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 avoided. To help make sure this doesn’t happen, we have identified below five important issues to consider as part of your COVID-19 response. 

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 in to 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.

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 emails or stopping in for a status meeting, they may be legally entitled to be paid for that entire week. Retaining company cellphones and laptops and disabling log-in credentials are some measures that can and should be taken to ensure furloughed employees are not performing any work.

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.

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 here. 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 status just to avoid the FFCRA. If you really are a joint employer and have taken that position in the past, then great. However, if you take an aggressive approach and aggregate two or more entities to avoid paying these new benefits, you can inadvertently admit that these operations are integrated and, thus, create legal exposure under a host of other laws including ERISA, FMLA, FLSA 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.

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.

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