Employment Law Q&A with Ogletree Deakins Employment Attorney, Cynthia Bremer

COVID-19 has dramatically shifted the workplace. The new normal is remote/telework and a schedule of zoom meets or Microsoft team events, but impacts go beyond the makeshift kitchen table workspaces and encroach onto company policy and employment law. Our GNDC team was inundated with questions as organizations began to shift through and live in this changing landscape. After a successful webinar with the US Chamber, we determined that it may serve ND businesses well to provide an opportunity to visit with an employment attorney who can help navigate these waters and help organizations minimize potential risks related to workplaces that have changed due to COVID-19.

Cynthia Bremer and Michael Eckard, Employment Attorneys at Ogletree Deakins have created a two-part agenda to discuss key issues and emerging trends with the coronavirus pandemic that employers should know about. These interactive webinars will provide participants with knowledge to implement immediately and the ability to ask questions in realtime during the presentation. Both at 10:00 AM, Part 1 will be on April 14, Part 2 will be on April 21.

Registrations are currently open for Part 1 and Part 2. The focus of Part 2 will be FFCRA and CARES Act.

GNDC visited with Cynthia Bremer, Office Managing Shareholder in Minneapolis, to discuss the agenda for PART ONE. 

GNDC: What are the key employment issues that business leaders need to be aware of and have strategies in place?

1. Changing Face of Employment Law in the Age of COVID-19
The more things change, the more they stay the same.  While there are certainly many new legal requirements on the state and federal level, including the FFCRA, CARES Act, and others, it is important to remember that existing state and federal employment laws still apply in this age of the coronavirus pandemic.  For example, employers are still required to engage in an interactive process to assess reasonable accommodation requests under the Americans with Disabilities Act, still required to administer intermittent and regular leave requests under the Family and Medical Leave Act, and still required to engage in sound and justifiable decisionmaking when determining whether or not to terminate someone’s employment or risk being named in a charge of discrimination or lawsuit.  Employees continue to file charges of discrimination with state and federal agencies and continue to file complaints in state and federal courts. 

2. Safety Precautions and Responses in the Workplace
While historically employers were discouraged (and, in some instances, banned) from performing any medical inquiries or examinations related to current employees, the law now offers more flexibility to employers.  For example, temperature checks are now allowed if handled appropriately.  Employers are also allowed to ask more direct and probing questions regarding employee symptoms, travel, and possible COVID19 exposure.  In addition to medical and travel inquiries, employers should also engage in appropriate safety precautions in the workplace.  These include encouraging remote work when possible and, when impossible to do so, creating safe working environments for employees.  Additional safety precautions should be considered, including required social distancing, additional environmental cleaning, and other changes to workflow and process (e.g., change in break times, shift change overlap, physical barriers, etc.).

3. Positives or Presumptive Positives
If an employee reports that he or she has received a positive test result for the coronavirus or is a presumptive positive based on symptoms and other support, it is important for employers to act promptly in supporting the employee, removing them from the workplace, and engaging in other steps to ensure the work area is cleaned and co-workers are advised of potential exposure.  Employers should be careful to not provide too much information, however, so as to disclose the person’s name or identity. 

4. Remote Work Assignments
Many state and federal government officials are encouraging Americans to work from home whenever possible, even for those types of business that are considered “essential” under the law.  Remote work assignments can result in many employment law challenges, including wage and hour concerns, workers compensation liability, and data security and privacy issues.  It is also often challenging to promote a healthy work environment when employees are not seeing each other face-to-face. 

5. Furloughs, Reduced Schedules, and Other Cost-Saving Measures
Unfortunately, not all employers are able to retain all of their employees due to financial pressures caused by COVID-19.  There are a number of cost-saving measures that employers can consider in determining the best way to reduce cost while still maintaining an appropriate staffing level.  These can include furloughs, reduced schedules, pay cuts, reductions-in-force, or other cost-saving measures.  Each carries its own unique legal and business risks, which should be weighed when deciding which option or options an employer selects.    

Top Questions From Employers
Employers are naturally concerned about their employees and about their ability to continue to survive (and potentially even thrive) in this new “normal” in which we are working.  Employers are asking important questions in their efforts to survive/thrive, including: (1) what temporary or permanent policy changes should they be implementing including as it relates to remote work assignments, leaves, and PTO; (2) what “new” employment laws should they know about and how do they stay on top of all of the legal developments; and (3) how can they continue to engage with their employees and encourage them to do their best work to support themselves and the health of the company.

These topics all will be covered in Part 1 of the agenda on April 14 at 10:00 - register to receive call information. Part 2 will dive deeper in the FFCRA, Families FIrst Coronavirus Cares Act.