Check all the boxes before welcoming employees back to work

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As regions of the U.S. continue to adjust their stay-at-home or similar orders, businesses of all sizes are weighing their options for recalling employees to the workplace, questioning when and how to reopen their doors safely.

As with seemingly every aspect of the coronavirus pandemic, the laws and regulations related to reopening are complex and ever-changing as federal, state and local government authorities continue to monitor the rate of virus spread as well as develop and implement safety measures.

With this in mind, firms of all sizes should be prepared to respond appropriately and help their clients do the same. There are several factors to consider and boxes to check, especially as it relates to the health and safety of the workforce.

Identify and be prepared to address applicable federal, state and local paid leave laws.

Provisions under the Families First Coronavirus Response Act (FFCRA) require certain employers (generally those with fewer than 500 employees) to provide their employees with emergency paid sick leave (EPSL) and/or expanded family and medical leave (EFML) for leave taken for specific reasons related to COVID-19.

While FFCRA has eligibility requirements that employees must meet in order to qualify for EFML, it allows employees who were laid off after March 1, 2020, but subsequently rehired before Dec. 31, 2020 to be eligible for EFML under one of the qualifying reasons immediately upon rehire if they were on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off.

States and municipalities have also enacted laws around paid and unpaid leave. For example, New York State has passed legislation that provides paid leave to employees for specific COVID-19 reasons, including being subject to a mandatory or precautionary order of quarantine or isolation issued by a covered government agency and unable to work from home.

Review the status of health plans, paid time off, cafeteria plans, and other fringe benefit plans, such as vision and dental.

Employers should consider reviewing all agreements, benefit plans and policies to determine if any modifications are warranted regarding eligibility and employee cost-sharing. For example, a break in service of 30 days or less within the same calendar year may result in the reinstatement of the employee’s flexible spending account (FSA). Contributions may be recalculated to deduct the full amount by the year’s end. If there is a break in service of more than 30 days, or if the employee is rehired in a new calendar year, new FSA elections may be required. As another example, if any returning employees remained on an employer-sponsored insurance plan under COBRA continuation coverage during their break in employment, employers should work with their carrier to determine when these employees are eligible for active coverage.

One important consideration for paid time off (PTO) accrual is whether employees remain on the company’s payroll during a temporary layoff or furlough. It is important to honor what’s outlined in existing written leave and leave accrual policies, and the employer’s obligations under any written employment agreements and/or collective bargaining agreement, if employees are unionized. Even if employees have no accrued leave left under an employer policy, they still may be eligible for mandated paid leave under the Emergency Paid Sick Leave Act (EPSLA), Emergency Family and Medical Leave Act (EFMLA), state-mandated COVID-19 paid sick leave and local paid sick leave laws, or unpaid leave as a reasonable accommodation for a qualified employee with a disability as defined under the Americans with Disabilities Act (ADA).

Employers should also consider potential special enrollment rights and qualified life event election changes (typically 30-day periods). To evaluate plan eligibility changes, employers will need to consult with their health insurance carriers to understand if plan changes can be made at this time.

Ensure “new hire” employee documents (i.e. employee handbook, arbitration agreement, Form I-9, etc.) are updated and properly executed.

When it comes to the Form I-9, if employees were furloughed, updating their Form I-9 is generally not required, as long as their authorization to work has not expired. If employees were terminated, and then rehired within three years of the date their previous Form I-9 was completed, employers may either complete a new Form I-9 or complete Section 3 of the Form I-9 to indicate the rehire. Please note: If an employer chooses to complete Section 3 of Form I-9 for rehires, the employer must use the current version of the form dated 10/21/2019, even if the employee completed an older version of the form originally.

Even if they’d previously worked at the organization for years, bringing employees back to work post-COVID-19 marks a good opportunity to ensure all their documentation is up to date and in compliance with the latest federal, state and local laws and regulations. Upon returning, it is beneficial to provide employees with an updated employee handbook and ask them to review and acknowledge receipt, as well as ask them to update their emergency contact information, if necessary. Employers may also consider providing returning employees with a new Form W-4 in case they want to make changes to their tax withholdings upon their return to work.

Understand how to approach employees who aren’t yet ready to return to work.

A wide range of sensitive personal matters could leave employees wondering how and when they will be able to go back to work, and businesses should be prepared to respond appropriately. Employees with health conditions may be eligible for either a reasonable accommodation under the ADA, or a leave under the FFCRA or applicable state and local laws. Similarly, under the FFCRA, EPSL and EFML leave may be available to eligible employees who cannot work because they must care for their child due to COVID-19 school or childcare closings including summer camps and programs.

If employees are raising reasonable COVID-19 safety concerns, their complaints or even their refusal to work may be protected under OSHA or the National Labor Relations Act, even if their workplace is not unionized. Therefore, it’s always best to have a conversation to understand the reason behind why your employees are reluctant to return. Employers are also reminded to be objective and consistent in their approach when dealing with employees’ concerns.

Accounting firms and their clients are in the same boat.

There are many additional considerations as employers prepare to return employees to work, including applicable wage and hour laws, especially if employees will return to different work schedules, pay or classification under state and federal laws. Every business around the U.S. is navigating these challenges at some level. As firms work to ensure their compliance with new and evolving laws and for employees to feel safe and secure in returning to work, their clients may be calling with some of the same questions regarding the “new normal” in the workplace. Firms should ensure their staff is equipped to help clients understand the regulatory implications of getting back to work and support businesses as they reopen as safely and effectively as possible.

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