Part II – Beyond the Curve: Back-to-Business Checklist

Posted June 12, 2020 at 2:35 pm



As businesses across the United States are in various phases of opening up after COVID-19-related restrictions, Fisher Phillips LLP, a labor law firm based in Atlanta, recently provided a checklist for members of the linen, uniform and facility services industry to consider as you move toward opening up your operations. The first part of this checklist ran in the June 8 edition of Textile Services Weekly.

PAID SICK LEAVE (EPSL) and EMERGENCY FMLA (EFMLA)

  • Prepare tracking system for each employee’s use of leave, including the duration and reasons for the leave
  • Consider interplay between these two laws and any state or local paid sick leave laws and how to track accordingly
  • Be aware of continued eligibility for FFCRA benefits through December 31, 2020
  • Eligible for EFMLA if on payroll for 30 or more of 60 calendar days prior to furlough or layoff
  • Note employee count for purposes of EPSL/EFMLA (500+) is at time leave is requested
  • Be aware that employees are limited to 80 total hours of EPSL, regardless of employer (e.g., hired by new employer) (Note: employee may be entitled to remaining balance if some EPSL used while at former employer)
  • Consider how to handle employees hesitant to return to work
    • Employees who have medical conditions that put them at high risk or who those who have mental conditions such as anxiety or similar conditions may be entitled to a reasonable accommodation under ADA/FEHA protections
      • Working from home is a reasonable accommodation only if all the essential functions of the employee’s job can be performed at home
      • Pregnant women must be accommodated in the same way as others similar in their inability to work, and therefore may also be entitled to work from home.
    • Be cautious of considering FFCRA requests when determining which employees to bring back
    • Ensure you maintain proper documentation
      • Maintain specific documentation for each qualifying reason
      • Have employees sign leave request forms

LEAVES OF ABSENCE/ACCOMMODATION REQUESTS

  • Provide employee leave of absence request from or request for accommodation form
  • Have clear policy and protocol on documentation required for leaves of absence and requests for accommodations
  • Consider whether there are other leaves that should be considered and potentially run concurrently (e.g., FMLA, state laws)

REMOTE WORK CONSIDERATIONS

  • Ensure there is the proper infrastructure and implementation for any longer-term remote work plans you decide to implement
  • Create and circulate a comprehensive remote work policy regarding expectations, reimbursement, etc.
  • Create and test emergency communication channels for employees (personal email, cell phone numbers, etc.)
  • Reimburse for business expenses during telework
  • Consider requests to continue remote work after temporary plan has ended

TRADE SECRETS, NON-COMPETITION, AND DUTY OF LOYALTY ISSUES

  • Ensure that employees who have been let go have returned all confidential information
  • Determine whether employees who have been let go are working for competitors
  • Have a protocol in place for remote workers to return all confidential information to company systems, devices, and accounts and then ensure that they have not retained materials on their personal devices and accounts
  • Be proactive about educating new employees to purge themselves of materials from former employers
  • Determine whether furloughed employees should sign new restrictive covenant agreements when they return as a condition of restarting and whether their restrictive covenant time periods started to run while they were furloughed

UNEMPLOYMENT COMPENSATION

  • Be mindful of any reporting obligations under state and federal law
    • Federal law requires employers to report newly hired employees to the National Directory of New Hires, which includes rehired employees who have been separated from employment for at least 60 days. State laws also have new hire and rehire reporting requirements
    • Employers are encouraged, and in some states required, to report those employees who fail to return to work. State unemployment agencies may review the cited reasons and determine whether good cause exists for the refusal on a case-by-case basis
  • If employees cannot return to work full time, consider potential availability of other state programs, such as workshare programs

IMMIGRATION CONSIDERATIONS

  • Conduct standard I-9 review when any employees are physically present at worksite
  • Review all I-9’s completed remotely
    • Relaxed requirements will remain in effect for a period of 60 days from the announcement date (March 20, 2020), or three business days after the end of the National Emergency declaration, whichever comes first
    • I-9’s completed through remote verification require in-person examination of required documents mandated within three business days of resumption of normal operations
  • Be aware of I-9 considerations for rehiring laid-off employees
    • If within three years of original I-9 completion, you may either complete a new Form I-9 or complete Section 3 of the current version of Form I-9
    • If you choose to complete new I-9s, you should complete new I-9s for all laid-off employees
  • New I-9s do not need to be completed for furloughed employees who have a reasonable expectation of continuing employment if the documents they presented to show employment authorization are still valid
  • Be prepared for ICE enforcement
    • If previously served a Notice of Inspection (NOIs) for I-9 documentation, monitor DHS and ICE websites for additional updates regarding when the extensions will be terminated
  • Be aware that E-Verify extended the time to allow employees to resolve Tentative Non-confirmations due to closures of Social Security offices and DHS offices
  • Temporary Visa Considerations
    • Document maintenance of status
    • Material changes to work visas, such as reductions in pay, change in hours, change in work location, and/or change in job duties, may require an amended petition
    • For employees who are stuck abroad, be aware of travel restrictions and consular closures

LABOR ISSUES FOR NON-UNION EMPLOYERS

  • Develop a lawful response to union organizing tactics and employee protected concerted activity
  • Identify and train statutory supervisors to recognize the early warning signs of union activity
  • Reinforce open-door policies and communication vehicles
  • Develop a lawful strategy for responding to workplace demands for premium pay, PPE, and paid leaves of absence
  • Develop a positive employee relations program tailored to the unique aspects of your organizational culture
  • Update workplace rules for compliance with the latest NLRB guidelines

LABOR ISSUES FOR UNIONIZED EMPLOYERS

  • Analyze CBA for no-strike and no picketing language in anticipation of protected concerted activities
  • Consult CBA for method of recalling employees
    • Consider seniority, layoff, and recall provisions
    • Analyze any break in seniority rules
  • Consider termination of any temporarily enhanced benefits
    • Expect union to bargain for benefits to remain in place
  • Explore options for reopening CBA to pursue mid-term concessions
    • Meet customer demands, service hours, etc.
    • Revise Management Rights language
    • Evaluate strength of no-strike language
    • Consider revisions to layoff and recall
    • Propose Force Majeure clause
  • Conduct labor relations audit of CBA, policies, and negotiations strategy
  • Conduct supervisory training sessions to ensure consistent enforcement of standards, grievance processing, etc.
  • Develop new systems to meet with union in view of remaining social distancing and shelter-in-place orders

BENEFITS/TAXES

  • Ensure COVID-19 diagnostics/testing and related items and services are being provided without cost-sharing
  • Ensure COVID-19 providers are being reimbursed according to negotiated or published rates
  • Stay abreast of new preventive services and vaccines as they qualify for free coverage
  • Ensure a Summary of Material Modifications is provided, or the Summary Plan Description updated and distributed, to communicate COVID-19 mandated coverages and other material plan changes
  • Determine if plan documents must be amended and when amendments must be made
  • Determine when active health coverage ends for furloughed employees (i.e., when a reduction of hours results in a loss of coverage)
    • Look at plan documents and length of furlough
    • Be mindful of ACA employer mandates. If applicable, employer adoption of Look-Back Measurement Method to determine full-time status may extend active employee coverage
    • Determine if other laws such as FMLA or USERRA or state laws impact coverage
    • Ensure you have carrier approval for active coverage continuation, or if self-insured, stop loss provider approval, before extending coverage beyond current plan terms
    • If coverage is being extended, provide guidance to COBRA administrator
    • Ensure leave policies and administrative practices are followed
      • Ensure persons on unpaid FMLA leave receive at least as generous benefits as provided to non-FMLA employees on unpaid leave
      • Follow or create standard processes for collecting employee premiums and collecting missed payments
    • Determine when active health coverage begins for rehired employees
      • Look at plan documents and length of termination
      • Be mindful of ACA employer mandates. Application of break-in-services rules may require reinstatement
      • Determine if other laws such as FMLA, USERRA or state laws require reinstatement
    • Determine when Section 125 rules permit election changes
      • Change in employment status (unpaid leave)
      • School closure; new daycare providers with new costs
    • Consider opportunities in CARES Act, IRS Notice 2020-15, and IRS Notice 2019-45 to provide additional employer benefits
      • Tax-free repayment of student loans in 2020
      • Expanded list of preventive care, qualifying expenses, and telehealth that can be provided by a HDHP without jeopardizing HSA eligibility
    • Be mindful of 401(k) plan implications
      • If employer match is suspended, ensure employee notice is provided (special requirements for safe harbor plans)
      • If there has been high participant turnover, determine if a partial plan termination has occurred requiring full vesting for impacted participants
      • Consider permissive adoption of COVID-19 in-service distribution
      • Determine if additional notices must be provided
      • Be aware of deadlines to adopt amendments
      • Coordinate with 401(k) record-keepers regarding administration and taxation related to:
        • COVID-19 distributions
        • Loan repayment suspensions
        • 2020 Required Minimum Distribution suspension
      • Redistribute Summary Plan Descriptions for persons who lose coverage under ERISA-governed plans between termination and rehire
      • Make sure you are aware of FFCRA and CARES federal tax credits
        • Determine if your company qualifies to claim the tax credits
        • Determine the amount of the tax credit
          • Consider qualified wages
          • Consider all qualified health expenses – and calculate using premium rates, reasonable actuarial methods and aggregation rules
          • If Payroll Protection Plan loan proceeds have also been received, strategize on use to maximum tax credits and loan forgiveness
        • Report tax credit expenses on Form 941 or file for advance payment of credits on Form 7200
        • Substantiate and maintain employee requests for qualified sick and family leave
        • Retain eligibility substantiations, documentation showing how qualified wages and health plan expenses where determined, and copes of any completed IRS Forms 941 and 7200, for at least 4 years from the date taxes become due or paid, whichever comes later
      • Be aware of possible deferral of payment of employer payroll taxes
        • Calculate the amount of payroll taxes eligible for delay
        • If Payroll Protection Plan loan proceeds have also been received, be mindful of deferral eligibility

INTERNATIONAL WORKFORCES

  • Evaluate termination concerns
    • Check applicable law of country, as most are not “at will” jurisdictions
    • Determine whether steps are required prior to termination, even for “cause”
    • Determine whether alternative considerations are required, such as retraining, transferring to other divisions within the company, implementing flexible work arrangements, temporary layoffs, paid and unpaid leaves, and wage adjustments
    • Determine the appropriate amount of notice pay and severance
  • Confirm payment obligations during temporary layoffs and furloughs
  • Remember that salary or hour reductions are typically not permitted without employee’s consent
  • Be aware of employment contract provisions and company policy/work rules to ensure compliance
  • Consider rehire obligations for previously laid-off workers
  • Determine whether the country has a post-coronavirus work request flexibility consideration
  • Follow country-specific guidance on the required health and safety measures
  • Review local privacy and data protection laws before implementing testing, heath reporting, and contact tracing measures.
  • Be mindful of travel restrictions within a foreign country to avoid unnecessary quarantine impositions

USERRA/MILITARY LEAVE

  • Evaluate if any laid off or furloughed employees are service members
  • If so, determine whether the service members are entitled to reemployment
    • Comply with “prompt” reemployment obligations. “Prompt” means as soon as practicable under the circumstances of each case. Absent unusual circumstances, you are generally expected to reemploy returning service members almost immediately (as set forth below) if they have been absent for 30 days or less. If they have been absent for more than 30 days, then reemployment must occur within two weeks of the employee’s application for reemployment
    • Follow accrued seniority rules, as if continuously employed. This applies to all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed
    • Provide training or retraining and other accommodations if applicable (such as in the case of a long period of absence or a service-connected disability)
    • Be aware of special protection against discharge, except for cause. This protection extends for 180 days following periods of service of 31 to 180 days, or for a year following periods of service of 181 days or more.
      • Such protection does not insulate service members from application of the “escalator principle.” In other words, returning service members are not entitled to preferential treatment if the escalator principle would otherwise place them in a position that has been eliminated as part of a legitimate reduction in force, provided that they would have faced the same consequences had they remained continuously employed

COMMUNICATIONS TO EMPLOYEES AND THIRD PARTIES

  • Communicate Return-to-Work Plan and Timeline to employees
    • Ensure employees understand the company has a solid plan in place to maintain a safe workplace and a healthy workforce
  • Consider the communication to employees in advance of their return to work, e.g. virtual town hall or webinars, and while at work
    • Key points will include date(s) to reopen/scale up operations, proactive measures to ensure a safe workplace, new protocols, pre-screening, job expectations, hours, etc.
  • Keep signage, procedures, and messaging simple
    • Have signage posted at all points of entry and key locations to effectively share and remind employees of the new requirements
  • Communicate Return-to-Work Plan and Timeline to customers, suppliers, contractors, vendors and on-site visitors
    • Establish and communicate clear protocol for access to the workplace as well as new rules that impact them
    • Review and amend agreements with vendors, suppliers, cleaning services, etc. as appropriate to ensure they will agree to comply with local, state, and federal law
    • Consider if proactive outreach and periodic updates to community VIPs or the local health department would be helpful as the workforce returns

For more information, contact Joe Shelton, regional managing partner, Fisher Phillips LLP, at 615.488.2901 or jshelton@fisherphillips.com.

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