As we have previously highlighted, many countries have introduced creative new approaches to address the economic realities of the COVID-19 pandemic.  As employees continue to work from home and employers reconsider whether employees must return to the workplace at all, some jurisdictions are implementing measures to accommodate the needs and interests of both employers and employees in the ever-changing and evolving employment environment.  Luxembourg is yet another example of a country that has sought to develop solutions with its neighboring nations to ease the economic burden of the COVID-19 pandemic on workers.

Cross-Border Tax Implications

At the beginning of the COVID-19 pandemic, the Luxembourg authorities worked with their counterparts in Belgium, France and Germany to develop measures to minimize the tax impact of the COVID-19 pandemic.  The four European governments recognized that telework would be required to accommodate many cross-border workers and determined that applicable tax convention requirements would need to be relaxed in the COVID-19 world.  These earlier tax conventions provided that cross-border workers may telework from their home country for up to a certain number of days (e.g., 19 days for German workers, 24 days for Belgian workers and 29 days for French workers who work remotely in their home country for the benefit of their Luxembourg employers) without the related remuneration being taxed in their home country.

The Luxembourg government agreed with its three neighbors that, because the COVID-19 pandemic is a case of force majeure, days that workers work remotely are not taken into account for the purposes of taxing remuneration in their home country.  Put differently, these new agreements avoid double taxation and prevent fiscal evasion with respect to taxes on income and capital.  Currently, the Luxembourg government’s agreements with the governments of Belgium, France and Germany either remain in force indefinitely or continue to be extended.

Cross-Border Social Security Implications

In addition to double taxation concerns, working from home in a neighboring country can affect workers’ social security standing.  To protect against this risk, Luxembourg entered into amicable agreements with Belgium, France and Germany regarding social security affiliation for cross-border workers who are teleworking.  Under the relevant agreements, days that workers telework due to the COVID-19 crisis are not taken into account when determining the social security legislation applicable to cross-border workers in these countries.  As such, teleworking will not influence workers’ social security standing in these four jurisdictions.  Luxembourg’s social security affiliation agreements with Belgium, Germany and France are in effect until December 31, 2020.

Epstein Becker & Green continues to monitor workforce management issues in the US and abroad.

On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released updates to its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws Technical Assistance Questions and Answers (“FAQs”), addressing questions largely focused on return-to-work questions and concerns such as permissible and impermissible inquiries, reasonable accommodation and confidentiality of employee health information.

Notable additions to the FAQs include clarification regarding the types of questions employers may ask as employees return to in-person work. For example, FAQ A.10 explains that while an employer may ask employees who are physically coming into the workplace whether they have had contact with anyone diagnosed with COVID-19 or who may have COVID-19 symptoms, they may not ask specifically whether employees have family members who have COVID-19 or symptoms associated with COVID-19. This distinction is made because the Genetic Information Nondiscrimination Act prohibits employers from asking employees medical questions about family members, but does not bar generalized questions about persons who may be present in the employee’s household. Moreover, the FAQ points out that from a public policy perspective, asking an employee only about their contact with family members would also unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

The updated FAQs also advise employers on managing requests to work remotely as a reasonable accommodation— specifically under circumstances where an employee with a disability renews a request for telework as a reasonable accommodation that had been made prior to the emergence of the COVID-19 pandemic, but had been denied due to productivity concerns. The EEOC recommends that in situations like these, “the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.” As with all accommodation requests, however, employers may still engage in an interactive process with employees in order to discuss whether the requested accommodation will effectively address the issue, and whether another form of accommodation might address the issue better.

Following is a list of the new and updated FAQs, with underlining showing the guidance we found to be the most significant.

A. Disability-Related Inquiries and Medical Exams

A.8.  May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)

Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

A.9.  May a manager ask only one employee—as opposed to asking all employees—questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken or undergo other screening or testing? (9/8/20; adapted from 3/27/20 Webinar Question 3)

If an employer wishes to ask only a particular employee to answer such questions, or to have her temperature taken or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. So, it is important for the employer to consider why it wishes to take these actions regarding this particular employee, such as a display of COVID-19 symptoms. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.

A.10.  May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 4)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

A.11.  What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 2)

Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

A.12.  During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)

Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

A.13.  May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

A.14.  When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled?(9/8/20; adapted from Pandemic Preparedness Question 8)

No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

B. Confidentiality of Medical Information

B.5.  Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?  (9/8/20; adapted from 3/27/20 Webinar Question 5)

The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

B.6.  An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker’s symptoms to a supervisor? (9/8/20; adapted from 3/27/20 Webinar Question 6)

No. ADA confidentiality does not prevent this employee from communicating to his supervisor about a coworker’s symptoms. In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a coworker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.

B.7.  An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? (9/8/20; adapted from 3/27/20 Webinar Question 7)

Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

B.8.  Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? (9/8/20; adapted from 3/27/20 Webinar Question 9)

The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.

Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

D. Reasonable Accommodation

D.8.  May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)

Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

D.14.  When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?  (9/8/20; adapted from 3/27/20 Webinar Question 20)

If such a request is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.

Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.

As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

D.15.  Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?  (9/8/20; adapted from 3/27/20 Webinar Question 21)

No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

D.16.  Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

D.17.  Might the pandemic result in excusable delays during the interactive process? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Yes. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

D.18.  Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance”—something beyond a Federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.

F. Furloughs and Layoffs

F.2.  What are additional EEO considerations in planning furloughs or layoffs? (9/8/20; adapted from 3/27/20 Webinar Question 13)

The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.

H. Age

H.2.  If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age? (9/8/20; adapted from 3/27/20 Webinar Question 12)

No. If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.

Part 5 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

By now, those who have been following this series know the basics. You’ve formulated (or are in the process of formulating) a “return to work” plan, which includes, among other things, implementing policies and guidelines consistent with CDC recommendations (wear masks), as well as other best practices that most of us learned, or should have learned, by the time we were potty-trained (wash your hands), if not by the time we were in elementary school (no touching).

But once businesses reopen their doors to employees, and in some cases, customers and clients, they will inevitably find themselves standing at the proverbial crossroads.

The challenge is that while the world adjusts to the “new normal,” of mandated and recommended health safeguarding measures to stop the spread of COVID-19, employers can’t throw the “old normal” out the window when it comes to navigating issues involving employee health and privacy rights. Employers have spent the past three decades acclimating to and developing policies to comply with the “old normal,” such as the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), the Family and Medical Leave Act of 1993 (FMLA), the Genetic Information Nondiscrimination Act (GINA), and other federal and state anti-discrimination and health privacy laws.

Enter COVID-19, a highly contagious and potentially fatal virus that disproportionately impacts persons, and particularly older adults, with preexisting conditions and weakened immune systems. For employees, the virus’ potential to rapidly spread through the workplace and into their homes has understandably incited heightened levels of health-related anxiety and fear about returning to the workplace. Meanwhile, businesses are navigating their own set of anxieties as they perceive the virus as presenting somewhat of a Sophie’s choice in the context of employee relations – i.e., a choice between, on the one hand, prioritizing employee safety by implementing policies that may be perceived to invade employees’ privacy rights, while on the other hand, holding sacred the privacy rights of their workforce to the potential detriment of the health of employees and their loved ones.

Fortunately, balancing employee health concerns and privacy rights is not a mutually exclusive exercise in the context of COVID-19, and the EEOC has published materials to help employees navigate these uncertain times.

In fact, the EEOC has explicitly advised that while the ADA, the Rehabilitation Act, Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and GINA continue to apply during the time of the COVID-19 pandemic, they do not interfere with or prevent employers from following the guidelines and suggestions of the CDC and state/local public health authorities about steps employers should take in responding to COVID-19.

Below is a non-exhaustive list of things employers can do to help ensure the safety of their employees and reminders of steps they can take to protect employee privacy and to mitigate exposure to potential litigation that may arise in this brave new world.

Disability-Related Inquiries and Medical Exams

Employers Can and Should Ask Employees If They’re Exhibiting Signs of COVID-19

During the pandemic, ADA-covered employers can and should ask employees who call in sick if they are experiencing symptoms of COVID-19 such as fever, chills, cough, shortness of breath, or sore throat). In determining the scope of permissible symptom-based inquiries, employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. For example, some may be surprised to learn about one of the less publicized symptoms of the virus, COVID toes.

Taking Employees’ Body Temperatures During COVID-19 Is Permissible

Generally, measuring an employee’s body temperature is considered a medical examination that brings with it significant restrictions and limitations on employers. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers (or office complexes) are permitted to measure employees’ body temperature, provided protocols for storing medical data, as discussed in below regarding “Confidentiality of Medical Information.”

Employers Can and Should Instruct Employees Showing Symptoms of COVID-19 to Stay Home, Require Employees Demonstrate Their Fitness To Return To Work, and Follow Applicable Health Guidelines

While some employees presenting symptoms of COVID-19 may feel pressured to work due to financial constraints and other considerations, the risks associated with allowing these employees to come to work or remain are hard to justify from a business or health perspective. As such, employers should inform their employees that they will be sent home if they exhibit symptoms of the virus. Moreover, employers should require employees to present a doctor’s note or other form of verification of fitness to return to the workplace before allowing employees, who have reported showing symptoms of the virus, to return to work. Employees may be entitled to leave (paid or otherwise) under applicable federal and state law which encourages those who are sick to stay home.

Similarly, employers may administer a COVID-19 test to employees before permitting them to enter the workplace, so long as the test is “job related and consistent with business necessity.” Thus, if a potentially infected employee would pose a direct threat to the health of others, under the ADA, an employer may require the employee to be tested. In contrast, since the CDC’s Interim Guidelines provide that antibody test results “should not be used to make decisions about returning persons to the workplace,” requiring that test would not be a permissible medical examination under the ADA.

Employers should nevertheless be mindful that a negative COVID-19 test result does not mean that the employee will not become contagious in the future. Thus, even with testing, it will remain important for employers to observe and enforce infection control practices (such as social distancing, regular handwashing) to prevent transmission of COVID-19, as discussed in the prior blogs in this series.

Confidentiality of Medical Information – Disclosing Potential Exposure

The ADA requires that medical information about an employee be stored separately from the employee’s personnel file to limit access to this confidential information. Therefore, any COVID-19 related medical information that employers obtain (either directly or through documentation furnished by an employee), should be stored in the existing location where employers maintain employee medical files. This would include an employee’s statement that they have the disease or suspects they have the disease, the employer’s notes or other documentation from questioning an employee about symptoms, and data collected during ADA-permissible medical examinations.

While the names of employees with COVID should generally not be disclosed to other employees (beyond those conducting contact tracing as may be required), employers may disclose the name of an employee to a public health agency when it learns that the employee has tested positive for COVID-19.

Further, an employer should notify employees who may have been exposed to the virus by one of their co-workers. Such notifications, however, should not disclose the name of their infected co-worker unless that individual has provided explicit consent to do so. Similarly, a staffing agency or contractor may disclose the name of an employee that has COVID-19 to the company where the employee has been assigned to work. This presents a unique challenge, since most employers cannot account for the physical whereabouts of every one of their employees throughout the course of the workday. Thus, to protect employee privacy while simultaneously preventing the spread of the virus, employers should provide co-workers with sufficient information will assist in determining their risk of exposure, such as, the floor, office, or team on which the COVID-19 positive employee works and the general time periods during which the individual may have been present in any given location, even if co-workers might be able to deduce the identity of the infected employee from the information.

Contact Tracing and Other Electronic Aids

Employers may also choose to invest in one of the many contract-tracing apps that have emerged in the market since the pandemic’s outbreak. Most of these apps use Bluetooth technology to detect when an employee comes within six feet of one of their coworkers.

The benefit of these apps is that they allow employers to identify members of their workforce who may have been exposed to the virus without the need for publicizing information that allows coworkers to speculate about which of their colleagues may have been infected with the virus. Additionally, these apps ensure that employers can quickly identify potentially exposed individuals and take appropriate precautions to prevent disruptions in their workforce.

Employers that elect to implement apps or other electronic aids to track employee movement, should, however, ensure that these e-tools can be turned off during non-working hours. Indeed, outside the context of professional sports with negotiated Collective Bargaining Agreements, most employers do not have the right to know whether Lou from accounting had a late night hankering for some chicken wings.

Hiring and Onboarding

An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. Similarly, employers may take an applicant’s temperature as part of a post-offer, pre-employment medical exam, and may delay or withdraw a job offer if a prospective employee tests positive for, or exhibits symptoms of COVID-19.

An employer may not, however, withdraw a job offer or postpone an employee’s start date simply because the employee faces a heightened risk if exposed to COVID-19 (e.g., persons 65 or older, pregnant women, or persons with preexisting medical conditions). If an employer wishes to address these risks, they may explore alternative work arrangements such as telework or allowing an employee to voluntarily postpone their start date.

 Minimizing Exposure: COVID Acknowledgment Forms vs. COVID Releases

While employers may be tempted to require employees to sign a release of all COVID-19 related claims upon returning to work, such a release is unlikely to stand up in court. Generally, workers cannot prospectively waive their rights against employers. Even if they could, worker’s compensation laws in most states prohibit employees from waiving claims arising from job-related illnesses and injuries.

A better approach is to require employees to sign an acknowledgment form upon returning to work acknowledging that: (1) the company is undertaking best efforts to protect its staff; (2) the company has implemented specific safety procedures and guidelines in response to COVID-19; and (3) she or he will abide by the company’s guidelines. Employers may also choose to include disclosures regarding the privacy issues addressed above, including how it will protect employee health-related information or data.

Of course, for the form to have any value for purposes of defending against future COVID-19 litigation, the guidelines should be tailored to the needs of the specific workplace and consistent with all applicable health guidelines. The guidelines must also be enforced. This means disciplining employees who fail to comply with the employer’s policies, escalating discipline for repeat wrong-doers, and if necessary, terminating any incorrigible offenders (sorry anti-maskers).

An acknowledgment form also brings with it a host of other benefits. In addition to helping to make workers feel safer and decreasing their anxiety surrounding the return to work, it sets clear expectations for both parties. It also provides an opportunity for employees with certain medical conditions to initiate a meeting to discuss reasonable accommodations that may be impacted by the company’s guidelines, or alternatively and employers to consider whether any existing accommodations need to be revisited.

Conclusion

While most employees appreciate their employer’s efforts to keep them safe as they resume working activities during the pandemic, the economic impact of the pandemic creates credible concerns that unscrupulous and opportunistic attorney’s from the plaintiff’s bar will seek to capitalize on employers’ well-intentioned but arguably non-compliant responses to COVID-19.

For this reason, the “stay safe” mantra of 2020, takes on a whole new meaning for employers welcoming employees back to work. Now more than ever, it is important to consult with legal counsel before implementing new policies implicating employee health and safety, and to maintain ongoing communications with your counsel (and keep up with our blog) to stay apprised of this constantly evolving legal landscape.

As has been true for so many issues arising from the COVID-19 pandemic, growing concerns about safely voting in the 2020 elections are beginning to permeate the workplace, prompting employers nationwide to create or revise policies to address employee apprehensions about voting amidst a pandemic. Time to Vote, a self-described “business-led, nonpartisan coalition that aims to increase voter participation in the U.S. elections,” founded by numerous major companies, reports that, as of August 27, 2020, more than 700 companies, representing about two million workers, have pledged to grant their employees unpaid or paid time off (“PTO”) to vote on Election Day and to promote initiatives such as early voting and vote-by-mail. In addition, some employers are also providing time off for employees to engage in election-related activities, such as serving as poll workers (in response to the anticipated shortage of such workers due to the pandemic).

Moreover, many states already have laws requiring employers to provide employees with paid or unpaid time off to vote. Accordingly, with the election less than two months away, employers may want to ensure that they have voting leave policies in place that are both legally compliant and responsive to employees’ pandemic-related voting concerns.

A Sampling of New Voting and Voter Engagement Leave Policies

Several major retailers and technology companies reportedly have made Election Day a paid holiday. Others, including two big U.S. apparel companies, reportedly are encouraging employees to vote by providing a designated number of PTO hours to vote on Election Day. One of those apparel companies is also offering employees PTO to train to be poll workers. Similarly, U.S. employees of a global clothing retailer who serve as poll workers will receive pay for eight hours, in addition to the compensation they may receive for such work under their local employment laws. Augmenting its PTO for Election Day, a large beverage corporation’s voting initiative includes supplying employees with state-by-state voting guides with voting procedures and deadlines, and creating volunteer opportunities to develop and distribute voter education resources.

State Voting Leave Laws

In deciding whether to create or revise a voting leave policy, an employer should first determine whether it has any legal obligations to provide employees paid or unpaid time off to vote or to allow them to engage in other election-related activities.

Overview of State Voting Leave Laws

Although Election Day remains off the National Holiday list, some states recognize Election Day as a state holiday (e.g., Illinois, Indiana, Maryland, Montana, and Virginia).

Nearly half the states have laws entitling employees to some amount of time off to vote. Some states specify the amount of time off that must be provided (e.g., two hours), while others refer to an unspecified “sufficient” or “reasonable” time. In some instances, the time-off requirement may be conditioned on the employee (i) having insufficient time either before or after work to vote while the polls are open, and/or (ii) providing the employer with notice of the need for the leave. Several states mandate paid time off for voting. Most voting leave laws prohibit employers from discriminating or retaliating against an employee who requests or takes time off to vote, and a few, including California and New York, require employers to post notices about employees’ rights and obligations with respect to voting leave. Finally, some states (e.g., Oklahoma) allow employers to require proof that the employee actually used his or her voting leave to vote.

Examples of State Voting Leave Laws

The following examples of state voting leave laws illustrate the various requirements employers may need to meet, depending on where they operate.

  • California: Employees who do not have sufficient time outside of their working hours to vote in a statewide election are entitled to enough time off during working hours to vote on Election Day, but need only be paid for two hours of voting leave. Employees must give their employer two days’ notice of their need for leave and must take leave at the beginning or end of their regular working shift, “whichever allows the most free time for voting and the least time off from the regular working shift,” unless the employer and employee agree to a different arrangement.
  • Illinois: Employees who give their employers at least one day’s notice of their need for voting leave must be allowed two paid hours off to vote, if the employees’ working hours begin less than two hours after the opening of the polls and end less than two hours before the closing of the polls. The employer may decide when an employee may take the time off.
  • Massachusetts: Employers must provide employees in certain industries (i.e., manufacturing, mechanical, and mercantile establishments) with unpaid time off during the first two hours that polls open, provided that the employee has requested the time off in advance.
  • New York: Employers must provide up to two hours paid voting leave to employees who do not have four consecutive hours between the opening of the polls and the beginning of their work shift, or between the end of their work shift and the polls closing. To be entitled to voting leave, an employee must request it at least two days in advance. The employer may dictate whether the time off will be at the beginning or end of the employee’s shift.
  • Texas: Employees who have fewer than two consecutive hours to vote outside of their normal working hours are entitled to take time off to vote. Although the law does not specify the amount of time that must be provided, state guidance recommends at least two hours.

Connecticut, New Jersey, Oregon, Pennsylvania, Virginia, and Washington are among the more than 20 states that do not require employers to provide voting leave, although New Jersey and Washington prohibit employers from influencing or intimidating employees to vote for or against a particular candidate and impose a criminal penalty for a violation of the law.

Additionally, some states require employers to allow an employee time off to serve as an election official on Election Day. For example, employers in Ohio, in addition to providing employees time off to vote, must also permit time off to serve as an election official.

State Procedural Voting Laws

Employers also should be familiar with their state’s procedural voting laws so that they can more effectively create or revise voting leave policies and develop informational resources for their employees. For instance, all states allow some form of absentee voting, although about one-third of the states require the voter to provide an excuse for doing so. According to the National Conference of State Legislatures, “[f]ive states currently conduct all elections entirely by mail: Colorado, Hawaii, Oregon, Utah, and Washington. Three states—California, Nebraska, and North Dakota allow counties to determine if an election will be held entirely by mail, with many but not all counties choosing to do so.” Employers do not need to provide time off for voting if an employee has voted by mail, and they may wish to include a requirement in their policies for employees to provide proof of having voted (e.g., a “selfie” at a polling location). Employers may also want to take into account providing leave for early, in-person voting, which is currently allowed in 40 states and the District of Columbia.

All employers, but particularly multistate employers, may wish to consult a single website, such as vote.org, that provides the specific voting rules for all 50 states, including recent changes to some absentee voting laws made in response to the COVID-19 pandemic. Multistate employers may determine that it is not possible or practical to create a one-size-fits-all voting leave policy because of the significant variations in voting laws from state to state. For this reason, multistate employers like, for instance, a well-known footwear company, are developing voting leave and other election-related policies “tailored to provide adequate time to vote based on each state’s voting laws and requirements. This may include PTO on Election Day, making Election Day a day without meetings or providing resources for mail-in ballots and early voting.”

Some Pandemic-Related Considerations

Whether an employer is creating its first voting leave policy or revising an existing one, it may wish to consider establishing some (hopefully) one-time rules addressing employees’ concerns about voting during the ongoing COVID-19 crisis, such as expanding Election Day leave to cover early, in-person voting, or granting additional time off for employees who volunteer to be poll workers. In addition, since many employers still have a workforce that is mostly or partially working remotely, they should craft their policies to take telework into consideration as well.

Following up on our recent post about a business interruption insurance decision by a Washington D.C. court, a federal judge in Missouri ruled last month, in Studio 417, Inc., et al. v. The Cincinnati Ins. Comp., No. 20-cv-03127-SRB, that businesses can sue their insurance carrier for business interruption losses caused by COVID-19.

Plaintiffs, owners of a hair salon and various restaurants (the “Insureds”) purchased an all risks policy from Cincinnati Insurance Company (the “Insurer”). As a result of losses sustained due to COVID-19, the Insureds sought business income, civil authority, ingress and egress, dependent property and sue and loss coverages under their policies. The policies did not include a virus exclusion. After the Insurer denied their claims for losses related to COVID-19, the Insureds brought a putative class action against the Insurer for breach of contract and declaratory judgment.

“Plain and Ordinary Meaning” of “Direct Physical Loss”

Unlike in Rose’s 1 LLC, the Insureds alleged, among other things, that COVID-19 “is a physical substance,” that it “live[s] on” and is “active on inert physical surfaces,” and is “emitted into the air.” (Order at 4.) Additionally, the Insureds alleged that the presence of COVID-19 “renders physical property in their vicinity unsafe and unusable” and that the Insureds “were forced to suspend or reduce business” at the covered premises. (Id.) They also alleged that the presence of COVID-19 and the closure orders caused a direct physical loss or direct physical damage to their premises “by denying use of and damaging the covered property, and by causing a necessary suspension of operations during a period of restoration.” (Id.)

The Insurer moved to dismiss arguing that the policies provide coverage “only for income losses tied to physical damage to property, not for economic loss caused by governmental or other efforts to protect the public from disease . . . the same direct physical loss requirement applies to all the coverages for which Plaintiffs sue.”

The policy did not define “direct physical loss” and the court, applying Missouri law, relied on the dictionary definitions of “direct,” “physical,” and “loss” to determine the “plain and ordinary meaning” of the phrase “direct physical loss.” (Order at 8.) The court determined that direct means, in part, “characterized by a close, logical, causal, or consequential relationship.” (Id.) It next found that physical means “having material existence perceptible especially through the senses and subject to the laws of nature;” and that loss is “the act of losing possession” and “deprivation.” (Id.) 

Relying on these definitions, the court ruled that the Insureds had provided sufficient allegations of the virus’ physical presence at the premises such that the property was unsafe and unusable and thus satisfied the requirement of direct physical loss. The court also relied on case law from the Eighth Circuit and other courts that held that a physical loss “may occur when the property is uninhabitable or unusable for its intended purpose.” See, e.g., Mehl v. Travelers Home & Marine Ins. Co., Case No. 16-CV-13250 CDP (E.D.Mo. May 2, 2018); Port Auth. Of New York and New Jersey v. Affiliated FM Ins. Co., 311 F.3d 226, 236 (3d Cir. 2002). (Order at 9-10.) Accordingly, the court denied the motion to dismiss and allowed the case to proceed to discovery.

The court also distinguished the cases relied upon by the Insurer, including the recent decision in Gavrilidies Mgmt. Co., LLC v. Michigan Ins. Co., Case No. 20-258-CD (Ingham County, Mich. July 1, 2020) because, among other reasons, those cases did not allege actual contamination of the premises. (Order at 10-13.)

Key Takeaway

We will have to wait to see if other courts will adopt this position and, if so, what facts sufficiently establish direct physical loss. But, at a minimum, this ruling establishes a road map for insureds to follow in their efforts to invoke coverage for COVID-19 loses. There are hundreds of cases involving business interruption coverage for COVID-19 losses still pending and continue to monitor this space for new developments.

As featured in #WorkforceWednesday:  Employers are reevaluating plans after Centers for Disease Control and Prevention (CDC) reversals, and the U.S. Department of Labor (DOL) offers clarification on wage and hour issues related to the pandemic.

Video: YouTubeVimeoMP4Instagram.

Part 4 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

We have said this before, but we will say it again: in the workplace, there should be no touching – ever. The COVID-19 pandemic just provides another reason to follow the advice we give in the anti-harassment context, that employees should maintain distance and not touch others.

No Touching, Ever – Not Even For Handshakes

In almost a long forgotten time, pre-COVID-19, it was a natural tendency for employees to use handshakes, handshakes-plus, and hugs as a way to build rapport and relationships in the workplace. We have previously advised that only handshakes were appropriate workplace interactions. Now, however, the COVID-19 pandemic has transformed these social and business norms moving forward, whereby, according to guidance from the CDC, employees should limit contact with others as much as possible. Additionally, the CDC recommends that employees should not touch their eyes, nose, and mouth with unwashed hands. Some individuals may be asymptomatic, but still be able to spread the virus, so it is important to avoid close contact with people who are at higher risk of getting sick. Even in California, for example, employees are encouraged to protect themselves at work by avoiding, where possible, direct physical contact, such as shaking hands, with others. Further, in New York, employers must reduce interpersonal contact and congregation, via methods such as shifting design, staggering arrivals and departures, and adjusting workplace hours.

COVID-19 has taught us that business can continue just fine without any touching whatsoever. Therefore, employees should embrace the wave (or the “wave” button on Zoom) or, at most, the elbow bump, but avoid any contact that does not allow both parties to maintain six feet of social distance.

Going Hands Free in the Workplace

Additionally, employees should avoid touching common surfaces and whenever possible, should utilize devices that allow employees to move throughout the workplace hands-free. Employees should be mindful of contact with shared equipment and common spaces. According to the CDC, current evidence suggests that COVID-19 may remain viable for hours to days on surfaces made from a variety of materials. Accordingly, CDC recommends cleaning and disinfecting high touch surfaces, including countertops, handles, desks, sinks, and toilets. Employers may consider providing disposable gloves, touchless door opening and screen touch tools, or utilizing touchless devices to all employees to increase workplace hygiene and safety.

Going contactless is a requirement for Los Angeles employers, where employers must, to the extent possible, make doors and trashcans contactless, and regularly disinfect, using EPA approved disinfectants, frequently touched objects, such as tables, doorknobs, phones, keyboards, and elevators..

When it comes to touching in the workplace, everyone should keep their hands to themselves and away from their face. Although COVID-19 has brought substantial changes to our workplaces, the “no touching” rule has been, and should continue to be, a fundamental one for all employees, ensuring that everyone feels safe and comfortable in all interactions. Although COVID-19 has caused unprecedented challenges, it also has the potential to positively affect the workplace by creating a cleaner workspace and halting inappropriate touching or, more broadly, reducing harassment complaints.

New York attorneys could soon have to complete cybersecurity training courses to satisfy their continuing legal education (“CLE”) requirement. The House of Delegates of the New York State Bar Association (“NYSBA”) has approved a report proposing that NYSBA’s Executive Committee recommend to the New York State Continuing Legal Education Board that the biennial CLE requirement be amended to require one credit on cybersecurity. The Committee on Technology and the Legal Profession (the “Committee”), which submitted the report, recognized the mounting cybersecurity risks faced by law firms and in-house legal departments entrusted with their clients’ most sensitive data. Legal employers electronically holding their employees’ and clients’ private information, such as social security numbers, tax information, and financial account information, already are required to implement reasonable safeguards to protect such information, including workforce training, under the New York State Stop Hacks and Improve Electronic Data Security (the “SHIELD”) Act. The vote to adopt the new training requirement could occur as soon as this month; and if it is adopted, the requirement will exemplify the move in New York State to protect the public against cybersecurity risks to sensitive data.

Cybersecurity threats for attorneys and law firms are real and growing. Citing an October 2019 New York Law Journal article entitled “Eight NY Law Firms Reported Data Breaches as Problems Multiply Nationwide,” the Committee noted in its report that “the number of law firm data breaches” in New York alone “doubled in 2018.” Even in 2014, the NYSBA Committee on Professional Ethics recognized in Opinion 1019 that attorneys could “no longer assume that their document systems are of no interest to cyber-crooks. That is particularly true where there is outside access to the internal system by third parties, including law firm employees working at other firm offices, at home or when traveling, or clients who have been given access to the firm’s document system.” With many employees working remotely during the COVID-19 pandemic, the number of external access points, which likely increased exponentially, is even greater today than it was just a year ago, further escalating the cyber risks that attorneys face and the need for training and other safeguards discussed here. The Committee’s recognition of the threats should come as no surprise; indeed, in 2018, 23% of attorneys responding to an ABA survey reported suffering a security breach at some point. In 2020, law firms have reportedly been the target of ubiquitous ransomware attacks impacting all organizations whose systems are open to the Internet.

In addition, the data security protections in the SHIELD Act are now effective and applicable to “any person or business,” including law firms and legal departments, that “owns or licenses computerized data” that includes a New York resident’s “private information.” These persons or businesses “shall develop, implement and maintain reasonable safeguards to protect” such information’s “security, confidentiality and integrity.” As we previously discussed here, such safeguards may include cybersecurity training for employees.

Moreover, the Committee observes in the report that “[m]andatory CLE was initially conceived, supported and implemented as a way to enhance both lawyer competence and public trust in the profession.” The legal profession and attorneys specifically are in a particularly unique position in relation to sensitive data. In addition to their or their employer’s own data, attorneys might have their clients’ data on their system(s) as well. Given that trust, New York attorneys need to “keep abreast of the benefits and risks associated with technology” that they “use[] to provide services to clients or to store or transmit confidential information,” according to Comment [8] to New York Rule of Professional Conduct 1.1. Also, under New York Rule of Professional Conduct 1.6(c), attorneys “shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or unauthorized access to, information” that certain enumerated rules protect. The duty of confidentiality found in New York Rule of Professional Conduct 1.6 requires attorneys to “take reasonable care to affirmatively protect a client’s confidential information.” NYSBA Comm. on Prof’l Ethics, Op. 842 (2010). Staying abreast of cybersecurity issues and threats will aid attorneys in meeting this duty.

Regardless of whether the CLE requirement is implemented, it is therefore a best practice, an ethical obligation, and/or a legal requirement under the SHIELD Act for attorneys in a law firm or in a legal department to take an active role in information security, which should include participating in available workforce training in cybersecurity. Such training should encompass, for example, discussions of phishing, vishing, and other social engineering methods and should be updated periodically to account for new, sophisticated, and constantly evolving modes of cyberattack.

Brian G. Cesaratto is a Certified Information Systems Security Professional (CISSP) and Certified Ethical Hacker (CEH). Shawndra G. Jones was a member of the New York State Bar Association’s (“NYSBA’s”) Committee on Technology and the Legal Profession when the Committee submitted the above-referenced report and is currently the Vice-Chair of the Committee. She is also a Co-Chair of NYSBA’s Committee on Continuing Legal Education and a Delegate to NYSBA’s House of Delegates.

Part 3 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

Whether physically in the office or not, regularly washing your hands should already be a routine practice. However, this innate rule is especially important, and recommended by the Center for Disease Control (“CDC”), to help prevent the spread of COVID-19 and to maintain safe, healthy and respectful workplaces.

Wash Your Hands…All the Time

Everyone should already be washing his or her hands – all the time. This is a cardinal hygiene rule that everyone learns in elementary school. Although this advice is not novel, it is critically important to encourage employees to make a concerted effort to thoroughly wash their hands. Specifically, the CDC recommends that all individuals should wash their hands with soap and water for at least 20 seconds (during which you can recite the ABCs, or hum the chorus of “No Scrubs” by TLC – but make sure to still scrub for 20 seconds) after sneezing, coughing, before and after work shifts, and after putting on, touching, or removing cloth face coverings.

In addition, the CDC also recommends using alcohol-based hand sanitizer that contains 60% alcohol, if soap and water are not available. In certain states, hand washing is not only recommended, it is required, as employees return to work. For example, New York City requires that employees wash their hands when interacting with delivery workers. Thus, to maintain a healthy work environment, employees should always wash their hands and employers should ensure that they provide employees and individuals entering the workplace with plenty of soap and hand sanitizer.

Employer Obligations Regarding Hand Hygiene

Handwashing is not only recommended by the CDC, but is also a requirement in order to reopen the workplace in certain states. Some examples of state and local hand hygiene requirements include:

  • In New York, Office-Based Work Guidelines require employers to provide and maintain hand hygiene stations in the office. Specifically, the guidance states that such stations must include: soap, running warm water, disposable paper towels, and a lined garbage can, and an alcohol based hand sanitizer containing 60% or more alcohol for areas where handwashing is not feasible.
  • In Los Angeles, employers must provide hand sanitizer that is effective against COVID-19 and soap and water to all employees. Los Angeles employers must also allow frequent breaks for employees to wash their hands. Further, with respect to members of the public who would have direct interactions with the workplace, employers are required to provide hand sanitizer, soap and water, tissues and trash cans at or near the entrance of the workplace, at reception, and anywhere else inside the workplace or immediately outside where people have direct interactions.

Hand Hygiene-Related ADA Considerations

Employers should also be mindful of the mental health effects of COVID-19, especially on individuals who may have pre-existing mental health conditions, such as obsessive compulsive disorder (“OCD”) or anxiety disorder. As many employees have fears surrounding COVID-19 and may be extra careful with hand-washing, individuals with OCD or other mental health issues may experience excessive fears about the virus, creating the need for increased or prolonged hand washing. In order to accommodate employees’ needs to feel comfortable and safe, employers should be mindful of the requirements under the Americans with Disabilities Act (“ADA”). Under Title I of the ADA, employers are prohibited from discriminating against individuals with disabilities and must provide a “reasonable accommodation.” Thus, employers may provide individuals with workplace flexibilities, such as increased breaks for hand washing or supplying additional sanitizers around the office, to accommodate the need for increased hand hygiene, as long as the accommodation does not result in disparate treatment. Ultimately, employers should ensure that they assess any accommodation request on an individual and case-by-case basis by engaging in an interactive process. An employer may ask employees questions to determine whether the condition is a disability and request documentation, but must maintain confidentiality and keep all medical documentation separate and apart from an employee’s personnel file. Employers may also discuss with the employee how the requested accommodation would enable the employee to keep working or explore alternative accommodations that would effectively meet the employee’s needs.

Overall, it is important to be understanding of all individuals who may be experiencing anxiety during this uncertain time. Reminding all employees to reach out if they need additional mental health support, creating proper hand hygiene stations, and providing all employees with office workplace plans can quell return to work fears. So, pick your favorite pop song and make sure to wash your hands, frequently and thoroughly – it is just one simple step that can have a huge impact.

Prompted by the many new telework or remote work arrangements that have arisen in response to COVID-19, on August 24, 2020, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5 (“Bulletin”) to provide guidance regarding employers’ obligation “to exercise reasonable diligence in tracking teleworking employees’ hours of work.” The guidance, which includes citations to the Fair Labor Standards Act (“FLSA”), the DOL’s interpretive regulations, and federal case law, does not break new ground; rather it offers reminders particularly applicable to teleworking and remote working employees and applies beyond COVID-19 telework arrangements.

The Bulletin reiterates the foundational requirement that employers must pay employees for all hours worked, “including work not requested but suffered or permitted, including work performed at home” and that they must exercise control to ensure that work is not performed that they do not wish to be performed.  In other words, when an employer knows or has reason to believe work is being performed, the time must be counted as hours worked – even if the employer did not expressly request it.

The Bulletin notes that for “telework and remote work employees, the employer has actual knowledge of the employees’ regularly scheduled hours; it may also have actual knowledge of hours worked through employee reports or other notifications.”  The guidance recognizes, however, that employers may lack – or even be unable to have – actual knowledge that a remote or teleworking employee performed unrequested work. In such instances, the compensability of the work performed turns on whether the employer had “constructive knowledge” that it was being done; that is, whether the employer could have learned of the work by exercising “reasonable diligence.”

The Bulletin reiterates that the burden is on the employer to ensure that “work is not performed if it does not want it to be performed,”  and reminds that a rule prohibiting employees from performing additional work without authorization (while important) is insufficient standing alone to establish “reasonable diligence.” The obligation to pay employees for performing unauthorized work, is not boundless, however. The employer must have “reason to believe the work is being performed,” which may exist where, for example, the employer provides “a reasonable reporting procedure for non-scheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer.” If an employee fails to use the employer’s reporting procedure (and provided the employee has not been prevented or discouraged from using it), “the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.” As an illustration of “impractical efforts,” the Bulletin offers “sorting through” various “non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours.”

The Bulletin concludes with the acknowledgement that “failure to compensate an employee for unreported hours that the employer did not know about, nor had reason to believe was being performed, does not violate the FLSA.”