1. Emergency Measures
The White House has issued non-binding Guidelines for “Opening Up America Again”. The Guidelines strongly encourage states to authorize reopening only after objective data suggests COVID-19 infections have decreased to an acceptable level and hospitals are not overwhelmed by COVID-19 patients. The Guidelines further encourage states to authorize businesses to reopen in three phases. During each phase, states should monitor various metrics, such as new confirmed COVID-19 cases and hospitalizations, to ensure reopening has not triggered a resurgence of COVID-19 infections. Assuming no resurgence at a given phase, states would permit businesses to progress to the subsequent reopening phase. The Guidelines also outline employer responsibilities discussed below. The U.S. Center for Disease Control (“CDC”) also continues to provide non-binding guidance related to COVID-19 quarantine, isolation, and related issues and employers should consider that guidance in developing protocols for reopening their businesses.
The Guidelines identify both specific and general employer “responsibilities” to ensure safe re-openings. During all phases, employers should: 1) implement policies to address (a) social distancing and protective equipment, (b) temperature checks, (c) testing, isolating, and contact tracing, (d) sanitation, (e) use and disinfection of common and high-traffic areas, and (f) business travel; 2) not allow employees with symptoms of COVID-19 to physically return to work until cleared by a medical provider; and 3) have a process in place for workplace contact tracing following an employee’s positive test for COVID-19. The Guidelines provide additional specific guidance during each phase of the re-openings, including information directed toward specific industries.
In addition to the White House guidance, states and localities have many specific requirements, which in some instances are also industry based. General concepts include health screening questions, mandatory or suggested temperature taking, postings, social distancing (including customer requirements in a retail setting), sanitation, face coverings and procedures for handling employees who do become ill. Please consult Jackson Lewis’s COVID-19 Advisor for such requirements.
2. State Aid
Coronavirus Aid, Relief, and Economic Security (CARES) Act. The CARES Act addresses a multitude of ways in which the federal government seeks to support businesses impacted by the pandemic and employees affected by COVID-19. Key areas of interest for employers relate to business loans, unemployment benefits, retirement plans, tax credits and executive compensation. A full analysis of the CARES Act’s key areas of interest for employers is available on the Jackson Lewis website here.
Below are additional Jackson Lewis resources to help navigate the CARES Act:
On March 18, 2020 President Trump signed the Family First Corona Response Act (FFCRA) into law, requiring certain employers to provide their employees with paid sick leave and expanded family and medical leave for specific reasons related to COVID-19. The FFCRA creates two new emergency paid leave requirements in response to the COVID-19 global pandemic that will remain in effect from April 1, 2020 through December 31, 2020. “The Emergency Paid Sick Leave Act” (EPSLA) entitles certain employees to take up to two weeks of paid sick leave. “The Emergency Family and Medical Leave Expansion Act” (EFMLEA) amends Title I of the Family and Medical Leave Act, 29 U.S.C. 2601 et seq. (FMLA) and permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are paid, for specified reasons related to COVID-19.
Analysis of the FFCRA is available here:
3. Health and Safety Measures
The CDC has issued new Guidance with detailed instructions on cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes in preparation for reopening following COVID-19 shutdowns. The Guidance includes a Cleaning and Disinfection Decision Tool that distills the advice into a flow chart with different recommendations depending on whether the area is indoors, outdoors, frequently used, and the type of surface involved.
Additional information on CDC recommendations for employers and best practices is available on the Jackson Lewis website: CDC Issues Guidance on Preparing to Reopen Workplaces, Businesses, Schools After COVID-19 Shutdown.
Social Distancing Measures
Employers should consider how best to achieve social distancing measures through installation and use of physical barriers, changes in staffing occupancy (e.g., 25%-50% of capacity), and procedures for use of common areas (e.g., limiting the number of individuals entering a room and prohibiting congregation in common areas). Some measures that may be helpful include staff rotations (e.g., having some staff work Monday, Wednesday, and Friday in the workplace while the remainder are remote, with a switch occurring on Tuesday and Thursday), and setting up a path of travel or flow that prevents individuals from coming in close contact when traveling through hallways or stairwells. Employers also may want to consider installing physical barriers in open office environments and analyzing the air flow patterns of ventilation systems. For some workplaces where social distancing measures are unlikely to be achieved, the employer may want to consult with a health consultant or infectious disease expert, to ensure identification of appropriate controls that fully consider any unique designs or issues with the workspace or the type of work being performed.
If the employer is in a jurisdiction that has an applicable state or local predictive scheduling law, it will have to consider whether the schedule change will trigger advance notice or premium pay obligations under that predictive scheduling law. Some – but not all — jurisdictions have issued recent guidance relaxing advance notice and premium pay obligations for changes due to COVID-19 reasons. As is often the case, a key consideration in the process is clear communication with employees, preferably in writing.
For more on social distancing and employee safety protocols, a recording of a recent Jackson Lewis webinar on the topic is available here.
Contact Tracing Apps/Social Distancing Wearables
As to contact tracing, many employers are considering various apps, wearables, and other technologies to assist with distancing, screening, and contact tracing. Employers should consider these technologies carefully. In particular, employers should confirm their understanding about how the technology works, the kind of information collected, and the safeguards the vendor has in place if it is storing information. Note also, that in the case of contact tracing, some apps may track the geolocation of employees which raises significant privacy issues. Employers need to ensure they are not violating state anti-tracking laws and consider employee expectations of privacy.
For more on the privacy/security concerns of this technology, a full analysis is available on the Jackson Lewis website here.
On April 23, 2020, the EEOC updated its COVID-19 informal guidance and stated that during the pandemic, employers may administer a COVID-19 test before permitting employees to enter the workplace but should ensure that any such test is accurate and reliable in order to be considered job-related and consistent with business necessity. Employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from the CDC or other public health authorities. Importantly, accurate testing reveals only if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. On June 17th, the EEOC issued updated guidance regarding antibody testing before permitting employees to reenter the workplace. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
Additional information on the EEOC guidance on COVID-19 testing and other COVID-19 related concerns is available on the Jackson Lewis website here and here.
Measuring an employee’s body temperature is a medical examination and ADA-covered employers that collect this information have a duty to treat it as confidential medical information consistent with the requirements of the ADA. This means that it should not be kept in the employee’s personnel file, it should be reasonably safeguarded, deleted when no longer needed, and disclosed only in limited circumstances. If the employer is subject to the California Consumer Privacy Act (“CCPA”), collecting this information from California residents may raise a CCPA issue depending on how the health screening is conducted (i.e. by the employer or a third-party vendor). If the health screening is conducted by the employer, the employee should be provided a CCPA notice specifying the categories of personal information collected as part of the health screening the purposes for which that personal information will be used. If the employer has previously provided a CCPA notice to employees, that notice should be reviewed to confirm it will cover the health screenings. If the health screenings are being conducted by a third-party, exceptions under HIPAA and the California Confidentiality of Medical Information Act (“CMIA”) may apply, and employers should review those exceptions carefully.
It is important to note that states and localities have specific requirements regarding temperature monitoring and other forms of health screening. Organizations should consult with local counsel before implementing a health screening program, to ensure compliance in the jurisdiction where the organization operates. For additional guidance on temperature monitoring/more expansive COVID-19 screening programs, check out Jackson Lewis’s Key Components of a COVID-19 Screening Program.
An employer does not have to return all employees to the workplace at once and may instead choose to have some employees work remotely. An employer that elects to phase employee returns to the workplace while having other employees work remotely must take steps to articulate and document the legitimate, non-discriminatory reasons why they permitted some, but not, all employees to continue to work remotely. To accomplish this, employers should analyze their operations to identify those positions and business function(s) requiring in-office work and those that can continue, for a period of time, to be performed remotely. The focus should be on positions and duties, and not on individuals. The logic and rationale underlying these business judgments are the employer’s legitimate, non-discriminatory reasons that will be cited to rebut potential discrimination claims.
Employers are not required to excuse an employee from performing an essential function of the job, even if the employer temporarily excused performance of certain essential functions by permitting telework during the pandemic to slow or stop the spread of COVID-19. For more on this topic, visit the Jackson Lewis’s privacy blog for a Work-From-Home Checklist During the COVID-19 Pandemic.
5. Managing COVID-19-Related Employee Issues
Below is a rundown of several types of circumstances that would require an employer to provide or considering providing leave for an employee, and the appropriate course of action:
- The government has advised that the employee stay home because they fall in a vulnerable population category.
If an employee provides notice that they are unable to come to work because they fall in a vulnerable population category, the employer should engage in the employee in the interactive process. The employer may be obligated to provide a reasonable accommodation, particularly if the request is due to a medical condition or is pregnancy-based. Employers should consider whether these employees can work remotely and/or whether another accommodation is available. These employees may be eligible for paid sick leave under various laws, including the FFCRA. Importantly, an employer may not compel an employee to stay home simply because he or she falls into a “vulnerable population” category; doing so may result in a violation of the Age Discrimination Employment Act (ADEA), ADA and/or Pregnancy Discrimination Act (PDA). The EEOC’s Technical Guidance provides that an employer is not allowed to exclude an employee from the workplace “solely because the employee has a disability that the CDC identifies as potentially placing him at ‘higher risk for severe illness’ if he gets COVID-19.”
- The employee is caring for a parent who is old and could get sick or lives with someone who falls in a vulnerable population category.
The employer should determine if the employee is eligible for paid or unpaid leave under various laws, including sick leave laws, the FFCRA and/or the Family and Medical Leave Act of 1993 (FMLA). The employer should provide appropriate request and/or designation forms for any applicable leaves. If leave is not available and/or has been exhausted, the employer may consider other alternatives such as telecommuting or another accommodation. Generally, under the ADA an employer does not have to accommodate a family member’s medical condition. However, state and local law should be reviewed for possible greater protections than are found under federal law.
- The employee’s child’s day care (or school) is closed and he/she needs to take care of the child or help with schoolwork.
The employee may be eligible for paid sick leave under various laws, including leaves available under FFCRA. If the FFCRA applies, the employer should provide an FFCRA request form. In addition, some state and local laws provide for either paid or unpaid leave in connection with school closures. If leave is not available, the employer should consider the employee and/or media relations impact of discharging the employee, especially if the employee truly has a childcare obligation.
- The employee has been exposed to COVID-19.
Under current CDC guidance, having contact with someone who may have been exposed (“contact with contact”), but who is not exhibiting symptoms himself or herself, does not create a risk requiring or recommending self-quarantine, and therefore does not necessarily preclude the employee from coming to work. However, employers should also review state or local recommendations and endeavor to be reasonable under the specific circumstances.
- The employee’s spouse has COVID-19.
Under current CDC guidance, the employee should self-quarantine for 14 days after last exposure (meaning, generally, 14 days after the spouse is considered no longer contagious or the employee last had contact with the spouse while the spouse was contagious). Thus, if verified, this would constitute a legitimate reason for the employee to remain home. The employer should determine if the employee is eligible for paid sick or unpaid leave under various laws, including sick leave laws, the FFCRA and/or the FMLA, as well as company policy and/or a CBA.
- The employee has a medical condition and needs to work from home as an accommodation.
If an employee has a condition that could be a disability, the employer has an obligation to consider and provide a reasonable accommodation. Reasonable accommodations are required if the disability limits the employee from performing essential job functions or otherwise enjoying the benefits of equal employment. The employer does not have to provide an accommodation that poses an undue hardship. As with any accommodation request, the employer should engage in the interactive process with the employee. If the employer has been allowing employees to work remotely, it may be more difficult to deny this accommodation now.
- The employee has COVID-19.
Under current CDC guidance, the employee should self-quarantine if they have COVID-19 or symptoms of COVID-19. Employees should not return to work until they have met the criteria to discontinue home isolation and have consulted with a healthcare provider and state or local health department. Under current CDC guidance, the employee should not return until either Option 1: (a) no fever for at least 72 hours, (b) respiratory symptoms improved, and (c) at least 10 days since symptoms first appeared; or Option 2: (a) no fever, (b) respiratory symptoms improved, and (c) 2 negative tests. Some employers may consider extending this time frame before allowing an employee to return to work. This requires discussion of a number of factors, including current CDC recommendations and the employer’s work environment. The employee may be eligible for paid or unpaid leave under various laws, including sick leave laws, the FFCRA, and/or the FMLA. The employer should provide appropriate request and/or designation forms for any applicable leaves.
Employees who fear infection and refuse to work.
Non-clinical fears, anxieties or general desires to avoid exposure to COVID-19 while commuting or working are not likely to trigger affirmative legal protections and employers may be entitled to discipline employees who fail to return to work. However, employers should still be concerned about such employees bringing negligence claims alleging their employers failed to provide a safe workplace. Asking employees to explain the reasons underlying their unwillingness to return will provide employers an opportunity to understand and address employee safety concerns that might underlie future negligence claims.
Disclosure of employees who are infected.
Employers have been struggling with exactly what information they are permitted to disclose to a public health agency when an employee is diagnosed with COVID-19. The EEOC in April, advised that, at least under the Americans with Disabilities Act, employers may disclose the employee’s name to the public health agency. However, employers will still need to be mindful of other more stringent state restrictions and privacy concerns. The EEOC also said that a temporary staffing agency or contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has COVID-19. Employers should, however, continue to take steps to limit the number of people who know the name of the employee. While it is important to conduct a close contacts analysis and notify co-workers and other individuals who may have come into contact with the employee, employers should not disclose the employee’s identity. The EEOC also addressed several other important related questions in its updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
Employers may require employees to disclose if they are experiencing COVID-19 symptoms. The EEOC has stated that employers may ask employees about symptoms pursuant to CDC and other public health official guidance pertaining to COVID-19 to determine whether the employee would pose a direct threat to health in the workplace. State agencies have agreed with the EEOC’s approach. For example, in California, the Department of Fair Employment and Housing confirmed that employers may ask employees if they are experiencing COVID-19 symptoms.
6. Cost-Reduction Strategies
To what extent can employers implement the following cost-reduction strategies as a result of COVID, and what are the primary limitations on each?
Under many employment statutes, “furlough” is not defined. Webster’s Dictionary defines a furlough as “a temporary leave from work that is not paid and is often for a set period of time.” Many employers are using the term “furlough” to inform employees of temporary layoffs with set return dates. Even if the time the employee will not be working, and will not be paid, is brief, furloughs can also involve significant issues.
Under the Fair Labor Standards Act (FLSA), employers do not have to pay non-exempt employees who are furloughed. Additionally, employers do not have to pay exempt employees who are furloughed for a full workweek if the employee does not perform any work during that week (including responding to emails or calls). Any required payments must be provided to furloughed employees on the next regular payday, even if there is a gap in working days. Temporary furloughs also may be a qualifying event for medical plans, triggering the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA is a health insurance program that allows eligible employees and their dependents continued benefits of health insurance coverage during job loss or a reduction of work hours. Therefore, an employer considering a furlough should check its plan document or consult with its insurance broker and issue COBRA notices if necessary. Implementing furloughs may trigger the requirement to issue advance written notice to employees and certain government agencies under the federal Worker Adjustment and Retraining Notification Act (WARN Act). The WARN Act applies to employers with at least 100 employees (excluding part-time employees) who work an aggregate of at least 4,000 hours a week. It requires 60 days’ advance written notice of a plant closing or mass layoff at a single site of employment to affected non-union employees, union representatives, and certain government officials if at least 50 full-time employees comprising at least one-third of the workforce at the site suffer an employment loss as defined by the WARN Act. An exception to the notice requirement, under which an employer bears the burden of proof, is available for “unforeseeable business circumstances.” For many businesses, the COVID-19 crisis may qualify as an unforeseeable business circumstance. Under this exception, notice is still required, but employers are only required to provide “as much notice as is practicable” (i.e., employers are allowed to provide fewer than 60 days’ notice). Employers may be liable for damages under the WARN Act for any period of unjustifiable delay in issuing the notices.
Additional resources for navigating furloughs during COVID-19 available on the Jackson Lewis website:
- Salary reductions.
Salary reductions are a possibility. Despite the unprecedented nature of the pandemic, federal and state employment laws still apply.
- Non-exempt employees (e. hourly employees entitled to overtime under the FLSA and similar state law): Wages cannot drop below minimum wage ($7.25 per hour at the federal level (higher levels apply in some states); Must still be paid overtime.
- Exempt employees (e. salaried (not hourly) employees not entitled to overtime pay under the FLSA and similar state law – such employees generally perform one of the following activities: executive, administrative, professional, computer or outside sales duties): Threshold minimums must still be met ($684 per week at the federal level; higher thresholds apply in some states); Failure to meet the thresholds risks compromising the exempt status and triggering requirement to pay overtime; Wage and salary changes should be made one-time and be prospective, not retroactive or manipulative to avoid loss of exempt status; We recommend that all employers communicate wage and salary reductions in writing, even though all states do not require itl; Employees are not required to accept reductions in pay, so employers need to be prepared for how they will respond in this eventuality.
Many states have workshare programs that allow employees with reduced wages or salaries to receive partial unemployment. For non-exempt employees, the reduction is straightforward, as they are only paid for hours worked. For exempt employees, employers need to be aware that partial workweeks must still be paid in full, so reductions need to be made in full-week increments. Employees may need to be notified in advance – it is important to check state requirements.
It is important for employers to be aware of how their policies and state law impact the use and accrual of PTO or vacation. In addition, depending on the size and scope, reductions can trigger WARN/mini-WARN (state WARN laws – more on the WARN Act under section 11a. “Furloughs”).
There are no restrictions on an employer’s ability to collectively dismiss its employees. However, the WARN Act requires covered employers to provide 60 days’ notice in advance of covered plant closings and mass layoffs to: 1) the affected workers or their representatives (e.g., a labor union); 2) the dislocated worker unit in the state where the layoff or plant closing will occur; and 3) to the local government. For further information on navigating redundancy and the WARN Act, check out. Jackson Lewis’s special report on The Federal WARN Act and Related COVID-19 Issues.
- Facility closure.
See redundancy discussion above.
7. Best Practices
The following checklist represents a high-level overview of issues to guide your thinking about how to re-open most effectively while mitigating your business and compliance risks:
Develop a Return to Work Plan
• Consider reopening and other orders specific to your state and/or county
• Procure supplies and make workplace modifications required for safe operations
• Identify individuals who will be brought back to work using neutral selection criteria
• Identify those who can continue to work remotely; consider more formal telework plans
• Determine changes to exempt status, compensation and schedules (e.g., staggered shifts)
• Consider workshare and unemployment insurance implications
• Determine updates that must be made to I-9 Employment Verification Forms and E-Verify
• Anticipate unique needs of various vulnerable employee populations
• Notify employees of return to work with established dates and, if they were terminated, rehire documents
Implement Policies and Practices to Ensure Safe & Lawful Return to Work and New Operating Realities
• COVID-19 related protocols (screenings, medical inquiries, temperature checks, fitness for duty, use of Personal Protective Equipment (PPE), modified work practices to enhance social distancing and address infection control)
• Prepare/update existing policies to address new laws related to use of leave and/or accommodations (FFCRA leaves, state/city mandated supplemental sick leaves)
• Develop policies related to off-duty conduct
• Impose appropriate limits on business travel (domestic and international), in-person meetings, seating proximity
• Train employees on new policies, protocols and rules
• Consider job description updates to reflect changes in job duties and essential job functions
• Consider how to adhere to regulations on changes in terms and/or conditions of employment for any employees on temporary visas
• Update immigration sponsorship policies to account for new business realities
• Create business continuity plan(s)
Anticipate Responses to COVID-19 Related Scenarios Upon Employees’ Return to Work
• Whether an employee’s health, contacts or behaviors raise safety concerns
• Employee leave requests for school closures, illness, to care for others or because they are or live with an individual in a vulnerable population
• Employees who are capable of but unwilling to work from home
• Employees who are asked to report to work but prefer to and able to work from home
• Employees who share rumors or concerns of employees or customers being sick
• Employees requesting information about another’s (employee/customer) health condition
• Employees engaging in collective or other protected activity to raise safety concerns
• Non-exempt employees emailing and/or working outside normal business hours