We’re back in business, baby! (Sorta.)
Life in general may be returning to normal after our two-month exile, and many employers are starting to bring their employees back to work. Are you ready? How much do you really know about all the thorny issues that can arise as people are returning to work while the pandemic is still ongoing? Take our quiz and find out!
As usual, the answers will appear at the end of each question, so you can cheat all you want — we’ll be none the wiser. And if you do well, there will be a special prize, selected especially for you!
Ready? Here we go!
No. 1: Your plant manager wants to take employees’ temperatures and test them for COVID-19 before letting them return to work. Assuming the plant manager’s plan is put into place, has your company violated the Americans with Disabilities Act?
A. Yes, because the plant manager failed to engage in the interactive process.
B. Yes, because this is a “medical examination” within the meaning of the ADA, which means that it must be done post-offer, pre-employment. With current employees, the testing has to be job-related and consistent with business necessity or undertaken to prevent a “direct threat” to the health or safety of the individual employee or others.
C. No, because if the employees don’t like it, they can stay home and collect their sweet, fat, federal unemployment.
D. No, because the Equal Employment Opportunity Commission has said that this type of “preemptive” medical testing is lawful while the National Emergency is in place, provided that the employer does not discriminate and that the testing records are kept confidential as required by the ADA.
ANSWER: D. In normal times, B would have been the right answer, but the EEOC has made exceptions that apply to contagious diseases during National Emergencies. (The last exception to the general rule was made in 2009, during the H1N1 pandemic.) For now, it is lawful for employers both to test for COVID-19 and to take temperatures of employees. Employers should treat all similarly situated employees the same to avoid discrimination claims, and they must keep any records related to the testing confidential and separate from the employees’ personnel files.
No. 2: Your facility is recalling employees back to work starting next week. Some have told you they don’t want to return yet. Which of the following is NOT potentially a valid reason for staying out of work?
A. “I can make more money collecting my sweet, fat federal unemployment than I can working at this crummy job. See ya on August 1!”
B. “I have an immune disorder, and my doctor says COVID-19 could kill me. Literally.”
C. “I would love to get back to work, but I know that you are not following OSHA and CDC guidelines on sanitizing the workplace. When you do that, I’ll come back, but otherwise, I don’t feel safe coming back.”
D. “I am 70 years old, and I’m fine right now, but I’m worried about what would happen to me if I were exposed to COVID-19, given my age. Could I continue working from home for another month or so? I really do want to come back.”
E. “My kids are out of school, and my child care right now is spotty at best. Could I continue working from home until I can get a regular babysitter? I really do want to come back.”
F. “Intellectually, I understand that you have taken all the necessary safety/health precautions, but I have an anxiety disorder, and with COVID-19, I’m having panic attacks whenever I go somewhere that is open to the public or to large numbers of people. My psychiatrist and I are working on this, and I can provide a note. Could I continue to shelter in place a little longer?”
G. “I live across the state line from the facility, and we are still under a stay-at-home order. Trust me, I want to come back to work! But I don’t want to violate our state order. Can I stay at home until my state’s order is lifted?”
ANSWER: A is the only illegitimate reason for refusing to come back to work. B, C, E, F, and G would all require at least a good-faith attempt at accommodation on the part of the employer. For D, accommodation isn’t legally required, but the employer should try to accommodate the older employee’s legitimate concern.
Regarding “Employee A,” one of the requirements for sweet, fat federal unemployment is that suitable work not be available. If you have work available, and your employee is choosing to stay home only because the unemployment benefit pays more than you do, then that should disqualify the employee from receiving benefits. (And that might get your employee back to work!)
No. 3: On April 10, you had only 401 active employees because many were on furlough. During that time, Debbie — who is white — asked for time off to care for her kids who were out of school, which had closed because of COVID-19. You granted Debbie paid leave, in compliance with the Families First Coronavirus Response Act.
Last week, you brought back the furloughed employees, and so you now have 525 active employees. Today, Dawn, who is African-American, asks you for time off under the FFCRA to care for her kids, who are also out of school, which had closed because of COVID-19. Are you required to approve Dawn’s request?
A. Yes. If you say yes to Debbie and no to Dawn, Dawn would have a valid claim of race discrimination based on your disparate treatment of two similarly situated employees.
B. Yes. The FFCRA applies only to employers of fewer than 500 employees, but since you were under 500 on the law’s effective date of April 1, you’re still covered and must comply.
C. No. The U.S. Department of Labor says that coverage under the FFCRA is determined at the time that an employee requests leave. So you were covered on April 10 because you had fewer than 500 employees, and you are no longer covered as of last week, when your count got above 500.
ANSWER: C. For “crazy”! This is really the way that the DOL is applying the “employer coverage” provisions of the FFCRA. So, for you employers who are close to the 500-employee mark, there may be times when you are covered and required to grant paid leave, and other times when you are not covered and not required to grant paid leave. If Dawn takes you to court, you can argue that she and Debbie are not similarly situated. Debbie asked for leave when you were covered by the FFCRA, but Dawn asked when you weren’t covered.
No. 4: When you’re doing performance evaluations in August 2020, you can “ding” the people who were unproductive during the shelter-in-place period.
ANSWER: It depends. Although normally there is no problem with “dinging” unproductive employees on their performance reviews, that could lead to unfair results during the shut-in period that is coming to a close. Some jobs can’t be performed remotely, so you wouldn’t want to penalize the employees in those jobs. Other employees’ jobs can be performed remotely, but the employees may have more distractions during the business day than their co-workers (such as kids whose schools are closed, or caregiving responsibilities). If you are going to include this period in your performance evaluations at all (and you don’t have to), be sure to make allowances for employees who are less productive, but for legitimate reasons.
No. 5: Your facility had to close in March and April. Your employees are coming back to work now, but their pay will be reduced by 25 percent or to the applicable minimum wage, whichever results in higher pay. Which of the following should you NOT be concerned about?
A. Having a lot of ticked-off employees.
B. Violation of the Fair Labor Standards Act.
C. Providing notice of the pay cut in accordance with state or local wage and hour laws.
D. Violation of the terms of any applicable collective bargaining agreements or contracts of employment.
E. All of the above.
F. None of the above.
ANSWER: F. (One of my lovely double negatives — put another way, you should be worried about all of these things.) A is obvious. We’ll just hope that the ecstasy of returning to work will outweigh the agony of making less money. D is also obvious. Before putting a pay reduction into place, review any contracts you have with employees and make sure you are not going to be in breach of those contracts.
C is less obvious. Many state and local wage and hour laws require you to provide notice to employees before making a negative change in their compensation. In my state of North Carolina, the notice has to be in writing and given to employees at least 24 hours in advance. Notice requirements may be more stringent in other jurisdictions.
B is the least obvious because I was deliberately being obscure. Of course, the FLSA requires only that you pay non-exempt employees at least the federal minimum wage, plus overtime if applicable. So, normally, a pay cut will not create an FLSA issue. BUT . . .
. . . if you have employees who have qualified for the administrative, executive, and some professional exemptions from the minimum wage and overtime requirements of the FLSA, and if your pay cut takes them below the current salary threshold for exempt status ($684 a week, or $35,568 annualized), then they will no longer qualify for these exemptions. That means you will have to pay them for all hours worked, plus time and a half for all hours they work in excess of 40 in a workweek. If your pay cut takes them below the threshold and you don’t pay overtime, then you will have violated the FLSA.
(Since B was tricky, I’ll give you 2 points if you got this one right.)
4-6 points: Fantastic! Your knowledge of return-to-work issues is sick!
2-3 points: Nice job! Your return-to-work expertise will go viral, mark my words!
0-1 points: Ugh. Take some Lysol and call me in the morning.
Just kidding! You all did great!
(And Mr. President, I know you didn’t really tell us to drink Lysol.)
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.