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Resurgent Virus Forces Businesses to Revisit Telework, Wage Laws

Nov. 25, 2020, 3:16 PM

The imposition of tough state and municipal business restrictions and work-from-home orders prompted by the resurgent coronavirus pandemic will keep employers on their toes navigating legal concerns through the holidays.

Pennsylvania became the latest to issue stricter virus response measures when Gov. Tom Wolf (D) on Monday announced new restrictions that included language requiring workers statewide to telework unless it’s impossible for their job.

Like similar moves by governors in California, Minnesota, and elsewhere, Pennsylvania’s order comes as daily coronavirus case numbers and deaths reach record highs in many states and health officials warn the problem could get worse in December if people don’t heed the advice to avoid large holiday gatherings.

“As our hospitals and health care system are facing greater strain, we need to redouble our efforts to keep people safe,” Wolf said in a press release announcing the heightened restrictions.

The new restrictions dampen any hopes employers might have had of returning to more normal in-office operations, leaving businesses to work through tricky legal considerations including wage-and-hour issues and disability accommodations. The practical consequences are more severe for businesses that can’t operate remotely, such as restaurants, bars, movie theaters, and gyms.

Time Tracking, Compensation

The Pennsylvania telework order is similar to a previous policy but comes with slightly tweaked language and guidance that indicates stronger enforcement by the state, said Jenn Betts, a labor and employment attorney at Ogletree Deakins in Pittsburgh.

“It appears that they’re taking a more aggressive position about teleworking,” she said.

Perhaps the biggest compliance issues for employers relate to tracking teleworking employees’ time if they aren’t exempt from state or federal wage-and-hour laws.

“It’s a lot more difficult to monitor that when someone is working from home,” particularly if they also are helping children with remote-schooling during the workday, said Todd Scherwin, attorney and regional managing partner for the Los Angeles office of Fisher Phillips.

Monitoring or limiting exposure to overtime pay, making sure employees are working during their on-the-clock hours, and avoiding off-the-clock work that could lead to future lawsuits are all equally legitimate concerns for employers with large numbers of teleworking staff, he said.

The U.S. Department of Labor offered employers guidance in September about the extent of their duties to know about and pay for unscheduled work hours.

Employers’ attempts at monitoring remote workers’ productivity also can create legal concerns related to privacy, Betts said. “I’ve been consulting with clients a lot about that over the last 10 months,” she said.

Minnesota, Illinois, New York

Wolf’s order, which will take effect Friday, requires businesses that can’t operate remotely to follow detailed protocols for cleaning and sanitation, ensuring employees wear masks, checking employees for fever, contact tracing, and quarantining employees who get sick during the workday. The state also announced new restrictions this week on large gatherings, alcohol sales, and K-12 school operations.

The Pennsylvania order mirrors a work-from-home order Minnesota Gov. Tim Walz (D) imposed last week and a similar recommendation from Illinois Gov. J.B. Pritzker (D). Michigan and Washington state also recently renewed and expanded restrictions on business operations and large gatherings.

New York Gov. Andrew Cuomo (D) has recently shifted specific communities, including parts of Staten Island, into an orange zone, a step away from the red zone that would require a community’s nonessential businesses to close.

“Without question, these restrictions are significant and difficult, but this is not the ‘Stay-at-Home’ Order that Minnesotans saw in March and April,” Walz said in the preamble to his Nov. 18 order, which also banned in-person restaurant dining, and closed gyms, entertainment venues, and amusement parks. State officials “have learned important lessons during this pandemic and must take thoughtful action when we can to prevent the worst projected outcomes,” the governor said.

In California, where most counties have moved into the state’s strictest tier for virus-related restrictions, “a fair amount” of office-based employers had begun bringing some employees back into the office on a limited basis, Scherwin said.

Many employers relied on “stop-gap measures” to manage what they thought would be a short-lived telework arrangement earlier this year, he said.

“We were hoping we wouldn’t have to get too permanent in work-from-home policies,” Scherwin said. “This latest wave has made it clear it’s important to put policies and procedures into place” for the long term.

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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