*Everyone have a safe weekend and we will start updates again on Monday. We value all our members and are working on giving you the most up to date information we have. If you have an updates you would like share with us please email chris@georgiaemployers.org
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1. Families First Coronavirus Response Act: Questions and Answers - Updated FFCRA Q&A on Employer Shotdowns, Furloughed Employees and more.
If you have any questions please call or email us at the
Georgia Employers Associaiton.
Phone
478-722-8282
Email
director@georgiaemployers.org
chris@georgiaemployers.org
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2. Legal Bulletin - March 26, 2020
from Contangy, Brooks, Smith & Prophete, LLP
Welcome to the Digital Workplace! Tips for employers navigating teleworking
By Mallory Schneider Ricci
Nashville Office
and
Susan Bassford Wilson
St. Louis Office
As the coronavirus continues to upend businesses, many employers are scrambling to figure out the logistics of the digital workplace and navigate the legal issues that can arise when employees work from home. For employers that find themselves in the digital workplace for the first time – or for those that want a refresher – here are the basics of telecommuting.
Teleworking policies – Yes or no?
As COVID-19 and social distancing push employees out of brick-and-mortar buildings and into home offices, some employers are trying to figure out the policies, procedures, and best practices of teleworking for the first time.
First things first: do you need a teleworking policy (or do you need to revise your current one)? While the answer is dependent on your company and the needs of your business, it is generally a good idea to have a policy that explains
- timekeeping procedures for non-exempt employees;
- expectations regarding working hours and overtime;
- information about rest and lunch breaks (particularly in states where breaks are required);
- data security requirements;
- prerequisites for the use of personal devices for business purposes;
- accommodation request procedures;
- expectations for conduct;
- reimbursement of business-related expenses, particularly in states such as California and Illinois that have statutes regarding it; and
- any state-specific obligations related to employees working remotely.
Even if your company had a teleworking or bring-your-own-device policy in place before the pandemic, it is a good idea to take another look at it now. You might even want to consider creating a policy specific to the COVID-19 pandemic if, in less anxious times, your business’s needs are better served by having your employees physically present most of the time. Further, the best policy in the world does little good if no one knows about it. Thus, consider sending a communication to all employees who are working remotely regarding the company’s policies and expectations.
Teleworking and overtime
Keeping track of hours worked is relatively straightforward when an employee clocks in and out at a brick-and-mortar establishment. Employees can submit their time on a timesheet, use a biometric clock, or submit their time electronically through an online portal. The list of acceptable methods goes on and on. But adapting the time reporting procedures to teleworking employees is crucial, particularly in light of the inability to physically monitor employees while they work.
The Fair Labor Standards Act requires employers to pay non-exempt employees for all hours worked, regardless of if those hours are worked in person or at home, and to pay overtime for all hours worked above 40. Thus, employers need to establish how workers working remotely should track and report their time. Employers could continue to use paper-based methods, but this approach may prove more difficult during the pandemic. If employees have already been logging time on online portals or applications, then the employer can often continue this practice.
Teleworking and data security
Employers who permit or require teleworking also need to consider data security and ensure all employees are trained in basic cybersecurity.
Employers should ensure employees’ access to the company’s network is secure. Employees may be tempted to use unsecured networks like public Wi-Fi, but companies should caution against using such networks and provide secure options like a well-maintained virtual private network. Further, particularly when employees are using personal equipment for business purposes, companies should require that the equipment has the most up-to-date firewalls and antivirus software installed. Businesses may also want to consider whether two-factor authentication or encryption is appropriate or required.
Employers should also ensure employees receive a refresher in cyber awareness to guard against phishing attacks, malware, or other scams. The FBI recently issued a public service announcement about an increased number of cyber schemes where scammers are trying to take advantage of the coronavirus pandemic by offering fake stimulus checks, proposing counterfeit “treatments,” and sending fake emails allegedly from the Centers for Disease Control. Warn your employees about these schemes and tell them to be wary of outside emails containing imbedded links or that ask for personal or financial information.
Teleworking and social isolation
Finally, even for employees who are used to teleworking, the social isolation imposed by COVID-19 can be daunting. Employers should consider options to connect the workforce and alleviate this social isolation while encouraging regular communication among team members. For example, employers can utilize videoconferencing or other apps that support remote face-to-face communication. Such measures may not only raise employee morale in these challenging times but also increase productivity.
If you have any questions regarding the digital workplace, please reach out to a member of Constangy’s Digital Workplace and Data Privacy Practice Group.
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3. Legal Bulletin
from Constangy, Brooks, Smith & Prophete, LLP
What we still don't know about the expanded FMLA and paid sick leave laws
BY ROBIN SHEA ON 3.27.20
POSTED IN AMERICANS WITH DISABILITIES ACT, CORONAVIRUS, FAMILIES FIRST CORONAVIRUS RESPONSE ACT, FAMILY AND MEDICAL LEAVE ACT, PREGNANCY, REASONABLE ACCOMMODATION
And my best guesses as to the answers.
As most of our readers know, the U.S. Department of Labor issued some guidance this week on the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, which are part of the Families First Coronavirus Response Act.
The guidance clarified some things, but far from everything. Here is my list of burning questions that remain, along with some speculation about the answers. Please note that these are only my opinions and that the DOL may not agree with me.
Can expanded FMLA leave or paid sick leave be taken on an intermittent or reduced schedule basis?
I'm gonna say yes. An earlier version of the legislation expressly said that the leave could not be taken on an intermittent or reduced schedule basis, but that did not make it into the final version. I will take this to mean that Congress ultimately decided intermittent or reduced schedule leave was all right.
If a state or local government puts all of its citizens on "shelter in place," are the employees who can't telework entitled to paid sick leave? I'm gonna say no. Well, maybe. Well, I don't know. Congress was probably thinking about individual employees with COVID-19 needs, not a citywide or statewide shelter-in-place scenario, when it enacted this legislation. On the other hand . . . would shelter in place qualify as an isolation or quarantine order from a federal, state, or local authority? I guess it could be an "isolation order" from a government authority, couldn't it?, in which case maybe paid leave is available for employees subject to a shelter-in-place order.
(No, I did not change my mind about this because I myself will be subject to a shelter-in-place order starting at 5 p.m. today. Well, maybe I did.)
What can an employer request or require to document the need for expanded FMLA or paid sick leave?
An older version of the legislation was very specific in this regard, depending on the reason for which the leave was being taken. But the final version of the legislation says absolutely nothing about documentation. My best guess is that it will probably be all right for an employer to ask for reasonable documentation based on the reason for the leave. For example, if you can read your local news and see that the public schools in your state are closed until Tuesday after Labor Day, then you probably won't need a note when your employee says he needs time off to care for his school-age kids. On the other hand, if an employee needs time off because her health care provider recommended that she stay home, then you will probably want to see a note from the health care provider.
How does the exclusion of health care providers as "eligible employees" work, and does "health care provider" in this context match the fairly restrictive definition in the "old" FMLA?
The expanded FMLA expressly states that it is adopting the definition of "health care provider" used in the FMLA. But, as my colleague Mallory Ricci notes, that is the definition used to determine whether an appropriate medical professional has provided a medical certification for "serious health condition" FMLA leave. Thus, it is fairly narrow, including only doctors, osteopaths, chiropractors (but only for "manual manipulation of the spine to treat a subluxation that is determined by x-ray to exist"), nurse practitioners and nurse midwives but not nurses, etc. With respect to providing documentation of the need for paid sick leave, that narrow definition of "health care provider" makes sense. But for purposes of the health care provider exclusions from the definition of "eligible employee," it seems too narrow. Even so, I'm gonna say that the narrow FMLA certification definition of "health care provider" is the one that will apply -- just because that's what the legislation says. If I'm right, and I'm probably not, that means the following will always be "eligible employees" entitled to expanded FMLA and paid sick leave: Registered nurses, licensed practical nurses, certified nursing assistants, certified medical assistants, respiratory therapists, phlebotomists, chiropractors treating the common cold, and the host of other care providers whom we lay people think of as "health care providers."
What about employees who are self-isolating, or trying to avoid exposure? Can they take paid sick leave?
I don't think they are covered by the expanded FMLA or the paid sick leave law. BUT -- may I say a word about the Americans with Disabilities Act and the Pregnancy Discrimination Act? If an employee self-isolates because of COVID-19 risks arising from an underlying medical condition, including a disability or pregnancy, then I think the employee does have some rights, although not under these new laws. I think an employer might have to provide "isolation leave" as a reasonable accommodation for the disability or pregnancy. Would the leave have to be paid? In my opinion, no, but I wouldn't put it past the Equal Employment Opportunity Commission to say yes.
Tags: ADA, Americans with Disabilities Act, Coronavirus, Department of Labor, Emergency Family and Medical Leave Expansion Act, Emergency Paid Sick Leave Act, Families First Coronavirus Response Act, Pregnancy, Pregnancy Accommodation, Pregnancy Discrimination Act, Reasonable Accommodation
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4. Georgia Department of Labor Update
NEW Information for filing for unemployment, mandatory filing by employers for partial claims, and reemployment services
MARCH 22, 2020
In response to the recent development of COVID-19, the Georgia Department of Labor (GDOL) is temporarily suspending in-person requirements for services provided by the agency. In accordance with Governor Kemp’s recommendation, the GDOL is providing online access to unemployment services, partial claim access for employers, and other reemployment services.
Employers are required to file partial claims on behalf of their employees whenever it is necessary to temporarily reduce work hours or there is no work available for a short period. Any employer found to be in violation of this rule will be required to reimburse GDOL for the full amount of unemployment insurance benefits paid to the employee.
Due to an extremely high volume of unemployment claims filed as a result of the COVID-19 outbreak, individuals may experience a delay in requesting weekly benefit payments. If you are having difficulty claiming your weekly benefits, please contact your local career center. Please note that you can file a claim online 24 hours per day.
Please see the following links for quick access to the following:
Link to GDOL website to download all forms: https://dol.georgia.gov/blog/new-information-filing-unemployment-partial-claims-and-reemployment-services
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5. Georgia Department of Public Health COVID-19 Daily Status Report
Report For: 03/27/2020 (12:00 pm)
*Note: To ensure the most updated version of this webpage, please refresh your browser.*
To ensure that the numbers being provided through the COVID-19 data tool are the most current numbers available, the updates are done at NOON and 7:00 pm every day.
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 12:00pm 03/27/2020. A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus.
Confirmed cases and deaths in Georgia.
COVID-19 Confirmed Cases No. Cases (%)
Total 2001 (100%)
Hospitalized 566(28.29%)
Deaths 64 (3.2%)
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6. COVID-19: Support for Businesses
Information about support services available for businesses during the COVID-19 outbreak.
Small Business Loans
Application for small business emergency loans now open. Governor Brian P. Kemp announced that Georgia has received an official statewide disaster declaration from the U.S. Small Business Administration (SBA), making it possible for small business owners and non-profit organizations in all 159 Georgia counties to apply for SBA Economic Injury Disaster Loans. The application is now live, and Georgia small business owners can go directly to the SBA for assistance and information.
