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Summary of Answers at 8 on November 11, 2020

Legal Updates:

Governor Cooper announced Executive Order 176 yesterday. This executive order goes into effect on November 13th at 5 p.m. through December 4th. The order changes the gathering limits to:

  • 10 indoors (exemptions for gatherings for work; gatherings of family members who reside together; religious gatherings; weddings/funerals)
  • 50 outdoors

The exemptions that were in place with EO 169 are still in effect.  This means that business gatherings are exempt from the mass gathering limits and the previous gathering limits on gyms, restaurants, museums, movie theaters, arenas, personal care facilities, etc. are still in place. Note that this effectively prohibits indoor gatherings of extended family members for Thanksgiving if there are more than 10 individuals – again, the exemption is only for family members that reside together.

Governor Cooper also spoke this week and reminded us, employers included, to continue to be vigilant and to be aware of the rising number of cases in NC. He reviewed steps to take during the holidays to prevent the spread of COVID-19:

  • Do not attend or host a gathering if you feel sick or have been diagnosed with or exposed to COVID-19.
  • Limit gatherings to 10 people indoors and 50 people outdoors. Smaller gatherings pose less risk than larger gatherings and meeting outdoors is safer than meeting indoors. If you have tables, have each group of people who live together sit at their own table and keep tables at least 6 feet apart from one another. This is especially important as people will need to remove masks when eating or drinking. Clean and disinfect commonly touched surfaces such as door handles or sink faucets. 
  • Consider getting a COVID-19 test prior to travel or attending family gatherings. However, remember that screening tests (particularly rapid tests) can miss some infections. Also, a negative test only gives you information for that point in time.
  • Of course, we are all encouraged to limit our gatherings as we approach the holiday season.

Politics in The Workplace:

Now that we have a new president-elect, employers need to remember that emotions and passions may be running high. Employers can and should expect civility and respect in the workplace and should remind employees of these expectations.

It’s not realistic to expect that political conversations are not going to happen, so the key is for managers to keep their eyes and ears on the ground, model the behaviors they want to see in terms of civility and respect, and immediately address any concerns that arise.

COVID-19 In the Workplace FAQs:

Reminders:

  • If an employee becomes sick with COVID-19, they need to quarantine for 10 days measured forward from the date of first symptom OR date of test. The last 24 hours must be fever-free without use of fever-reducing medication, and there must be improved symptoms. 
  • If an employee has had exposure to a positive COVID-19 case or someone that is presumed positive, they need to quarantine for 14 days from the last date of contact (this is the incubation period). 

Q:  An employer has an employee that lives with 7 others and they are all sick with COVID-19-like symptoms. The employee (also with symptoms) tests negative. Can the employee come back to work because it is assumed that the others in the house who are sick (with the same symptoms) are no longer positive?

A:  This is a very tricky situation.  Although we know the employee has tested negative for COVID-19, we do not have confirmation that the other members of the household do not have COVID-19.  Because they have COVID-19 symptoms, they are considered “presumed positive.”  Remember, it is possible for someone to have another illness, such as the flu, and COVID-19.  So, potentially, one or more of these other individuals could have COVID-19 in addition to some other illness. As a result, the cautious approach is to keep the employee out of the workplace for 14 days.

Q:  If an employee has given notice of resignation but contracts COVID-19 before their last day, does the employer have to pay them under FFCRA? Can they change their resignation date?

A:  Yes, the employer would need to pay the time for the employee up to 80 hours (the time required under FFCRA) but only for the time the employee is an active employee and only if they have not already exhausted their time under FFCRA. As the employer, you would not have to accept a change in the resignation date.

Q:  What if an employee has already had a confirmed case of COVID-19 and is exposed again?  Do they need to quarantine?

A:  The CDC has provided the following guidance around this: Anyone who has had close contact with someone with COVID-19 and who meets the following criteria does NOT need to stay home:

  • Has had COVID-19 illness within the previous 3 months and
  • Has recovered and
  • Remains without COVID-19 symptoms (for example, cough, shortness of breath)
  • Note:  If the employee had COVID-19 more than 3 months ago, they would need to quarantine again for 14 days.

Workplace Holiday Celebrations:

It is no secret that COVID-19 cases are spiking. With the holidays right around the corner, employers need to consider that the traditional holiday gatherings may not be the best choice this year.

Assuming you have a budget for celebrations, you may consider a higher-end gift for each employee.  This could actually wind up costing less than a party! Electronics are always welcome by employees, such as Apple ear buds, tablets, or even TVs, and you can never go wrong with gift cards. You might want to consider supporting smaller businesses this year, many of which are hurting economically. If you do, don’t forget the taxability of these gifts!

Another idea is to throw a virtual party. You could even send each employee a party box with a meal preparation kit, a bottle of wine, and even party decorations. Then set a time for everyone to get together “virtually” to share their creations; consider making a contest out of it! 

Time off (other than already scheduled holiday time on your corporate calendar) may be another option. Employees love time off!

This is NOT a year to NOT celebrate, but it will take some creative thinking to come up with some new ways to do so! Feel free to share ideas with one another (CAI members only) via our online community.

DOL FLSA LETTER OPINIONS

Travel Time – General Info:  

Time spent traveling during normal work hours is considered compensable; so, for example, if your employee travels from one job site to another during their normal work hours, you are responsible for paying.

Time spent traveling from home to work, even if in a company vehicle, is generally not considered compensable. However, this applies only if the travel is to the employee’s usual workplace; if they must travel outside their normal commuting area, other rules apply.

The recent Opinion Letter examined travel time of non-exempt foremen and laborers who work at job sites in various locations. The foreman travels to the company’s HQ at the beginning of a job or workday to retrieve the company truck; drives the truck to a job site, where the truck transports tools and materials; and returns the truck to the company’s HQ at the end of the job or workday. Laborers have the choice of driving directly to the job site at the beginning of the day or driving to the Company’s HQ and riding to the job site with the foreman.

The DOL went over a few scenarios, but it basically emphasized that:

  • If an employer requires that employees report to the office first (a central location) and then go to job sites, then the time spent traveling to those job sites is compensable.  This is true whether the travel is local or outside the normal employer’s area. The time the employee spent traveling from home to the office is not compensable.  
  • If an employee chooses to travel on their own to the job site, the time may (or may not) be compensable. The key is determining if the activity is “integral and indispensable to the principal activity the employee is to perform.”

Voluntary Training Time

The recent DOL Opinion Letter around volunteer time focuses on whether the FLSA requires employers to pay employees who attend ongoing continuing education (CE) classes during normal work hours. It considers 6 common scenarios in which employees attended CE seminars either virtually or in person. The opinion reaffirmed the fact that training is compensable unless all of the following are met:

  • The training occurs outside of the employee’s regular working hours; AND
  • The training is voluntary; AND
  • The course, lecture or meeting is not directly related to the employee’s job AND
  • The employee does not perform any productive work while attending.

In addition to this general rule, there are “special situations” where training time may be excluded from an employee’s work time even though it relates to the employee’s job.  The Opinion Letter really gets into the details on this topic and still leaves many questions unanswered. However, the upshot was that an employer may reimburse an employee for attending CE classes that help the employee do their job better without having to pay the employee for time spent in the training. However, the four factors listed above must still be met, and the training must be offered by an independent bona fide institution of learning.  However, please remember that wage payment issues are very fact-specific. 

I-9 Review

The remote process for completing the form I-9 is set to expire on November 19th. While this has been extended several times, we have not heard of another extension at this point. We encourage employers to get ready to complete any I-9s that they processed remotely.  To do this you need to:

  • Verify original documents within 3 days of the expiration date of the order (November 19th)
  • Complete the I-9 form by writing “documents physically examined” in the additional information box.
  • Make a note of the date and include the name of the viewer in this same box.

Read the FAQ that discusses more specifics.

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