How Telework Has Impacted Employers Post COVID-19

On March 18, 2020, the Family First Coronavirus Response Act (FFCRA) was signed into law, ushering in, among other things, both the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law. According to the U. S. Department of the Treasury, the purpose of the CARES Act is to bring “fast and direct economic assistance for American workers, families, and small businesses, and preserve jobs for our American industries.” Below are links to helpful, albeit limited, information provided by the United States Department of Labor’s Wage and Hour Division (DOL WHD) about the FFCRA, EPSLA, EFMLEA, and CARES Act as they impact rights and responsibilities of both employers and employees.

FFCRA

If your business or employees have been impacted by COVID-19 and the above-listed acronyms are foreign to you, please take this opportunity to contact your legal counsel or the Goosmann Law Firm to make sure you are compliant with the requirements of these new pieces of legislation. The non-enforcement period applicable to the FFCRA (provided the employer has made reasonable, good faith efforts to comply with the FFCRA) expired on April 17, 2020, and violations of the FFCRA open an employer up to the penalties detailed in Sections 16 and 17 of the Fair Labor Standards Act and/or the Family and Medical Leave Act. Talk with your legal counsel to make sure these penalties don’t add more stress to your bottom line.

Telework

In response to COVID-19, many employers have had to “re-create” their workforce while balancing both social distancing requirements and the fact that many employees have had to take on teaching duties after schools closed their doors and switched to distance learning. This re-creation of the workforce has required the expansion and reliance on work done from home (telework or telecommuting). The reality for many employers is that, over the past two months, their businesses could not have operated without telework. Did you know that the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has no regulations regarding telework in home offices? OSHA’s last instructions on telework in home offices were issued on February 25, 2000, providing guidance about inspection policies and procedures concerning worksites in employee’s homes. (See OSHA Directive CPL 02-00-125).

OSHA & Telework

That guidance confirmed that OSHA does not conduct inspections of employees’ home offices (defined as office work activities in a home-based worksite (e.g., filing, keyboarding, computer research, reading, writing), that may include the use of office equipment (e.g., telephone, facsimile machine, computer, scanner, copy machine, desk, file cabinet). It further stated that OSHA will only conduct inspections of other home-based worksites (the areas of an employee's personal residence where the employee performs work of the employer), when OSHA receives a complaint or referral that indicates that a violation of a health or safety standard exists that threatens physical harm, or that an imminent danger exists.

Home-based worksite inspections do not apply to an employee’s house or furnishings. However, the scope of the inspection in an employee's home, while limited to the employee's work activities, holds the employer responsible for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee's home. Within your business structure, whose job is it to make sure the policies, processes, and procedures followed by teleworkers do not violate a health or safety standard that threatens physical harm? That question may have no answer or, alternatively, three different answers. Therein lies the challenge – properly identifying the person responsible for the creation of the policies, processes, and procedures and making sure your employees are adhering to them. While making sure OSHA has no reason to interject itself in your telework reality, a current review of all of your company’s policies, processes, and procedures – with an eye on how they might create hazards for work activities in a home-based worksite – may provide you additional efficiencies and prepare your company for what may become your new business reality.

FFCRA, EPSLA, and EFMLEA Guidance from DOL WHD

CARES Act Guidance from DOL WHD

OSHA Guidance from DOL WHD