Missouri News & Analysis

  • HR Technology

    How well is your remote work plan working? When millions of workers took up working from home because of the coronavirus, they likely encountered at least a few snags, but software can smooth the way. A March 30 blog post from HR Tech Central looks at software that can make remote work more effective. What solutions are available? The post lists 11 different kinds of software to investigate to ease the transition from in-office to at-home work: collaborative whiteboard software, remote support software, audio conferencing software, video conferencing software, webinar software, screensharing software, remote desktop software, business instant messaging software, cloud content collaboration software, project management software, and task management software.

  • President signs FFCRA, enacting paid sick leave and expanding FMLA

    The number of confirmed cases of COVID-19 continues to rise in the United States. On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) into law in an effort to reduce the impact of the novel coronavirus on individuals and businesses alike. Employers had until April 2 to comply with the law.

  • Payroll tax credits to fund paid leave for employees affected by coronavirus

    The Families First Coronavirus Response Act (FFCRA), which was enacted on March 18, established two new categories of paid leave to assist workers needing time off for certain coronavirus-related purposes: (1) up to two weeks of paid sick leave and (2) up to 10 weeks of paid Family and Medical Leave Act (FMLA) leave. The mandates apply to private-sector employers with fewer than 500 employees and public-sector employers of any size. Read on to learn how the emergency leave program will be funded and implemented.

  • FAQtually speaking: How ADA, FMLA influence employers' coronavirus responses

    Employers are looking for any guidance they can find on how to address employees with coronavirus symptoms or requests for accommodations or time off in light of the Americans with Disabilities Act (ADA) and/or the Family and Medical Leave Act (FMLA). Remarkably, with uncharacteristic speed, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL) have addressed some of the issues in new or updated FAQs or guidance.

    EEOC updates guidance on pandemics

    In 2009, the EEOC published "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act." The agency has updated the publication to reflect COVID-19's impact. Here are important excerpts.

    May an ADA-covered employer send employees home if they display COVID-19-like symptoms during a pandemic? Yes. The EEOC has determined that as of March 2020, COVID-19 meets the ADA's direct-threat standard, which creates an exception to ADA protection when an employee's qualifying disability is a "direct threat." In other words, the individual seeking protection creates a "significant risk of substantial harm to the health or safety" of himself or others that couldn't be eliminated by a reasonable accommodation.

    In the revised guidance, the EEOC has determined someone suffering from COVID-19 constitutes a "direct threat." Thus, someone testing positive for or displaying symptoms of the virus may be sent home. In addition, applicants, after a job offer, may have their start date delayed or the offer withdrawn if you need them to begin immediately.

    How much information may you request from employees who report feeling ill at work or call in sick? The EEOC has decided ADA-covered employers may ask employees who report feeling ill at work, or call in sick, questions about their symptoms to determine if they have (or may have) COVID-19. The symptoms include fever, chills, cough, shortness of breath, or a sore throat. In addition, the agency says employers may measure employees' body temperature. As with all medical information, however, the fact that an employee has a fever or other symptoms would be subject to the ADA's confidentiality requirements.

    When an employee returns from travel during a pandemic, must you wait until she develops symptoms to ask questions about exposure to COVID-19 during the trip? No. You may follow the advice of the Centers for Disease Control and Prevention (CDC) and state/local public health authorities regarding information needed to permit an employee's return to work after visiting a specified location, whether for business or personal reasons.

    May you ask employees who don't have symptoms to disclose whether they have a medical condition the CDC says could make them especially vulnerable to COVID-19 complications? While the EEOC hasn't made a specific declaration about COVID-19, its existing guidance on pandemics allows such questions if there is sufficient evidence the employee might face a direct threat when returning to work. With respect to the coronavirus, the EEOC has declared it meets the standard for a direct threat. Accordingly, you should be safe in asking employees if they have medical conditions or disabilities that would make them vulnerable to the pandemic.

    During a pandemic, may you require employees to adopt infection-control practices? Yes, you could require regular hand washing and personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of the virus.

    If you are hiring, may you screen applicants for COVID-19 symptoms? Yes. You may do so after making a conditional job offer, as long as you treat all entering employees in the same type of job the same way.

    DOL updates FAQs on FMLA

    The DOL's FAQs governing pandemics and the FMLA predate the recent passage of the Families First Coronavirus Relief Act (FFCRA) and must be read in conjunction with that statute. For example, the FFCRA provides coverage for employees who must stay home with children because schools are closed or a quarantine or isolation order has been issued. You should pay special attention to the DOL's position in the following FAQ.

    Can an employee stay home under FMLA leave to avoid getting pandemic influenza? The DOL's position is "no" because the FMLA protects only eligible employees who are actually incapacitated by a serious health condition. In other words, leave taken for the purpose of avoiding exposure to the virus isn't a serious health condition and wouldn't be protected.

    While the DOL's position is technically accurate, employers should be very careful. There are numerous times when employees wanting to stay home to avoid contagion might still be entitled to FMLA leave or an ADA accommodation even though they haven't yet been diagnosed or are asymptomatic.

    FMLA. Suppose the employees have a condition that makes them especially susceptible to contracting COVID-19. The information currently available points to diabetics, prediabetics, persons over 70, those with heart disease or undergoing cancer treatment, and the obese as being particularly vulnerable both to the coronavirus and complications leading to death. Thus, physicians may order them to stay home from work to limit their exposure. Such a prescription would technically be based on their underlying condition rather than the virus, but the effect would be the same ― they would likely qualify for FMLA leave.

    ADA. The same result might be reached under the ADA. Would allowing someone with a disability to use the Act to avoid contagion be a reasonable accommodation?

    The same would be true if the employee was a caretaker for someone in the vulnerable group whose likelihood of exposure would increase by interacting with the caretaker employee. And what if the individual isn't a caretaker per se but has a spouse or child in the most at-risk group? While you could contend the person should simply live elsewhere for the time being, it's questionable whether the courts and juries would agree you have the right to force people to move out of their homes because of their spouse's or child's susceptibility.

    Bottom line

    While additional guidance is helpful, you must still analyze each pandemic situation under the particular circumstances. You should strongly consider consulting with your attorney. Companies' finances will be strained enough because of the coronavirus without adding lawsuits, legal expenses, and settlements/judgments to the mix.

    Steve Jones is an attorney with Jack Nelson Jones, P.A., in Little Rock, Arkansas. You can reach him at sjones@jacknelsonjones.com.

  • New I-9 form required May 1

    On January 31, 2020, U.S. Citizenship and Immigration Services (USCIS) announced the release of a new version of the I-9 employment eligibility verification form. There are minor changes to the new form and its instructions, including clarification about which documents are acceptable for I-9 verification as well as clarification about who can act as an authorized representative on behalf of an employer.

  • How group health, retirement plans are faring during coronavirus concerns

    Employer-sponsored group health plans have drawn attention regarding coverage for certain coronavirus-related costs. For qualified retirement plans, no immediate changes were made, although various types of relief were being considered. For example, one suggestion was to allow individuals to withdraw up to $100,000 from a 401(k) or 403(b) account without paying the 10% excise tax on early withdrawals.

  • U.S. Supreme Court decides Kansas identity theft case

    The U.S. Supreme Court recently ruled that Kansas can prosecute individuals for identity theft under state law when they use someone else's Social Security number (SSN) to get a job. The controversy arose from three criminal cases: State v. Garcia, State v. Morales, and State v. Ochoa-Lara. In all three cases, undocumented immigrants without Social Security cards were convicted of identity theft in Kansas after they used another person's SSN to complete I-9 forms provided by a restaurant that had offered them jobs. The three immigrants also used the false SSNs on other documents, including federal and state tax withholding forms.

  • EEOC allowing employers to take temperatures during pandemic

    The Equal Employment Opportunity Commission (EEOC) has just recently clarified that because the Centers for Disease Control and Prevention (CDC) and other state and local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers are now permitted to measure employees' body temperatures. The EEOC cautions, however, that some people with COVID-19 will not have a fever. The clarification is consistent with the agency's "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act" guidance published in 2009.

  • Even your IT systems are susceptible to COVID-19

    Current events have often been used as cover for cyberattacks, and unfortunately, COVID-19 is no different. Along with the recent uptick in coronavirus cases across the United States, we've seen an uptick in e-mail scams, ransomware, malicious domains, and other cyberattacks that use the pandemic in an attempt to compromise businesses' IT systems and employees' personal information.

  • Increase in remote work likely a lasting effect of COVID-19

    Not so long ago, remote work arrangements were thought of as a nice perk for tech-proficient employees seeking an end to tiresome commutes and a way to enhance work-life balance. Then came the coronavirus and employerand government-mandated measures aimed at slowing the spread of the disease it causes, COVID-19.