Stibbs & Co., P.C.: Important Information for Employers - Coronavirus
These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed.
My employees are requesting to work from home, how should I handle such requests?
With school closures and frequently changing CDC recommendations on social distancing, more employers are faced with questions concerning telecommuting and remote work.
Before you decide whether to voluntarily allow employees to work from home or adopt a remote work policy, you should consider the following:
1. Do your business operations allow for a temporary work-from-home model? Perhaps some roles could be effectively transitioned to remote positions for the time being, while others cannot. Even reducing the number of individuals that must work in the office or other work location, can decrease potential exposure to the virus. (If remote work is not an option for any position, consider other alternatives like working on a reduced staff and allowing individuals to rotate shifts and increase cleaning protocols.)
2. Do you have the technological capabilities to work from home? There are many cyber-threats to consider. If you do not have a good protocol in place, you should not transition to a work-from-home model until you are certain that your connectivity is secure and reliable. If you do not already have a system in place, it may be difficult to implement one now. Talk to your IT firm or internal IT team and see what it would take to get you to that point.
If the answer to both of those questions is yes, then we would highly encourage you to consider a temporary work-from-home model.
Am I required to give my employees paid time off?
There is no Texas or federal law that requires private-sector employers to provide paid time off to employees. There are federal leave laws that may apply to the situation. However, if you have promised paid time off in a written policy or agreement, the leave is an enforceable part of the wage agreement under Texas Payday law and you must comply with your policy as written. If you do not have a written policy, then at the current time, you are not required to provide paid time off. However, there may be circumstances that have created a policy from your past practice. If you have given paid time off in the past (despite the absence of a written policy or agreement), be sure to be consistent with your past precedent.
House Bill H.R. 6201, known as the Families First Coronavirus Response Act, was passed by the United States House of Representatives on Saturday, March 14, 2020. The Act greatly changes employers’ obligations as to paid time off, as it pertains to employees who test positive for COVID-19 or are caring for others who are impacted by COVID-19. For more information on House Bill H.R. 6201, see the FAQs below.
Families First Coronavirus Act (H.R. 6201)
On March 14, 2020, the United States House of Representatives passed the Families First Coronavirus Act. The bill has not yet been passed by the United States Senate and is subject to change. If passed by the United States Senate, this bill could go into effect fifteen days after its passage. This bill is designed to expand employees’ sick leave benefits related to COVID-19. While this bill has bipartisan support, key provisions of the bill are being negotiated and subject to change. The emergency bill is set to expire December 31, 2020.
Does this law apply to my business?
The Emergency Coronavirus Bill applies only to employers with fewer than 500 employees. However, employers with fewer than 50 employees may potentially qualify for an exemption.
What benefits are employers required to provide?
Currently, the Family Medical Leave Act (FMLA) does not prevent employers from laying off an employee so long as the decision for the termination is not due to the fact that the employee took leave under the FMLA. However, the new bill may provide greater protections.
The new bill requires employers to provide 12 weeks of leave to employees who are unable to report for work due to COVID-19. Employers must be aware that unlike most FMLA leave, the proposed law protects employees who have been employed for thirty (30) days, and the employer must pay some of the employee’s leave.
Additionally, the bill requires employers to provide paid sick leave to full and part-time employees who qualify for leave due to COVID-19. This paid sick leave is in addition to the sick leave that the employer provides to the employee.
What circumstances qualify for leave due to COVID-19?
Employees who must isolate because of a diagnosis of COVID-19; employees who are quarantined (including self-quarantine) at the instruction of a health care provider, employer, or government official to prevent the spread of COVID-19; employees who are caring for another person who has been diagnosed with COVID-19 or is waiting on a diagnosis; or employees who are caring for a child or other individual who is unable to care for themself due the COVID-19 related closing of their school, childcare facility, or other care program.
Do employers have to pay employees who cannot report to work due to business closures?
Currently under the Fair Labor Standards Act (FLSA), you do not have to pay an employee who cannot report for work. While the details of the bill are still being worked out, it appears that an employer unable to remain open due to Covid-19 does not have to pay its employees who are not working due to the closure. However, depending on the employee’s status under the FLSA, an employer may have an obligation to pay the employee.
Does the government or the employer pay for the employee’s leave?
The employer must pay for the employee’s leave benefits, but the bill provides the employer with potential tax credits.
Can an employer send an employee home who reports feeling ill?
Yes, the employer may ask the employee if he or she is experiencing influenza symptoms. The employer must still maintain the confidentiality of the employee.
Does the employer have to continue paying the employee’s health insurance benefits if the employee is on unpaid leave?
The Texas Payday Law permits employers to require the employees to pay their portion of the premiums while on leave, but the employer may also pay the premium and deduct the employee’s portion once the employee returns from leave. If the employer chooses to pay the employee’s premium, the employer should have the employee sign a written acknowledgement that these payments are an advance, and once the employee returns to work, the employee’s portion of the premiums will be deducted from his or her paycheck.
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