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good morning everyone and welcome to employee handbooks 2020 modifications for cover 19 pandemic i'm lisa faganer director member programs and services for the new jersey business and industry association with us today is peter frederelli of archer law a few housekeeping matters before we get started today's webinar is being recorded and will be emailed to you tomorrow along with the powerpoint for today's presentation so be on the lookout for those but if you just can't wait you can download them right now from the handouts tab i'd also like to draw your attention to the questions tab peter would be happy to take your questions so get them in as soon as they come to you via the questions chat box one last thing it's definitely been getting better but we've been noticed still noticing some people having audio visual issues with go to webinar platform as they struggle to keep up with all the extra video conferencing going on right now so if you have any trouble viewing or hearing during this presentation don't forget you'll automatically be receiving a recording within 24 hours so if you have to sign out and watch later you won't miss a thing also this webinar is good for one cle credit and you can find the link to apply in the handouts tab so now without further ado peter take us away okay good morning everyone uh nice to see you all virtually in some some form some respect i'm coming to you from my bedroom as you can see we are still in uh lockdown mode so to speak at my law firm so again very glad to speak with you this morning uh about this so let me um start on my slideshow can you we all good there lisa that up showing up okay um uh we just see i still see um the partner slide oh okay um you don't see my screen right now no um okay i am not sure how someone elise are you able to want to is it lisa or jas give me screen share okay one second all right sorry for the hold up here everyone again um we're we're going to talk about today while we're just getting this line yes all right while we're getting this set up what i want to talk about today with respect to uh your employee handbooks as as everyone who's probably been involved with the business industry association is aware it just told me it's no longer visible anyway what we've what we've typically done uh during the course of our our years we've typically had employee handbook presentations kind of in-person seminars and often in the form of employee and basically workshops where we've gone through your handbooks looked at specific causes they've been very well received and also i think very helpful obviously with the pandemic we're not able to do that um so um i guess you can see it now peter you good now yeah i you let me know does it look good yes it's good all right perfect sorry for the builder the internet went out sorry no problem sorry for your delay as i said we've we've done these these workshops over the over the period of time and they've been very well received but again with the where we are in today's reality we don't believe we're going to be able to do these in-person handbook seminars uh during the rest of this calendar year at least so what we're planning on doing in addition to this one having some uh one-hour webinars during the fall probably one a month where we're going to go over some of the more traditional employee handbook issues but um and changes revisions things like that but what we thought would be very helpful at least timely certainly would be whether or not employee handbooks need to be modified right now in other words in light of what's happened with covet 19 are there any provisions in your handbooks that need to be tweaked modified reviewed uh because of where we are and as i'll explain obviously there's been a whole bunch of changes for um for um for employers out there certainly um you know whether it's the the the ffcra the the ppp loans we've all done furloughs layoffs recalls there's been a multitude of issues but with respect to the employee handbook what we really want to focus on are which provisions in those handbooks need to be revised or need to be reconsidered now that we've gone through this pandemic now that we're bringing employees back or hopefully bringing everyone back but more importantly going forward are there any permanent changes that we think are necessary kind of in light of of the new world we're in so i want to start with any changes specific to covet or to a pandemic but also really in a more fundamental level what i think should be revised in your handbook um as as a result of of what we've gone through so let me make start i guess in the reverse which is what you probably should not do and what we certainly don't advise you to do would be to rush out and make changes to your handbook that are really temporary changes in other words the laws that we've seen go and affect that are temporary in nature that we know are related to this pandemic or know or related to covet so i'll give you an example no reason of course you know everyone knows should know what the ffcra is that's the federal law that gave paid leave um as a result of covid uh an illness in the family as a result of someone in the family maybe being sick school being closed that type of thing and it also has the additional 10 weeks of emergency fmla leave you know we certainly don't advise you to go back and change your handbook to modify those um you know because generally you know we really like to view the handbook you know it's it's certainly not a bible or a treatise that can never be changed obviously it needs to be updated as laws change but it also is not something you want to change frequently um employees like to have a sense of stability like to have kind of the similar rules and you don't like to be revising the handbook every time there's one potential change you can always send out a policy memo or an update if necessary but constantly changing i think it's just a bad idea um for just for continuity purposes and also frankly for oops sorry about that and also frankly for um um when you're trying to make revisions to a handbook um if you're going to go ahead and update a handbook you have to issue it to everybody you should certainly make sure you get a new acknowledgement form from the employee that their handbook is the updated handbook has been received um so again it becomes a an issue of running that down chasing that down so again employee handbook changes should not be done uh with every kind of change in the win so to speak um and also beyond that i know has some clients that have an employee handbook which they just update with inserts for example you know it has 80 pages and you tell employees okay replace page 70 with new page 70. but you still have the same issue of making sure employees acknowledge it and receive it so um and making sure that gets run down so what you never want to be in a situation is if you're ever in court you're ever in litigation with an employee and one of the things you want to rely upon are some terms in your handbook for example your anti-harassment uh protections anti-discrimination protections accommodation protections you want to make sure you have proof that every employee got that and you don't want to have an acknowledgement of a stale handbook or an old handbook so that's why again it's relatively don't want to change these with every with every change in the wind so all the temporary changes that are related to covet i don't see any reason you need to modify your handbook because of those um so you know with these temporary laws as i call them obviously comply with them if you have to put up more posters um you know as is kind of i kind of feel like everyone's lunchroom was like that the um when we were teenagers and had our rock posters up or movie posters up that's what our lunchrooms are like anymore there's just more and more posters so obviously just keep doing that that's what it all requires and that's what we need to do and that's the primary means of making sure you're in compliance uh beyond um just complying with the law so certainly comply with all those but again i don't see a reason that you need to modify the handbook to get that specific about what's happened in in our in our covered world however um as we've talked about as i started to talk about as i think we probably all recognize um this crisis has really caused a fundamental shift out there and i think both employer expectations and employee expectations um you know we're we're we're living in a world where again many employers mine included a number of us are still working from home uh i know my children who are all out of college and working um there's a mix of who's at home and who's not at home um is again just all the clients we deal with we have some people back some people still continue to work from home and more importantly you have some specific employees and employee issues where they are allowed to work from home maybe it's a covert issue or an unrelated issue we've had them working from home teleworking um and or at least partially you know we're gonna see it i think in a significant way this fall uh really and if in a month or so when schools reopen uh you know what as we all have heard if you watch the news what reopen means we don't know uh is it going to be virtual is it going to be staggered days we're going to have a number of parents out there that are going to be clamoring um um we which they're going to be clamoring for some revisions um to their work hours to their work schedule whether they're going to take advantage of the 10 weeks under the ffcra if there's a school issue or what have you um so i think we're going to go into the fall with a situation where many more employees are going to need to be able to work from home again whether you have to allow it or not subject of another seminar but certainly if it does happen um or you either you need to allow it legally or frankly you have to allow it practically because your businesses need these employees to work and you'd rather have them um we're gonna have to deal with that so my first advice would be to go through your employee handbook um you know say within the next few weeks or next month go through your employee handbook and see if there's anything in there that's really outdated or stale again i can't you know every employee handbook is certainly not as we all know boys handbook run the gamut from very limited to very detailed or very exhausted and there's often clauses when i review employer handbooks um that don't really need to be in there but they're in there and oftentimes employers like to keep them so if there's anything there appears outdated or stale in light of where we are and kind of the new normal um i think you should look at that um but really the main thing i want to talk to you about today was i kind of see really three or four areas where we do believe it's important that handbooks should be up will probably likely need to be updated again depending upon the level of detail or the level of information you have i think they're going to be updated and that would be in terms of recording time so your time and attendance policies um the telework or telecommuting world that we uh i think are all in even if you have all your employees back i think it's very important to have something in there that's going to give you that flexibility and set the rules frankly for how telework is going to is going to happen um third the lead policies um and lastly in terms of employee health checks again i think there's going to be some modifications necessary and on that last point as we all know you know it was it was essentially taboo or verboten to consider um just testing employees because you were concerned about them being sick that was always viewed as perceiving someone as being disabled but as we all know we're many many employers are now expecting employees to go through a temperature you know forehead check or or temperature check to make sure they don't have a fever that is something that normally would not be permitted under the ada americans with disabilities act but guidance has come out and indicated that because covid has been considered what's called a direct threat that that is permissible so again that's something i think we need to go through your handbook and make sure that you're not in a situation where your handbook prohibits it but your um need to do it as in order to comply with all the guidance out there and frankly combined with the law um and the regulations from the both from the state and also the guidance from the cdc okay so time and attendance um the new normal um that was doug peterson on there that was his quote after the eagles won the super bulbs big eagles fan but the new normal means again really for many employers it's the it's either total or partial work from home but frankly it creates a you know really a wage an hour nightmare or can be a waging hour nightmare especially for your non-exempt employees you know it's much simpler of course with your exempt employees so your exempt employees who may be working from home again we'll talk about that briefly but it's a little bit less of a concern with them but certainly with your non-exempt employees tracking hours having rules in place um are important and i know that many many employers have time and attendance policies in their handbooks have specific rules whether it's clocking in clocking out lunch breaks things like that all those things i think you have to look and revisit them now again to the extent you have a handbook that's very nondescript on that um you may not really need to make any changes but if you have a handbook that has those kind of clauses and provisions in there i think you really need to revisit them for a couple of different reasons um first um remember non-exempt employee and again what i what i'll what i'll do in a minute is i'm probably just going to briefly do a little primer on time and attendance just so we know what we're talking about here but remember your non-exempt employees who are working from home have to be paid for every hour or every minute they work right because they're non-exempt and they get paid by for you know all-time work um so there's two issues one of course is how do you track it and how do you and um is it just an honor system and the second of course is you know what are the rules for when they're at home um and again i think this is something that if you pull up many employer handbooks it would be like reading uh greek as opposed to english because the rules just really don't seem to make any wouldn't necessarily apply to employees who would be who would be working from home so again let me just briefly as a little bit of a primer non-exempt employees what they get paid for again this is under federal law under state law there's no real um divergence there um employees are not exempt they're going to get paid for all hours they're permitted to work or suffered to work so these are old archaic terms from the 1930s when the fair labor standards act was first passed but what they mean is permitted is the time you want them to work essentially so you tell them i want to work you're you're to work an eight-hour day here are the hours i expect you to work and suffer to work um is when and it's not necessarily time we want them to work but they do it anyway so as as many of you deal with wage an hour know if an employee is it works through their lunch break you know let's say we're in a normal world and we're back in the office an employee is given a half hour lunch break which is supposed to be unpaid if they work through that half hour lunch break without supervisors approval um they're entitled to be paid for that they can be disciplined and ultimately fired for breaking your rules or not getting authority but they are entitled to be paid um but as you can imagine in the telework era and where we are today um that is gonna be harder and harder to figure out what hours they suffered to work so what hours were they working when they were not supposed to but again that's the basic general rule so things that are on the clock again we're talking about in the normal context and we'll get to telework in a minute but in the normal context a break of 20 minutes or less that's on the clock um even a larger break than that um where they're not free to go about and do anything where they're kind of locked in that can be on the clockwork um the changing clothes you know again that may not be as necessary with telework but don they call it donning on or dying off that's typically um paid time and then cleaning up after the end of the day that is typically viewed as paid time as well um other examples again these are just some examples medical attention during work hours at your direction um so send them for a drug test for example prep work to do their work any training that you require them to attend so in in a telework environment on the job you know maybe online training um waiting around for assignments can be as on the clock work typically um what's not on the clock for your non-exempt employees is absences vacations illness holidays uh commuting time is usually not unless they're you know they're commuting from your place of business to another workload another work site or job location um changing for their own convenience jury duty typically off the clock unless it's in your contract or your handbook and then if there's a shutdown of the workplace obviously that's off the clock so again those are kind of just the general rules um i already mentioned meal periods and and training as well um the problem is we now got to set the rules for um what happens in uh you know in our new environment kind of really in the telework environment where employees are not going to be in your office every day they're going to be working from home working at a different location than normal um you need to go through and look at what the rules are so especially if you're non-exempt employees what you need to do is look at whether your handbook provides first fixed hours does your handbook indicate it's 8 30 to 5. does your handbook indicate okay these are the standard hours we expect you to work because that may no longer be the case um if they're working from home or you have an adjusted schedule so you want to look at your handbook and see if that needs to be modified doesn't mean you need to change that to eliminate it you can certainly say that 8 30 to 5 is a typical schedule but add some language in that would say you know except for employees who are teleworking or accept you know as adjusted um the meal break again another great example for a telework environment are are you really going to have a 30 minute meal break anymore or 45 minutes or a one-hour meal break how how is that going to work um you know so typically what is done is an employee goes to work they're at their desk and they're they're supposed to clock out at the beginning of their lunch break and then clock back in and they're supposed to either leave or go to the lunchroom and not do any work right that's what we've been advising um employers for years um but how do you do that when they're working from home how do you do that when they're working in these off-site locations um is it even realistic frankly to still have an unpaid meal break um for an employee who's teleworking again certainly depends on the nature of your business you know if they're working from home but they're required to be on duty from 8 to 5 30 because they're maybe handling telephone calls or handling help desks things like that if it's a rigid set of hours you can still do it um but if employees you know again for our example we have uh administrative staff our our document production people other staff that we have working from home they're given specific projects so at this point we can have them work eight hours which frankly doesn't matter which eight hours as long as it's somewhat towards the middle of the day um so again you may want to look at your handbook and and you need to analyze that meal break provision your rest period provision whatever you have and see if it needs to be modified to reflect the new normal of of working from a different location also you have to look at again what happens when employees are off duty again if you've been to any wage and hour seminars and and spoken to any of your labor council over the past five to ten years we've we've gone through you know kind of a a sea change in this we've really looked at where an employee is working is working in the office but when they're home are they answering emails are they sending text messages to their supervisors are they handling client phone calls you know that's always been a quandary for us right so if someone is uh gets a text from their boss at 8 30 at night about our you know i need you to start at nine tomorrow or something like that that's going to be viewed as what's called the minimus time they're not going to get paid for that 30 or 5 or 45 seconds that it takes to respond to a text but anything broader than that anything more than a minute or two um where they're answering a client inquiry they're answering a phone call then issues come up at the plan or issues come up for the next day um that is typically paid time uh you know so again whether employees turn in turn it in or not isn't always the story the story often becomes if an employee does bring a claim against you they're going to say i used to work a half hour an hour every night answering emails responding to phone calls and text messages i want to be paid for it um again you need to look at that because we've had handbook provisions that have been modified over the past five or ten years about that and those provisions say you know you can't work these off hours without supervisor approval it has to be in writing except an emergency again you got to look at those again because those may need to be scaled back or at least adjusted for the tell work era because as i said if you have someone working from home and you want them to work eight hours of work it may not matter as much to you that they're actually available eight to four nothing after four nothing before eight uh on the other hand it may and that may be something you need to continue so again you gotta re revisit that and see whether any any modifications you made in the kind of in our electronic age need to be backed out and really the other issue we have to talk about are time sheets i mean how are you going to handle time records for your non-exempt employees who are not always in the office every day if you have flexible hours if you have changing hours and certainly if they're teleworking how is that going to happen um you know you can certainly fall back uh on the old version that we all relied on for years which were timesheets where again you're relying then to some extent on the kind of an honor system but you know having a time clock system that's going to be on your cell phone where they log in and log off i mean that's obviously a terrific solution when they're in the office but again when they're out of the office um again it's going to be a little bit harder to um perhaps use that again you can certainly rely on your employees to be honest and to to use that but on the other hand um just in some of the experiences we've had already employees forget to do it they think they're at home they're not always on top of it employers look the other way or don't really worry about it just fill out a general eight-hour day you just have to make sure that there's nothing in your handbook um that is going to be too rigid or too specific that's going to rule out you know kind of the new normal that we're in um so i think what's important is if you don't have anything providing for time records or timesheets um you know it may be important to revisit that and as i said the ex expected hours the expected workday is something you got to look at as well since that may need to be modified but in terms of how you track hours again you want to look at what's in your handbook now and see if that has to be revised in light of where we're going and as i said i know i said this once but i think it's very important to repeat this um you know i don't i think all of us want a vaccine all of us want this to go away all of us want us to get back to the new normal i got to tell you i don't think we're going to get there for quite a while and even if we do i you know i've seen it throughout our our client base i've heard it from other attorneys in my office we have a lot of clients that are really fundamentally revisiting where they are and what they're going to be doing and they've been able to go for four months having people work from home some employees love it some hate it i think there's going to be more and more expectation going forward of this flexibility and this ability so if you don't have anything in there like that you really ought to con even if you have your employees right now don't specifically need that i really think it's something you ought to put in place and have available to you since as i said i think you need to change handbook for other reasons anyway this is a good time to do it um remember most handbooks will make don't really need to necessarily establish the commute time is not work time i'll talk about that in terms of a telework agreement in a minute um but one other thing you want to put in your handbook again to the extent you have employees who are not working in your office um you may want to give them at least notification that their payroll tax withholdings may change um you know if you have i'm i'm coming to you this morning or is it still morning i guess it's about right around noon i'm coming to you this morning from my home in pennsylvania my main office that i work out of is in handful new jersey pennsylvania new jersey have a reciprocal agreement so it's not a big deal for me um but if you were a delaware resident working in delaware for your jersey employer if it turns out that you're spending most of your time in delaware and and rarely coming to new jersey um it may be now you're going to be have delaware withholdings or delaware payroll taxes taken out so that might be something you may want to put in your handbook notify your employees that the extent they're going to be working out of state in a telework relationship or teleworker situation their payroll tax withholdings may change okay um i did want to point out to the extent employers out there in their handbooks have comp time uh you know again it's something that may need to be looked at because of the the telework situation because of the flexible hours remember for everyone out there for private employers comp time is illegal in mo in many circumstances and when i refer to calm time of course what i'm talking about is somebody works uh an extra four hours on a tuesday and they want to have those four hours instead of getting time and a half for those four hours you know i'm sorry we back up they have a 40 hour week they work four extra hours on tuesday so that means they're entitled to four hours of overtime which is really six hours of their pay um they would prefer not to get that money but to have that time off later in the future um unless you're a public or governmental employer that's not permitted uh the only circumstance where it is permitted is if it's in the same pay week so if somebody works four hours extra on tuesday and your pay week is sunday to saturday on that thursday or friday you can let them work for less hours and and there's no harm no foul what you can't do is carry that over into the following week that is illegal um so um and that applies whether you have a two-week pay period whether you pay twice a month what have you um so again you may want to look if you do have some type of comp time provision for your exempt employees um that would be different that's certainly not anything you should change but if you have comp time if you're a public employer out there that has comp time um or if there is going to be a situation where you modify it during the pay week and you call it com time as i said i think it's important you look at those provisions because again working from home and working in a different environment may change how that gets applied as well and okay so with respect to exempt employees in terms of time attendance i don't see a lot of issues there again exempt employees those who i know i've skipped over this but obviously exempt employees are those who are exempt from overtime for federal and state law purposes non-exempt or does not exempt from overtime except employees don't see a lot of issues the one thing i will tell you is for exempt employees you know we certainly have given advice over the years that i know i have other firms have as well if you have exempt employees where it might be a close call in other words there's some debate about whether exempt or not there are there are a number of employers out there who are keeping time and attendance records on their exempt employees having them clock in having them clock out uh just keep that in mind remember that if you're going to have an exempt employee who's going to be you know cocky and clocking out keep that in mind going forward that that's something that you need to modify as well um second topic and this i know i've talked a little already about telework but what i really would advise most clients to do is to include a new telecommunity or telework policy in their handbook um so and again this is whether you have employees who are teleworking now or you're going to need it in the future again i just think it's something that most employers really ought to have in there because as you'll see the policy i recommend you include is going to be extremely extremely employer friendly extremely discretionary and i don't think it's going to create any rights or obligations that you have to do it but i certainly think it's a good time to include one if you don't have one already so the first question is do you put this in the employee handbook or do you then go ahead and have an employee sign the specific telework agreement um my answer is you should have it in your employee handbook no matter what but the more speci you know the more important it is that their your confidential information or sensitive information be protected i think the greater their need is for a signed uh telework agreement so in other words what i'm saying is you should have an employee handbook that explains what the rules are for telecommuting you're teleworking so that way anyone who teleworks is bound by those rules and then you can have a separate telework agreement which will really just parrot what's in your employee handbook but it'll also maybe have some additional rights or protections because the most obvious situation would be if an employee is going to be working from home on their home computer and there's highly proprietary trade secrets sensitive information that they're going to have access to you may want to have greater rules or requirements about how they log in is is it a computer that's segregated from the rest of their family is it something that's has some additional levels of of uh coding or encryption or protection i'm sorry those type of things so you may want to have additional requirements um and also a telework agreement the one advantage of of a of a telework agreement is that you know you can actually make it specific to an employee so for example telework agreement can have everything that's in your handbook but also have blanks for you to put in okay the telework arrangement is from september 1 until december 1. you know we're going to do it on this basis um or it's going to actually set maybe more specific hours of employment where they're going to be things like that um but so again i see no downside really in having a telework agreement in addition to your employer handbook um but i frankly don't think they're necessary unless you really do have um specific confidentiality needs so again to be clear a telework agreement is not a contract of employment if you have one it's going to be written to say you're still at will um you know you don't have any rights that type of thing it's really similar to a confidentiality agreement you would have many of your employees or even a non-compete agreement for example when you hire someone you can have them sign a confidentiality non-compete agreement telework agreement very similar but again i don't really think you need one for many of your employees since i think you can just go buy your handbook and again the obviously the benefit of a telework agreement is you know gives greater emphasis to employees if they have to sign on to something and again it can set out specifics but on the other hand i think there's a little bit of a downside to a telework agreement um it's something you have to just administratively have to chase down and make sure they sign it um it can get employees concerned that you're making me sign this new agreement why do i need this thing um and as i said unless you really are putting in enhanced confidentiality terms things like that i'm not sure it's necessarily something you have to have um and i don't want to use the word ordinary that's a bad word to use with your employees i don't want to say you're ordinary run-of-the-mill employee that's that's a horrible thing to say but my sense is that if your employees who are kind of in the similar boats similar job capacities that don't have access to really unique information not sure you necessarily need it because i do think you can cover it in your handbook because the telework policy in your handbook and again if you have an agreement would be just parroted over would give a hundred percent discretion to you as the employer again there's no expectation that the telework relationship will be agreed to no expectation that it would be continued um the arrangement would be subject to continued evaluation at any time so even though you've agreed to it it may be modified and that would include you know um reasons why it could change so it would give you as the employer the ability to terminate this at any time again these are all language you put in your handbook or in your agreement again with respect to that termination not only can you terminate at any time but the provisions would indicate why it can end you know business circumstances have changed you know pandemic's over wonderful whatever the reason is just have a general language that it's going to change for we can change it for any reason but also um here's the reasons why business circumstances and particularly failure to follow the rules a failure for an employee to follow along if you're telling them need to be available eight to four and they're not um if you're telling them they need to be able to respond to phone calls or inquiries or emails um within five minutes ten minutes whatever it is again i don't think that has to be in your handbook but certainly the supervisor can set the rules as to what's required that's going to change by job position right so whatever those rules are they're not following that's a reason it may end or again technical or logistical problems and remember ending of a telework agreement you know because they violated the rules that might not mean they're coming back to the office that might mean that they get furloughed again because they were unable to comply with your telework rules um it doesn't automatically mean now we drag them back into the office because it may be um that we're in a situation health-wise where that can happen um and also technical problems or logistical problems if there becomes an issue with them being unable to uh to log in and do their work because of those kind of problems you may want to have the ability to end it again there you have to be more cautious because obviously if you've provided them with the software help set it up you know make sure you've done your best to make sure it's working um what we typically do in a telework policy would be to list the reasons or the list of things employers would consider before agreeing to it because again remember we're in the covid pandemic world but if this policy is going to be in there three years from now and hopefully this is all over you may have again in a new normal you may have situations where you're fine with it um for some employees depending upon and here's the factors we put in there what the objectives are what's the job position um what their past performance has been um including particularly their ability to work independently right um there's the suitability is technology available is it accessible um and one important factor is there a real need for co-worker interaction is that something that cannot be tolerated now look it's a harder factor to justify frankly in this day and age with zoom and go to which i guess is what we're using this morning but that's certainly a factor and then an expense is there an expense associated with this with maybe us having to set up equipment in their home things like that um certainly um we can have exclusions depending upon certain situations um you know maybe you can so i've seen some policies some clients have had us draft a geographic limit you know hey we're going to allow you to tell work if you're within a 50 mile radius or maybe the opposite outside the 50 mile radius whatever you think works for your business um and also i've seen clients that have only a permitted telework um you know kind of outside of a pandemic or natural disaster only permitted telework for employees that have been there one year been there two years so they've kind of gone through maybe your initial sort of probationary period um and you also can have the ability to establish the minimum number of days for which they may actually have to be in the office again your handbook wouldn't say what those days are but you would have that ability to set those rules um based upon you know your supervisor and what's appropriate for that for that job position um you want to address the expense of the telework so what's the reimbursement policy if they're mailing stuff out from home you know what are the policies if there's proprietary technology obviously you should set that up um and you again as i said you also want to make sure you have the ability not in the handbook to actually set the specific rules but to require say okay we're going to be permitted to establish rules for return phone calls emails work hours when you got to be available what are the core hours um and also what's important is you want to confirm that the call out policy still works right i mean the if if you give them sick time or you give them personal time and they're not going to work today because they're sick or they're taking personal time they should call out let you know that's happening and not be at 11 30 or 12 a.m at 12 p.m they suddenly tell you well yeah i didn't answer your email because i was out sick today i mean the same rules should apply and you want to make sure that that's emphasized in your policy um and on the other hand like i said if they have run out of sick days and they're just unable to work because they're really sick i mean you have to have that ability to enforce that as well um other things that are in the telework policy make sure they're responsible for having a secure and safe work environment um remember the workplace of someone teleworking really becomes your office or your location not in all respects but certainly in some respects so obviously you don't have to you don't have to put up the 38 posters in there in their home office um but you do have to make sure it's a safe work environment um so if you have any concerns about that you want to make sure it's secure electronically but also it's a safe working environment because you know certainly in theory if they trip and fall at home uh while they're in their home office they can file a worker's comp claim there's cases going both ways as to how that would pan out but i think what's more importantly would be to set rules about coming and going in other words if they need to be visiting clients if clients need to visit them you really want to have i think pretty rigid rules that would either prohibit that or strict significantly frown on that because look an employee trips and falls at home and files a workers comp claim the worst thing that can happen is they follow a worker's comp claim and you deal with it but having someone getting hurt at an employee's home office and found a negligence claim against you against you is going to be much bigger potential for liability so i think you want to make sure that those are pretty rigid rules and maybe it may be as simple as saying the meetings with visitors have to be electronic or you know over the computer by zoom by video or if they have to be in person that they'd be at the client's place at work or at your your office um and not allow them at their home office um you ought to make it clear your their employees are responsible for their own utilities those type of things um and again remember they have to follow all policies while they're at home including harassment because we know harassment in 2020 happens online more than it does in person and one thing a couple other clauses in your telework policy reminder to employees that this is not a substitute for child care dependent care um they're not supposed to be the primary caregiver to anybody while they're on the clock um it may seem wonderful that that's why they're doing it um to them but remember that that's not what the purpose of teleworking is obviously if they need to stay home we're going to be flexible and we're going to work around it but if you're expecting them to be available between 8 and 4 because of the nature of your business um you need to tell them that's not a child care or caregiver substitute and really if they whatever clocking procedure that you have you ought to tell them okay i am flexible i'm gonna let you work eight hours from home if you have things to do with your kids or your family during the day that's fine as long as you get your eight hours in make sure that they're told they've got to clock in and clock out so you don't have a clock in at 7 00 a.m and then clock out at 11 p.m and now you're down the road looking at paying them all a bunch of money for overtime even though we all know that they were not working those those those 16 hours um have an acknowledgment that they have to keep everything confidential you also also make sure you have at least not in your policy but some discussion about printing forwarding things like that remember if they're using their home computer there's proprietary information you want to have the rules in place as to how that's going to both be dealt with while they're working there and how you're going to get that information back when they leave okay um a couple other things i want to cover one is your leave policies um you know you your fmla policy your leave of absence policy you may you may want to consider revising them to deal with telework and i'm again you're not changing them because of covet i'm not saying change it for that reason but i do think it's important to explain to employees that fmla and leave of absence policy sick time policies again those apply when you're working from home so if you're going to include a telework policy you want to make it clear to the employees that a day off is still a day off so whether it's again as i mentioned before for sick day or whether it's fmla care if they need time off to care for someone um if they're recovering from an ailment or an injury um you want to make sure that they're telling you they're applying for fmla it's going to be unpaid or they're going to use their paid time and it's clear that they're not going to work during that time again again we're in this new world where we're trying to be flexible and accommodating but if someone has had back surgery and they're going to be out for 12 weeks um they should apply for fmla and it shouldn't be that you know they get to work an hour or two from home and they think they're going to get paid for the day um remember if so i think i think that's one tweak or modification when you add a telework policies you want to look at your fmla and leave policies and make it clear in there that if you are teleworking but you're sick unable to work uh generally then that means you're not going to get paid for the day as a as a paid employee but you may have again covered under either their sick leave or unpaid fmoa um okay um you certainly um new jersey's earned sick leave law was amended earlier this year to indicate that pandemic related absences are covered by new jersey earned sick leave so if you do have a new jersey earned sick leave specific policy in your handbook you may want to include it to include the fact that the pandemic related absences and the reason why i think you have to do that is because the jersey earned sick leave law was changed to indicate that a coveted fear of return to work or covet school absences those are permissible reasons to take jersey earn sick leave so for example someone says i hear that the you know the bubonic plague is going around and i'm scared to go to work that's not normally something you can just take sick leave for right because normally you have to show you're sick um but um in the jersey yarn slick leave was amended to allow employees who have a fear of coming to work because of covet and there really doesn't seem to be any medical tie to that they just have to have a fear of that they're entitled to use their jersey or in sick leave so if you have your jersey on strictly policy that's in your handbook that gives the reasons why it needs to be updated to reflect that those those new reasons um so um again that is if you've had that in your handbook already you probably have a section that deals with jersey or in sick leave and if you remember it lists the reasons why you can use the sick leave this was one that was added in there um sometime earlier this year um and again it's already covered this similar for for telework as well all right a couple other things i want to mention before i'll get to any questions one is um as i mentioned this to begin many employee handbooks have provisions that deal with drug testing and medical testing you want to go back and look at that because again i i i can't obviously deal with every possible handbook out there but i've seen employer handbooks that are really all over the map in terms of what's permissible with drug and alcohol testing what's permissible with medical testing so you want to look at that and make sure that you're in compliance and the specific compliances you are allowed as i mentioned at the start you are allowed to do a temperature check um for covid you know whether you can require them to take a covid test that's a different story um that you know what whether someone has been diagnosed with covid before they return to work you're going to be permitted to do that but for just anyone who may have been exposed it is not permissible to just go ahead and just do wide you know widespread covet testing but you certainly can do a temperature check that's permitted by the eeoc so normally you're not allowed to do any kind of medical exam unless they're a direct threat to themselves or others but the eeoc has indicated that with where we are it is a direct threat right now for people so you are allowed to do temperature checks so the only reason i'm bringing this up is because there are some policies i've seen out there that are very restrictive in terms of when when you can do a drug or medical test so if you have something in your handbook that says you can do testing in a direct threat situation then you're fine but if there seems to be a general prohibition against this except when you're testing upon cause after an accident for example or things like that you may need to look at that and modify to indicate that to the extent we're dealing with a pandemic or something in that nature there may be permissible medical tests because frankly you know it may not sound like it but checking someone's temperature is a test right that is a medical exam it's obviously not all that invasive um you know i was at uh lamberty's in in south jersey and um i walked up to the counter to have for dinner reservations sitting outside and uh they checked my temperature without me even though there was a camera about 20 feet in the air and it somehow checked my temperature and i was cleared so um it's not all that invasive frankly but again it is for employers a medical test so look at your handbook language and make sure you're not in violation there um by having that in there um again that was what i just mentioned uh a second ago um and again also look at your drug testing section see if there's anything in there that would prohibit you from doing a covert 19 test upon their return to work um again there are going to be circumstances where you are allowed to do a covet test for someone who's tested positive so again keep that in mind if there's something in your handbook that would prohibit you from doing that um just make sure that gets corrected or gets adjusted um and with that i think i'm a little bit over when i was supposed to go but with that i'll turn it over back to lisa if there are any questions yes thanks peter that was great we do have um some questions here there was a lot of good information but first let me um your the webcam kind of went off so i um so i'm going to send you this request see if you click on something you can get your face back up there while we do the questions okay and if not we'll just go ahead with the questions the way it is i let's try that how's that there you go okay perfect if that helps or hurts but go ahead well we'll say so we do have some questions so let's see we have a few minutes so the first one is um virtual posters are equally acceptable we have an agency policy folder online and periodically add important info to it and highlight that information during monthly meetings is that sufficient uh yeah that's fine the the posters there there's that that's permissible by you can you can email with an acknowledgement you can have it in one database that is that's acceptable yeah okay um the next is virtual agency-wide meetings have always been required however we've had issues with ees not being present once logged so we've gone to a video requirement meaning that folks have to be visible is that problematic uh i don't think it's problematic i don't see a reason why you can't do that as a way of enforcing them or testing them um i said i can't think of a situation where someone's gonna say that somehow hardship i think the only issue obviously is if there's a technology problem or some reason why it's not working and the employee is unable to access it you know has to be some accommodation or flexibility or ability to work that out okay is a telework agreement necessary if employees already sign a confident confidentiality agreement um yes because well no it's not i think i guess i said i think you really only need a telework agreement for that reason i think that's probably the primary reason i will tell you though some clients really do like having a telework agreement because it sets the rules for work hours and also can set the rules for the work location so you know again some employees feel just in a more hands-on basis like to have it but certainly if you have a confidentiality agreement again that to me that's the primary reason why you would need a teleworker if you already have that in place i don't think you need a telework agreement one thing i would tell you though is that if you have confidentiality already and you're imposing a telework agreement um you need to make sure that the two are consistent and the easiest way to do that again obviously is to just say in the telework agreement that this doesn't change whatever else is in the confidentiality agreement so just make sure it's clear that this is in addition to or a supplement to and not a replacement of the total work of the confidentiality agreement the reason being the telework agreement may end at some point because they come back in the office you don't want the confidentiality and whatever he had in there before you want to make sure it's still in place okay great um can you speak to public employment under 18 a as it pertains to sick leave only allowed to be used for the employee oh versus thought you opened the door oh versus new jersey sorry paid sick leave any idea if new jersey paid sick leave super seeds no unfortunate i don't know the answer to that if someone whoever that was wants to email me afterwards one of my partners is more familiar with 18a than i am i can i can get back to you so they want to shoot me an email or chat directly to me on that i will i can follow up with an answer i don't know the answer to that okay great we have a few more does every employee's telework agreement have to be the same as all other employees no i think they should all have the same models so in other words there's in a number of my slides i had things on there about employer discretion about um you know uh what who who bore the expenses those type of things i think a lot of that model should be in every agreement but um the fact that you would have one employee that may have different expectations or different requirements i think among job positions they should be the same but if you're varying it based upon different job positions different locations what have you that's fine again i don't think there's any issue with having varying versions of this among your workforce i think among the same job position i don't i would think it should be very similar okay for an employer with locations outside of new jersey do you advise changing handbooks to comply with new jersey law for all employees uh that's a that question comes up a lot in other words we you know new jersey someone just asked about the new jersey or in sick leave and that's a really good example if you're if you provide new jersey or in sick leave i have clients that have a general employee handbook for all their locations and then they have a jersey section a jersey urn sick leave section um so if if you're going to have employees they're going to be working at who are going to now be say tell working from a different state you know i think you want to make sure that you have uh you have yourself covered so if you have employees who are completely out of state it often is a good idea not to you know because new jersey or in sick leave is pretty beneficial frankly so if you have philadelphia employees or delaware employees that you don't want to have that law applied to um i think it is important in your handbook that you segregate and say okay for jersey employees only this is what you get i will tell you it's a really open issue for say someone like me who works in haddonfield every day but now is working in pennsylvania it would be i think would be a probably an uphill battle to argue that i'm not entitled to jersey or in sick leave um just because i'm working from home now during a pandemic so i don't know that i could exclude my my um out of state employees who are now out of state only because of a pandemic maybe an uphill slog to say we're not still jersey employees but generally or otherwise if you have employees who are going to be working remotely on a permanent basis or that's how they were hired i think we can set it up that way where they would not have to follow the the jersey uh specific laws okay um do you recommend including in the employee handbook rules about when an employee will be allowed to work from home because of covet or some other pandemic i'm sorry could you read that again lisa i'm sorry sure do you recommend including in the employee handbook rules about when an employee will be allowed to work from home because of covid or some other pandemic um i i don't i think it's probably getting too specific i think if you just say that you know again we're going to list the in there the reasons um you know what the factors are to be considered um but i think it would probably be uh i i'd be reluctant to include that just because it would be it is an employee could argue that they'd been somehow entitled to it in the next pandemic so to speak so i'm not sure you need to go into that i think we simply set it up and say that depending upon business circumstances things like that this is when telework you know may be available and i think that would leaving it that general is probably sufficient to cover this great um i do have another question are virtual web conferences deal with sensitive information so the agency requires ees to use headsets to facilitate confidentiality the agency paid for those ees who indicated a need would that be something that should be or could be included in a telework agreement yeah i think it could i think you obviously would have to have some out or exclusion or just be mindful of the potential need to accommodate someone that maybe for disability reasons is unable to use it which i've seen happen occasionally but no i think that is something that could be included in a telework agreement but i will tell you that's probably the place to put it as opposed to a handbook because again that sounds more job position specific so um and look is one of the things i want to point out is um you know the telework agreement can also be simpler in other words you can have a tower policy in your handbook and simply have a telework agreement that has the employees say i agree will abide by everything laid out in the handbook with respect to telework you know site dissection and in addition have these three or four other things that may be job specific so you don't you can either cut and paste and include it all or you can make it simple and just say you know i agree to abide by the handbook and in addition here's the other terms and that for example would be one term that might apply to those employees in that position okay um great i think that was let me just check one more time i think that was uh the last question that we had had um let me just turn this on one minute okay yep so that was the last question so um thanks again uh don't forget all of you will be receiving a recording of today's webinar in the powerpoint slides via email and lastly when you close out of this webinar a survey will come up on your screen that we hope you will find fill out so we can understand best how to provide you important information in the webinar format our next webinar is called returning to the workplace during coven 19 and it will take place on august 12th at 11 30 a.m so by all means feel free to register for that event at our website at njbia.org webinars so until next time for peter torelli of archer law this is lisa forgetner thanking you for being with us and wishing you a great day thank you everyone have a good day you