The Coronavirus Pandemic: Legal & HR Considerations for Managing a Remote Workforce Q&A
Follow-up Questions from March 26th Webinar
Below is a compilation of the most frequently asked questions from our webinar:
Q. What is considered 'advanced notice' for salary reduction?
A. Notice must be given in advance prior to the work being performed. This should be done in writing for documentation purposes. Recommend at least a one-week notice or longer. Less time can be given, but there needs to a reasonable amount of time for the employee to consider the option of continuing under the new compensation agreement or resigning (and employer to plan accordingly if the employee resigns). Note that a pay cut of 20% or more will be considered good cause for resigning in Texas for purposes of eligibility for unemployment benefits.
Q. If we reduce an employee’s hours from a five-day workweek to a three-day workweek for the foreseeable future, can the employee’s loss of hours be paid under the new paid sick leave act?
A. No. The Paid Sick Leave under the Families First Coronavirus Response Act is applicable to only the 6 specified reasons listed in the Act.
- The employee is subject to a governmental order to self-isolate related to COVID-19.
- The employee has been advised by a doctor to self-isolate due to concerns of COVID-19.
- The employee is experiencing symptoms of COV-19 and seeking a medical diagnosis.
- The employee needs to care for a family member who is subject to a governmental order to self-isolate related to COVID-19.
- The employee needs to care for a child if the school or place of care of the son or daughter has been closed, or the child's caregiver is unavailable due to COVID-19 precautions.
- The employee is experiencing any other substantially similar condition specified by the government related to COVID-19.
In addition, if leave is needed for reason No. 5 above, the employee may be eligible for additional leave under the Emergency Family & Medical Leave Expansion Act.
Q. If we determined that an employee has work that can be performed from home but the employee refuses to work from home because of a concern that they will not be able to financially replace the laptop if something should happen to it, how should we proceed?
A. How does the employer typically handle damaged equipment at the office? If an employee is not typically charged (absent intentional acts), then that policy should extend to teleworkers. Insurance may also cover damaged property. Otherwise, if the equipment is damaged by an employee and you want to charge the employee, you cannot deduct this cost from an exempt employee’s salary (that is not one of the permitted reasons under the FLSA). In Texas, for hourly employees, you can only make deductions if you have the employee’s written authorization (and it cannot be so much that it puts the employee’s pay at less than minimum wage). The employer would need to make arrangements for a payment plan that did not include wage deductions.
At-will employees may also either resign or be terminated with or without notice or cause. Whether termination or resignation based on a refusal to work for fear of damaging equipment would make the employee eligible for unemployment benefits in Texas would likely be a fact-specific inquiry for the TWC.
Q. How about encryption or keeping company info secure?
A. For cybersecurity issues, please consult an IT professional or one of Clark Hill's Cybersecurity attorneys.
Q. What if we are reimbursing for cell phone usage?
A. You would still want to have a policy that puts employees on notice that the employer may view the stored information and that the employee has no expectation of privacy on the employer’s systems on the phone. Still need a legitimate business reason to review and review should be limited to meet that end. Personal systems on such a phone may have additional privacy protections (will vary by state).
Q. What if an employee has been teleworking because of a child’s school or child care is closed, but they want to take expanded FMLA leave for that same reason after April 1st?
A. The employee must be unable to work or telework to be eligible for leave, but if that is the case, the employee is entitled to leave. If the employee is able to telework, the employee is not entitled to leave. Circumstances for the employee who has been able to telework may also change for some reason rendering the employee unable to telework and, thus, entitled to leave. Intermittent leave may also be an option if the employee is able to work partial days or weeks. The facts will vary in this scenario, but the DOL encourages employers and employees to work together to find a solution.
For more, here is what DOL has said on this point:
If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?
If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.
Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.
May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?
Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.
You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.
The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.
Q. With the FFCRA, do employees/physicians complete the FMLA Cert? If not, what certification can we ask for?
A. Cannot require that, but it would suffice. Other basic documentation, can also suffice (not as rigid).
Q. How should employers address employees who are on leave with the coronavirus before April 1 (when the Families First Coronavirus Response Act begins to go into effect)?
A. The Act is not retroactive.