheduled hand washing, frequent disinfection of surfaces, social distancing rules, reduced customer capacity, staggered shifts, or more extreme measures if warranted by your industry).
We recommend relying on the Centers for Disease Control and Prevention (CDC) and local health department guidance for establishing safe working conditions at this time. You might also consider offering premium pay (a.k.a. hazard pay) or additional paid time off for use in the future to employees who must come to work.
Retention of employee documents varies at both Federal and State levels. Employers must maintain I-9 records, W-4 forms, and any state tax allowance forms that may be applicable.
For privacy reasons, the personnel file has specific EEO and HIPAA requirements. Here is a comprehensive list of what to include or avoid in your personnel files.For privacy reasons, the personnel file has specific EEO and HIPAA requirements. Here is a comprehensive list of what to include or avoid in your personnel files.
The personnel file generally contains the following documents:
- Job description for the employment position and job advertisements.
- Offer of employment.
- Employment contract (if applicable).
- Job application.
- Employee’s resume.
- Signed employee handbook acknowledgement.
- Forms providing next of kin and emergency contacts.
- Documents acknowledging receipt and review of other employer policies, such as nondisclosure, arbitration of employment disputes, safety practices, or other company-specific rules.
- Performance reviews and other performance-related documentation.
- Certifications, training taken, awards, etc.
Types of separate confidential files:
- Pre-employment file, including background checks, interview notes, assessment results, work samples, and other information used in the selection process.
- Payroll file, including Form W-4 and other payroll-related information.
- Benefits file, including benefits enrollment, beneficiary designations, leave of absence forms, or other confidential medical information.
- Forms I-9 verifying employment eligibility.
- Investigation files (if applicable).
- EEO records.
If you still have concerns about how to file documents, consider the following questions:
- Will a supervisor or manager have access to the document?
- Is the information contained in the document relevant to an employment decision?
- Is it related to the employee’s performance, knowledge, skills, abilities, or behavior?
If the answer is yes to these questions, then the document likely belongs in the employee’s personnel file. If the answer is no to any of the questions, then it’s better to err on the side of caution and maintain the document in a confidential file.
The concern is understandable, but working from home may actually increase productivity. For instance, Stanford Business School released a study of call center employees who volunteered to regularly work from home. The results bolstered the fact that working from home may increase productivity as they saw a 13 percent performance increase in the teleworking employees. Nine percent of the performance increase was attributed to working more minutes per shift, with fewer breaks and sick days, and 4 percent was attributed to the employee’s fielding more calls per minute due to quieter working environment. Home workers also reported improved work satisfaction and experienced less turnover. Learning more about telecommuting, establishing a clear and concise workplace policy that addresses employee and management concerns, and offering telecommuting as an option for positions where it is sensible would be a good way to begin implementing, or at least testing, this type of flexibility in your workplace.
See tools for implementing flexible workplace policies in [LINK FOR CLIENTS ONLY]
Other than at time of hire, the employer is to provide the new Form W-4 to any employee who wishes to make a change to his/her federal income tax withholding. The other required time is when the employee had claimed Exempt on their previous Form W-4. Under IRS regulations, when an employee has claimed Exempt from federal withholding, that exemption status is valid only for the tax year in which it was claimed. The employer must provide the employee with a new Form W-4 to complete no later than February 15 of the new calendar year.
See additional guidance here or at: https://www.irs.gov/taxtopics/tc753.html
(January 2020)
If you discover that a Form I-9 is not on file for a current employee, you and the employee must work together to complete a new Form I-9 immediately. If the employee cannot produce acceptable documentation as required in Section 2 of the form, or refuses to complete Section 1, that employee cannot work for pay. A new Form I-9 must not be back-dated.
(January 2020)
In accordance with the Affordable Care Act’s (ACA’s) employer shared responsibility provision (so-called “play or pay” rules), there are two measurement methods to determine health coverage eligibility: the monthly method or the look-back method. Under the look-back method, employees who averaged at least 30 hours per week in the measurement period are deemed eligible for the subsequent stability period, even if their hours are reduced to fewer than 30 hours per week. In other words, if an employee chooses to enroll, their medical plan coverage will automatically continue for the entire stability period.
Further, if the coverage is part of a cafeteria plan (which allows employees to make pretax contributions), they would not be able to drop the coverage since their eligibility has not changed. Fortunately, the IRS recognized that employees in a stability period whose work hours are reduced could become stuck in a plan they no longer want or can afford. So, the IRS revised the cafeteria plan rules to give the employer the option of amending its plan to allow employees to drop coverage if certain criteria are met.
Specifically, an employee may elect to drop coverage due to the reduction in hours, provided the employee intends to enroll in another plan providing minimum essential coverage with the new coverage effective no later than the first day of the second month following the date the original coverage is dropped.
To recap, the employer’s cafeteria plan may allow an employee to drop medical coverage (but not dental/vision coverage or a health flexible spending account (HFSA)) during the stability period if:
- The employee has a change in employment status and will reasonably be expected to average less than 30 hours of service per week; and
- The employee intends to enroll in another medical plan (such as a spouse’s plan or a Marketplace plan) by the start of the second month after dropping this employer’s plan.
To allow this election change, the employer must amend its § 125 cafeteria plan and adopt the amendment by the end of the plan year in which the election change is allowed. The employer also must inform all cafeteria plan participants of the amendment.
While there is no law that prohibits employers from mandating flu shots — and in some states, the law requires all healthcare workers to get flu shots — you should carefully determine if the benefits to your business outweigh the risks. There has been a rise in litigation brought by employees who object to this requirement for medical, religious or personal reasons. The Equal Employment Opportunity Commission (EEOC) has filed or joined several lawsuits over claims that inflexible mandatory vaccination policies are discriminatory.
Employees may be entitled to exemptions from a flu shot policy for medical reasons under the Americans with Disabilities Act (ADA) or religious reasons under Title VII of the Civil Rights Act of 1964. Requests for exemptions must be evaluated individually yet treated consistently; a difficult task. You will need to engage in an interactive process with the employee, just as you would for any other request for accommodations, to determine if they can be granted without presenting undue hardship to your company.
The EEOC recommends against mandatory flu shot policies, instead suggesting employers encourage employees get vaccinated on their own. Offering no-cost flu shots on site can further improve workplace vaccination rates by making it more convenient for employees.
If you choose to enact a mandatory flu shot policy, write it carefully to protect your company from the risk of discrimination claims and be sure to run it by your legal counsel. Make sure the policy:
- Is worded concisely.
- Outlines the reasoning behind the policy.
- Is applied consistently. (Managers who enforce it should be trained on the policy and how to handle requests for exemptions.)
- Explains the process for requesting exemptions due to medical contraindications or sincerely held religious beliefs. Any medical information obtained as part of the request for an exemption should be kept confidential.
Most cases of the common flu do not meet the definition of “serious health condition” and would not be eligible for Family and Medical Leave Act (FMLA) leave.
Some cases of the flu, however, are severe or result in complications, and these have the potential to meet the FMLA definition of “serious health condition.” This is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Continuing treatment means:
- The employee has been incapacitated for a period of more than three full days; and
- Consults with a doctor two or more times within 30 days, or
- Has one consult with a doctor and a regimen of continuing treatment.
If an employee is out sick with the flu for more than three days, consider whether the need for FMLA leave may exist. This doesn’t mean that you need to go through the whole FMLA process to determine eligibility for each flu absence; just that you shouldn’t automatically reject FMLA requests for the flu either.
Review each case based on the facts, keep the “serious health condition” definition in mind, and if the illness is severe, ask the employee to submit certification from a health care provider to support the their need for leave protection under the FMLA.
