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Ask the Attorney Archives

Can recalled workers stay out due to anxiety?

Q: “An employee has been on furlough since mid-March. He was asked to return to work and refused, claiming he is experiencing anxiety, and has requested to go on FMLA/CFRA. Does he qualify for FMLA/CFRA leave if he is currently on furlough?” – Cecilia, California

Must we now provide masks to employees?

Q: “Is it the responsibility of the employer to furnish masks to employees returning to work?” – Denise, District of Columbia

Confused about paid sick leave during this time – help!

Q: “We are a senior living company with more than 500 employees. If I send an employee home because they show symptoms of COVID-19, how should I pay them? If an employee refuses to come to work for fear of the virus, what are my options? How long do I have to pay an employee who is out with COVID-19?” – Richard, Florida

The crisis showed us we’re better with a smaller staff. How do we keep it that way?

Q: “Due to the coronavirus, our organization reduced our workforce to better adhere to social distancing guidelines. Our company is small and went from 15 employees to 10. Those who were laid off were able to apply for and collect unemployment. Our plan was to recall them after the stay-at-home order was lifted. However, we have found that the company in fact performs more efficiently with the reduced staff. How can we legally terminate our employment relationship with these people?”– Susan, Wisconsin

What benefits must we provide a temporary employee?

Q: “We are creating a category for temporary employment; this employment would be no longer than 12 months with a specific end date of employment. What benefits are we required by law to provide a temporary employee? We do not provide health, dental, disability and life insurance to part-time employees; are we required by law to provide these benefits to a temp employee who may work 40 hours a week? And what about retirement, specifically our 403(b) program? We do provide a 403(b) match for full time employees after they work 1,000 hours. Can we stipulate that the match is a benefit only to full-time employees and not temporary employees?” – Laura, Indiana

How do we explain a controversial shift in overtime exemption status to our workers?

Q: “Our new HR Director moved four of 12 management team members from exempt to nonexempt status without the Program Director’s approval. Two of those members changed have the same job description and similar responsibilities as one that was not changed, and one of those two has the responsibility of coordination of the total education component (of our work in education). The fourth is the Assistant Director, who assists the Director to supervise 12 employees and oversee a program with 77 staff who also has over 30 years of experience. This has caused a great deal of stress and distress in the admin team and we are unsure how to present the reasons we need to have the four remain exempt from a legal position. Any suggestions?” – Kimber, Kansas

Did we make a bad call in switching these exempt workers to nonexempt status?

Q: “We have a new HR Director. He moved four of our 10 management team members from exempt to nonexempt status. Two of those staff have the exact same title and job responsibilities a one member who he left exempt. He said that the one he left exempt worked on-site with the five people she supervises, while the other two only had two or three people they supervised and most of those supervised were at different locations than where the supervisors are placed. All four reclassified team members are responsible for coordination and oversight of component areas with expertise in those areas. When there are questions, they are the experts. This new situation has negatively impacted the team, and those staff now have to work diligently to not go over 40 hours. Can you clarify why they should not be exempt?” – Kimber, Kansas

How do small employers file for an exception from FFCRA provisions?

Q:  “I am reading conflicting info on the FFCRA. The law, which took effect immediately after President Trump signed it, also provides federal funds for enhanced unemployment insurance and free coronavirus testing. I also read that this took effect on April 2. Which is correct, and where can employers with less than 50 employees file for the exception?” – Lynne, Louisiana

What ‘other conditions’ might make an employee eligible for leave under the FFCRA?

Q: “Could you please expand on Item No. 6 of the new FFCRA: ‘…is experiencing any other substantially-similar condition specified by the U.S. Dept. of Health and Human Services’?” – Cecilia, California

How will the coronavirus relief package affect employee leave?

Q: “Could you please expand on the coronavirus relief package specifically on the issue of sick days and paid family leave?” – Cecilia, California