Clients who have worked with me over the years know one of my top employer mantras is “Document, Document, Document.” Routine, contemporaneous documentation of attendance, performance, discipline, training/cross-training, and qualifications gives a more complete and more unfiltered picture of an employee than a bare-bones personnel file and the “institutional memory” of one or more managers. Then, when the time comes (and it always does) for hard decisions such as reduction in hours, layoffs, and reductions in force, an employer has a record to fall back on to make and defend those tough decisions. So that time has come, and even if you haven’t documented as much as you should have in the past, here are three areas to focus your documentation efforts in the short term:
(1) FFCRA Paid Leaves. The Families First Coronavirus Response Act (FFCRA) with its Paid Sick Leave (PSL) and paid emergency FMLA leave (EFMLA) components, mandates limited paid leave for specific COVID-19 related causes. FFCRA became effective April 1, 2020 and will remain in effect through December 31, 2020, and employers will become eligible for certain refundable employment tax credits for amounts paid to employees. While many employers had already paused operations and laid off employees before FFCRA came into effect, all eligible employers will be dealing with this as they bring employees back online and until the COVID-19 outbreak is eliminated. The minimum written documentation indicated by the Department of Labor (DOL) and the Internal Revenue Service (IRS) that the employee must provide to their employer to access this leave and for the employer to claim the applicable employment tax credit is:
- Dates for which leave are requested
- Reason for leave
- Statement that they are unable to work including by means of telework because of the reason given.
Further, if the employee is requesting leave because they are subject to a quarantine or isolation order due to their own illness or suspected illness, or to care for an individual subject to such an order, the employee should provide the name of the government entity that issued the order. If the employee is requesting leave to self-quarantine based on the advice of a healthcare provider or to care for an individual who is self-quarantining based on such advice, the employee should give the name of the healthcare provider who gave the advice. In either instance, if the person is not the employee, then the employee must give the person’s name and relationship to employee.
If the leave is requested to care for a child whose school or place of care is closed, or whose child care provider is unavailable, then the employee must provide:
- Name and age of child
- Name of the school, place of care, or child care provider that has closed or become unavailable
- A statement that the person will be unable to work including by means of telework, and that no other suitable person is available to care for the child during the time of the leave
- With respect to an employee’s inability to work or telework because of a need to provide care for a child 14 years of age or older during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
Remember that any information related to the employee’s own illness, suspected illness, quarantine or self-isolation for illness or suspected illness must be segregated from the employee’s general employment file with access to that information restricted.
(2) Requests for Accommodations. The Americans with Disabilities Act (ADA) imposes a duty on employers to provide “reasonable” accommodations to allow employees with disabilities to perform the essential functions of their jobs. As of this writing, it appears that the effects of COVID-19 on most individuals are temporary and will not qualify as a covered “disability” under the Act that requires an accommodation. Nevertheless, every request for an accommodation based on a claimed disability should be documented, along with the employer’s assessment as to whether any accommodation is warranted. Special attention should be given to situations where an employee already has a qualifying condition that might be affected by COVID-19 or make them more susceptible to complications, and careful documentation of the interactive process between you and your employee on granting or denying an accommodation should be kept. Remember that accommodations based on exposure or potential exposure to COVID-19 may not need to be permanent, so your record of how and why any accommodation was granted may come into play when you want to discontinue the accommodation on the basis that the COVID-19 threat has passed.
(3) Recall to Work. If you laid employees off due to COVID-19, and an employee refuses to return to work when you recall them, you should make a record that you have asked the employee to return to work and any reason that they may give for refusing to return. Be prepared to discuss the measures you are taking to provide for the employee’s safety. If the employee indicates a potential need for an accommodation to return to work based on an existing disability, document and proceed with the usual interactive process. The employee may also be currently ill, under quarantine or isolation, caring for a child whose school or caregiving place is closed, or could be caring for a person with COVID-19. A mere fear of returning to work during this time is ordinarily not enough to justify refusal to return to work, but if the employee refuses based on some specific health or safety claim, you should document and potentially investigate. However, some employees may simply find that they stand to receive more in enhanced unemployment compensation (through July 31) than they do working and try to refuse call back as a result. If an employee refuses a recall, an employer must notify the state unemployment agency of the offer of work made to that individual. It is then up to the state unemployment agency to allow or disallow the employee’s continuing claims for unemployment compensation. Ultimately, continuation or discontinuation of unemployment benefits is up to the state unemployment agency on a case-by-case basis.
Your documentation does not need to be fancy—the most important thing is that it is done, completely and contemporaneously. Indicate the person who is making the documentation. Put a date on it. Appropriately segregate it if it involves employee health or disability information. Do you have questions with respect to documentation of the employment relationship? Contact the employment attorneys at Drewry Simmons Vornehm LLP.
If you have questions about labor and employment issues, contact your DSV attorney or Melanie M. Dunajeski at email@example.com.
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***