March 20, 2020 Executive Order 202.4: Telecommuting and In-Person Workforce Reductions
KEEPING YOU INFORMED…
We are writing to provide clarification on Executive Order 202.4 which, in general, requires public employers to reduce their in-person, non-essential workforce by 50% by reassigning them to work remotely or placing them on leave without charge to accruals. For now, public employers are not subject to Executive Order 202.7, which requires a 75% reduction to in-person, non-essential staff or the announced and yet to-be-issued Order, which will require a 100% reduction.
The Governor’s Office has advised that “essential” employees are those whose services are needed to ensure the continuing operation of a local government or political subdivision, those who need to be physically present to perform their job and those involved in the emergency response to COVID-19. Notwithstanding this advice, it remains within each employer’s authority (as of now) to determine which employees are essential and which are non-essential.
There is no obligation to reduce essential services. Employees providing these services are excluded from the total number of employees for purposes of implementing the 50% reduction. In other words, if an employer has 500 employees and 100 of them are essential, there are 400 non-essential employees. Of the 400 non-essential employees, at least 200, at any given time, must be assigned to work remotely or be placed on leave, without charge to accruals. The 100 essential employees may continue to be directed to report to work as usual.
The 50% reduction to your in-person, non-essential workforce can be accomplished by a rotating schedule or identifying the employees who will report to work in-person as usual or any other method that is needed to continue your operations. The workplace rules should continue to be applied to employees working remotely and those reporting in-person. This includes, but is not limited to, charging accruals for any absence.
We have heard rumors that the Governor will be issuing an Executive Order regarding temporary modifications to collective bargaining obligations. Unless/until that occurs, you should continue to abide by your collective bargaining agreements, employment contracts, policies and procedures as much as possible. Deviations might be needed to implement Executive Orders or otherwise address COVID-19-related issues. We can assist you with best practices on how to manage these deviations while minimizing litigation, avoiding setting bad precedent, maintaining labor-management relationships and abiding by the ever changing “rules of the game” during the COVID-19 pandemic.
Please contact Alyson Mathews or one of our other labor and employment attorneys by calling (631) 694-2300 or emailing am@lambbarnosky.com if you have any questions regarding the implementation of Executive Order 202.4.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2020