COVID-19 – Considerations for Returning to Work · 2020-06-17 · Mid-year election changes....

© 2020 Eversheds Sutherland (US) LLP

COVID-19 – Considerations for Returning to Work

May 13, 2020Bonnie BurkeStaff Attorney

Deepa MenonAssociate

Laura TaylorAssociate

Eversheds Sutherland

Key ContactsEmployment Law Employee Benefits

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Deepa MenonAssociateWashington DCT: +1 [email protected]

Bonnie BurkeStaff AttorneyAtlantaT: +1 [email protected]

Laura TaylorAssociateWashington DCT: +1 [email protected]


Return to Work Considerations:

Employee SafetyWorkplace PoliciesChanges to Employment TermsBenefit PlansEmployee Communications


Employee Safety


Employee Safety

─ The Occupational Safety and Health Act (OSHA) requires provision of a safe and healthy workplace

─ Some sources to consider in determining safety measures:• Federal, state, and local laws• OSHA guidelines (and state equivalents)• Recommendations from the Centers for Disease Control and

Prevention (CDC)• Guidelines from the Department of Labor (DOL) and the Equal

Employment Opportunity Commission (EEOC)• Guidelines from state and local heath authorities • Existing company policies• Contractual considerations, including union agreements

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Employee Safety

─ Risk of employee exposure• Low (e.g. employees who do not have any risk of coming in contact with people

known to be infected)• Medium (e.g. employees who come in close contact with public)• High (e.g. healthcare workers who enter patient rooms, medical transport workers

transporting suspected COVID patients, etc.)• Very high (e.g. healthcare workers performing aerosol-generating procedures,

laboratory personnel collecting specimens from known or suspected COVID-19 patients etc.)

─ Non-occupational risk factors

─ Federal, state and/or local laws

─ Individual high risk factors

─ Coordinate with building management for daily issues and safety measures as well as other compliance matters such as fire drills and emergency response

─ Documentation policies

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Considerations when developing a safety plan


Employee Safety

─ Screening measures• Self-certifications or questionnaires• Onsite body temperature checks

─ New sanitation measures• Implement more rigorous cleaning measures• Restrict use of shared items and spaces• Increase frequency of air filter changes• Place hand sanitizers at multiple locations on the premises

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Examples of Employer Steps


Employee Safety

─ Re-configuring the office to maintain social distancing and prevent employees from congregating• Configure workspaces• Add partitions• Limit the number of persons permitted in certain areas at a time

─ Survey of employee health, and exposure─ Requirement of fitness certificate from sick employees

who return to work─ Safety provisions related to storage of alcohol-based

hand sanitizers─ Post notices as required under applicable law

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Employee Safety

─ Administrative controls─ PPE provisions

• Common PPEs: Face masks, gloves, gowns, respirators• Comply with hazard assessment• Consider any guidance provide by state laws

─ Engineering controls• Physical barriers, such as clear plastic sneeze guards• Appropriate air-handling systems• Isolation rooms

─ Limiting visitors and vendors to the workplace• Restrict unnecessary visitors for the time being• Limit the number of times certain vendors visit or request that

they come at times when the office has fewer people present, if possible

• Implement screening measures

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Employee Safety

─ Implement policies updating employees regarding safe remote workplaces

─ Consider response if the employee cannot work remotely and has child care issues, is at high risk, or otherwise refuses to return to work• Consider whether accommodations under the ADA are

necessarily or practicable.• Consider whether additional leave can be given; • Consider whether to furlough the employee; • Consider whether disciplinary action or termination are

supportable

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Remote Work Concerns


Workplace Policies


Workplace Policies

─ Screening policies for employees, visitors, and vendors• Thermal scan, temperature check• Questions related to exposure or symptoms

─ Health and safety policies• Social distancing within the office

• Not congregating in common areas• Frequent hand washing, sanitizing; considerate coughing,

sneezing practices• Contact with frequently touched items

• Ice scooper• Bathroom door handles• Copy machine

─ Travel policies (personal and business)

─ Record retention and storage policies

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Workplace Policies

─ Policies for recovering employees – how to return• Fitness for duty• Symptom free for 10 days• Fever free for 72 hours without fever-reducing medication

─ Policies related to employees who are caring for a sick family member• How long must they quarantine• What do they need to return

─ Policies related to employees who contract the infection post-return• Who to tell and when• Contract tracing• Sick leave• Return to work, fitness for duty

─ Record retention and storage policies

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Workplace Policies

─ Record retention and storage policies – medical records• Questionnaires related to exposure• Temperature checks• Emails or other communication from employees related to their

illness or symptoms• Fitness for duty

─ Complaint procedures• Office cleanliness • Other employee compliance• Train person receiving complaints about appropriate responses,

all procedures• Do not retaliate

─ Harassment • Same issues, different methods• Continue to train and remind employees to refrain from such

behaviors

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Remote WorkWorkplace Policies

─ Attendance policy for remote workers• Check in• Work hours• Time sheets, accountability

─ Work from home policies• Work time dedicated to company business exclusively• Workers compensation – report immediately

─ Trade secrets and confidentiality agreements• Include that company information will be kept and stored

properly from remote work space as well

─ Expense reimbursement agreements• To set up office• Large monitor, ergonomics• Internet, cell phone

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Remote WorkWorkplace Policies

─ Telecommuting agreements• Detail everything from work hours to return of company

equipment and formalize the working relationship• Good if remote work, even if partial weeks, will continue for a

lengthy period of time• Check state in which employee will work

• licensed to do business there?• payroll tax consequences

─ Restrictive covenant policies• Non-compete• Non-solicit – customers and other employees• Non-disparagement

─ Layoff/Furlough policy• Future use• Notice, where possible• Seniority, benefits• Employment terms impacted

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Changes to Employment Terms


Changes to Employment Agreements

─ Consider state and local law notice requirements

─ Concerns under the Fair Labor Standards Act (FLSA): Exempt/ Non-Exempt

─ Key contractual considerations:• Obligations to pay a base salary, incentives, commissions, and

equity• Notice requirements• Severance obligations• Provisions under union agreements• Other contractual promises

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Changes to Employment Agreements

─ Consider revisions to existing agreements:• Exemption for COVID-like scenario• Restrictive covenant provisions• Arbitration agreements• Revised compensation and incentive agreements

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Return to Work Considerations for Employee Benefits Plans


OverviewEmployee Benefits Considerations

─ Mid-year election changes

─ Affordable Care Act compliance

─ Retirement plan considerations

─ Impacts on plans that use W-2 compensation

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Mid-year election changesEmployee Benefits Considerations

General principles

─ Cafeteria plan elections must be made before the start of the plan year

─ To make mid-year changes, there must be a permissible event

─ Examples of permissible events: • Change in status• HIPAA special enrollment right• ACA exchange enrollment• Enrollment in Medicare or Medicaid• Significant cost changes in coverage

─ What does your plan document say?

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What events are likely to apply to employees returning to work?

─ Change in employment• Termination or commencement of employment• Return from unpaid leave of absence• Change in worksite?• Change in eligibility for specific plan

• Salaried hourly plans

─ Change in spouse’s coverage?

─ Special rules for dependent care FSAs• Significant change in cost or coverage• Change of dependent care provider

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What are the limits on making changes?

─ Timing• Do employees need to make changes within 30 days of the

event?• Needs to be connected to the event

─ Plan document provisions

─ Rehire/return within 30 days• What happens if employees are not gone for a full 30 days?

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Cafeteria Plan Guidance – Notice 2020-29

─ Temporary flexibility to make prospective changes in 2020

─ Health coverage changes• Make new election if initially declined.• Revoke existing election and make new election to under a

different option offered by the employer.• Revoke existing election if employee attests in writing that they

are enrolled in or will immediately enroll in other comprehensive health coverage.

─ Health FSA• Revoke, make a new election, or increase/decrease an existing

election.

─ Dependent care FSA• Revoke, make a new election, or increase/decrease an existing

election. 25



Cafeteria Plan Guidance – Notice 2020-29

─ Amend cafeteria plan to allow these changes

─ Don’t have to allow unlimited election changes and can limit the period when individuals can make these changes

─ Prospective changes only

─ Comply with nondiscrimination rules

─ Can limit FSA elections to ensure that can’t elect less than already reimbursed

─ If previously allowed elections consistent with these rules, relief will apply

─ Notify employees of changes

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Affordable Care Act Employee Benefits Considerations

Background and overview

─ Applicable Large Employers (50 or more full-time equivalent employees) must offer:• Affordable• Minimum Essential Coverage• Minimum Value

─ To their full-time (30 hours/week)─ Who is “full-time”?

• If expected to be full-time at time of hire, must have ability to enroll within 3 months

• If not sure if will be full-time – measurement period

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Break in Service Rules

─ Stability period• Once employees test as full-time, enter a stability period

• Length of stability period depends on terms of the medical plan

• Can’t drop coverage even if works less than 30 hours/week

─ Break in service – 0 hours for 13 weeks (26 for teachers)

─ If there’s a break in service, employee can be treated as a new hire when resumes work

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Affordability

─ ACA regulations offer several “safe harbors” in order to ensure that offers of coverage are affordable

─ Rate of pay• Can’t be used for salaried employees whose pay was reduced during the year

─ W-2• If premiums were set based on an employee’s W-2 comp, consider whether changes in the year would cause a problem

─ Federal poverty level• The only one that employers can really control

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Retirement Plan Eligibility Employee Benefits Considerations

─ What does the plan document say?

─ What happened to the particular employee?• Furlough vs. termination• Paid and unpaid leave

─ Is the employee treated as a new hire or continuing employees?• Automatic enrollment• Beneficiary designations• Investment choices

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Retirement Plan ComplianceEmployee Benefits Considerations

─ CARES Act amendments• Loans• Early withdrawal penalty

─ DOL Guidance granting flexibility• Failures to follow procedural requirements for plan loans and

distributions• COVID-19 outbreak• Good-faith diligence effort to comply• Reasonable attempt to correct as soon as administratively possible

─ SPDs and SMMs

─ Partial termination?

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Retirement Plans – Other Considerations Employee Benefits Considerations

─ Distribution requirements• Force outs for small accounts if employees don’t return• Rollovers

─ Matching and other employer contributions• Safe harbor plan requirements• Nondiscrimination testing

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W-2 PlanningEmployee Benefits Considerations

─ Plans rely on W-2 compensation in a variety of ways• ACA affordability• Bonuses• Life insurance benefits

─ Fluctuating pay, salary decreases

─ What is the impact on various benefit plans?

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Employee Communication


Return to WorkEmployee Communication

─ Return to work

─ Requirements and safety measures to return

─ Changes to employment policies

─ Changes to employment terms and conditions

─ Updates and additional changes

─ How to make a complaint or concern

─ How to notify employer if employee develops COVID-19 symptoms

─ Necessary documentation to return to work after having COVID-19

─ Requesting accommodation under the ADA

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Tracking Time WorkedEmployee Communication

─ Ensure that all employees are aware of the need to track all work time. Remote employees may not be tracking all time worked and should be advised how to do so. Employees who were exempt but become non-exempt because of a reduction in pay may need to be trained and reminded to track all work and how to do so.

─ Employees should be reminded and required to confirm all time entered for pay each pay period to ensure accuracy.

─ Employees should reminded and required to confirm that pay received is accurate and, where an inaccuracy is suspected, must immediately report the inaccuracy and to whom they should report.

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Illness or ExposureEmployee Communication

─ Employees should know how to report an illness after they have returned to work – what to say and to whom. This includes their own illness, the illness of a family member, or their exposure to someone who has COVID-19.

─ Employees should understand that the employee may ask questions about where they have been in the workplace and with whom they have come in contact and that those persons will be notified that they have come in contact with someone who may have COVID-19.

─ Employees who become sick should be aware of their responsibility to quarantine (not come to the workplace), what sick leave they have available to them, and requirement of a fitness for duty or certification from a treating physician before returning to work.

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Employee Communication

─ The US Department of Labor has issued FFCRA and the CARES Act posters and requires that they be posted in a conspicuous place.• Can be emailed, mailed, or posted on intranet

─ Train managers and employees on new policies, procedures.• Training may need to include employees.

─ Have method for updating policies, procedures, and other information as guidance and recommendations change.• When issuing new policies, reserve the right to change without

notice.• Know who is watching for changes and who is updating the

policies accordingly.

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Questions?

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How can we help?

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COVID-19 – Considerations for Returning to Work · 2020-06-17 · Mid-year election changes....

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Transcript of COVID-19 – Considerations for Returning to Work · 2020-06-17 · Mid-year election changes....