May 5, 2020
Employers across the country have been grappling with issues related to the Novel Coronavirus (“COVID-19”), including compliance with the provisions of the Families First Coronavirus Recovery Act (“FFCRA”), the CARES Act and the Personal Protective Equipment (“PPE”) related issues. Furloughing employees, putting them on layoffs or even terminating them due to a downturn in business has been common. Every segment of employee relations is confronting its own difficult challenges because of the never-before-seen disruptions.
A number of states have now chosen to begin moving toward reopening the business sector. As a result, employers need to begin turning their attention to the next phase of reopening, or at the very least, ramping back up their businesses. The time to begin planning for that difficult and hopeful situation is now. The purpose of this article is to give employers an overview of core issues that should be considered when returning employees to work from teleworking or calling them back from furlough.
One of the first steps for employers is to begin planning the sequence of calling employees back to work or back into the facility from telework. This should include: a) plan on how to notify employees when they are expected to return to work; b) establish the timetable for the return; c) review and update the policies related to leave, absenteeism, and employee communications which will be under more scrutiny at this time; d) develop a specific COVID-19 related policy to cover COVID-related issues; and e) educate supervisors about their obligations, duties and issues to be aware of during and after the call back process.
It is critically important that employers also keep abreast of the latest directives of the Centers for Disease Control and Prevention (“CDC”), state authorities, county authorities, and local authorities. There are a number of resources for doing so, including in part the McGrath North COVID-19 Resource Guide.
“Best practices” with respect to sanitation should be incorporated into the new COVID-19 policy and communicated to all employees. Company practices should be reviewed and employers should immediately begin the search for necessary PPE and sanitation materials.
A. Core Principles
The “best practices” with respect to sanitation should include social distancing (a separation of at least six feet from other employees), frequent handwashing and providing sanitizing gel and or wipes for use on a frequent basis.
The issue of what is necessary or appropriate PPE will vary from company to company. This should be evaluated based on the available guidance from public health officials. It will also be important to closely monitor steps and developments being taken by other similarly situated businesses, which may create standard of care arguments for your employees and customers.
B. Masks for Employees and Others
An emerging issue is whether certain companies should require both its employees and customers to wear masks. The answer to that question will vary based upon whether employees are physically separated by walls or appropriate dividers and how often they might be required to work or move within six feet of other employees, customers, vendors, or others. An employee’s workplace may be appropriately separated from those of other employees, yet when the employee is moving around on break or using the restrooms, they may come in close proximity with other employees and, accordingly, the best practice may be to require the use of a face mask in those situations only.
C. Common Areas
With respect to “common areas” on company premises, steps should be taken to provide separation of employees if they are in a breakroom, lunchroom, or similar areas. In the alternative, such spaces should be closed. Where there are other common areas such as stairwells, stairways or elevators, rules should be appropriately formulated and posted so that employees can maintain the appropriate social distancing when in those areas or use the appropriate PPE. Company policy should provide that any areas which may be common to employees will be sanitized on a regular basis throughout the workday.
D. Shared Equipment
For employees who work different shifts and share equipment, the equipment should be sanitized at the start of the shift and at the end of the shift each day. Employers may even choose to provide each employee with their own personal equipment, such as headphones, for use on the job.
E. Employee Work Communications
Although it is somewhat counterintuitive, when appropriate and safe, employees should be “coached” to use telephonic or email communications rather than the tried and true face-to-face contact even within their own department. This simple step can help minimize the risk of personal contact that goes on for more than a few seconds. Additionally, with respect to in-person department meetings, if the facilities allow employees to attend and maintain the appropriate separation, the necessary separation should be emphasized and enforced. If that is not possible, group video meetings should be evaluated and, where appropriate, utilized.
For the time being, business related travel should be prohibited, except where it is “essential.” If it is determined that such travel really is essential, employees must be instructed on the appropriate procedures and preparations to be engaged in while traveling and to be followed upon returning. The issue of personal travel is more challenging.
If an employee engages in personal travel to a hotspot for COVID-19, they may be subject to a two-week quarantine to determine whether they might develop symptoms of COVID-19. Because of that factor, and possible employee abuse of the mandatory quarantine by engaging in practices which would then require quarantine, some employers have established a work rule requiring employees to inform the employer if they are going to travel more than a set number of miles from their place of work. Such practices allow employers to warn employees that they would or may be subject to quarantine for that activity.
G. Temperature Monitoring
Some employers have initiated the practice of taking the temperature of all employees at the start of each workday, as well as any visitors to the facility. The EEOC has concluded that since an employee with COVID-19 could be a “direct threat” to their own health and safety as well as the health and safety of other employees and individuals they might come in contact with, such a temperature test is work-related and permissible. Other health condition monitoring and reporting must be carefully evaluated because of the obvious liability risks.
Compliance with Statutory Protections
Employers should anticipate, especially when telework has been authorized, that there may be some pushback from employees with respect to returning to the workplace. Employers should keep in mind that certain employees may be able to request leave under the Family and Medical Leave Act (“FMLA”), where there is a serious health condition impacting the employee or certain members of the employee’s family. Additionally, employees of employers with less than 500 employees may be entitled to emergency paid sick leave under the FFCRA or extended FMLA leave for purposes of caring for a child under age 18 who is unable to attend school or daycare where the facility closed for COVID-related reasons. For additional information, here are links to previously written articles DOL Sheds Light on Some FFCRA Open Issues, DOL Issues Additional Guidance on the FFCRA, and Congress Enacts a Sweeping Leave Bill in Response to COVID-19.
Finally, employers should be aware that an employee presently using teleworking or even who is on furlough, may be able to avail themselves of the protections of the Americans with Disabilities Act (“ADA”) if they have a “disability” as defined under the ADA for which continued leave may be a reasonable accommodation. A commonly cited example would be if the employee has a diagnosed anxiety disorder (as opposed to generalized anxiety) which may be impacted by a requirement that they return to the workplace. At the same time, a mere claim of anxiety would not be sufficient to invoke the protections of the ADA. The employer may always require the employee to provide sufficient medical documentation of any physical or psychological condition claimed to be a disability.
It also is important that each situation which may be involved in a protection under the ADA should be examined and the “interactive process” engaged in. It is important that employers examine their state laws to determine whether additional protections have been built into state law with respect to such issues as anxiety over return to work.
If an employer chooses to grant additional leave to employees, even though there is no coverage under the FMLA or ADA, such leave is not required to be compensated. Similarly, if an employee undertakes personal, non-work travel to a hotspot and is quarantined upon their return, they are not entitled to be compensated. Exceptions in both of those situations described immediately above would exist for employees who have accumulated paid company vacation which may be used. However, if quarantine is due to personal travel to a hotspot, an employee may not use their accumulated sick leave unless they have medical symptoms or the employer agrees to its usage in that situation.
Employers are allowed to use their normal reporting requirements for employees who are absent due to testing positive for COVID-19 or who are quarantined or isolated for any other reason.
Finally, under the terms of the Pregnancy Discrimination Act (PDA) employers may be required to grant additional leave to pregnant employees. Additionally, certain states, such as Nebraska, have enacted statutes which provide far ranging protections for pregnant employees.
When dealing with these situations, it is important that there be a “point person” in the company who will be able to provide COVID-related information or make the decisions involving leave. Those decisions should not be left to frontline supervisors.
With the policies described above, it is important that supervisors be given clear training on how to handle employee communications and requests on all the topics outlined above. It is recommended that such training be provided prior to the return of the first employee or group of employees. They should be advised about new policies, dealing with employee unease about returning to work, and enforcing and participating in “best practices” in sanitation procedures.
Supervisors should also be reminded to be wary of employees who appear in the workplace with symptoms which could be related to COVID-19. The procedures for asking questions regarding apparent symptoms or the use of temperature sensing devices should be explained to supervisors who, in turn, can explain them to employees. They should immediately inform management or Human Resources of any such situation of apparent symptoms. Decisions related to potential discipline for resisting the use of temperature taking devices or refusing to leave the workplace in the face of apparent symptoms related to COVID-19 should be referred to the “point person.”
Potential Employer Liability
Employers have an obligation to provide a safe workplace under the Occupational Safety and Health Act as well as safety standards adopted at the state level. Guidance has been issued to assist employers when adopting safety protocols in the workplace to protect employees from COVID-19. See https://www.osha.gov/SLTC/covid-19/. An employer’s liability extends to employees, customers and third parties.
State workers compensation laws may limit liability to employees if workers compensation coverage is afforded under state law. However, many states define occupational diseases to exclude “ordinary diseases of life” and limit workers compensation coverage to illnesses or diseases that have an origin or risk associated with the work environment. Workers compensation coverage may therefore not be available for employees in certain jurisdictions. In these states, employers may be subject to civil liability because they are not protected from COVID-19 claims because workers compensation provides an exclusive remedy. In other words, if an employee has a valid claim under workers compensation, that employee cannot seek other remedies against their employer.
Absent liability protection, employers could be exposed to a variety of tort claims asserted by employees, customers and third parties who are able to prove that they contracted the virus on the employer’s premises. Such claims may allege, among other things, that the employer failed to properly clean and sanitize work areas, failed to enforce social distancing, failed to provide necessary PPE, failed to properly control employees who were experiencing symptoms of COVID-19, or simply failed to cease operations after learning that employees had been exposed to COVID-19.
Currently, a growing number of state and federal lawmakers are considering legislation that would limit liability exposure for businesses that are attempting to reopen during the pandemic. At the federal level, lawmakers are divided on this topic along party lines. Many believe that business owners should be protected from liability during these difficult times while others are concerned about businesses operating in an unsafe manner if they are protected from liability.
In connection with reopening businesses, many state officials have adopted executive orders defining COVID-19 safety protocols that should be followed by businesses during the pandemic. In certain states, employers are granted immunity from claims under state statute as long as they follow COVID-19 safety directives under an executive order.
Aside from tort liability, employers are also defending claims for failing to provide proper notice to employees under state and federal law (i.e., COBRA) when a layoff occurs and health coverage terminates. Such notices advise employees of their right to continued coverage under employer health plans. Potential liability for employers may include benefits, penalties, legal fees and costs
Employers must be aware of applicable reporting obligations for instances when one of their employees tests positive for COVID-19. In some locations, Douglas County, Nebraska being one, it is required that a positive test be reported to the county health department so that they may trace the contacts of the person who tested positive to alert others to potential exposure.
If one of your employees has had personal contact with someone who has tested positive, they may need to be quarantined. Although quarantining should be the default in such situations, the actual decision on whether to quarantine will depend upon the nature, duration and proximity of the contact. For example, if an employee worked in an area with 20 or 30 other employees and then tested positive, it may not be necessary to quarantine all the other employees in the department. That decision would depend upon how often employees had close (probably within 6 feet) contact with the infected employee, how often that contact was maintained, and whether those employees had shaken hands, patted the other employee on the arm or had other physical contact.
In such cases, the company’s response should be to, with the use of personal protective equipment, or over the telephone, interview the employee that has tested positive and determine what the nature of their contacts with other employees were over the preceding week. At the same time, employers may not have the requisite medical knowledge to make a decision, and in that case, it is recommended that a healthcare provider or even the local health department be contacted for guidance. The issue becomes more sensitive where one of your employees may have had contact with a person who, in turn, may have had contact with a person with COVID-19. Again, the decision in those situations will vary according to the factors described above.
Onboarding and Return to Work
If an employee has been subject to a quarantine or isolation for any of the reasons required above, an employer may require a return to work verification from a healthcare provider. If employers are required to hire new employees to fill vacancies or because the volume of work has increased dramatically, it may wish to solicit the application remotely and, additionally, conduct any interviews remotely. However, many employers are choosing to do the very last interview on a face-to-face basis observing, of course, distancing requirements.
Where employees are being hired to work remotely, employers should be aware that the Department of Homeland Security has authorized a temporary modification of procedures for completion of Form I-9 for certain employers whose workforces are entirely remote. Those processes will expire May 20, or 3 days after the COVID national emergency has ended, whichever is first.
In addition to the above, on May 1, the Department of Homeland Security released guidance providing that beginning on May 1, identity documents found in List B of the Form I-9 which are set to expire on or after March 1, 2020 and have not been otherwise extended in duration by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. If the acceptable expired List B document has been presented, the employer should record the document information in Section 2 under List B and enter the word “COVID-19” in the Additional Information Field. Within 90 days after the DHS’s termination of this temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented as described above.
If salaried, exempt employees were a part of the furlough, employers should observe the requirements of the federal wage and hour law (Fair Labor Standards Act) if a salaried, exempt employee is brought back in the middle of the week. They are entitled to be paid their full salary for any week in which they perform work.
Given the rapidly changing guidance on issues related to COVID-19, whether in or outside of the workplace, it is necessary for employers to seek the best information possible. Members of the McGrath North Employment and Labor Group as well as the McGrath North COVID-19 Response Team are available for assistance and guidance.
|Labor and Employment:|
Diana Morales McFarland
Contact information for the complete McGrath North’s COVID-19 Response Team can be found here.
For information regarding additional business-related concerns centered around COVID-19, please visit our COVID-19 Resource Guide here.