When you go to file your taxes in 2021, will you be able to look back on what is happening now and follow the decisions you made and the actions you took? Many organizations are being faced with making decisions they never imagined in their wildest dreams. If there is one thing we have all learned through this crisis, it is how many different options we have to address these sudden employment needs, and no one size fits all.

• If there is no work to be done, employers are potentially considering layoffs, furloughs, leaves of absences, etc.

• If there is a cash crunch, employers are considering a reduction in pay, reductions in hours, reclassification to non-exempt (hourly) employees, etc. There are also some relief programs such as the Small Business Act’s Paycheck Protection Program or the Economic Injury Disaster Loan Program.

• If people cannot work because they are ill or they lost childcare, employers are working their way through telecommuting and the Families First Coronavirus Response Act’s (FFCRA) Paid Sick Leave and Extended FMLA provisions.

When we can finally problem-solve through the plethora of options we have to control cash flow, workloads, and employee statuses, did we take a moment to properly document our actions? Throughout this article are referenced many helpful resources provided by entities such as the Federal, State, and local governments, the Society for Human Resources Management (SHRM), or Skywalk Group. For more information on these tools, feel free to contact our HR consultants at HR@skywalkgroup.com and we can help locate and/or draft these for you.

Overall, no matter what your employment decisions are, all affected employees should be informed in writing and employers must retain these records. By documenting your efforts, you can show you are doing your best to navigate these waters by using your best and fair judgement at the time of your decision-making. Now, let’s review some of our options.

Layoffs or Reductions in Force (RIFs)

These employment decisions are generally permanent in nature and usually mean employers are not likely to sustain employees in the long term. When these are necessary, a Notice of Layoff or Reduction in Force (RIF) Announcement will need to be drafted. As the reason is no fault of the employee, this letter allows the employer to thank the employee for their service and provide the details surrounding this circumstance. These notices or announcements should include the reason for the layoff or RIF, the effective date, details on the continuation of health coverage options (COBRA), and any other local resources that may be provided.

When documenting layoffs or RIFs, be sure to assess each person’s performance and employment record before the announcement, so employers can track who is eligible for rehire and who will not be invited back. In the announcement, encourage those affected to monitor the company employment website and to apply for open positions as circumstances change.

Furloughs and Leaves of Absence (LOAs)

These employment decisions are temporary in nature but may be extended. Furloughs and leaves of absences (LOA) are much more flexible as they may be paid or unpaid, voluntary or mandatory. When documenting these employer actions, a Leave of Absence approval letter is a good staring point. These narratives should include when the effective date takes place, how health insurance and other benefits (such as PTO) will be handled, as well as any other resources that might be helpful for the employee. These may include information on your state’s unemployment program, information on any open positions in your local community, and who their main contact within the organization will be for questions moving forward.

With these potentially temporary options, it is recommended to outline when and if start and end dates will be reconsidered. For example, a LOA may expire on April 30th, and the organization will reevaluate the needs of the employer on April 27th and will contact all affected employees should the LOA provisions be extended.

Reductions in Pay, Reductions in Hours, and Employee Status Reclassifications

These employer actions are designed to help an organization financially and may also be temporary in nature. Employers should be notifying individuals before their pay or hours are reduced. Many times, if an exempt (salaried) individual’s pay needs to be reduced and this brings them below the Department of Labor’s minimum salary threshold of $35,568, they may be need to be reclassified as an hourly employee, and therefore become eligible for overtime compensation. 

Many have a notification system set up in a Human Resources Information System (HRIS) platform; however, a simple Change Form can be a quick and easy way to communicate said changes and when they take effect. This document spells out any expectation or cap in hours, how they will be paid, it if it necessary to keep a timesheet, and what their employment status is.

Telecommuting

This is a permanent or temporary employer option that allows for further social distancing and therefore, is working to spread the curve of those seeking emergency medical attention. Telecommuting comes along with defining expectations and holding employees accountable, which is much easier if properly documented. For telecommuting, we recommend taking an inventory of company property that is being “checked out” and documenting the security and use of said equipment with a Company Property Agreement.

There are also general Telecommuting Agreements which allow the employer to specify hours of operation/availability, define performance expectations, and much more. Finally, there is a Confidentiality Agreement employees can sign outlining what to do with their computer, notes, and files when they are not in use. If there is concern about which networks employees are allowed to connect to and who they may involve in business-related decisions when not in the office, these Confidentiality Agreements can cover those stipulations as well. Overall, building a complete telecommuting package can help employees stay healthy and distant, yet connected and productive.

Paid Sick Leave and Extended Family Medical Leave Act (EFML)

Employers with 500 or fewer employees are likely navigating their way through the Families First Coronavirus Response Act (FFCRA). Whether these provisions have you compensating an employee at 100% of their regular pay, 2/3rds of their regular pay, or calculating out a mixture of telecommuting and the FFCRA, employers need to be documenting these efforts as well. Employers should be encouraging those who are showing symptoms of COVID-19, who are tested and found positive, or who have a household family member in either of these situations to stay home.

If you’re health care provider offers Doctor on Demand or telehealth/virtual appointments, employers need to educate, provide, and encourage these resources without demanding it. Many telehealth service fees are being waived at this time! Whether someone physically sees a physician, or they dial in, employers may encourage employees to provide your organization with a “doctor’s note” as you may normally. Employers are required to receive a request for Paid Sick Leave that includes the name of the affected individual, their anticipated recovery timeline, who is mandating the quarantine (the physician or otherwise), and when they may return back to work.

On the flip side, if employees need to stay home to care for a dependent due to the loss of childcare, or to care for an ill family member, employers may request a statement from their daycare, school, childcare entity, or physician. This documentation includes the details of the requested leave such as the date of closing, the anticipated reopening date, which dependents/family members are affected, and an employee statement reasoning why they were selected to care for the dependent.

Time to Take Action!

In sum, if there were one thing on our minds right now other than “research” it should be “documentation”. Once you have done your research and landed on your unique strategic employment plan, be sure to document your efforts! It is okay to take things a week or two at a time, as some information is being updated daily. Even if we are drafting new notices or approval letters every two weeks, it allows the employer to constantly reassess where we are, and where we are going with live data.

For more information, please refer to the Department of Labor’s Coronavirus Resource Center. If you have questions, or would like to get your hands on any referenced forms or to develop an action plan, contact us directly at HR@skywalkgroup.com. 

By Samantha Rogers