Employment laws and compliance have become more confusing and difficult during the pandemic, leaving some with more questions. Here are some common Q&A’s.
Q&A: What Happens If An Employee Doesn’t Return to Work
Everyone has to play this one carefully, thanks to guidance from the SBA. An employer may want to rehire a laid-off employee to keep their numbers up and thus take advantage of the PPP loan forgiveness provision. Or it may simply be that the company is getting back on its feet and wants its staff back.
But the employee, thanks to temporarily boosted unemployment benefits, may actually be earning even more by not working, at least for a while, and may refuse to come back. However, if the company has made a bona fide written offer to the employee to come back at the same wages for the same hours, and the employee has refused, the company can exclude that employee from its employment calculations—it will not be penalized in forgiveness calculations. But any employees who turn down such an offer may make themselves ineligible for continued benefits.
Of course, the ADA is still in effect, so employers should be aware of the situation if an employee cannot return because of ADA issues or other leave programs.
Q&A: Can I Ask Employees Why They Need a Leave?
You may require that the employee provide the qualifying reason he or she is taking leave, and submit an oral or written statement that the employee is unable to work because of this reason, as well as certain documentation, as required by law.
And while you may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, be careful, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that a particular employee, for example, has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason.
For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason.
However, you can discipline an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.
This is just a summary. For your particular situations, be sure to get professional advice.
Q&A: Do OSHA’s Regulations Apply to the Home Office?
OSHA does not have any regulations regarding telework in home offices. The agency does not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee.
Nevertheless, employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.
Under the Americans with Disabilities Act, telework could be a reasonable accommodation the employer would need to provide to a qualified individual with a disability, barring any undue hardship. However, an employer may instead offer alternative accommodations as long as they would be effective.
This is just a summary. For your particular situations, be sure to get professional advice.
