It’s great that you are considering offering more flexibility to your employees. This is one way to increase retention and give your employees some control over their time at work. There are a few things you can do to offer flexibility while still maintaining the coverage you need:
- Implement self-scheduling. Self-scheduling is when you let your employees know what shifts are needed and allow them to choose when they are going to work. You can use software or a paper calendar, but allowing employees some choice over the days and times that they will work gives them control over their week. This will also offload some of the manager’s responsibilities of regularly making a schedule.
- Communicate with employees about open shifts and encourage them to share changes to their schedule with managers or the team to keep shifts covered.
- Offer incentives, such as bonuses or shift pay, to persuade staff to pick up additional or less desirable shifts.
- Offer cross training. Not only does this give your employees the opportunity to learn a new skill, but it will give everyone more flexibility as they can cover different shifts and roles.
- Look at offering a variety of shift lengths or different starting times. Determine what shifts would work to provide the coverage you need and then work with your employees to discuss which options they would like to see.
Once you have 15 employees, the federal laws below would apply to you. Here is a brief summary of what you need to know about them:
- Americans with Disabilities Act (ADA): Protects qualified individuals with disabilities from unlawful employment discrimination, prohibits discrimination where an individual is able to perform their essential job functions, and requires an employer to make reasonable accommodations for disabled individuals unless doing so would place an undue hardship on the employer.
- Genetic Information and Nondiscrimination Act (GINA): Prohibits the use of genetic information in employment and restricts employers from requesting or requiring genetic information.
- Pregnancy Discrimination Act (PDA): Protects pregnant employees from being retaliated against in any way due to pregnancy, child birth, or any related medical conditions.
- Title VII of the 1964 Civil Rights Act: Prohibits discrimination in all terms and conditions of employment (including pay and benefits) on the basis of race, color, national origin, religion, and sex (sex includes sexual orientation and gender identity).
Remember, there may also be additional state laws that apply as your company grows.
Whether you need to offer benefits depends on your health plan eligibility terms. However, offering benefits to interns can enhance your employment brand and reputation in college placement offices and within the labor marketplace overall.
Summer interns by nature are “temporary” employees as their duration of employment is expected to last not more than the summer (e.g., 90-120 days). While you can classify these employees as temporary, their eligibility for benefits will be determined by the terms of your group health insurance plan and the terms of any other company-provided benefits policies.
With respect to healthcare benefits, temporary or seasonal workers don’t qualify under many plans. Employees who work less than six months are often excluded from the plan and not offered coverage per the plan’s guidelines. However, if the temporary work period exceeds six months, they would usually be treated as a regular employee, even if they are being classified as ”temporary” in the employer’s internal systems. We recommend you check with your insurance broker to see if there is specific wording that would make temporary or seasonal workers eligible under your plan.
If your summer interns are eligible, you should provide them with access to this benefit per your usual waiting periods. We recommend you confirm your plan’s exact rules with your carrier or benefits broker to ensure you’re following your plan’s expectations.
Note: Applicable large employers (ALEs) may be required to offer group health insurance benefits to avoid potential penalties under the Affordable Care Act (ACA). ALEs are employers that had an average of 50 or more full-time equivalent employees in the prior calendar year. Under the ACA rules, interns can be defined as seasonal employees when hired into positions for which the customary annual employment is six months or less. The ACA requirement to offer health insurance may be triggered for seasonal employees (interns) depending upon a complex set of rules. Employers with fewer than 50 full-time equivalent employees are exempt from the ACA requirement to offer health insurance to avoid potential tax penalties.
The answer will depend on a number of factors, such as how many employees are misclassified, how much extra money they would have been paid if properly classified, and whether or not lawyers or regulatory agencies get involved.
Generally, if an employee goes to the federal Department of Labor (DOL) and claims that they’ve been misclassified, the DOL will investigate. If the DOL determines that an employee—or entire group of employees—should have been paid overtime but wasn’t, the employee will be owed up to two years’ worth of unpaid wages (or up to three if the misclassification was “willful”). The organization may also owe the employee or employees liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization may owe them $4,000. The organization would also owe the government taxes on those wages, as well as interest on the taxes.
Most states also have their own minimum wage and overtime laws, and often an organization can be held liable under both federal and state law, meaning the employee would be owed additional damages for violations of state wage law. And if you are in a state with late payment penalties, the organization could owe additional damages for not having paid all wages by the time they were due. There’s also a very good chance that the organization will be held liable for attorney’s fees—both the organization’s and the employee’s.
On top of the costs mentioned above, there are potential federal civil penalties of $2,074 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. Finally, statutory interest may immediately begin to accrue on the amount owed.
You can generally ask employees to provide more information when they indicate that their vacation or PTO request is for personal reasons, but we don’t recommend it. The specific reasons for the day off shouldn’t affect whether you grant the request, and you don’t want to give the impression that you’re accepting or denying requests based on the reasons that are given. It may also be information an employee doesn’t want to share.
If the time off requested is problematic for scheduling and you’re trying to assess whether the employee could take off a different day or time (or if the company should grant the request despite the inconvenience), we recommend having a conversation with the employee rather than digging for details without telling them why you’re asking.
This advice applies only to time off that you offer as a company benefit; time off that is required by federal, state, or local law will have its own requirements about what you can or cannot ask.
If you’re managing employees who are parents or caregivers, be compassionate and flexible. You’re in this together for the long haul, and you’ll get better engagement, focus, and commitment by trusting them to manage the demands on their time and attention.
Advise your employees to do the following when working from home:
- Let go of the conventional wisdom of keeping the “normal” office day structure.
- Don’t wait for children to wander in during calls or meetings. Find the right opportunity to invite them in, so you can describe what you’re doing and why. It’s great learning for them and sensitizes them to how their behavior might affect you.
- Schedule extra breaks to be with children (on both your schedule and theirs), whether it be for lunch, walks, or helping with their schoolwork.
While your state does not have any specific statutory provisions that would protect an employee who engages in lawful off-duty conduct, I would recommend caution in using such information as the basis for discipline or other harmful employment actions such as restricting their ability to work.
Certain elements of employees’ off-duty conduct (such as attending church for example) may be tied to protected characteristics that could make such actions discriminatory.
Additionally, if engaging in such activities is permissible under state public health ordinances then it may be inconsistent to object to their off-duty conduct as being a threat to workplace safety. If there are not activities prohibited by the state law/executive order that you could point to then you could point to the general CDC guidance recommending that individuals socially distance themselves and avoid gathering in large groups
You would also want to provide some type of advance notice to employees that make it clear that their engaging in certain off duty activities could result in their access to the workplace being limited. You would want to distribute the CDC guidance (found here) to make employees aware that if you find evidence that they are not following such guidance in or out of work that they may be asked to remain outside of the workplace for a specified period of time in the interest of providing a safe work environment under OSHA’s general duty clause.
However, taking action on off-duty behavior can be complicated unless an employee is self-reporting it as your awareness of it would otherwise be coming from third party reports which may not be reliable. You would generally want to have some other type of evidence other than a report by others before taking harmful employment action against an employee.
Again, it may be fine to communicate your expectations and to ask employees about whether they are complying with social distancing recommendations outside of work. Such inquiries may not be viewed as invading an employee’s privacy too much, where it’s a public health recommendation. It may be more complicated to take action if an employee admits to violating CDC guidance or trying to prove it if the employee denies it.
If you have ongoing concerns about workplace safety, then you may first consider using screening procedures (asking employees if they are experiencing symptoms or even temperature checks) and perhaps require employees to wear cloth face coverings as an alternative to potentially disciplining for off-duty conduct.
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.
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.
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.
