Things Employers Should Keep in Mind When Letting Go of a Remote Worker During COVID-19
Updated: Jul 1, 2020
The Legal Rights of the Employee during COVID-19
As the shutdown continues to lift, employers may be considering letting employees go for
electing not to return to work or for taking unexcused time off. However, employees still have
legal rights regarding their employment that employers must consider. Below are examples of
legal rights an employee may have which may impact an employer’s ability to lay off the
OSHA - Employees can refuse to return to work if they reasonably believe they are in imminent danger of death or serious physical harm that is likely to occur immediately or in a short period.
NLRA - Employees (regardless of unionization) have a right to join together when engaging in protected concerted activity. Employees can assert these rights when protesting unsafe working conditions.
ADA - Disabled employees have a right to reasonable accommodations from the employer. Disabilities include underlying medical concerns that put the employee at a higher risk of contracting or developing severe symptoms from COVID-19.
FFCRA - From April 1st through December 31st, 2020, private employers of fewer than 500 employees may be required to provide paid leave or extended family and medical leave to their employees.
FMLA - Private employers with 50 or more employees are required to provide eligible employees unpaid, job-protected leave for specific family and medical reasons. To be eligible, the employee must have worked for the employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12 months immediately preceding the leave, and must work at a location where the employer has at least 50 employees within 75 miles.
If any of these scenarios may apply, an employer should contact an attorney to determine whether the employer and the employee are both covered by the provision and, if they are, to learn how the employer may proceed to terminate employment properly.
Planning and Termination
Unless otherwise stated in the employment contract, employers can use any mode of
communication to fire employees. Nonetheless, letting an employee go face-to-face is preferable to other methods because it can establish goodwill with your former employee. The employer can use video conference applications to meet with the employee face-to-face while also following social distancing guidelines. Before letting the employee go, consider the following prudent procedures:
Restrict the employee’s access to company servers to protect confidential information from disgruntled employees.
Plan what you want to say to the employee ahead of time.
Determine how the company intends to handle pending issues like severance and the return of company property.
Have an HR, compliance, or other company representative sit in on the meeting if possible as a witness.
Develop a strategy for collecting company equipment that the former employee possesses. Follow any written procedure in the employment contract or company bylaws, while also taking the proper precautions to practice social distancing.
If the employee does not return the work-equipment within the specified or otherwise reasonable time frame, an employer can reduce the employee's final pay to compensate for the lost property. To properly cut the employee’s pay, the employer must follow certain procedures. If the employer and employee agree in advance regarding the appropriate deduction, the employee must sign a written authorization on or before the day the employer delivers the
reduced payment. This authorization must provide the reason for deducting from the employee’s
wages while including the actual dollar amount or percentage of withheld wages.
If the parties have not discussed or do not agree about the deduction, the employer must still have the employee sign a written authorization before issuing the reduced payment. However, in this scenario, the authorization must state the reason for the deduction, include a written notice of the actual amount, notify the employee of his or her right to withdraw the authorization, and provide a reasonable opportunity for the employee to withdraw.
Regardless of the withheld property’s value, the Fair Labor Standards Act prohibits employers from withholding an employee’s entire paycheck. If an employer finds itself in such a situation where the unreturned equipment exceeds the value of the paycheck or if the employee is otherwise unwilling to sign the authorization for reduced pay, the employer can always consider legal action as a means for recourse.
PPP Forgiveness Considerations
If an employer took out a loan under the CARES Act’s Paycheck Protection Program, the employer should also consider the consequences that letting go of an employee will have on the employer’s eligibility for loan forgiveness under the CARES Act. Typically, the CARES Act
requires the employer to maintain its workforce and payroll through a given period of time in
order to have its loan forgiven. Letting go of an employee may deem the employer partially or fully ineligible for forgiveness. See here for more information on the CARES Act.
Letting go of an employee can be a challenge, especially with social distancing. Nevertheless, keeping these primary considerations in mind can help protect an employer’s business and reputation. If you need guidance in reducing your workforce, please contact Vennum Law—our employment attorneys are ready to help.