NEW MEXICO’S BUSINESS LAWYERS ®

COVID-19 Considerations as Businesses Reopen

June 11, 2020

After months of being closed and/or having employees work from home, businesses now are reopening gradually and employees are returning to the workplace. Employers are faced with new questions and challenges as indicated by some of the more frequently discussed topics listed below. Every situation is unique, so please call on your regular Sutin lawyer to discuss the specifics of your question.

QUESTION: Can the compensation of returning employees be reduced to help a business recover from the COVID-19 shutdown?

ANSWER: Yes, an employer always has the discretion to adjust compensation and benefits of all employees so long as doing so does not result in unlawful discrimination. For example, an employer cannot reduce compensation only for female employees, older employees, disabled employees, or those having any other status protected by law. Employers also should determine if an employee has a written employment agreement that sets a salary or is covered by a collective bargaining agreement. In reducing pay for hourly employees, an employer must not go below the applicable required minimum wage. That wage will be the highest minimum rate set where the work in performed. For exempt, salaried employees, employers cannot reduce salaries below the annual rate of $35,568 in order for the employee to be classified as exempt under the federal Fair Labor Standards Act. At the same time, employers should review the job duties of employees classified as exempt to make certain that the employees still meet the requirements of that classification.

QUESTION: Does an employer have any recourse if an employee first claims he/she cannot return to work due to being at a higher risk for contracting COVID-19, submits no supporting doctor’s note, and thereafter goes “MIA?”

ANSWER: While an employer has an obligation to accommodate an employee’s conditions which are disabilities or serious medical conditions, the employee has an obligation to provide documentation showing that he/she has the condition or conditions claimed. The employer and employee should engage in an interactive process during which alternatives to performing duties in the workplace are explored. The employee cannot dictate what accommodation, if any, will be granted. If an employee refuses to provide medical information, refuses to discuss possible accommodations with his/her employer, and then ceases all contact with the employer, the employee can be terminated for job abandonment. Under these circumstances, the employee also will likely be denied unemployment compensation benefits. The employer should maintain thorough, contemporaneous documentation of all steps in this process.

QUESTION: What can an employer do if a returning employee refuses to have his/her temperature taken, complete a survey or profile of his/her recent activities, wear a mask, or follow other directives related to COVID-19?

ANSWER: The employer first might want to try to educate the employee to the reasons for the directives, the risks associated with not wearing a mask or using social distancing, and other preventative measures. If that fails, the insubordinate employee might then be put on an administrative leave, paid or unpaid at the option of the employer, with a written record of the employee’s actions and with written instructions that the employee should consider whether he/she wants to remain employed by the employer. If the employee still refuses to comply, he/she should be terminated. A written warning in advance of termination, along with thorough, contemporaneous documentation of the employee’s actions, should aid in defeating an unemployment compensation claim.

QUESTION: What can an employer do if an employee working from home is being abused by a household member so much so that the abuser has destroyed company property? As the employer is bringing the employee back to the workplace, should steps be taken?

ANSWER: Employers should be cautious about getting too involved in the personal lives of their employees. That said, when an employee’s personal life spills into the workplace, the employer must get involved in order to protect other employees, customers, and clients and the business overall. An employer also has a right to protect its property. Where the abuser seeks to come on company property, including a company-owned parking lot, the employer might first instruct the employee to take steps to prevent this from happening as well and insisting that the employee take measures to protect himself/herself. The employer also may want to obtain a temporary restraining order (TRO) and require that the employee obtain one as well. Because a TRO can be violated, the employer may want to have on-site security until the problem has been resolved. The employer also should have a Domestic Abuse Leave Policy as required by New Mexico’s Promoting Financial Independence for Victims of Domestic Abuse Protection Act which has been in effect since 2009. This Act applies to employers of all sizes and requires that an employer provide intermittent paid or unpaid job-protected leave of up to 14 days in a calendar year so that the employee can take actions required by the domestic abuse.

QUESTION: What has the federal Occupational Safety and Health Administration (OSHA) done recently regarding the COVID-19 crisis?

ANSWER: On May 19, 2020, OSHA issued an Updated Interim Enforcement Response Plan which became effective on May 26, 2020 and will remain in effect until further notice. Under this Response Plan, employers now must determine whether employees who have COVID-19 contracted it at work and if so, record the illness on OSHA Form 300. Employers with 10 or fewer employees and certain employers in low-hazard industries have no recording obligations and must report only work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization.

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