As lawyers and law firms work to adapt to the new reality created by the COVID-19 national emergency, questions are emerging in a number of practice areas. ICLE is talking with contributors to get you the most current information and help you navigate these unprecedented challenges. Tiffany Buckley-Norwood, of Jackson Lewis, recently answered some of the most pressing questions for employment lawyers.
How is COVID-19 impacting your practice right now? How is your office handling meetings?
As a part of my practice, I have always been fairly mobile, so working away from my office and at home is not new to me. The K-12 schools being closed for three weeks does add a new twist, however. The good news is that a lot of clients are in the same boat and are not surprised if, all of a sudden, they hear a child’s voice on the other side of a closed door or somewhere in the background.
The biggest impact right now is on scheduling depositions and litigation tasks that require in-person meetings, such as witness interviews. In my experience, counsel on both sides are in communication to adjourn discovery deadlines so that depositions can occur later and most courts and arbitrators are agreeable to an adjournment for this reason.
Jackson Lewis has implemented a number of initiatives to ensure that there is always an attorney available to answer client questions. We are still able to communicate both within the firm and with clients. Employees (including paralegals and legal staff) are able to work remotely if the need arises. Thankfully, because we are a national law firm, we had a number of resources in place to communicate virtually and work remotely, but we have also stepped up those efforts to sustain an increase in the bandwidth for remote workers.
Which clients are contacting you the most?
Food service and health care clients tend to have the most legal exposure questions, while my small business clients have more logistical questions.
What are some of the most important work-from-home policy considerations?
- Timekeeping for nonexempt employees is important, as nonexempt employees working from home must be paid for hours worked and maintaining records of their hours is mandatory.
- Privacy for employers with sensitive trade secrets, HIPAA/patient-privacy requirements, and other employers with highly confidential information that is accessible to employees working from home.
- Navigating Michigan’s Paid Medical Leave Act (PMLA) in light of the fact that some employers are requiring employees to take time off and use PTO to do so.
What are you advising clients whose businesses have mandatory closures under Governor Whitmer’s Executive Order?
We are telling clients to review their telecommuting policies. Employers should make it clear that employees are expected to maintain the safe conditions and confidentiality practices at home that they would on company premises, if not more so. The telecommuting policy should also state that the company assumes no responsibility for injuries to third parties who may be present at the employee’s home office.
Employers should determine what expenses the company will reimburse in this situation. Some states actually have requirements around what must be reimbursed, and there could be tax implications related to the reimbursement. Consider adding some flexibility to telecommuting policies and work hours, given that all K-12 schools are also closed through April 5. Children will be at home with their working parents, which may impact productivity during certain hours of the day.
Do you anticipate lawsuits to arise out of this situation? How can employers best protect themselves?
Yes, lawsuits will likely arise related to overtime, regular pay, race/national origin discrimination, failure to accommodate a disability, and sex discrimination claims. There may also be agency actions through OSHA/MIOSHA related to failure to appropriately act to protect employees, and Michigan Wage and Hour Division actions under the PMLA. Employers should maintain accurate timekeeping records, refrain from reducing an employee’s PMLA bank where the employee is being forced to take the time off, implement safe workplace practices following the guidance that is available, and stay up-to-date on COVID-19 developments.
What does Michigan’s PMLA provide in this emergency situation?
Employers are entitled to use accrued, paid leave under the PMLA related to the closure of the workplace by order of a public official due to a public health emergency, to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or if it has been determined by health authorities that the employee or the employee’s family member’s presence in the community would jeopardize the health of others (i.e., the current situation).
What are some of the immigration issues presented by COVID-19?
Attorneys should advise employers on potential immigration issues that come with requiring employees to work from home. For foreign nationals working under temporary nonimmigrant work visas, there may be restrictions on working remotely, changes in location, changes in pay, and changes in hours and other conditions of employment, depending on the particular visa classification. Employers must ascertain whether they are required to notify the U.S. Citizenship and Immigration Services of changes in the conditions of employment for employees who are working under such a nonimmigrant work visa.
What is your best advice for employment attorneys now?
Don’t panic. Don’t go it alone. Consult with other attorneys when you have questions. A number of law firms, including Jackson Lewis, have set up COVID-19 task forces with FAQs and resources on their website. The State of Michigan also has a Coronavirus page with a tab for employers.
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