In any workplace, health and safety has to be top of mind. Complying with workplace laws takes a lot more effort when your workers are remote and are teams dispersed — as is happening in so many organizations. And right now, in the midst of the COVID-19 crisis, employee safety in any working environment is an ongoing concern for leaders and managers — and employers need to not only navigate new laws, but inform their people as well.
The key lies in electronic solutions that provide clear guidelines and information to every employee, no matter where they are. Managing compliance means being clear on your own responsibilities as an employer, and being able to get the answers you need about what’s happening right now — so you’re up to date, and there are no surprises.
To get clear on the best practices for keeping your workforce informed, I spoke to Ashley Kaplan, Esq., Senior Employment Law Attorney for ComplyRight, a leading provider of human resource solutions and employment compliance products. Here are the highlights of our conversation:
- Ashley, what brought you to ComplyRight, and can you talk about what you handle?
I joined ComplyRight in 2000, after practicing labor and employment law for several years with a national law firm. My experience includes representing businesses of all sizes and industries, in matters ranging from general HR counseling and risk management, to defending discrimination lawsuits and class-action FLSA litigation. At ComplyRight, my responsibilities have evolved quite a bit, but I am primarily responsible for managing employment law compliance and overseeing the teams responsible for researching and developing HR compliance solutions and labor law posting services for U.S. businesses.
- Let’s talk about electronic posting. What is mandatory for employers to post, no matter where their employees are working? So many employers are dealing with remote workforces now: are remote workplaces exempt from any mandatory postings?
Depending on your state, employers are required to post up to 22 postings for federal and state compliance. Additional postings may be required depending on city and county employment laws, which has been a growing trend over the past few years. Plus, there are specific posting requirements for government contractors and employers in certain industries, so it can be a lot to manage.
As far as remote employees go, there is no exemption from these requirements. The Department of Labor provides guidance on this, and recommends that employers provide posters in an “alternative format” for any employee who does not regularly visit a business location where posters are displayed. According to the DOL, “visiting regularly” means at least three to four times a month and electronic postings are an acceptable alternative format.
With so many employees working remotely at the moment, and given that employment laws are changing rapidly during this emergency, employers really need to consider providing electronic postings in addition to maintaining physical postings at business locations that are still operational.
- What’s the biggest question you get asked about maintaining compliance right now?
When it comes to posting compliance, a lot of employers want to know if they can simply provide all of the postings electronically instead of displaying physical posters in the workplace.
The general rule is that the posters still have to be posted in all physical facilities where employees report to work. Electronic postings are a solution for remote workers who do not have regular access to the postings at your physical facilities, but not a substitute for the physical posters for onsite workers.
- Can you explain the Families First Coronavirus Response Act? Are smaller companies exempt from mandatory posting requirements?
The Families First Coronavirus Response Act (FFCRA) is a temporary federal law that is effective from April 1, 2020 through December 31, 2020. This law is very broad and encompasses many aspects of the federal response to COVID-19.
The biggest impact on small businesses is the requirement to provide paid leave to employees who cannot work due to various reasons related to the pandemic. Generally speaking, this paid leave requirement applies to all private employers with fewer than 500 employees, and most public employers. These employers will receive tax credits to offset the cost of the mandatory paid leave.
The law also includes a new mandatory posting requirement for all affected employers.
The qualifying reasons for paid leave cover many different scenarios, and the mandatory pay rates vary depending on the circumstances.
In some cases, affected employees qualify for up to two weeks (or 80 hours) of leave at their regular pay rate. That’s if they cannot work because they are under mandatory quarantine based on a government order (federal, state or local) or quarantined on the advice of a healthcare provider. The full pay rate also applies to employees who are experiencing COVID-19 symptoms and are seeking a medical diagnosis.
In other cases, affected employees qualify for up to two weeks (or 80 hours) of leave at two-thirds of their regular pay rate. This rate applies to employees who cannot work because they must care for another individual who is under mandatory quarantine based on a government order, or on the advice of a healthcare provider. It also applies in cases where the individual is experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services.
The third category of affected employees includes those who are having to care for a child, or children, due to school closings or because their usual caretakers are unavailable due to COVID-19. All employees affected in this way are entitled to the same two weeks, or 80 hours, of paid leave at two-thirds of their regular rate. In addition, those who have been employed for at least 30 calendar days prior to requesting leave are eligible for another ten weeks of paid leave. Again, this would be at two-thirds of their regular pay rate.
Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or childcare unavailability — if the leave requirements would jeopardize the viability of the business. However, they are not exempt from the new mandatory FFCRA posting requirement.
The posting requirement can be satisfied in this case by mailing or emailing the FFCRA poster to employees, or posting it on an employee website. The notice also must be distributed to all new hires.
- So many companies have had to quickly redistribute their teams and shift employees to working from home — and have had very little time to prepare. How can employees ensure their electronic and posted information is consistent and up to date in all locations?
Given all the time and know-how required to stay on top of posting requirements and updates, coupled with the potential fines and penalties for non-compliance, I think it makes sense for a business of any size to outsource this aspect of compliance.
Choose a reputable partner that offers sound electronic solutions for your remote workers, such as an intranet link you can post on your employee website, or a service that pushes out all required postings and updates directly to your employees via email. It’s important to choose a partner backed by a seasoned legal team that researches and updates all of the posting images in real time as the laws change, and that covers all city/county requirements, industry variations, and foreign language postings. That’s especially true now, as employee leave laws are getting more complex and are an area of high litigation.
- I think a lot of employers are asking very basic questions about paid leave — particularly in terms of sick leave and family leave during COVID-19. I’m thinking of the Families First Coronavirus Response Act, but what other pieces of new legislation do companies need to be aware of?
In addition to the federal FFCRA, other legislation is being passed by state and local governments to protect employees during this crisis. Many states, cities and counties have passed new laws (and many more are pending) expanding paid sick leave rights, caregiver leave, unemployment insurance benefits, and other provisions to provide relief to workers and their families.
Though not on the topic of paid leave, there is also the newly enacted CARES Act, a federal law that provides financial incentives to businesses who retain their employees, and boosts unemployment insurance significantly for employees who are laid off or furloughed as a result of the pandemic. The goal of this law is to incent employers to retain their employees during the crisis, and also provide a safety net for workers who do lose significant income.
- Can you clarify the mandatory employee information employers need to add to their postings according to the most recent legislation? For instance, are employers responsible for requiring their employees to observe social distancing?
There are some new posting requirements on the state and local level addressing social distancing, including a new poster for Arkansas employers and businesses in San Jose County, California. We are expecting more of these in the coming days. We have also seen new state and local postings informing employees of their expanded sick leave rights, emergency paid leave provisions, and unemployment insurance benefits.
- How can employers ensure compliance with labor law posting requirements in general during the COVID-19 epidemic, as more and more employees are working from home? What about for new hires?
Ideally, you should look for a service that provides all of the required federal, state, city and county posters for all of your physical locations where employees report to work. Posting laws apply even if you only have one or two employees at a worksite. Choose a service that includes automatic poster updates whenever the laws change, since these posters change frequently throughout the year. (Last year our legal team tracked almost 200 mandatory changes nationwide.)
Supplement your physical postings with an electronic solution for your remote workers. Posting obligations are the same for new hires as all your other employees, but there are additional federal, state and local requirements for prospective employees during the application process. Ask your poster provider for information about posting services for online applicants where you can simply place a link to the current posters on your applicant web page or in online job postings.
- What if an employee appears to be ill? What are the obligations and responsibilities of employers with regards to requiring disclosure or exiting the workplace?
You can, and should, ask the employee to leave your premises and seek medical attention, including getting tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. The Equal Employment Opportunity Commission has confirmed that it is permissible to send an employee home if the symptoms are akin to the COVID-19 coronavirus or the flu.
Without revealing the employee’s name, communicate to other employees who have worked closely with the employee that a coworker exhibited symptoms that led you to believe a positive diagnosis is possible. And if the employee does test positive for the virus, you should notify and send home any others who may be affected, as well as close off the affected areas for proper cleaning and disinfection.
- What best practices do you recommend for companies who now have temporarily remote workers? Should they create a remote workplace practices policy?
Absolutely. It is important to set out the expectations, rules and responsibilities in a written policy. Whether you are creating a temporary, emergency remote work policy or a more general telecommuting policy for a longer term, your policy should address: expected work hours and availability, equipment and security issues, safety, timekeeping practices for nonexempt employees, PTO and absences, and any adjustments to performance goals and expectations. Your policy should also address how employees are selected for work-at-home arrangements, and should indicate that management reserves the right to change or end the arrangement at any time based on business needs.
Take the Mystery Out of Compliance
To effectively meet year-round compliance needs, the best strategy is to rely on experts. This is certainly not an arena for speculation, especially now. As Ashley Kaplan points out, with so many ongoing and new federal, state and regional requirements, employers need clear guidance that keeps them up to date — as well as all the postings they need. Two recommendations: consult the Poster Guard® Electronic Service for Remote Workers for the latest posting requirements and tools for electronic postings. And the Intranet Licensing Service enables companies to add a custom link to their own corporate intranet or employee portal. The key for employees is simple navigation and ease of use. The key for employers: knowing that your postings are up to date, whether they’re physical postings or electronic, and are completely accessible to your employees.
To learn more about how to maintain workplace compliance with online and on-site posters and compliance, visit PosterGuard.com.
This post is sponsored by Poster Guard from HRdirect.
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