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.
Leave
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.
