The past three months have created unprecedented challenges for professionals across all sectors of Michigan’s economy. As we begin to explore returning to the workplace, law firms, accounting firms, and other professional service corporations are confronting new issues, such as how to reintegrate our employees into our workplaces safely and in compliance with employment laws (such as the FMLA and the ADA). Below are responses to frequent employment law questions that professional service corporations may have when deciding how and when to return their employees to the office.
Question: Is there an official “return-to-work” plan required by the government?
Answer: The federal government has not chimed in on exactly how businesses should return their employees to work, but it has identified best practices for reintegrating employees into the workplace in a safe manner. The CDC has issued guidance for return to work, and the White House has issued the President’s Guide to Opening Up America. Both the CDC and the President encourage continuing remote work where possible and suggest phasing in employees into the office.
Michigan has also implemented the MI Safe Start Plan, which takes a six-phase approach for reopening Michigan’s economy. In Stage Four (Improving), offices will be open, but remote work is still required where feasible. The State has also advised that businesses should strongly consider special accommodations for employees who are members of an at-risk population.
On June 1, 2020, the governor moved the entire state into Stage Four. In her most recent executive order (Executive Order 2020-110), the governor permitted businesses to open (at specified times and with certain enumerated exceptions), provided that “[a]ny work that is capable of being performed remotely (i.e., without the worker leaving his or her home or place of residence) must be performed remotely.”
Employees must follow social distancing measures. And, any business requiring its employees to come into work must develop a COVID-19 response plan that follows the safeguards for its industry outlined in Executive Order 2020-97.
Law firms should consult the State Bar of Michigan’s Reopening Toolkit for Michigan Law Offices, issued on May 28, 2020, which contains checklists with recommended steps for reopening. The State Bar has also created posters for office placement, which can be found here.
Question: How can we accommodate employees who are sick or who have to care for a child after we return to work?
Answer: In the Families First Coronavirus Response Act (“FFCRA”), Congress created a new type of paid medical leave (“EPSLA”) and expanded FMLA leave (see Department of Labor Guidance). The new laws are effective through December 31, 2020, meaning that employers will have to follow these laws for the next seven months.
New Paid Leave
The new paid-leave requirements in EPSLA cover certain public employers and private employers with fewer than 500 employees. Small businesses with fewer than 50 employees may be exempt from the requirement to provide leave for childcare unavailability, if the leave would jeopardize the viability of the business. Importantly, the new paid-leave law applies to all employees—regardless of the employee’s exemption status under the Fair Labor Standards Act. But, the paid leave does not apply if the employee is able to work remotely.
The new paid-leave provisions provide two weeks of paid sick leave at the employee’s regular pay rate (or the minimum wage, if higher) when the employee is quarantined by the federal/state/local government (or on advice of a health care provider), or is experiencing COVID-19 symptoms and seeking a diagnosis. For full-time employees, this equals up to 80 hours. For part-time employees, this is the equivalent of the number of hours the employee is normally scheduled to work in a two-week period. The maximum pay is $511 per day or $5,110 over the two-week period.
For employees who are caregivers for others, the new paid-leave law provides for up to 80 hours of paid sick leave at 2/3 the employee’s regular pay rate (or 2/3 the minimum wage, if higher). For part-time employees, it is 2/3 the average number of hours the employee works in a two-week period. The maximum pay is $200 per day (or $2,000 over the two-week period).
The caregiver paid-leave provisions cover both employees who are unable to work in order to care for an individual with COVID-19, or who need to care for a child whose school or childcare provider is closed or unavailable because of COVID-19. (Note: on June 1, 2020, the Michigan governor permitted day camps to open as of June 8, 2020. See Executive Order 2020-110).
Expanded FMLA
Recognizing that childcare providers may be closed for longer than two weeks, Congress expanded FMLA leave for employees facing childcare closures due to the COVID-19 shutdowns. The expanded FMLA provides for an additional 10 weeks of leave after the employee uses the two weeks of EPSLA-paid leave.
It’s important to note that this is not a new type of FMLA, but, rather, an extension of the already-existing FMLA. The employee must have been employed for 30 days to qualify for the expanded FMLA leave. The rate of pay is 40 hours per week, at 2/3 the regular rate of pay (or 2/3 the minimum wage, if higher), for full-time employees (part-time employees are eligible for leave for the number of hours they are normally scheduled to work over that period). The maximum is $200 per day and $12,000 in the aggregate over the full 12-week period. But, the first ten days are unpaid to account for the two weeks of paid time off under EPSLA.
Also, keep in mind that traditional FMLA leave and Michigan’s paid medical leave are still available for employees who qualify. The expanded FMLA leave does not provide additional weeks of FMLA leave if an employee has already exhausted their FMLA leave. And, the expanded FMLA leave does not apply if the employee can work remotely.
Question: How can we accommodate employees deemed at a “higher risk” for contracting COVID-19?
Answer: The CDC has designated certain categories of individuals who are at higher risk for COVID-19, including individuals over the age of 65 and individuals with certain pre-existing medical conditions. So, the question for professional service corporations is whether and how these employees can return to the workplace safely and in compliance with employment laws. Fortunately, the EEOC recently issued ADA guidance and answers to frequently asked questions on return-to-work employment law issues.
Generally, the ADA prohibits employers who fall under the Act from excluding individuals with disabilities from the workplace for health/safety reasons unless they pose a “direct threat” (a significant risk of substantial harm even with accommodation). Yet, the ADA also requires employers to provide reasonable accommodations for individuals with disabilities, absent an undue hardship, even during a pandemic.
In general, under the ADA, an employer cannot elicit information about an employee’s disability by making a “disability-related inquiry.” The EEOC has clarified that, in the COVID-19 context (as in other scenarios), the onus is on the employee (or a third party like a doctor) to let the employer know that he or she requires a change in working conditions due to a medical condition. The EEOC has recently confirmed that if the employee does not bring the issue to the employer’s attention, the employer does not have to take action.
And, an employer can’t keep an employee from working because the employee is at “higher risk” for COVID-19, unless the employee’s disability poses a “direct threat” to their health that can’t be eliminated with a reasonable accommodation (which is a very high bar). So, the best practice is to: (1) allow your employees to come to you with their concerns regarding a potential medical condition preventing them from returning to work, and (2) when they do so, engage in the ADA’s interactive process to determine whether there is a reasonable accommodation for the employee.
Remote work may be a reasonable accommodation if the employee’s disability prevents them from performing their job on site (under the most recent Michigan Executive Order, remote work is required where possible). But other reasonable accommodations exist to accommodate employees who are at a higher risk for contracting COVID-19 when remote work isn’t feasible. Consider additional safety measures (e.g., Plexiglas or other barriers), temporary job duties, or hour restructuring. Finally, consult with your legal counsel if you have any further questions regarding how to accommodate an employee with a disability.
Question: How do we address employees who are not high risk and don’t have family-care issues, but are still refusing to come back to work?
Answer: Many employees will experience some level of concern about returning to work. And some may even tell you they are reluctant to come into work because they are afraid of contracting COVID-19. But, not all professional corporations will be able to permit all employees to continue to stay at home or work remotely. When an employee expresses reluctance to return to work, it is best to explain the reason why they are being asked to come back to work (and the reason they can no longer work remotely, if applicable), and the safety measures put into place.
It is also important to consider whether that employee’s concern about COVID-19 may relate to an underlying preexisting mental health condition protected under the ADA, such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder. If the employee has one of these conditions, employers will need to engage in the interactive process with the employee. During this process, employers are permitted to ask questions and request medical documentation, if needed.
Ultimately, if the employee does not request or qualify for any form of paid leave, and does not have a disability under the ADA, the employer can require that employee to return to work. If the employee fails to do so, that failure may be considered a voluntary resignation. But these situations require tough decisions that professional corporations should work through with legal counsel when possible.
As the COVID-19 pandemic continues to change, and as more employees begin to return to work, additional questions will likely emerge. Consult with your legal counsel if you have any further questions regarding your return to work plan.