Coronavirus-Inspired Laws Trigger Obligation to Review and Revise Personnel Policies and Handbooks
Employers who fail to closely examine their existing personnel policies and employee handbooks may be unintentionally exposing themselves to many problems in light of the panoply of laws, regulations, and Executive Orders of the last few months. Employers face a return to in-person work in a dramatically altered legal landscape. Now is the time to review employee handbooks, policies, and procedures to ensure compliance with new laws and regulations. Employers who do not update their policies place themselves at risk of legal claims from employees, an expensive and time-consuming distraction in an already challenging business environment. Well-written policies which incorporate new legislation and individual business needs will streamline the re-entry process for employers and employees alike.
While some changes, such as permitting employees to take COVID-19 related leave, are readily apparent, others may be woven into policies that do not on their face relate directly to new legislation. Businesses should consider whether policies which were effective before COVID-19 are still relevant. Doing so will help ensure uniform enforcement of policies and prevent litigation or other financial exposure.
Working From Home
Employers should review any policies which relate to remote work to ensure they comply with local regulations and are aligned with current practice. Employers in New Jersey should be aware that the Governor’s stages of re-opening provide that “all workers who can work from home continue to work from home” through and including Stage 3. The current directives provide that “in-person work can resume for all” only when there is widespread use of a vaccine or life-saving treatment.
For many employers, old work-from-home plans will no longer comply with these directives. Plans that provide for remote work on a limited time basis, only with extraordinary approval, or only for a limited class of employees, should be revisited. Employers may find that they now either want or are required to permit non-exempt employees to work from home who were often excluded from existing work-from-home policies. Employers will need to review policies for tracking time and attendance and overtime if they are newly permitting non-exempt employees to work from home. Employers who have issued at-home technology to employees who did not previously have access to technology out of the office should make sure that their policies provide adequate information security.
Employers will also need to consider that even when they are permitted to resume in-person operations, some employees may request accommodations to work from home. Employees who had previously been told work from home was not a reasonable accommodation may renew those requests. Other employees may have a new need to work from home based on their personal COVID-19 risk factors. These requests must be considered individually and thoughtfully and any policies to the contrary should be revisited immediately.
Working On Site
Employers will need to develop plans to comply with social distancing mandates, and to update their policies accordingly. For example, employers may need to implement policies that restrict in-person meetings, limit business travel, and limit visitors to the work site. Employers may want to reconsider paid time off policies that may be viewed as encouraging employees to report to work if they are sick. Policies relating to the use of common areas may need to be revised. Employers who work proactively to make sure their policies provide clear guidance to employees will better be able to adjust to new circumstances.
Employers will also need to carefully consider requests for accommodations to the work site for employees returning to in-person work. Employee requests for accommodations due to disability must be treated carefully. Employers cannot rely on old policies to categorically deny requests and should be aware that standards of reasonableness may have changed. Employers should also make sure that policies relating to the return to in-person work must respect employee privacy. Employees should not be expected to widely disclose confidential health information and policies must be designed to provide privacy and security of any employee health information that does need to be disclosed.
Employers who rely on pre-COVID-19 leave policies expose themselves to significant legal risk. Employees now have access to expanded leave under federal and state law. Employers who were not subject to the requirements of the FMLA may be covered by the expanded COVID-19 leave available under the Families First Coronavirus Relief Act, and employees who may not have been eligible for FMLA due to their length of service may also now qualify for extended leave. Employers will need to revisit their handbooks and policies to comply with these changes in the law. Employers should carefully consider that many employees will now be eligible for leave when schools or daycare are closed due to COVID-19. Even if schools re-open in the fall, employers should be prepared for further closures throughout the coming year which may result in on-going leave issues.
Employers should also note that New Jersey’s Family Leave law imposes new obligations on employers starting July 1, 2020, unrelated to COVID-19. Employees will be eligible for family leave insurance benefits up to twelve weeks, which may be taken intermittently, and receive 85% of their weekly pay up to $860.
Employers face a challenging task adjusting to a dramatically-altered working environment. Riker Danzig is here to help if you need assistance of any kind. Please do not hesitate to contact Scott Ohnegian, Adam McInerney, Fiona Cousland, or any member of Riker Danzig's Labor & Employment Group regarding any specific legal issue affecting your business.
Please visit Riker Danzig’s COVID-19 Resource Center to stay up to date on all related legal issues.