Key Definitions to Help You Understand the ADA

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If you hadn’t engaged with the Americans with Disabilities Act (ADA) before the pandemic, you probably have by now. The ADA comes up a lot these days, both with respect to confidentiality of medical information (like employee temperatures) as well as with reasonable accommodation for those who are at high risk for a serious case of COVID-19. In this article we’ll tackle some of the key terms in the ADA that every employer should be comfortable with.

First, though, let’s cover the basics. The ADA is a federal law that prohibits discrimination against applicants and employees with disabilities and requires that employers provide them with reasonable accommodations under certain circumstances. The law applies to all private employers with 15 or more employees, but many states have similar disability laws that take effect at lower employee counts. Most state disability discrimination laws are similar to the ADA, so even if you’re a very small employer, this article may include useful information.

The original language of the law has been around for roughly three decades. Nevertheless, there’s a lot of confusion about what the law requires and what its terms entail. A big reason for this confusion is the language of the law itself; the ADA has nebulous concepts, such as undue hardship and reasonable accommodation. Words like undue and reasonable are by their nature open to some interpretation, which is not exactly a comfort to employers.

Fortunately, while there’s no getting completely around the inherent ambiguity of the ADA, employers can feel more confident in their application of the law by reviewing and understanding its most important concepts, so below we’ll look at four key terms worth knowing.

Disability

Let’s start with the term disability. According to the ADA, a person with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, someone who has a history or record of such an impairment, or someone who is regarded as having such an impairment.

While the law does not have a list of impairments that are covered, it does identify some major life activities that could be limited by a disability. These include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include major bodily functions (e.g., the immune system, digestive functions). In short, the definition of disability under the ADA is broad.

The most often misunderstood part of this definition is the phrase “regarded as disabled.” This phrase becomes important if the employer takes any adverse action because they believe a disability may exist. For example, if a hiring manager removes a candidate from consideration (adverse action) because the manager believed, rightly or wrongly, that the candidate has social anxiety, then the manager has illegally discriminated against the candidate because they regarded the candidate as disabled. In this situation, the candidate — even if they did not have social anxiety — would have a claim under the ADA.

Reasonable Accommodation

Employers also encounter the ADA when an applicant or employee asks for a reasonable accommodation. According to the Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is “any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability.” Reasonable accommodations “can cover most things that enable an individual to apply for a job, perform a job, or have equal access to the workplace and employee benefits such as kitchens, parking lots, and office events.”

Common types of accommodations include modifying work schedules, altering the way job duties are done, eliminating a non-essential job duty (like asking the receptionist to stack the monthly 100 lb paper delivery in the storage room), granting additional breaks, providing accessible parking, and providing materials in alternative formats (e.g., Braille, large print). During the pandemic, working from home is an oft-requested accommodation that will almost always be reasonable for employees who do most of their work at a computer.

Not every requested accommodation will be reasonable, however. For one, employers are not required to remove an essential job function (the receptionist can still be expected to answer the phone). Employers also aren’t required to provide items for personal use, like wheelchairs or hearing aids.

If an accommodation is made, it’s important to evaluate its effectiveness. An accommodation set up today might not work well for the employee or the company two years from now. It’s okay to reassess later whether an accommodation remains reasonable given changed circumstances.

Undue Hardship

Under the ADA, an employer is required to provide reasonable accommodations as long as doing so does not create an undue hardship on the organization. According to the EEOC, an undue hardship is a significant difficulty or expense. The cost of an accommodation could be an undue burden on the employer, but so could an accommodation’s duration, expansiveness, or disruption.

An accommodation that would fundamentally alter the nature or operation of the business would be an undue hardship, even if the cost was negligible. But if cost alone is the basis for claiming that an accommodation is unreasonable, employers should remember that the standard is “significant expense.” The federal regulations instruct employers to consider the size of the organization and affected facility, their overall financial resources, and any tax credits, deductions, or outside funding available. Whether an accommodation would cause an undue hardship is something employers must assess on a case-by-case basis.

Interactive Process

If an employee requests an accommodation, such as working from home during the pandemic or taking an unpaid leave if their job doesn’t lend itself to telework, the employer should engage in an interactive process to determine if that request is reasonable. The EEOC describes the interactive process this way: the employee and the employer “communicate with each other about the request, the precise nature of the problem that is generating the request, how a disability is prompting a need for an accommodation, and alternative accommodations that may be effective in meeting an individual’s needs.”

Basically, the interactive process is an ongoing conversation with an employee who has indicated that they need an adjustment or change at work related to a physical or mental issue. They may specifically request a reasonable accommodation under the ADA, but expressing their needs in “plain English” is acceptable as well. Then, together, the employer and the employee determine what can be done to accommodate the employee so that the essential functions of the job get done and the employee is able to enjoy the equal benefits and privileges of employment.

Keeping these core concepts in mind can make accommodation requests easier and smoother. If you’d like to learn more about the Americans with Disabilities Act, search ADA on the HR Support Center. We have guides, 2-Minute HRs, and other articles on this important law.

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Department of Labor Revises FFCRA Rules

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In response to a court ruling in early August that invalidated certain regulations by the U.S. Department of Labor (DOL) related to leave under the Families First Coronavirus Response Act (FFCRA), the DOL has released revised regulations, which took effect September 16. The changes, or lack of changes, are outlined below. 

Definition of Health Care Provider

The definition of health care provider, for purposes of whom an employer can deny leave to, is revised to include physicians and others who make medical diagnoses (the same as under traditional FMLA); employees who provide diagnostic services, preventive services, treatment services, or other services necessary for patient care; and employees who provide services that, if not provided, would adversely affect patient care.

This definition is narrower than in the previous rule. For example, nurse assistants and laboratory technicians who process test results are considered health care providers, but IT workers at a hospital and medical billers are not.

Documentation Prior to Leave

Employers may require that employees provide documentation to support their need for leave as soon as practicable.

The former rule said that employers could require documentation before the leave started, which isn’t always practical.

Leave During a Furlough or Business Closure

Emergency Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA) are still available only if an employer has work available for them during the time that they need the leave.

This is the same rule as before; the DOL just explained its reasoning.

Approval for Intermittent Leave for Childcare

Employees still must get approval from their employer to use intermittent leave. However, the DOL has made it clear that leave is not considered intermittent if a school or daycare is closed on certain days or half days. For example, if the employee’s child’s school has a hybrid schedule with in-person classes on Tuesdays and Thursdays, but remote learning on Mondays, Wednesdays, and Fridays, then the employee would need leave on Mondays, Wednesdays, and Fridays, with each day being a separate leave event. In other words, the employee is not requesting intermittent leave in this scenario, so they do not need their employer’s consent.

This is the same rule as before; the DOL just explained its reasoning and clarified some aspects of the rule.

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FFCRA Leave – Significant Rule Changes

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A federal court in New York recently struck down four federal Department of Labor rules related to the leaves provided by the Families First Coronavirus Response Act (FFCRA). As a result, certain aspects of the FFCRA are now more favorable to employees. Unfortunately, it’s not clear if the ruling applies nationwide or only in the Southern District of New York, where the court is located. Until there is further activity in the case—which may clarify whether the rules remain intact throughout the rest of the country—we recommend that employers err on the side of caution when administering FFCRA leaves and assume these particular rules no longer apply.

What is clear is that these four rules definitely do not apply to the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester (i.e., the Southern District of New York).

Here are the rules that the court invalidated:

The requirement that work be available for an employee to use leave

  1. DOL Rule: The DOL said that for an employee to use Emergency Paid Sick Leave (EPSL) or Emergency Family Medical Leave (EFMLA, aka EFMLEA), the employer had to have work available for them during the time they needed leave. For instance, if an employee was furloughed while sick with COVID-19, they would not be eligible for EPSL.
  2. The Court’s Ruling: Availability of work is irrelevant. If an employee is still employed, whether on the schedule or not, they should be allowed to use FFCRA leave for qualifying reasons.

The requirement that employers agree to intermittent leave

  1. DOL Rule: Employees must get approval from their employer to use intermittent leave to care for their children when their school or place of care is unavailable because of COVID-19.
  2. The Court’s Ruling: If an employee needs intermittent leave (partial weeks or partial days off) to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow it.

The requirement that employees provide documentation before taking leave

  1. DOL Rule: Employers could require that employees provide certain documentation before being allowed to take FFCRA leave or before designating the leave as EPSL or EFMLA.
  2. The Court’s Ruling: Employers can still require documentation (which is necessary to get their tax credit), but they can’t prevent an employee from starting leave until the documentation is received. The law clearly states that an employee must provide notice “as is practicable” when taking EFMLA and after the first workday of leave when taking EPSL.

The definition of health care provider, for the purpose of exemption from leave

  1. DOL Rule: The DOL defined health care providers very broadly, to include anyone who works for a healthcare entity and many who contract with one. (The rule was so broad that a custodian working at a drugstore or an English professor at a university with a medical school could be exempt.)
  2. The Court’s Ruling: The definition is too broad. However, the court did not provide a new definition. We recommend that employers apply the exemption only to those employees capable of directly providing healthcare services.

We will be watching closely for activity in this case and will let employers know if and when things change or become clearer. 

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Leading During a Pandemic

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No one knows what the workplace is going to look like in three months. COVID-19 continues to spread. School reopening and attendance plans remain tenuous. Further action from Congress is uncertain. Official rules from the Department of Labor might even be struck down in court, further adding to the confusion about what employers are supposed to be doing.

Leading an organization right now can feel like driving to a destination you’re not sure exists on a road that’s changing right before you.

In this situation, we need to accept that the typical ways of leading a team may not prove successful. The simple question of what success looks like right now isn’t easy to answer with either clarity or consistency. For instance, conventional wisdom around goal setting says that goals should be specific, measurable, attainable, relevant, and time-bound (SMART goals). But the pandemic has made it much more difficult to pin any of these down. Think of the movie studio executives attempting to calculate the risks of releasing a feature film on a streaming service instead of in movie theaters. Or grocery store employees trying to mandate mask-wearing and social distancing when some vocal customers don’t want to cooperate. What success looks like in these situations is not at all clear.

While it’s unlikely that leaders can bring true clarity and certainty to the present moment, there are leadership practices that can help promote the well-being of the organization and its people. We recommend the following:

  • First and foremost, ensure that employees are healthy and safe in the workplace. Stay up to date with the latest safety guidelines. Provide employees with adequate PPE, cleaning supplies, and safety training, and prioritize their health and safety when making business decisions. If your employees are doing fine working from home, don’t feel pressure to return them to the office just because that’s the way things used to be. If they want to take extra measures to protect themselves at work, allow it. If they suggest modifications that they feel will make everyone safer, seriously consider investing in those changes.
  • Enforce the rules. Employees desire and deserve safety (and OSHA requires it) and are looking to their leaders to create and maintain stability. Although you may have some “squeaky wheels” who are vocal about not wanting to follow the rules — whether that’s wearing a mask in the office or turning on their video for Zoom meetings — consistency will be essential to keeping the workplace both safe and orderly during these strange times. Enforcing company rules and policies, along with the rules of your state or locality, will increase both safety and overall trust in leadership.
  • Be compassionate and fair. The mental and physical stress of the pandemic is affecting people differently, so they may need different treatment. This doesn’t mean bending the safety rules for those who don’t like them or letting employees overlook basic online etiquette because they’re stressed out. It does, however, mean adjusting your expectations when employees are in a caregiving role, sick themselves, lonely, anxious, dealing with children who are home 24/7 for the foreseeable future, living with unruly pets, or all of the above. Productivity may be down, and it may stay that way for quite some time. If it’s any consolation, nearly every organization in the nation is dealing with the same issues right now. Even for companies whose profits are up, productivity, morale, and scheduling are a struggle. Good leaders will accept the situation and set about making it as workable as it can be for employees and the organization as a whole.
  • Focus on the overall mission of your organization. Analysis from Gallup indicates that people in a crisis look to their leaders for trust, compassion, stability, and hope. We’ve already talked about the first three, but don’t underestimate the need for hope right now. Do what you can to reach out proactively to employees and ensure they understand how their work is connected to the mission and success of the organization. Remind everyone of what you’re all doing and why you’re doing it. Hard numbers and specific projections are still important, but they may not be the most important thing to highlight at this time. Where numbers fail, knowing that at the end of the day (month, or year) your organizations will still be able to deliver a quality product or service that will make the lives of your clients and customers better can go a long way toward instilling hope. 

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DHS Relaxes In-Person I-9 Inspection Requirements

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The physical presence requirement of the Employment Eligibility Verification, Form I-9, requires that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.

On March 20, 2020, the Department of Homeland Security announced that effective immediately, the physical presence requirement has been temporarily suspended for employers and workplaces that are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. On August 18, DHS announced another 30-day extension of this temporary rule. The rule is now set to expire on September 19, 2020.

The USCIS has guidance, including example forms, is available here. 

Limitations and Liabilities

  • If there are employees physically present at a work location, then in-person verification of identity and employment eligibility documentation for Form I-9 continues to be required. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
  • Employers may designate an authorized representative to act on their behalf to complete Section 2 and may be any person the employer designates to complete and sign Form I-9 on their behalf. However, employers are liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Section 2 Documents Must be Inspected Remotely

Employers must still inspect the Section 2 documents but may do so remotely (for instance, over video link, fax, or email). Employers must also obtain, inspect, and retain copies of the documents they inspect, within three business days so as to complete Section 2. Employers are also directed to:

  1. Enter “COVID-19” as the reason for the physical inspection delay in the additional information field of Section 2 once physical inspection takes place after normal operations resume; and
  2. Add “documents physically examined,” with the date of inspection to either the additional information field of Section 2 or to section 3 (as appropriate) once the documents have been physically inspected.

Employers may implement remote document inspections until May 19, 2020 (“up to 60 days from the date of the announcement”) or within three business days after the termination of the National Emergency, whichever comes first. Importantly, employers who implement remote onboarding and telework policies must provide documentation for each employee. This burden rests solely with the employers.

In-Person Verification Required after Normal Operations Resume

Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation they presented for their Form I-9. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field or to section 3, as appropriate.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting date for record retention purposes for these employees only.

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Employee FICA Tax – To defer or not defer

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President Trump invoked an executive order deferring the withholding, depositing, and payment by employers of the employee portion of social security taxes on August 8, 2020.

This order applies to wages paid for the period between September 1 and December 31, 2020, for employees who receive less than $104,000 per year. The President further asserted he would explore options to forgive these deferred FICA Taxes if he is re-elected.

The deferral period begins in less than one week. However, no Treasury guidance has been issued and no mechanism has been created for employees to elect or for employers to defer the employee FICA tax.

In the absence of any implementation guidance, we are left scrambling to answer employee and employer concerns:

  • Is the deferral optional?
  • How do employers record employee requests for deferrals?
  • Is this entire topic subject to continuing legal challenges?
  • Most importantly, can Washington function in the final months leading up to the election and provide proper guidance to the Tax Preparer community?

Several industry groups have sent letters to Washington requesting guidance. However, the silence is deafening.

As a tax preparer and payroll professional, Contempo HCM advises our clients not to attempt to implement the deferral of FICA Withholding Taxes until further guidance becomes available.

Which will come first, the Guidance or the Election?

Responding to Anonymous Complaints: Dos and Don’ts

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If you receive an anonymous complaint, it is important to remain calm and review the complaint objectively regardless of how egregious the accusations may seem. Although the complaint was received anonymously, the company still has an obligation to take action, if necessary, to ensure that employees are provided a workplace that is safe and free from harassing or discriminatory conduct.

We recommend investigating the complaint to the extent possible given the information received. Here are dos and don’ts to keep in mind:

Do:

  • Determine if an investigation is warranted or possible. Some complaints will not require an investigation, and some may not even require follow up (e.g., personality conflicts do not require investigation and complaints about the brand of sparkling water stocked in the kitchen do not require any follow up).
  • Begin your investigation as soon as possible and plan to conclude it within a timeframe that is reasonable based on the complaint. Physical harassment and serious safety complaints, for instance, should be addressed immediately and resolved within days. Other harassment investigations should be concluded within two weeks.
  • Take a measured approach, keeping in mind your intent is first to confirm whether the complaint is valid and take appropriate action if you determine that it is.
  • Focus on the (alleged) facts presented and do the best you can with what you’ve been given. Anonymous reports are definitely harder to follow up on, but the option of anonymity will hopefully result in more situations being brought to your attention before they turn into bigger issues.
  • Interview those you know are involved. If only a certain group, location, or department is named, start by speaking to other employees who may have experienced the same behavior. For instance, if someone registers a complaint that the Director of Engineering made sexist remarks, first interview the director’s subordinates; if you call the director in first, they will likely deny the accusation and may treat their subordinates worse, making others afraid to tell the truth about the behavior when interviewed later.

Don’t:

  • Panic. All you can do is your best!
  • Jump to conclusions or rush to judgment.
  • Dismiss complaints just because the anonymity of the reporter makes it more difficult to investigate.
  • Assume the complaint is valid or invalid before doing preliminary research.
  • Retaliate against the suspected complainant or witnesses.
  • Discuss the matter with anyone who is not relevant to the investigation. Share the complaint only with those who need to know about it. Sharing the contents of an anonymous complaint with those who don’t need to know about it will only discourage reporting in the future.

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Six Tips for Managing Stress in the Workplace

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We’re all supposed to feel stress from time to time. It’s the way the body responds to demands and dangers. A stressful event triggers the release of hormones. These hormones, according to Psychology Today, “increase heartbeat and the circulation of blood to support quick action, mobilize fat and sugar for immediate energy, focus attention to track the danger, prepare muscles for movement, and more.” This fight-or-flight response helps us overcome these challenges. It can save our life before we realize we’re in danger.

We are not, however, supposed to feel stress all or most of the time. Stress, particularly the regular or chronic variety, can lead to illness and other mental and physical health problems. As Sarah Noll Wilson notes, stress also makes it more difficult for us to access higher level brain functions like logic, reasoning, problem solving, listening, and empathy—all of which are useful for managing stress!

It’s no secret, unfortunately, that many of us live overly stressful lives, more so now that we’re in the midst of a pandemic. Some days we may feel overwhelmed by stressful situations and overloaded with stress hormones, and it’s no mere coincidence that on these days we seem less able to think clearly and work collaboratively. We’re literally chemically hindered from doing so.

Why is the workplace so stressful?

The workplace is a high-risk environment. First, there’s the risk of failure and its consequences, such as a missed deadline that may jeopardize a deal. Second, there’s the risk of bad outcomes from the employment relationship, such as when an employee reveals trade secrets to a competitor or a manager retaliates against an employee for reporting harassment. Related to this second risk is a third one: the liability brought about by all of the laws that govern the employment relationship. As we know, compliance obligations are a big stressor for employers.

In addition to these stressors are less-noticed ones. Feelings of loneliness and isolation can add to a person’s stress at work, as can mental conditions like depression, anxiety, and OCD. Employees without a strong support network or those experiencing mental illness may have an even more difficult time managing common workplace stressors. Worse, their additional struggles are often invisible to managers and peers.

Similarly, managers and peers are often unaware that some employees are experiencing the stress of microaggressions (explained below) and subtle forms of oppression and discrimination. In an interview with Forbes, Minda Harts explains what it’s like to be the only or one of only a few women of color in the room: “After a while, you just start to settle into the microaggressions, you start to settle into the isolation, and you start to question everything you’re doing, and your expertise.”

And now, added to the mix, is the COVID-19 pandemic, which, to quote Sarah Noll Wilson, means “living with the constant hum of a threat” and with fewer moments “where our brain can properly rest while we still go about our day.” That’s a big issue. Chris Weller at the NeuroLeadership Institute writes, “Just as a sponge can only soak up so much water, and a computer can only process so much information, our brains have finite holding power. After a certain point, we all need to stop working, rest, and recharge.”

What employers can do to make the workplace less stressful

Not every stressor in the workplace can be eliminated, but some can. In any case, stress can be managed. It doesn’t have to have the last word. Here are some practices that can help make the workplace less stressful:

  • Don’t assume the worst. Because the workplace is home to so much stress, it’s easy to grow cynical about the employment relationship. It’s true that there are bad employees, horrible bosses, and toxic cultures. Workplace problems can be entrenched and systematic. Nonetheless, the employment relationship isn’t uniquely bad among human relationships, and it’s a mistake and counterproductive to think it is. There are star employees, terrific bosses, and great places to work—and these aren’t rare. Assuming the worst about employers or employees, or seeing them primarily as threats or liabilities, is like assuming all your friends are going to betray you. It’s an attitude that creates more drama, adds more stress, and ruins otherwise functional relationships. So, as Cy Wakeman says in her book No Ego, “stop believing everything you think.” Instead, advises Wakeman, ask yourself what you know for sure and base your thinking and your decisions on what is, in fact, real. Tell your employees to do the same.
  • Always act in good faith. There are times when the right thing to do is going to cause someone stress. For employers, it might be discipline for a policy violation, a poor performance review because of unmet expectations, or a layoff due to a shortage of work. For employees, it might be providing candid feedback to a peer, asking a coworker to cover a shift, or setting a hard deadline for a project. At some point, you’re going to cause someone stress, and that’s likely okay. The important thing is not to try to spare people necessary stress, but to approach decisions that will cause someone this stress in good faith. Good faith shows that you care about their success and wellbeing. It also helps put others in a better frame of mind to accept the demands or pressures placed upon them.
  • Address sexism, racism, and other forms of inequality. These are stressors that every employer should be acknowledging and working to eliminate. Unlike other stressors, they are not inevitable.
    Microaggressions, in particular, deserve to be called out. Writing in Harvard Business Review, Ella F. Washington, Alison Hall Birch, and Laura Morgan Roberts explain that microaggressions are “verbal, behavioral, and environmental indignities that communicate hostile, derogatory, or negative racial slights and insults to the target person or group. For Black people, they are ubiquitous across daily work and life.” These indignities are not “small,” as the term micro might seem to imply, but rather frequent and casual.
    The authors cite research suggesting that “subtle forms of interpersonal discrimination like microaggressions are at least as harmful as more-overt expressions of discrimination.” For one thing, continual hostility and discrimination rob people of the time and space they need to rest and recharge.
    In these situations, employers have a responsibility not only to help employees manage their stress, but also, and more importantly, to do everything they can to put a stop to the hostility and discrimination that’s causing the stress. Sexism and racism, subtle or overt, must not be tolerated.
  • Promote support networks. We’re not meant to struggle with stress alone. We need others, and they need us. You can facilitate friendships and support systems among employees by setting up virtual chat programs and video conferencing apps (and in-person spaces for fun when the pandemic is over). Reassure employees that it’s fine for them to take a little time during the workday to reach out to others about non-work matters and participate in virtual games and other fun group activities. Managers can set the tone by participating in these chats and activities and encouraging employees to join in.
  • Provide mental health benefits, if possible. In some cases, employees who want to get the mental health care they need can’t afford the costs. Losing pay from a missed work shift might be too great a hardship, and effective treatments might be financially out of reach. These financial hindrances can exacerbate stress. In other cases, employees can afford the time off and the treatments, but they can’t make regular appointments work with their schedules. If you can offer paid time off, health insurance benefits, or flexible schedules, these can help employees get the care they need.
    An Employee Assistance Program (EAP) may be another great option for employees feeling overwhelmed by stress. It gives employees access to expert, confidential assistance for substance abuse issues, relationship troubles, financial problems, mental health conditions, and other major stressors.
  • Give people permission and time to rest and recharge. When a workplace situation causes someone to have a fight-or-flight response, it may be best for them to remove themselves from the situation before they say or do something they later regret or that causes more harm. Make sure employees know that they can remove themselves from an overly stressful situation. They shouldn’t have the added stress of worrying that they’ll be punished for doing what they need to do to de-escalate the situation or get away from it so they can calm themselves and refocus.

Aside from allowing these in-the-moment decisions to pause and step away, consider setting time aside during the week or month for employees to participate in activities like yoga, meditation, and mindfulness. There are known techniques, such as deep breathing, for eliciting a relaxation response when someone is experiencing stress. Educate yourself and your employees on these healthy practices for managing stress.

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HR Tip of the Month – Primary Beneficiary Test

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Employers should use a test — called the primary beneficiary test — when determining if a worker can be properly classified as an unpaid intern or if they need to be classified as an employee and paid at least minimum wage and overtime. Before hiring an unpaid intern, employers should consider the following:

  • The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee.
  • The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  • The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  • The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  • The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  • The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  • The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

No single question will disqualify the worker from being classified as an unpaid intern. Instead, the employer should look at the answers as a whole. If in doubt, do not classify the employee as an unpaid intern.

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Harassment Prevention Considerations with a Remote Workforce

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Using video conferencing apps for meetings can make for a more productive and engaging time than group discussions over the phone, but there are also some risks to consider in regard to harassment prevention:

Attire

When working from home, the desire to work in comfortable clothes could tip from casual to inappropriate. You may have seen memes and stories about employees wearing professional tops without appropriate bottoms or family members dashing by too much in the buff. Fortunately, these wardrobe malfunctions are easily preventable with a little planning on the employee’s part. Remind them to plan ahead.

Backdrop

Ask that employees also take stock of what’s in their background before turning video on. Could there be inappropriate personal items or art that some might consider offensive? A number of video conferencing apps have virtual backgrounds that can eliminate both the threat of harassment as well as general distractions.

Video vs. Phone Call

Ensure that virtual meetings are scheduled equitably. For example, if a manager checks in with men on the team over the phone, but uses video for one-on-one meetings with the women, that would be a cause for concern.

Virtual Happy Hours

Both the use of alcohol and the act of communicating over a screen can decrease formality. Set expectations around respectful behavior and encourage employees to drink responsibly, if allowed, during happy hours. Remind employees that harassment and other conduct policies apply, just as they would at any other company-sponsored function.

Further Considerations Around Virtual Harassment

  • Handbook Policies: Review your company harassment and discrimination handbook policies and ensure they’re inclusive of, and applicable to, remote work and interactions.
  • National Origin and Race: An April 2020 Ipsos survey found that more than 30 percent of Americans have witnessed someone blaming Asian people for the coronavirus pandemic. The EEOC recently suggested that employers reduce harassment risk by clearly informing employees that fear of COVID-19 cannot be “misdirected against individuals” based on any protected characteristic, including national origin or race. Be alert for any discriminatory comments and be ready to act.
  • Age: Keep an ear out for jokes about employees’ age. A seemingly harmless barb about an older employee’s unfamiliarity with technology could result in a discrimination claim.

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