Q. An employee showed up at work with symptoms that later resulted in a diagnosis of mumps. What obligations, if any, do we have to notify other employees who may have been exposed?
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A. You should proceed very carefully because the situation requires you to balance the employee’s privacy rights and your obligations under the Health Insurance Portability and Accountability Act (HIPAA) with your obligations under the Occupational Safety and Health Act (OSHA), which requires you to provide a safe workplace to all employees.
Mumps is a very contagious airborne disease that spreads rapidly, so any employees in the office would be at risk. Another critical factor is that one or more of your employees may have a family member who is immunocompromised and thus may have a serious risk of secondary exposure.
You can address all of these issues by ensuring the infected employee isn’t identified and isn’t the subject of any adverse action. You should fully communicate with her, making it clear she won’t be permitted to return to work unless or until she can provide medical certification that she is no longer contagious.
You should also inform her that, although she won’t be specifically identified, you will be notifying other employees that an unidentified employee has been diagnosed with mumps, it is very contagious, and there may have been exposure to individuals in the workplace.
You can then notify all potentially infected employees in the workplace that an unidentified employee has been diagnosed with mumps and distribute general information from a variety of sources. I suggest one of your first actions should be to contact your local health department and the U.S. Center for Disease Control and Prevention (CDC), which has substantial information available on its website.
Taking the above approach should address all appropriate interests and keep you in compliance with all applicable federal laws. Other employees may figure out who the infected employee is on their own, but you will remain in compliance with the appropriate laws and restrictions.
Q. Can temporary employees be hired as exempt or weekly salaried?
A. Yes, so long as they meet all of the tests and requisite factors for qualification under one of the recognized exemptions of the Fair Labor Standards Act (FLSA).
As a practical matter, most temporary staffed workers are assigned to positions that wouldn’t typically qualify for one of the exemptions—e.g., executive, administrative, or professional. It is possible, however, that they may qualify in certain circumstances.
To qualify for the professional exemption, they must have the requisite professional degrees and training and must be doing work that meets the definition for the professional exemption. To qualify for the executive exemption, they must manage a recognized department or division, regularly supervise two or more employees, and have the authority to hire or fire, or at least offer input that is seriously considered. To qualify for the administrative exemption, they must perform nonmanual work that is part of the overall administrative operation of the business and customarily exercise discretion in judgment without supervision.
Remember, however, that to be exempt from overtime, they must truly be paid on a “salary basis,” which means they must be paid the same salary for each week in which any work is performed, regardless of the quantity or quality of work.
Currently, the threshold salary for potential exempt status is $455 per week or $23,660 annually. However, the U.S. Department of Labor (DOL) has issued its new final overtime rule, under which the salary basis threshold for exempt status will increase to $684 per week or $35,568 annually. The new rule and salary threshold will take effect on January 1, 2020.
Q. Can Form I-9 be signed electronically if an employer uses a portal for onboarding?
A. An I-9 may be signed electronically only if all federally prescribed requirements are met in compliance with the applicable regulations that govern the electronic completion, storage, documentation, reporting, and signature of the form.
Therefore, you should carefully review with your electronic I-9 provider, onboarding vendor, and portal to review and ensure that your system meets U.S. Immigration and Customs Enforcement (ICE) guidelines and requirements.
In this regard, you should also review your existing contract with any such vendor to ensure it contains language stating the vendor certifies and guarantees its software and other systems fully comply with all regulations governing the electronic completion of I-9 forms.
Mark M. Schorr is a senior partner in the law firm of Erickson | Sederstrom, P.C., LLO and an editor of Nebraska Employment Law Letter. He may be contacted at schorr@eslaw.com.