Date(s) - March 11, 2021
12:00 pm - 1:15 pm
Managing Employee Risk as Your Company Pivots Back from COVID-19
Welcome to the Santomassimo Davis LLP webinar, where our team of highly experienced Outside General Counsel attorneys provides important information that you and your business can potentially act on. We hope to provide you with valuable information that can be used at work or in your life after listening to our discussion. For this webinar, our topics will cover managing employee risk as your company pivots back from COVID-19.
Your speaker for this webinar is Chris Santomassimo, who is a senior business-oriented General Counsel and Chief Compliance Officer, who assists companies with a wide range of legal and business issues to manage the risk of their operations.
- Pro Bono Help For Members in Transition
- Introduction to OGC Solutions
- Managing Remote Employees
- Handling Plant Shutdowns
- Developing Your Return-To-Work Plan
- Safe Workplace: Testing, PPE, Vaccines…
- Liability and Whistleblower Issues
- Confidentiality & Cybersecurity Risks
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Chris Santomassimo 0:15
Good afternoon, everybody. I’m Chris Santomasimo from Santomassimo Davis, Outside General Counsel Solutions, like to welcome everyone to today’s webinar, which is about managing employee risk as your company pivots back from COVID-19. I think as everybody can agree, this is certainly the topic of the day, we’ve been dealing with this pandemic. Now for more than a year, we’ve been in a situation as employers in which we’re trying to balance business needs and the ability to keep the business moving forward and continuing with the very important, you know, topic of managing employee safety and keeping our workforce safe and engaged and, and healthy. And most importantly, so, over the course of the last year, there have been a lot of new roles that have evolved, you know, in terms of how do we manage our workforces in the middle of the pandemic? And how to how do we keep them safe? You know, and as we start to turn a corner now, thanks to the vaccines that have been released, we have a new one now from Johnson and Johnson. Now, as more and more people get vaccinated, and states begin to reopen, and businesses get back to work. Another question that an employer should be asking I think is, you know, what is the future hold for us? How do we manage our business? And that’s really what we’re going to talk about today is what you know, what are the ground rules that we follow? What should employers be thinking about as they interact with their employees and come up with their own personal return to work plans? You know, and the reason I think that we want to be informed is that the rules, as I said, have changed quite a bit since last year. So you know, in terms of things that might have been improper, or perhaps, okay to do in terms of how you manage your people, and vice versa. So we want to be sure that everybody understands the rules of the road. So what we’re going to do to kick off the discussion is just let you know a couple of the ground rules for today. If you’ve got any questions that you want to raise during the course of the presentation, I’d invite you to put it up on the q&a, or the chat that’s within the zoom software, because quite often, what we’ll find is that there may be the answer to your question may actually be covered later in the presentation. And I’ll look at the chat at the end just to see if there are any remaining questions that haven’t been answered. In addition, our team will give you a call either a phone call or an email, after the presentation to set the time to ask any follow-up questions that you may have had things that you think of after the presentation or issues that you may not have felt comfortable with, you know, raising in front of a group. So we like to offer that time to everybody who attends today, at no charge, of course. So what you know, our objective really is to keep you folks as informed as we possibly can to just share the benefit of the knowledge that we’ve accumulated. And the things that we’ll talk about today really are the topics that we are dealing with our clients about on a daily basis, you know, clients who reach out to us with a lot of questions about, you know, how to how should they proceed, and how do they develop their own plans. These are sort of ripped from the headlines from those discussions. Let’s take a look at the agenda for today’s today’s discussion. The first thing I want to mention is that to the extent that there are any folks in transition on the call today, you know, what we’d like to do is offer our help in dealing with legal issues that you face, either on a personal level or professional level, and we’d like to do as much as we can on a pro bono basis. You know, I think we’ve seen a lot of great examples out there folks that have really risen to the occasion to help one another. And we’d like to do a small part of that as well. So if you’ve got questions that are impacting you, again, on personal issues or on professional issues, reach out to us we’re happy to help any way that we possibly can. After that, I just want to tell you a little bit about the context of where we’re seeing these questions. And then we’ll talk about how to manage remote employees handle, plant shutdowns. Develop your personal Return to Work Plan. What is the safe workplace in terms of all of the elements of testing vaccines, personal protective equipment, etc., liability issues that you’ll face as an employer. And certainly, within that context, we talked about whistleblower issues. And then lastly, it’s not the least important in the issues, maybe it should have gone up at the top, but confidentiality and cybersecurity risks, which I think we’ve all heard a lot about. And thanks to folks for working in remote environments. They’ve we’ve seen a real uptick in the terms of the number of phishing attempts, malware, incidents, etc, that are out there in the marketplace. So we want to make sure that everybody’s sensitized to those issues.
Unknown Speaker 5:02
Just a little bit about our firm again, we are the outside General Counsel for mid-cap companies, what we do is offer some interesting billing mechanisms to make our firm and outsource law department for your company. So for mid cap companies that aren’t large enough to hire their own General Counsel, and certainly not multiple lawyers that work only for them, they sometimes experience and high hourly rates, and maybe not the best service from dealing with attorneys who don’t really understand their business and don’t work in a business-friendly way. We are that alternative. We have 15 lawyers on the team that again, could be an outsource law department. And what I mean by that is we can actually offer our services on a truly fixed fee. So what really sets us apart from other other firms is the way that we go to market with a truly fixed fee, in addition to a teamwork approach that really leverages all of the skills from the 15 lawyers on our team. And what we find is that clients not only save money, but they experience a much better service in terms of getting advice that’s not only friendly to business but really contemplates the full array of business issues that they deal with on a day to day basis. And in the context of being an outsourced law department or an Outside General Counsel, we are asked to do a lot of things that maybe are a little bit different from a typical lawyer, we’re asked to weigh in on issues, help develop a return to work plans and manage employment issues, where we’re really partnered directly with HR teams. So that’s the type of thing we’re going to talk about today. It’s really the experience of that role in rolling up our sleeves and coming up with a business solution to these problems and issues. What we’ll talk about a couple of times today is what is your personal objective? What is your company want to do? What do you want to achieve in the coming months and years, and that really is going to help sculpt what your particular plan is going to be as you decide to return to work. You know, what’s good for one company is not necessarily good for the next because your objectives are different, your business model is different, and maybe your employee base is different as well. So what we want to do is give you the rules of the road and the guidelines that you should think about as you construct your own plan. I think it would be a mistake for companies to rely upon all the chatter in the marketplace. You know, the kind of things that I’ve posted on this on this particular slide or something that are much talked about, you know, flexibility has to be part of your plan in terms of offering a hybrid approach office versus work from home. Similarly, you know, companies are looking at saving money by cutting the office footprint, that’s a great discussion to have added context. Because sometimes when you put it in the context of your business operation, that doesn’t necessarily work. So what we hope is that you’ll take away some guidelines and some high points to help develop your own personal Return to Work Plan, because it is not a homogenous thing. It’s going to differ from company to company. So don’t follow what Google does, or Apple does. Although those seem to be the most talked about in the marketplace. Let’s figure out what’s going to work for your particular company.
Unknown Speaker 8:06
So what do we know right now, it’s been a difficult environment, not only as an attorney, but also as a business manager, because of the whole array of things are the whole array of executive orders and statutes and guidance that’s out there. And a lot of these, a lot of these sort of elements really don’t fit together so well. You have a lot of agencies that are giving guidance, like the CDC and OSHA trying to tell employers what they should do or tell states what they should do. But state executive orders don’t parrot the federal guidance all the time. And they and those orders, quite frankly, are different state to state. They’re difficult to understand sometimes within a particular state. And then when you hear information about what’s going on in New Jersey versus New York versus Montana, those things are not going to be the same. The standards that are applied are different. The terminology is different. It’s different, not the only state to state, as I said, but it doesn’t necessarily link up with federal guidance. You know, for example, many people on the phone and probably heard this past week, the CDC issued guidance about you know how some of the restrictions on fully vaccinated people could be lifted mask-wearing wasn’t as wasn’t required in all circumstances, for example, but state executive orders don’t necessarily keep up with the same pace that the feds do. So we’ve had a sort of an onslaught of questions about what does that means in New Jersey and New York and California and places where our clients are? The answer, quite frankly, in many, many instances, like this week is that the states haven’t spoken to it yet. So we don’t even know exactly what that’s going to mean for a particular employer in a certain state. So besides the conflicts, we’re dealing with a lot of complex information, there’s medicine, there’s science, and there are legal issues. What we do know is that there’s been quite a litigation uptick. There have been a number of cases filed at the state level and some of them at the federal level as well against employers. In many cases, they are claims by employees who felt like they’re in an unsafe work environment. In other cases, you see a lot of whistleblower claims, which we’ll talk about later today. So what we do know also is that the pandemic is still here, we know I remember back in March and April of last year, where there was some optimistic discussion about that it would be over by Easter and then be over by summertime. You know, we’ve sort of touched on for the better part of a year after those things were said. And here we are still, as I said, we’re turning the corner. But we still have a ways to go before we can consider ourselves, you know, out of the woods on this thing. So there’s still work to be done. But I do think it’s the right time for employers to be thinking about that return to work plan, or a plan that gets you back to what normalcy was before the pandemic. We’ve also been forced to make a lot of decisions on an emergent basis. You know, many companies had to pivot and go 100% remote overnight. So I think you’d find many companies just have not really had policies catch up to that that emergent need, the decisions they made in March last year, don’t necessarily apply anymore, or not really workable on in the long term. So again, that that return to work plan is important now. And we also don’t know what the full array of risk will be facing employers who do go back to the office,
Chris Santomassimo 11:32
the liability picture is starting to develop a little bit, and we’ll talk about pieces of that. But the risk is still unknown in many respects. And then, you know, I think this last point is important that you know, that there have been concerns expressed about the vaccines. The fact that it was the vaccines were approved under an emergency youth authorization, there’s a lot of political overlay around the vaccination question, but I think what we’re seeing is that starting to get a little bit better, too, as more and more folks get vaccinated and do so successfully without any, you know, without any major, major reactions to it. So I think we’re seeing a lot that I think is starting to resolve itself. But again, there’s still some uncertainty there. So with that background in mind, the first thing I’d like to talk about is remote employees. Now, you might think that this is old news now, but I think that we need to consider the work from home situation or the remote work situation, whatever you’d like to call it, because it could be part of your return to work plan as you ease back into the office or as you continue to allow your employees to work from home on an ongoing basis. So the big question, I guess, is whether employers will embrace a work-from-home situation permanently. Your guess is as good as mine, but I do think it’s going to vary by company, your HR professionals would say that you know, recruiting is, is not only made a little bit more complex by this work from home situation, but the idea of whether your particular company will allow a hybrid work arrangement may bleed over into your recruiting efforts, because maybe you please you’re gonna look for that, again, as I’ll say it a bunch of times more, but your plan has got to gotta work for you. And it’s, you got to find the right balance, I do think you need to lead on the issue of, again, don’t follow the big companies that are out there making waves or are issuing press releases about what they plan to do. Because those, those plans may not necessarily work for your companies. An issue that comes up in practice quite a bit is this idea of managing performance. I’ve, I’ve had dozens of clients say, you know, I’ve got a particular employee who was, you know, fine, maybe a little below average in the office, but now that we’re gonna work from home situation, it looks like the performance is, is worse, performance isn’t working, and I want to cancel that work from the home arrangement and drag the person back into the office, what should I do? So what I’ve said in every case is that the employer needs to manage performance separately from the idea of whether they can work from home, manage that employee just as if they were in the office, put them on a performance improvement plan or do what you can to retrain or train or somehow you know, manage performance. But don’t use the work from the home ability as some sort of carrot and stick where you’re going to pull it back if somebody is not performing deal with the performance issue handle it one way or another and then move on but don’t don’t necessarily use work from home as the hammer and the and the carrot. So deal with those things separately. When you do allow people to work from home you have to number one, determine who can work from home in an equitable fashion. So that the heading there is administered your work from home program in a non-discriminatory manner. What that means apply universally across your employee population based on objective criteria related to the job, of course, categories about race and gender, sexual orientation and things of that nature cannot be that cannot be considered and determining who from work from home and who can’t be as part of that, I think an employer has to be able to document and explain later how they made those decisions. If you’ve got a situation at your company in which you’ve allowed certain people to work from home and not others, we need to be able to explain how you made that determination. Because what we don’t want to do is be subject to a claim of discrimination and be unable to explain it later. Someone who an employee who finds him or herself, unable to work from home and can’t explain why you did it, and why you came to that conclusion, may jump to a conclusion that it was done in a discriminatory way. So let’s be prepared. So HR, and your management team should document those decisions and where there were emergency exceptions noted. Make sure that those appear in your records as well. And if you hope you’ve got a policy by now to let folks know, what are the rules about working from home? Where can they do it? Where can’t they do it?
Chris Santomassimo 16:11
So if you don’t have a written policy already, you really should think about putting one together, if you had a policy about work from home that predated the pandemic, now’s the time to be sure that it specifies that it can be amended that it reflects your current situation. And you should also let folks know that you can eliminate that policy or that work from home ability at any time, depending on the needs of the business. But now’s the time to start to shore up those written documents if you haven’t already. So where can remote employees work, you got to start by knowing that the OSHA safety rules apply to remote workers? So the employer is under an obligation to make sure that the work, the work environment is still safe, whatever that means. If you’ve got somebody working out of their house, you’ve probably read articles and seen reports about people that have pretty poor situations, they don’t have even a place to work, let alone ergonomic chairs and desks and that sort of thing. So what we see is a lot of repetitive stress injuries and people that are generally uncomfortable working from home. But there is but OSHA does generally require that it be a safe environment. So the employer should do what it can, you know, on balance to make sure that the that it’s a safe and productive environment as possible. Also, remote workers are covered by workers compensation while they’re working from home. So should they be injured in the course of their work, or during the course of their work, they’re eligible for workers’ compensation benefits, so keep that in mind. But perhaps most importantly, that the employer can dictate where someone can work. And the circumstances. For example, if you don’t want your employees working at a Starbucks, or working at a diner, or working in some other public place, persecution, you’re concerned about confidential and proprietary information being exposed, that constantly be part of your policy, and part of what you require your employees to do. Also to if you want, if you want to make sure that your employees are productive, that they got appropriate childcare, so they’re not sort of splitting their time, you know, caring for children when they should be working, that can be part of your, your policy as well. I will say though, that what we want to do as employers is be as flexible as we possibly can, recognizing that not everyone is going to have the luxury to have childcare, you know, from between nine and five every day, because they’ve got kids studying from home, and maybe even younger children who can’t have access to childcare. So what I would tell you, as you if you decide what works for you, and you decide individual cases is be as flexible as possible, sort of throw out, you know, these may be old notions about when work should be performed, you know, for example, if someone could perform work early in the morning and in the evening, and allow themselves to be available for children, for children studying at home during the day, you know, think about that as a as a way to, you know, accommodate the complexities of what the pandemic is sort of thrust upon us. So throw I would throw out those age old, you know, conceptions about what, what’s appropriate and what’s not, and when people need to be available, and focus on making sure that the work gets done. So, when it comes to taxes in an issue is, is come up quite a bit quite a bit. These taxes should be withheld. If for example, if you’ve got a a New Jersey resident who works in New York City, while they worked in New York, at their office, they likely had New York state taxes withheld from their paychecks. Now they’re working from home at their house in New Jersey, which take taxes apply. So I think in general, what you, well first of all, it’s really an accountant’s decision to make but I think in general, what you’d find is that the location where the performing the work is going to dictate which states taxes are being withheld. The takeaway here is to make sure that you’re taxing your employees appropriately depending on where they’re located, where their work location is. And whether that’s a permanent solution or a temporary solution may weigh into that decision. But the takeaway is to make sure that you’re taxing your people appropriately so that they’re not jammed up on taxes at the end of the year. Home Office expenses Number Number one, you ought to have a company policy about what expenses are reimbursable and which ones can be charged to the company, what you’ll find is that California, by the way, has a law,
Chris Santomassimo 20:31
not surprisingly, on the issue, California residents are may be entitled to reimbursement for a pro-rata share their cell phone and internet usage that’s attributed to their work. So that’s right out of the box. So on top of whatever the state law requires, you’ll also find, by the way, statutes in Illinois, New Hampshire, Massachusetts, Pennsylvania, and Washington DC, on that very topic, as well. But a company policy that recognizes the applicable state law, and also tells employees what’s Okay, and what’s not beyond that is something to have in writing. And then again, updating those policies to reflect this new, this new remote work situation. I told clients to that their training that they give employees needs to needs to reflect that you’ve got a lot of people working either 100% remote or in a hybrid environment. So anti harassment, anti harassment, training, compliance training, and making sure that they’ve also got their reporting mechanisms that work in a remote environment as well. You know, the idea of a suggestion box where you write a note on a piece of paper with a pen and drop it in a box probably is not going to work in a remote situation. So having electronic tools to do those things, I think is very important. And something we ought to recognize. Just one quick note that an interesting subject has arisen in this this past year about Nomad visas or digital nomad visas, this really reflects that, you know, a lot of folks can work almost anywhere, as long as they’ve got an internet connection. And there’s a number of countries that have taken that as a perhaps a way to supplement their their economies by attracting, you know, high wage earners to go work in their jurisdiction for an extended period of time. Whereas they normally would have had to get a work visa or, you know, been there on a on a tourist visa and probably violated the tourist visa if they’d worked while they were there. So last I checked, there were seven countries Barbados, Bermuda, Anguilla, Estonia, Dubai, Georgia and the Cayman Islands. That’s Georgia, the country, not the state. And there’s Aruba, Croatia, and Greece, we’re about ready to issue some rules on Nomad visas as well. So it’s up to you to decide if you want your people working in these places or not. Just because people want to go to the beach in in Bermuda and work there with their laptop doesn’t mean that that necessarily works for your business. So again, have a policy on it. But recognize that some of your employees may be looking for this type of situation. So it basically legalizes the status of these traveling workers so that they can do it for a longer period of time than they otherwise would have been able to do on a tourist visa. So with remote employees, here are some issues in terms of how and how do you manage these folks. The first issue is a Fair Labor Standards Act-Issue that if you know your employees are working, they’re teleworking in the performing work in excess of eight hours a day or 40 hours a week, depending on the jurisdiction. If they’re eligible for for overtime, you have to pay them, even though overtime might be in violation your company policy. So the takeaway there is, it’s okay to have a policy in place about overtime and off hours work, but you got to enforce it. However, if you know that an employee actually work, who did the work, whether or not they record the time, they should be paid for it, and then you can deal with them after the fact after you pay them. You can reprimand them for working overtime and tell him not to do it in the future. And you can take further action if they continue to do it in violation of the policy, but you got to pay him. You can require time reporting as a policy for all employees, whether they’re exempt or nonexempt. There’s a lot of systems out there probably provided by the payroll companies that will enable you to do that time reporting fairly, fairly easily. But you can do it as simply as requiring emails. You can have a call-in situation, whatever works for you. You can require it for all employees. This is another issue that’s
Chris Santomassimo 24:32
recently. It’s traveled time on partial telework days no. Take for example of what a situation where an employee drives to the office to start a day at eight o’clock works from eight to 12 and then leaves the office to come home and continue the day at home. During that drive home they stop at the grocery store and maybe a doctor’s office for a quick appointment and they arrive home and complete their day. The question that the IRS recently I’m sorry The DOL recently answered was whether or not that time is compensable. In the Act, the answer is generally not. Unless they perform work while they’re in the while they’re commuting back home in that, in that example, the travel time is not compensable. So it’s just, it’s just the free time it’s commuting time that otherwise wouldn’t be, wouldn’t be reimbursable, or compensable. Next, even though you have people working in a remote environment, and working at home, remind employees that they’re eligible to take their normal meal breaks and rest breaks. I think what we’ve found, despite the fact that people were a little suspicious about how these remote situations would work, what we’re finding, in general, is that people are working more than they did in the office, they’re starting earlier than working later. And they’re taking fewer breaks. So as an employer, do the right thing, and remind your employees that they are eligible for their breaks. And again, this is where the flexibility comes in. Perhaps you’ll let them take time off during the day to do personal errands as long as they make up the time a little bit later too. That goes hand in hand with the idea of when you take breaks. Childcare and homeschooling issues is again, this this, this flexibility issue, which you can impose standards about what you expect, of in terms of whether there’s childcare to watch young children during the course of the day as people are working from home. So another issue that’s come up in my practice, number of times is this idea of tracking remote workers and protecting confidentiality. So what I’ve seen and heard is that, you know, we’ve we’ve got some real issues about protection of proprietary information, people are now storing documents and data in their houses in their cars, places that they perhaps shouldn’t. It’s not just a digital issue, it’s a paper issue, as well, where people have got, you know, they’re generating records, they’re printing things in their home home printers. And they’re also exposing their, their screens and their materials to other family members. And we’ve all seen the pictures of people working in their kitchens and their dining rooms and their living rooms and their even their bedrooms. So I think what you need to do as an employer is make sure that you remind people about the need to be conscious of their environment to protect information from being disclosed, just because the person that may see it as a family member, doesn’t mean it’s okay to have it disclosed. So reminding people on a pretty continuous basis that they need to protect company information, I think is very important. And it’s it does not sort of indicate if you’re distressful of people distressful for other people, by giving them those reminders, also to backing up their information, backing up their data on whatever devices they’re using is an issue is an issue, perhaps for IT, but certainly an important one, in my opinion, and providing people with the proper tools to do that. Next question that’s come up is, you know, can
Chris Santomassimo 27:55
Do you monitor your remote employees? As you as I’m sure folks know, company-issued laptops and iPads have a lot of capabilities to be managed from a remote location to turn on cameras to install, you know, keyboard tracking devices to know exactly what people are doing on a minute by minute basis, and whether they’re working or not, have also seen the software that my own kids have used as they’ve taken remote college exams, where their eye movements and their surroundings are tracked by the software to, I guess, to ensure that they’re not cheating on the exams, but a lot of capabilities. And employees are asking, well, I want to make sure that I’m getting the most out of these employees that I can Should I monitor my employees? The first question I asked is, why are you doing that? Are you concerned generally? Or do you have specific issues about a particular employee and whether they’re being productive or not? So the way I think is really, really important. If you even determine that you’ve got a legitimate reason to monitor employees, there’s a lot to be concerned about here. Number one is whether you’re going to advise employees that you’re doing it in my opinion, I would tell you that you shouldn’t be advising your employees and your policy should indicate whether you’re going to monitor your employee’s activities. So and this is nothing new, by the way, but I think the technology is such that there’s a lot more options on how to do it. It’s fine to impose time clocks and making sure that people are working and maybe there’s a way to see whether they’re active on their computers or not. I think it’s a very dangerous place as an employer to start activating people’s cameras and watching them especially when you consider where people are working in these remote environments. Because you may be capturing a lot of things that should be that legitimately should be private. And now we’ve learned the difference between or the distinction between the workplace and home. So I think activating cameras is difficult and dangerous. And not not really what I would tend to advise, I would also ask you to, you know, in terms of track tracking people’s keystrokes, I’m not sure that you’re, I’m not sure that you’re really gaining much from that. By doing it, again, maybe you’re tracking activity level making, you’re maybe you’re asking people to report in about when they’re working. But the takeaway here is that there’s a lot, there’s a lot of options out there, as to why make sure that people are advised about what you’re going to do that the policy is reflected and that they’re conscious about the fact that they’re going to be monitored in some way before you actually implement it. Another issue that maybe falls into this category, too, is the idea of recording meetings. Now the meeting, that you may hold on Zoom, or Teams or WebEx can easily be recorded and stored in the cloud. If you’re going to record meetings, first of all people or people are generally not conscious of the fact that the meeting is going to be taped unless you tell them, people, I don’t think that most of us come to the table thinking that every everything that we’re doing on a video conference is going to be taped. So I would advise you to let people know you’re going to get a tape before you do. So.
Chris Santomassimo 31:14
Next thing, it’s an unfortunate consequence of what we’re talking about here, but plant shutdowns could be part of your plan. Just want to talk a little bit about the terminology here of layoffs versus furloughs. So when you shut a plant down permanently, and you shut the complete facility down, everybody gets laid off unless they’re transferred to another location. So layoff is a permanent separation from the company. Furlough in your hand is not really a statutory term. But it’s really understood to be a layoff without pay, but temporary in nature, a general benefits are paid during the course of the furlough. Now, what is a furlough is often going to be defined by your benefits plan. So before you use the term in any of your communications, you should check your benefits plans to see whether there is a definition there. But that’s generally what it is. But a furlough becomes a layoff, generally after six months, so if you’re going to have somebody out on the bench for more than six months, they’re going to be considered laid off, certainly for the Warren Act, which we’ll talk about in a second. So whenever you decide to do a plant shutdown, or a layoff, or even a furlough, I would tell you that it’s a risky situation, because you want to make sure that you’re conducting it in a in an objective way without reference to any improper characterizations or categories of employees. So doing a disparate impact analysis, I think is really helpful for risk analysis, just to determine who’s impacted, why are the decisions made, and who is being included in the layout for the furlough or the plant shutdown? I think it’s really helpful to be able to sit down and sit down with your counsel, do that analysis and be able to explain all of your decisions later. And then in the course of that discussion, you may find that there’s a couple of cases where there’s some risk associated with it, you know, picking Person A versus Person B might have a risk associated because of Person A, maybe as a whistleblower, or raise some concerns about treatment in the workplace, or one of the many other things that create some risk in the employment context. The takeaway is sit down with your counsel and really do that analysis, especially in this very tense environment to be sure that you can justify your terminations and who you selected later, and be able to prove that your decisions were nondiscriminatory. If you’re, if you’re an employer that’s covered by the Warren Act, that’s a federal statute, by the way, that basically, that basically requires certain employers to provide at least 60 days notice of mass layoffs or shutdowns or plant shutdowns. So basically, it’s basically its employees. And basically, it’s larger employees who have at least 50 employees within a 75 mile radius of where the layoff occurs. And if you’re if you find yourself in that place, you’re going to have to give at least 60 days notice of of the layoff. Now, what we find too, is that employers that have had layoffs over time, they find themselves in a rolling reduction in force and trigger warn somewhere along the way. So it’s a little bit fact specific to facts specific for this webinar. But I want to alert people to the fact that if you’ve gone through a number of reductions of force over this last year, you may find yourself in a war-neck trigger situation. So make sure that you are reviewing that with your HR team and with your with your counsel. By the way, some states have what are called mini Warren laws, California, New Jersey being a couple of them. Those important those impose additional requirements on top of the federal statute, but what we’ve seen over the last year is that many of those mini Warren statutes have been suspended because of the pandemic because they wanted to alleviate the burden on employers to make quicker decisions about layoffs. So California was suspended New Jersey was suspended as well, I suspect that they’ll be reinstated at some point in the near future, as more and more people get back to work, but suspended for the moment, but just keep in mind that they may apply to your particular state.
Chris Santomassimo 35:18
The next thing is communications and documentation, which I think is super important for the obvious reason that people in your workforce that feel like they’re being fully informed and have their questions answered are going to be a little a lot happier about either continuing to work coming back to the workplace, where if they’re unfortunately subject to a layoff, or furlough, there’ll be a greater level of understanding there. But for the folks that are coming back, I would invite a dialogue with your employees to express any concerns that they might have about a return or work situation. Because I think what we can all agree on is that it’s not only a tense situation out there, for a lot of different reasons, but people are worried. I think there’s, in many cases, a lack of understanding about the science and the medicine, and what does it mean to be vaccinated and are things getting better. And all of these things, there’s people very fearful about the idea of returning to work. There’s also people that have gotten comfortable with it with their new environment. And you may find some reluctance to change, but invite the dialog so people can express their concerns. And you can evaluate those in a meaningful way. Documenting what you did, by the way, as I said before, is really, really important. But this dialogue may result in employees requesting accommodations, to continue working from home, or work in some other hybrid environment, even though you’re going to reopen your office. So have that dialog and to the extent that people either refuse to return to work, or they demand in a combination, what I would tell you to do is review that a combination and very, very much the same way you would invite a or end review, or request for a disability a combination, so put it through your disability analysis. In fact, that’s the that’s on our next slide, is if people return if they refuse to return to work because of an issue, whether it’s a generalized fear, fear, or an actual, physical condition, or maybe it’s something else, maybe it’s a, you know, a family member that needs additional assistance, to the extent that please refuse to return to work, I think you have to just go through that disability accommodation process, have an interactive process with the employee, apply the same rules that you would apply, if they claim to be disabled in some way, or needed a disability a combination. And quite frankly, I think you’re gonna end up with a much better outcome, because you’ll be able to not only address that particular concern head-on, but you’ll be able to show that you did that you made a decision in a very contemplated way. And you also invited the employee to get their treaters involved so that you can get doctor’s notes and another justification for the request. And you can also document and support why you denied certain requests as well. So I would still encourage you to be flexible where you can. But there’s going to be a number of requests for combinations that simply don’t work for you. And this is the way to handle them, process them and dismiss them in a in a thoughtful way. And this too, I think is if you don’t have a vendor that normally does your recombinations analysis, this might be the time when you get where you get your attorneys involved to help weigh in on whether a combination request is is legitimate or not, and whether it should be granted. So, after all of that, if you’ve decided that it’s time to return to work, here are some of the things I want to just highlight for you. Part of the complexity is that those state and local requirements apply, which I mentioned early on in the presentation. So we’re you know, reading the CDC website is not going to tell you everything that you need to know about the requirements that you’ve got. And even looking in some cases like in California, there are not only state requirements, but there are county requirements and city requirements. And then California is not the only state that’s doing that. So as an employer, you need to be really sure that you understand what the requirements are. I think, in large part, we’re going to cover what you need to be aware of and what you need to implement here. But I just want you to know that there. There are several layers. It’s not just a federal thing, and in some cases, not just the state thing. But in general what you’d be required to do as an employer is implement the CDCs and OSHA safety and hygiene practices. So as many of you know, already, OSHA’s PPE rolls, basically leave that decision to the employer to determine what kind of PPE is required in a given situation. So one size does not fit all. Now we’ve got this new CDC guidance around PPE because of COVID. So that’s going to overlay what you would normally do in two different to determine what kind of PPE your employees need. But again, It’s going to be the employer’s decision, but the employer needs to account for the CDC guidelines in this area.