Month: March 2020

Understanding Recent Guidance from the EEOC

As you know, public health guidelines designed to help communities and employers navigate the COVID-19 pandemic have been changing almost daily. New guidance issued from the Equal Employment Opportunity Commission (EEOC) addresses some of the issues that employers are facing. Here are answers from the EEOC on a few common questions employers may have:

If an employee calls in sick, how much information may an employer ask request from that employee?

Employers may ask employees is they are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. Employers must remember that all information about the employee illness needs to be kept confidential.

May an employee take body temperatures of employees during this pandemic?

Generally, this would be considered a medical examination; however, because health authorities want to control the spread of COVID-19, employers may measure employees’ body temperature. Employers should ensure they are consistent in this practice across the workforce.

May an employer to require employees to stay home if they have COVID-19 symptoms?

Yes. The CDC states that employees who with symptoms of COVID-19 should leave the workplace.

Once an employee returns to work, may an employer require a doctor’s note certifying fitness for duty?

Yes. Employers may need to get creative in what they accept for documentation, as doctors and other health care professionals may be too busy during a pandemic outbreak to provide fitness-for-duty documentation.

As always, we will continue to provide you with factual updates on a regular basis throughout this pandemic. We will be hosting another webinar on Monday, March 23, 2020.

 

About the Author:

Tracy Melvin serves as a human resources business consultant with Epiphany Law. Tracy is an experienced professional having spent over ten years helping a variety of companies implement and manage complex HR strategies. In her current role, Tracy provides HR consultation to business executives and owners that drive results. Tracy drafts employee handbooks, policies, procedures, employment contracts, executive compensation plans and agreements to protect the company’s interests. She also assists business leaders by conducting HR audits to ensure compliance with local, state and federal employment and labor laws.

Tracy Melvin

Understanding COVID-19 Laws: Go to the Source

The situation with COVID-19 is ever changing.  Some of the hardest hit are small businesses.  I am, like my partners at the firm, a small business owner as well as an attorney.  We know there is no playbook for the handling of this virus.  However, when making decisions for your business, such as whether to close or what you need to provide employees, it is very important to go “directly to the source” when new laws or orders are passed.  Do not rely on the news or Facebook.  For example, on Tuesday, Governor Evers issued Emergency Order #5.  This is the law that changed the game for bars and restaurants and prohibits public or private  “mass gatherings” in the State of Wisconsin.  You can find a copy of that Order here:  https://evers.wi.gov/Documents/COVID19/UPDATEDOrder10People.pdf

If you read the Order, “mass gatherings” are defined as “any planned or spontaneous, public or private event or convening that will bring together or is likely to bring together 10 or more people in a single room or single confined or enclosed space at the same time.”  There is a lot of information in that statement that wasn’t reported on the news.  This even precludes gatherings of ten or more in your own home.  Note also that the order is punishable by imprisonment (yikes!) and/or fines.  Fortunately, we have not heard of anyone receiving fines, but we do know police are enforcing this Order in some communities.

As with any good law, there are many gray areas, but those gray areas are where you can decide what is best for your business, as long as you are complying with the portions of the law that are clear (like the closure of indoor shopping malls!). Reading the Order in its entirety also helps to understand why certain businesses are closed and others are not.  Please also remember that laws are made at Federal, State, and local levels, so when you hear something, it is also important to pay attention to what level of government is making that mandate.

It probably won’t be long before our current situation changes again.  When it does, don’t rely on the news when making important decisions for your business and employees.  Go to the source and educate yourself (as best you can), think through your situation within the confines of the law, and then ask questions.  We are always here to help you with questions or thinking through the next steps.

 

Katie Blom

 

About the Author – Kathryn M. Blom is an attorney with Epiphany Law and a business owner.  Her practice focuses on complex business law, contracts, exit planning, securities, mergers and acquisitions. She advises her clients on how to identify effective solutions and achieve their business goals.

Labor Law: What You Need to Know About the Latest Changes

On January 12, 2020 the U.S. Department of Labor (“DOL”) released its long-awaited final rule  updating its regulations regarding joint-employer status under the Fair Labor Standards Act (“FLSA”). The FLSA’s joint-employer regulations had not been substantively amended in over sixty years. This new rule becomes effective March 16, 2020.

The final rule gives employers greater guidance and clarity when determining if a joint-employer relationship exists. The DOL has now adopted a four-factor balancing test to evaluate whether the purported is a joint employer. This test assesses whether the employer:

  • Hires or fires the employee;
  • Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
  • Determines the employee’s rate and method of payment; and
  • Maintains the employee’s employment records.

It is important to note, that no single factor is dispositive in determining joint-employer status, but instead the factors are weighted based on the facts of each case. The final rule states that to be a joint employer under the FLSA, the other actor must actually exercise – directly or indirectly – one or more of the four factors.

The final rule includes a number of examples illustrating the application of the four-factor test, providing for practical guidance to employers who may have joint employment concerns based on their company structure and business relationships with other companies.

In addition to the DOL issuing its final rule on this topic, the National Labor Relations Board (“NLRB”) released a final rule on February 26, 2020 setting forth standards for joint-employer status under the National Labor Relations Act. The NLRB’s final rule will be effective April 27, 2020.

In light of these final rules, it is important for employers to seek counsel in any situation where joint employment is possible.

All employers need to make sure their payroll practices are compliant. Doing so will protect your business from costly lawsuits. If you would like help reviewing your employee classifications, or if you have any other employment law questions, you can contact us here.