Matthew D. Ellison
COVID-19 has altered the landscape for businesses, perhaps permanently. But one aspect of running a modern business remains constant: Staying nimble and adaptable is critical to an employer’s managing its labor force, whether working remotely or in person.
But that also requires not being too far behind with modifying your employee management practices to stay compliant with applicable law and remain workable for all those affected.
Remote work requires updating some policies and procedures
Prior executive orders in Kentucky mandated businesses to impose work-from-home requirements on all employees capable of doing so.
Many employers continue to permit this practice, although it is not required. But in doing so, an employer needs to continue to monitor when and how long their employees are working to remain compliant with Fair Labor Standard Act rules on maximum hours worked and overtime pay for non-exempt employees.
If the employer does not have a remote “time clock” program by which employees can log in and out during their working time, it should deploy one. Employers need some means to continue to keep accurate records of when each employee is working.
Further, employers need to communicate expectations to their employees about what is expected of them during remote work. Most employment manuals probably only consider workplace-specific policies and may need to be altered or amended to account for remote work.
Some employees have moved to different states. For example, my friend’s family moved to Tennessee, and one family member remained employed with a New York business after the move. Compliance with specific state tax laws might now be something that employer has to consider.
Determining vaccination status
Depending on the outcome of court challenges, employers with more than 100 employees may be subject to a new “emergency temporary standard” from the Department of Labor which either a) requires employee vaccinations or requires demonstration of vaccination, or b) imposes rigorous regular testing protocols.
An employer may need to determine whether its employees are in compliance. The Department of Health & Human Services has opined that an employer who asks an employee about their vaccination status is not violating the employee’s rights under HIPAA.
However, that employer must treat that disclosure as confidentially as possible. Does your business have a plan for limiting such disclosures so that privacy is balanced with the practicalities of complying with federal requirements?
Job duties and essential requirements
In the early stages of the pandemic, some job duties were combined with others. Some responsibilities shifted temporarily, and some permanently.
Do your job descriptions reflect the way things are now or the way things were two years ago?
Having a current and updated list of all job titles and their essential functions is even more critical since job titles and duties have changed like never before.
These descriptions are often key evidence concerning a) whether an individual is a “qualified individual with a disability” under the Americans with Disabilities Act, b) what an employee’s essential functions are in relation to their physical capacity, for on-the-job injuries and other insurance eligibility issues, and c) whether the employee is exempt or not exempt from overtime pay requirements under the Fair Labor and Standard Act.
Who is the office ‘point person’?
No matter the size, your business needs to have someone who is staying on top of changing conditions, issues, and guidance.
Our office manager was monitoring the evolution of the pandemic and employer response in my workplace, so we were prepared to “go remote” when unexpected shutdowns started happening.
As new laws and regulations began to flood the landscape, it was my job to keep updated on what was changing and how we needed to adjust. Ignorance is not an excuse.
Matthew D. Ellison is a member of the Fowler Bell firm, practicing in the firm’s Litigation, Bankruptcy and Creditors’ Rights Groups. He also has experience in employment law, workers’ compensation litigation, appellate practice and complex collection matters. Visit fowlerlaw.com for information.