FAQs for Employers on the 2019 Novel Coronavirus
There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” The World Health Organization (WHO) has declared it a global pandemic. As this situation continues to evolve, Conn Maciel Carey’s COVID-19 Task Force of labor, employment and OSHA attorneys can advise how your business may be affected during this difficult time. Below are some answers to frequently asked questions (FAQs) about the latest developments and guidance from federal agencies.
We are regularly putting up new content about COVID-19 on our OSHA Defense Report blog and Employer Defense Report blog. Here is a link that should include each individual article on the topic. You can also check out the webinar put on by Conn Maciel Carey’s COVID-19 Task Force addressing “How Employers Can Respond to COVID-19.” We are updating our list of FAQs frequently but, please reach out to us for the most up to date information. Chances are good that whatever questions you all are facing, we have heard and helped answer them already.
Employee Layoffs and Reduced Working Schedules
What processes do I need to put in place if/when we want to lay off associates, eliminate positions or reduce the number of people in a special position? Do we need to go by seniority or productivity?
The employer can use any methodology for deciding who should be selected for lay off so long as the same methodology is used consistently across departments and does not have an adverse effect on a protected category of employees – such as predominately one gender or race, etc.
If layoffs are necessary, are there any requirements regarding mandatory notices even though we view the layoffs as temporary but some may become long term based on the economy?
Generally, certain employers are required to give written notice in advance of mass layoff or plant closing if certain criteria are met under federal and/or state law. Under federal law, notice under the WARN Act is not triggered if a mass layoff or plant closing is less than 6 months. Thus, if you want to classify the employment action as a temporary layoff, you should make clear to the employees that the expected duration is less than 6 months.
Can my furloughed or laid off employees collect unemployment benefits?
Probably yes. Unemployment benefits vary state-by-state. Generally, both furloughed and laid-off employees are eligible for unemployment benefits. The rationale is that eligibility for unemployment benefits in most states is triggered by an employee’s lack of work through no fault of the employee’s, not an employee’s formal separation of employment. The federal Families First Coronavirus Response Act (FFCRA) required states to “ease” eligibility requirements to allow employees who have been affected by COVID-19, including those who have been laid off, furloughed or had their hours cut, to more easily receive unemployment benefits. Employees who are given a return-to-work date from a furlough or layoff may also be excused from the usual job search requirements for unemployment. Check with your state’s unemployment office for more details on procedures and benefits available for those affected by COVID-19.
Would a furloughed or employee on temporary layoff be entitled to FMLA leave during furlough?
Yes, so long as the employee otherwise would qualify for FMLA – i.e., the employee has worked for at least a year and has worked 1,250 hours of service in the past 12 months. The hours that the employee is on furlough or any other non-working time does not count as “hours of service.”
Note that a furloughed employee would not be entitled to take paid sick leave or expanded family and medical leave under the Families First Coronavirus Response Act (“FFCRA”), although such an employee may be eligible for unemployment insurance benefits.
If an employee refuses to report to work under the current COVID-19 situation, are they eligible for unemployment in California at this time?
Employees likely are not eligible for unemployment benefits based on a fear of COVID-19 exposure in the workplace, unless they can show underlying health conditions, that the employer is not taking adequate measures to protect employees, or that there is a cluster of COVID-19 cases or other circumstances making it unsafe for the employees to work.
Are we able to discipline employees who refuse to report to work at this time?
Before disciplining employees for failing to report during the COVID-19 pandemic, consider whether the stated reason is protected under federal, state or local law, particularly under the paid sick leave laws. The employer should act consistent with the CDC/local health agency guidance and shelter-in-place orders in requiring employees to work during the pandemic.
Can salaried employees get pay deducted to 2/3 for one day a week or do they need their full salary if they worked 4 full days?
Yes, you are able to reduce an exempt employee's salary for a reduced work week so long as you pay them at least the minimum weekly salary under federal law which is $684 per week.
Can we change an exempt employee’s payroll amount with a reduced salary?
Yes, so long as you do not reduce an exempt employee's weekly salary below the federal minimum which is $684 per week.
Vacation, Paid Time Off and Sick Leave
If an employee comes back from vacation and is put on a two-week quarantine or puts themselves on self-quarantine, does the employer have to pay them for those two weeks?
Starting April 1, 2020, the Families First Coronavirus Response Act (FFCRA) requires employers with up to 500 employees to pay sick leave to full and part time employees who are affected by COVID-19.
Leave entitlement is for the following covered reasons:
The employee is subject to federal, state, or local quarantine or isolation related to COVID-19.
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis.
The employee is caring for an individual subject to quarantine or self-quarantine;
The employee is caring for the employee's son or daughter, if the child's school or childcare facility has been closed or the child's care provider is unavailable due to COVID-19 precautions; or
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Note that an employee is eligible for paid sick leave only if a health care provider directs or advises the employee to stay home or otherwise quarantine because the health care provider believes the employee may have COVID-19 or is particularly vulnerable to COVID-19, and quarantining based upon that advice prevents the employee from working (or teleworking). Thus, an employee who decides to self-quarantine without seeking a medical diagnosis is not necessarily eligible for two weeks of paid leave under the FFCRA.
If a non-exempt employee does not have job duties capable for telework and they are unable to come to the work site on a reduced schedule due to a health condition that makes them more susceptible to contracting COVID-19, are we required to pay them since they are not participating in the rotation and cannot work from home? Would they be eligible for FMLA or Short Term Disability?
If the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, the employer is required to pay sick leave to that employee. Under the FFCRA, covered employers must give emergency paid sick time to any employee, regardless of the length of employment, for a qualifying emergency related to COVID-19. Specifically, employers with fewer than 500 employees are required to provide two weeks (80 hours) of paid sick leave to their full-time employees (while part-time employees are entitled to the typical number of hours they work in a typical two-week period).
Employers with 1 - 500 employees must provide 12 weeks of paid family and medical leave to those unable to work or telework because they are caring for a child if the child’s school or place of care has been closed or the child care provider is unavailable due to COVID-19. Note that this is the only qualifying event for this FFCRA.
All employees who have worked for the employer for 30 days are eligible for the family and medical leave portion of the FFCRA. The first 10 days of the leave may be unpaid, unless the employee chooses to use accrued paid time off, such as vacation and sick leave, to cover this initial 10-day period. Thereafter, assuming an employee needs leave beyond the initial 10-day period and continues to meet the requirements for paid leave, the employer will be required to pay the employee not less than two-thirds of their regular rate of pay for the regular hours worked, up to a maximum amount of $200.00 per day and $10,000.00 in the aggregate.
How should employees be counted under the FFCRA to determine whether an employer employs fewer than 500 employees?
Employers have fewer than 500 employees if, at the time the employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States.
In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.
Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the FFCRA and expanded family and medical leave must be provided under the FFCRA.
In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the FFCRA.
When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?
An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
the provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
the absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?
A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern, as explained in the answer above. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
employer employs fewer than 50 employees;
leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
an authorized officer of the business has determined that at least one of the three conditions described in the answer above is satisfied.
The U.S. Department of Labor encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.
Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
What kind of documentation should I ask my employees to submit when they are requesting paid leave under the FFCRA?
Regardless of whether you grant or deny a request for paid sick leave or expanded family and medical leave, you must document the following:
The name of your employee requesting leave;
The date(s) for which leave is requested;
The reason for leave; and
A statement from the employee that he or she is unable to work because of the reason.
If your employee requests leave because he or she is subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally document the name of the government entity that issued the order. If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the health care provider who gave advice.
If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you may must also document:
The name of the child being cared for;
The name of the school, place of care, or child care provider that has closed or become unavailable; and
A statement from the employee that no other suitable person is available to care for the child.
Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.
How does an employer take advantage of the tax credit for the wages paid under the FFCRA for sick or family leave?
If an employer wishes to take a tax credit, the DOL has advised that employers should refer to the IRS’ application forms, instructions, and information for the procedures. An IRS news release from March 20, 2020 states that instead of having to remit payroll taxes, including taxes withheld from its employees, that the employer may retain the payroll taxes to get the benefit of the tax credit, rather than having to deposit these taxes per the usual payroll tax deposit requirements. For example, if an employer pays $5,000 in required sick leave payments, and is required to deposit $8,000 in payroll taxes, including the taxes withheld from its employees, the employer is allowed to use up to $5,000 of the $8,000 in taxes it was going to deposit for making the required sick leave payments.
Furthermore, the IRS notice states that if the paid sick leave exceeds the amount of payroll taxes which an employer may retain to take the tax credit, that it will provide an accelerated refund procedure, so that the employer will not need to wait until the quarterly payroll tax return is filed to receive the refund. The notice states that the IRS will release a streamlined refund claim form the week of March 30.
If an employee working for a California business exempted from the state emergency stay order says he doesn’t feel “safe” and therefore would prefer not to come into work, is it possible for him to request leave?
If your business is is considered a federal critical infrastructure sector for the purpose of the governor’s emergency stay order, that stay order does not interfere with your employees’ ability to work for the employer. Note, however, that under FFCRA any employee is eligible for federal paid sick leave if:
the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 (where employee or group reasonably believed to have been exposed/infected);
the employee has been advised by a health care provider to self-quarantine related to COVID-19;
the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
the employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or for an individual has been advised by a health care provider to self-quarantine related to COVID-19; and/or
the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
Further, California's paid leave law has been interpreted to require paid sick leave, at the employee’s request, where the employee self-quarantines as a result of a potential exposure to COVID-19, if quarantine is recommended by civil authorities.
If we encourage employees to stay at home for 48 hours out of a sense of caution because they are experiencing COVID-related symptoms, are we required at that point to provide them with paid sick leave?
Yes, employees are eligible for paid sick leave under FFCRA (effective 4/1/20) where the employee is experiencing COVID-19-related symptoms and is seeking a medical diagnosis.
Note that an employee is eligible for paid sick leave only if a health care provider directs or advises the employee to stay home or otherwise quarantine because the health care provider believes the employee may have COVID-19 or is particularly vulnerable to COVID-19, and quarantining based upon that advice prevents the employee from working (or teleworking). Thus, an employee who decides to self-quarantine without seeking a medical diagnosis is not necessarily eligible for two weeks of paid leave under the FFCRA.
Note that CDC guidance provides that untested persons with COVID-19 who had symptoms and were directed to care for themselves at home may discontinue home isolation under the following conditions (1) at least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and (2) At least 7 days have passed since symptoms first appeared. See also the CDC Guidance for businesses.
If an employee is caring for a child with 2/3 paid extended FMLA, do they then qualify for Paid Leave and the extended FMLA?
We recently had an employee "call in sick" for a day. However, when we asked him about his symptoms, he stated that he really wasn't sick but just tired from his other job. What would be the most appropriate way to handle a situation like this?
If an employee calls in sick for a non-COVID-19 related reason or really for any non-illness, then you can treat this absence like an unexcused absence under your attendance policy and apply your regular policies and procedures. We do not believe this reason would qualify for any protected or paid leave.
Do Paid Sick Leave benefits only cover the first two weeks?
The pay is for up to 80 hours capped. So, if an employee typically works 40 hours per week, then yes, the paid leave would be 2 weeks. But, if you had an employee who typically worked 50 hours per week, the paid leave would be for the first week at 50 hours, and then only for 30 hours the second week.
If an employee is taking care of a child due to the closure of schools or child-care provider, can the employee take a couple hours of Paid Sick Leave and/or Paid Family Leave each day or does it have to be in full day increments?
Leave to care for a child may be taken in partial day increments.
Is the Paid Family Leave benefit only for caring for a child whose school or daycare is closed due to COVID-19? Or does it apply if the school was closed for a stay-in-place order and was not related to a positive COVID-19 case?
So long as the school is closed because of COVID-19, regardless of whether there is an actual positive case, then the Paid Sick Leave and Paid Family Leave applies.
Schools were closed due to the Governor's stay-in-place order. Does that fall under being closed because of COVID-19 and would they get Paid Family Leave?
Yes, the DOL's guidance explains that when a school is closed due to a COVID-19 reason, which we understand to include any stay in place orders given those orders were issued because of COVID-19, then the employee can receive Paid Sick Leave and Paid Family Leave.
Is there a minimum employment requirement for Paid Sick Leave benefits?
No, Paid Sick Leave applies to all employees regardless of how long they have worked for the employer.
Who pays temporary employees under FFCRA? The temp company or the company that they are reporting to?
The employer who has the employee on the payroll is the entity that pays the Paid Sick and Paid Family Leave benefits.
As an employer with 500+ employees, how should we handle a situation where our employees live with a spouse who is immune suppressed and doesn't want to come to work for fear of "catching" something?
If you have an employee who wishes to self-isolate out of fear of contracting the virus, you can apply your regular leave of absence policies and allow the employee to take leave (paid or unpaid) but this individual would not qualify for any protected leave for this situation.
If an employee has a spouse at home caring for children regularly, can the employee claim that they need to be home as well and receive Paid Family Leave?
The IRS released recent guidance on the documentation needed to support paid leave for child care, and one of them is that the employee provide a representation that no other person will be providing care for the child during the period for which the employee is receiving paid family leave. So, if there is another person available caring for the child, you may be able to deny the leave request. Also, an employee seeking to use paid sick or paid family leave for a child older than 14 must explain that special circumstances exist requiring the employee to provide care during daylight hours.
For the new ESPL, do employers have to pay the shift differential on top of the base pay per employee's permanent shift status?
If the employee’s schedule varies from week to week, then the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee. Otherwise, if the full- time employee's schedule is set for the 80 hours of Paid Sick Leave, then you would include all pay that would normally be included in a week's schedule, including overtime, commissions, and other rates of pay. We recommend you review the DOL's FAQs on calculating an employee's rate of pay for purposes of Paid Sick Leave and in particular, Questions 5 and 6.
Can you take Paid Sick Leave or Paid Family Leave intermittently?
Paid Family Leave, which is limited to care for a child whose school or daycare has closed due to COVID- 19, can be taken intermittently whether the employee is teleworking or still at their physical work site. However, under the Paid Sick Leave benefits, for all reasons outside of care for a child due to school or daycare closure related to COVID-19, intermittent leave can only be taken if the employee is teleworking.
Does emergency FMLA have to be tracked separately for someone like the IRS? Otherwise, why are they separated?
We do recommend that you track the leave separately in order to have the documentation to support your tax relief for the wages paid under these laws.
What is the maximum benefit to employees for 10 paid weeks? Is it $10,000 maximum per employee?
The maximum benefit is $200 per day for the 10 weeks. No, that rate is only for Paid Sick Leave - max 80 hours.
Can extended FMLA be taken intermittently?
Yes, leave to care for a child under the paid leave section of the federal Families First Coronavirus Response Act (FFCRA) may be taken intermittently.
If an employee is sent home or calls-off due to COVID-19 symptoms and is suspected positive (but not confirmed), when should that employee be allowed to return to work?
The CDC has developed guidance to assist employers in implementing return-to work policies that ensures employees with either confirmed or suspected COVID-19 remain away from the workplace until it is safe to return. Specifically, the CDC provides that employees should not return to work until the CDC criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments. The CDC outlines two different models that employers can adopt in developing return-to-work policies for persons with confirmed or suspected COVID-19 – the symptom-based strategy and the test-based strategy.
Employees may return to work upon the following conditions:
At least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and,
At least 10 days have passed since symptoms first appeared.
Employees may return to work upon the following conditions:
Resolution of fever without the use of fever-reducing medications and
Improvement in respiratory symptoms (e.g., cough, shortness of breath), and
Received two negative COVID-19 tests collected more than 24 hours apart.
A test-based strategy is, of course, contingent on the availability of ample testing supplies and laboratory capacity as well as convenient access to testing. Thus, many employers are implementing and incorporating both strategies into their return-to-work policies. Employers should, however, check local and state health guidance, as state and local public health authorities may apply more stringent criteria and/or guidance for certain persons where a higher threshold to prevent transmission is warranted.
Temperature Checks for Employees
When may an employer take the body temperature of employees during the COVID-19 pandemic?
Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with influenza, including the 2009 virus or COVID-19, do not have a fever. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.
Also, according to this EEOC guidance, “employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.” The guidance also provides that in pandemic conditions an employer may, relying on the assessment of any local, state or federal health authority, reasonably conclude that employees will face a direct threat if they contract pandemic influenza and make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
The EEOC has also made clear that while the ADA rules continue to apply, they “do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.” Accordingly, you may follow these CDC guidelines as they apply to the geographic region where you are doing business.
Here are some practical tips largely based on CDC guidance:
Employees should be encouraged to maintain a six foot distance, if queuing for temperature checks.
Use an infrared thermometer, non-contact digital laser (available on amazon yesterday) to check employee temperatures (do not maintain temperature records).
There is no requirement that person taking the temperature has to be a health professional.
If the employee’s temperature is elevated (100.4 F may be a good marker), employer should send him or her home.
The employee administering the temperatures checks should be given gloves and a respirator/face shield for voluntary use along with plenty of hand sanitizer.
Disinfectant from EPA list should be available in case somebody sneezes on the thermometer.
Kleenex and a garbage receptacle should be at the temperature check stations.
As for the respiratory portion, a set of questions might be the best option.
Is there a recommendation on the best instrument to use for taking employees temperatures?
We recommend that you use an infrared thermometer, non-contact digital laser to check employee temperatures.
Preventing Exposure in the Workplace
Should you isolate/separate public facing associates from those working in the office who are not generally interacting with the public?
You would not be required to keep public facing employees separate from those working in an office setting, but this would likely be a good practice to try to prevent against potential sources of exposure to COVID-19 if it’s feasible for you to manage in your work environment. You will want to make sure that its clear that any difference in-treatment of employees, to the extent employees would be treated differently to implement such a policy, is based on the duties of their position, specifically that their jobs require interaction with the public, as opposed to some protected category (i.e., race, national origin, sex, etc.). And document the basis for this policy – why it has been implemented to address this significant safety concern.
Does the ADA allow employers to require employees to stay home if they have COVID-19 symptoms?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
If the employee is the caregiver of a confirmed COVID-19 patient at home, and they are following recommended precautions for home care and isolation, then the employee would be considered medium risk. For medium risk individuals who are asymptomatic, the chart “recommends to remain at home or in a comparable setting” and “practice social distancing.” This recommendation does not appear to be a hard no regarding work.
The likely preference of others in the work community would be for a medium risk employee to stay away from the workplace, but there could be over factors to consider, such as does the employee perform an essential task.
Ultimately, we the final decision belongs to employers on how they want to handle cases where the employee is the caretaker for a confirmed COVID-19 patient, but the employer should consider the CDC guidance and other options to keep the workplace operating such as job rotations and staggering shifts, and seek information from the local public health office.
Are “high risk” employees age 65 or older, or individuals with serious chronic medical conditions, considered “essential employees” in healthcare settings in California?
In the context of the ADA, the EEOC has made clear that while the ADA rules continue to apply, they “do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.” Individuals working in certain healthcare settings are excluded from the California Department of Public Health’s March 16, 2020 guidance providing, among other things, that older adults or those who have an elevated risk should remain at home.
In its Interim Guidance for Businesses, the CDC states that employees who are older adults and those with chronic medical conditions should “consider minimizing face-to-face contact between these employees or assign work tasks that allow them to maintain a distance of six feet from other workers, customers and visitors, or to telework if possible.” Accordingly, while you can take the position that employees, regardless of age or condition, should work during the COVID-19 pandemic, provided they do not have not tested positive for the virus within the exposure period or have symptoms associated with COVID-19, you may want to explore minimizing their face-to-face contact with others, reassigning work tasks or providing other forms of accommodation.
Note, however, that under FFCRA any such employee is eligible for paid sick leave if (1) the employee has been advised by a health care provider to self-quarantine related to COVID-19; (2) the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis; (3) the employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, or for an individual has been advised by a health care provider to self-quarantine related to COVID-19; and/or (4) the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. Further, California’s paid leave law has been interpreted to require paid sick leave for an employee who self-quarantines as a result of a potential exposure to COVID-19 if quarantine is recommended by civil authorities.
Is a healthcare organization able to require all its employees get tested for COVID-19?
Per the EEOC’s updated pandemic preparedness guidance, requiring an employee test would be considered a “medical examination” and, although a medical examination is generally prohibited under the ADA, it is permitted when an employee poses a “direct threat.” The EEOC has found that “based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard…[and health guidance] support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
Because “direct threat” must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job, the employer should document that assessment requiring testing even of employees without COVID-19-related symptoms. For example, the employer may consider that COVID-19 is widespread in the employer’s area and the health care employees have physical contact with patients or other vulnerable populations.
When conducting testing, our general recommendations are that employers should ensure employees are on the clock (i.e., being paid for this time), employees receive advance written notice of testing and sign consent forms, the testing criteria is consistent based on objective criteria (e.g., all employees with patient contact or those that pose a high risk), and the test results are maintained confidential.
If a babysitter has symptoms can we have the employer require the babysitter stay at home?
If an employee comes in close contact with someone that is experiencing symptoms of COVID-19, then you can require the employee to stay at home. However, we are not clear whether you can require the employee to instruct the babysitter to stay home, although that would be good practice on the part of the employee.
What are your thoughts on requiring sick employees to obtain a return to work note from their physician? We had an employee call out with a fever, but they felt better in two days. We told them since fever is a COVID-19 symptom, they would need to get a physician's release. Since they were asymptomatic, they couldn't get an appointment. We didn't want to play doctor and assume they were not contagious and allow them back to work without a note, but they couldn't get a note.
You are required to ask for a doctor's note but as a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness- for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus. You may want the employee to certify in writing that he or she has been fever free for 72 hours without fever reducing medicine.
In terms of OSHA's Risk Pyramid, what is the definition of "ongoing community transmission”?
There is not a single, accepted definition for the term, or one specifically advanced by CDC or OSHA, but from the guidance we have seen, here is our best effort to define the term. First, it does NOT require a particular number of confirmed cases in the area; well, not a particular number larger than one. Rather, it focuses more to do with the method of transmission. Specifically, community transmission means infections within a population that are not imported from another virus-hit
area. Put simply, for example, community transition in Chicago would mean a person who gets COVID- 19 despite having not been to another affected outbreak area, e.g. New York, Seattle, Northern Italy, China, etc. In short, signals of ongoing community transmission may include detection of confirmed cases of COVID-19 with no epidemiologic link to travelers or known cases, or more than three generations of transmission.
Is our shelter-in-place a quarantine?
For purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that cause you to be unable to work (or to telework) even though your employer has work that you could perform but for the order. Note that an employee may not take paid sick leave for this qualifying reason under the FFCRA if the company does not have work for the employee as a result of a shelter-in-place or a stay-at-home order.
Space Restrictions in Retail
What steps can retailers take to manage space restrictions?
Maintain occupancy limits recommended by your state/locality
Maintain social distancing between employees/customers of 6 feet, including upon entrance/exit to the store and while customers wait in line inside or outside store
Offering hand sanitizer at front entrance for customers to use on the way in and the way out
Regularly disinfecting frequently used items and surfaces as much as possible
Offering gloves and respirators to employees for voluntary use at work.
Employee stationed at entrance restricting customer entrance, wiping down carts with disinfect, and reminding customers to keep a six-foot distance from other customers.
Employees throughout store reminding customer to maintain a six-foot distance during shopping.
Restricting store occupancy by half.
Tracking number of customers in store to ensure occupancy does not exceed half of regular occupancy rate.
Set-up a hotline for employees who believe they may have been exposed or with COVID-19 symptoms so that they can be connected with a medical professional for advice on whether they need to self-quarantine (may only be available to corporate office)
How much information may an employer request from an employee who calls in sick in order to protect the rest of its workforce during the COVID-19 pandemic?
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
When employees return to work, does the ADA allow employers to require doctors' notes certifying fitness for duty?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the illness were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
What if employees who are sent home tell others in the workplace that they are being quarantined. Is the employer still obligated not to disclose their name when others tell other employees?
Employees can disclose at their own discretion, but employers must keep that information confidential.
Offer Letters and Flexible Start Dates
What kind of language should an employer include in offer letters to keep their options flexible for future start dates?
We do recommend that employers add some language letting their new hires know that the work environment is changing and must remain fluid in its hiring, and reminding new hires that they are employed at-will.
The CARES Act
Pursuant to an agreement with the state, the Federal Pandemic Unemployment Compensation Program (“FPUC” Program) provides eligible individuals $600 in addition to their regular unemployment compensation. What will that look like when implemented?
The FPUC Program provides an additional $600 per week to eligible individuals in addition to their regular unemployment compensation or the unemployment compensation for which they are eligible under the CARES Act. The $600 per week is payable for weeks of unemployment beginning on or after the date on which the relevant state enters into an agreement with the Department of Labor and is no longer payable for any week of unemployment ending after July 31, 2020. The payment can be made either (1) at the same time and in the same manner as any regular unemployment compensation payable for the week; or (2) by payments made separately from, but on the same weekly basis as, any regular unemployment compensation payable. The state will choose the timing of payments.
Is an employee eligible for the $600 per week additional payment under the FPUC Program if their hours have been substantially reduced, but they have not been laid off?
Based on the language of the Act, workers with reduced hours, though not fully unemployed, may be entitled to the additional $600 per week if they would be otherwise eligible for unemployment under the state’s law. A number of state unemployment laws include unemployment benefits for partially unemployed individuals based on reduced hours. Thus, those individuals who meet the state’s definition of partially unemployed would likely receive the state unemployment weekly benefit plus the FPUC Program’s $600 weekly payment until July 31, 2020. Individuals not otherwise eligible for unemployment benefits under state law may still be entitled to certain benefits under the CARES Act if they meet the qualifications as the CARES Act also provides for benefits to certain otherwise ineligible employees for specified COVID-19-related reasons (including the $600 payment). Relatedly, the CARES Act provides federal funding to state short-time compensation programs which are also in place to assist employees working reduced schedules.
If a business receives a loan under the Paycheck Protection Program (PPP) are they required to rehire their employees by a certain time? Will this loan be forgiven?
Under the Interim Final Rule which took effect on 4/15/20, the CARES Act’s focus and goal is to keep workers paid and employed. The entire amount of a PPP loan may be forgiven if the funds are spent over a period of 8 weeks after the loan was disbursed to the borrower. And, while the funds can be spent on mortgage interest, rent, and utilities, no more than 25% of the funds can be spent on those costs.
In terms of maintaining employee and compensation levels, Congress recognized that many borrowers may have had to furlough workers or reduce compensation before the PPP took effect. Accordingly, for any reduction in employees or compensation during the period between 2/15/20 and 4/26/20, the CARES Act includes a mechanism for borrowers to rehire workers or restore compensation to reach full forgiveness. So long as the borrower rehires the employees and restores the compensation by 6/30/20, the borrower will be treated as if there has been no reduction in employees or compensation for purposes of forgiveness. Practically speaking, however, since the amount of your loan is determined based on last year’s payroll, and 75% must be spent on payroll costs, the only realistic way to expend the loan proceeds within the eight-week forgiveness period will be to rehire a sufficient number of employees and/or restore compensation.
If you don’t want to rehire employees or restore compensation during the forgiveness period, you can spend the loan proceeds on payroll and other costs outside of the forgiveness period and within the original covered period (that is, anytime from 2/15/2020 to 6/30/2020). However, such amounts will require repayment with interest, and are still subject to the overall limitations on use as well as the minimum requirement that 75% of loan proceeds be spent on payroll costs.
The SBA will issue further on the mechanics of forgiveness and may answer your question about the impact of stay at home orders on the forgiveness period.
OSHA Recordkeeping and Reporting of COVID-19 Cases
Do I have to record a case of COVID-19 of an employee on my OSHA 300 Log?
COVID-19 illnesses that are work related and that meet a recordkeeping criterion need to be recorded on the employer’s 300 Log, and potentially reported to OSHA. There are, however, some important limitations and considerations in evaluating whether such a case is recordable or reportable. OSHA clarified that employers will only be responsible for recording a case of COVID-19 if it meets the following criteria:
The case is a confirmed case of COVID-19;
The case is work-related as defined in 29 CFR 1904.5; and
The case involves one or more of the general recording criteria in 29 CFR 1904.7 (i.e., medical treatment beyond first aid; days away from work; etc.).
Under what circumstances do I have to report to OSHA a work-related confirmed COVID-19 illness that results in an employee hospitalization or death?
An employee’s in-patient hospitalization is only reportable to OSHA if an employer determines: (a) the employee was exposed to the virus while performing work-related duties, (b) when that exposure occurred; and (c) that the employee was admitted to the in-patient service of the hospital within 24 hours of that exposure.
For cases where the virus results in the employee’s death, the reporting window is 30 days; i.e., if it is determined to be work related, and it is a confirmed diagnosis, it would be reportable if the employee succumbs to the illness within 30 days of the exposure that resulted in the COVID-19 diagnosis.
For more information on this issue, as well as OSHA’s reporting rule generally, check out Conn Maciel Carey’s Fatality and Serious Injury Reporting Flow Chart and our most recent article on OSHA Injury and Illness Recordkeeping and Reporting.
What are our regulatory reporting obligations in the event one of our employees tests positive for the COVID-19?
An employer’s reporting and recording obligations will largely depend on whether the case of COVID-19 is work-related. OSHA has already developed some guidance as to how its regulations may be triggered by an employee contracting COVID-19, including some information on treatment of injuries and illnesses. As an initial matter, OSHA has confirmed that COVID-19 will not fall within the exemption to work-relatedness established in 29 C.F.R. 1904.5(b)(2)(viii): “While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job." Thus, for purposes of reporting a case of COVID-19, an employer would have to determine (1) whether the illness is work-related; and (b) whether it meets one of the criteria for reporting to OSHA (i.e., fatality, in-patient hospitalization, amputation, or loss of an eye).
What are our regulatory obligations in the event that one of our employees knows they contracted COVID-19 outside the work environment?
If the employee knows that they contracted COVID-19 outside of the work environment, the illness would not be reportable to OSHA (or recordable). An injury or illness must be work-related to be reportable. If the exposure to the illness occurred outside of the work environment, then it’s not considered work-related and would not need to be reported to OSHA. However, if the employee who has been diagnosed with COVID-19 was in the work environment after exposure and could have been contagious, you would have to carefully consider whether employees who test positive in the future for COVID-19 were exposed to/infected by the employee who contracted COVID-19 outside of work.
What are our regulatory obligations in the event that one of our employees believes COVID-19 was contracted in the workplace, but this cannot be confirmed/there is no information on how the employee contracted COVID-19?
An employee reporting an illness to an employer and/or asserting that they contracted the illness in the work environment does not make the case recordable. It is the employer’s responsibility to determine work-relatedness based on the information available. In its guidance, OSHA explains that an employee’s assertion that an injury occurred in the work environment does not make it work-related – “under the OSHA recordkeeping system, the employer has the ultimate responsibility for making good-faith recordkeeping determinations regarding an injury and/or illness." See, e.g., OSHA Injury and Illness Recordkeeping: Q&A Search, FAQ ID: 667 (employer could determine that case employee reported as an on-the-job injury was not actually work-related).
Where it is clear that an exposure in the work environment caused or contributed to the illness, there is a geographic presumption that the illness is work-related and must be treated by the employer as work-related unless is meets one of the exemptions to work-relatedness (i.e., 1904.5(b)(2)(ii) – signs or symptoms of an illness arise in the workplace but results solely from a non-work-related condition). If it is not clear whether an event or exposure occurred in the work environment, as in the other two scenarios you present, the employer must determine whether it’s more likely than not that an event or exposure in the work environment caused or contributed to the illness based on a review of the circumstances, such as an employee’s work duties and environment.
In the 2001 Preamble to the final recording rule, OSHA had this to say about evaluating other contagious conditions: The same problem arises when an employee reports symptoms of a contagious disease that affects the public at large, such as a staphylococcus infection ("staph" infection) or Lyme disease, and the workplace is only one possible source of the infection. In these situations, the employer must examine the employee's work duties and environment to determine whether it is more likely than not that one or more events or exposures at work caused or contributed to the condition. If the employer determines that it is unlikely that the precipitating event or exposure occurred in the work environment, the employer would not record the case. In the staph infection example given above, the employer would consider the case work-related, for example, if another employee with whom the newly infected employee had contact at work had been out with a staph infection. In the Lyme disease example, the employer would determine the case to be work-related if, for example, the employee was a groundskeeper with regular exposure to outdoor conditions likely to result in contact with deer ticks. Occupational Injury and Illness Recording and Reporting Requirements Final Rule, 66 FR 5916 (Jan. 19, 2001).
Accordingly, the employer would have to consider each case of COVID-19 on an individual basis and consider the available information about the employee’s work environment, such as whether they were in close contact with someone who has the illness or whether they worked in an area with other employees who may have also contracted the disease, to make a determination on work-relatedness. Again, only work-related illnesses are reportable to OSHA.
If the case of COVID-19 is work-related, then the employer would review whether the case resulted in one of the reportable outcomes – namely, in-patient hospitalization or death. For an in-patient hospitalization, the hospital must formally admit the employee to the in-patient unit for treatment (if they are treated in the emergency room and then just admitted to the in-patient unit for observation this would not be reportable, although this seems unlikely at this point with COVID-19). An in-patient hospitalization must also occur within 24 hours of the work-related incident that made the employee ill. See OSHA Injury and Illness Recordkeeping: Q&A Search, FAQ ID: 601. A fatality is reportable if it occurs within 30 days of the work-related incident that caused or contributed to the employee’s death. Thus, the employer should also carefully assess the outcome for an employee diagnosed with COVID-19 to determine whether the case it reportable once work-relatedness is assessed.
Is there an OSHA policy for COVID-19 enforcement discretion relating to missed deadlines, etc?
There will likely be some slack (temporary and short term) if you:
Demonstrate good faith efforts to schedule in advance
Document why you are going to miss the deadline
Undertake interim measures and/or effective alternative measures where feasible
A company has been notified that an employee may have been exposed to COVID-19 while overseas while working. Is this a recordable case?
No. Employers are only required to record injuries and illnesses if they occur within the geographic coverage of the OSH Act. The Occupational Safety and Health Act, and therefore the OSHA Recordkeeping Regulation, apply only within the jurisdictional boundaries of the United States as defined in Section 4(a) of the Act.
The employee who contracts COVID-19 through exposure overseas may not be recordable, but if he/she comes back into the workplace and works closely with a co-worker who then also contracts it, that may be a recordable case if it meets all the elements (confirmed case, work-related exposure, and one of the recordable outcomes).
Personal Protective Equipment
(Respirators, Dusk Masks & N95s)
How does Cal/OSHA’s new Wildfire Smoke rule affect whether an employer in California may decline an employee’s request to voluntarily use a respirator (including an N95 mask)?
Outside the context of the Wildfire Smoke circumstance, the answer in California is the same as it is under federal OSHA – yes, if a respirator is not required because of exposures levels in the workplace, employers have the option to permit voluntary use or to decline to permit voluntary use respirators. Here is a link to a 2018 fed OSHA Letter of Interpretation in which OSHA expressed the options nature of that decision. Specifically, OSHA states that “the employer may allow the voluntary use of respirators even where an exposure assessment shows respirator use is not required.” Similarly, in that same later, OSHA states: “If the employer determines that any voluntary respirator use is permissible, the employer must….” Cal/OSHA uses very similar language in its regulation (§5144. Respiratory Protection. (2) Where respirator use is not required: (A) An employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard. If the employer determines that any voluntary respirator use is permissible . . . . They have even developed a Respirator-Use Flow Chart that clearly makes voluntary use an option for employers to decide.
Of course, if the terms of the Wildfire Smoke rule are triggered; i.e., if we cannot reduce workers’ harmful exposure to wildfire smoke so that the AQI for PM 2.5 is 150 or lower, then we lose our authority to decline an employee’s request for a voluntary use respirator for that specific reason (i.e., because of the hazard of wildfire smoke). Outside of that context, the general rule should apply.
Note that one thing employers need to watch out for if they decline an employee’s request to voluntarily use an N95 mask, even one supplied by the employee himself/herself, is that then you may well have an employee complaint heading to OSHA, in which case you need to be confident that there is not a potential exposure in the workplace that should have made respirator use mandatory.
What can I do to avoid trouble with OSHA if I am unable to acquire dust masks for dust mask-required tasks in light of the nationwide supply storage?
That is a tricky situation that many employers find themselves in, and OSHA has not yet issued any guidance on this topic – with the exception of the temporary exemption for annual fit testing requirements for healthcare employers. If filtering face-pieces (dust masks) are mandatory (either because of exposures above a PEL or simply because the employer mandates their use), you still need to comply with the respiratory protection requirements notwithstanding the pandemic. OSHA has not issued any guidance providing employers slack on that.
We have identified a couple of options for dealing with this issue. First, if filtering face-pieces (dust masks) are not available, you may need to look into higher level respirators, such as reusable half-face elastomeric respirators. Note that if you transition from using disposable N95 respirators to another reusable type, there are additional requirements in OSHA’s respiratory protection standard to take particular note of, such as the storage, cleaning, inspecting, and maintenance provisions, plus new fit testing and training requirements for the new equipment. To the extent you do purchase higher-level respirators, it would be prudent to consider limiting the number of employees who are required to perform tasks that require the respirators. That way the compliance burden related to the new respiratory protection requirements would be minimized.
Another option, if the masks are mandatory because of exposure levels, is to implement new engineering or administrative controls to lower the exposure levels so that the need for a mandatory respirator requirement is eliminated.
All of that being said, given the unprecedented shortage of N95s at this time, we do not anticipate regulators actively seeking out employers for enforcement. We have been in touch with OSHA on this issue, and we hope that guidance for general industry and construction industry employers will be issued soon.
Can the company require delivery workers arriving at your facilities to don protective masks, such as surgical masks or N95s, while on-site?
The short answer is yes. Just as you can require hairnets and beard covers in food manufacturing facilities and FRC in chemical manufacturing sites, you can require delivery workers or other vendors to wear certain protective equipment, such as a face mask, while on your site.
However, we recommend you consider the intended protection level sought when determining which mask to provide to delivery workers. There are several distinctions to note when comparing surgical masks and N95s. First and foremost, N95 masks offer greater protection for all parties as the mask is tight fitting around the face and “the respirator blocks at least 95 percent of very small (0.3 micron) test particles” according to the Food and Drug Administration (https://www.fda.gov/medical-devices/personal-protective-equipment-infection-control/n95-respirators-and-surgical-masks-face-masks) comparison of surgical masks and N95s. Comparatively surgical masks, “may be effective in blocking splashes and large-particle droplets, a face mask, by design, does not filter or block very small particles in the air . . . because of the loose fit between the surface of the face mask and your face.” Therefore, when worn properly both masks offer some protection (albeit different levels) to the wearer and those nearby. Also significantly, both N95 and surgical masks are designed for one-time use and should not be shared. Lastly, when deciding which mask to provide, it should be considered that mandatory use of N95 masks (for your own employees) may trigger additional requirements with respect to OSHA’s respiratory protection standards and the country is currently facing a shortage of available N95s.
Has OSHA given any guidance around what personal protective equipment should be worn by employees monitoring body temperature at employer entrances using contact thermometers?
OSHA has provided guidance on COVID-19, including PPE requirements, although not specifically for the task of taking employee temperatures outside the healthcare setting. But parsing through the guidance, we have some ideas for what OSHA may expect for that circumstance.
We believe employees monitoring body temperature at employer entrances using contact thermometers should use some combination of gloves, a gown (or protective sleeves) and face/eye protection (e.g. a face mask and/or face shield). We reached that conclusion based on a few items. As a threshold matter, because the World Health Organization has declared the COVID-19 outbreak to be an global pandemic, it is considered a “direct threat” to the workplace for purposes of the Americans with Disabilities Act (ADA), and therefore, employers are allowed to undertake medical inquiries of their employees, including taking employees’ temperatures and asking about symptoms associated with COVID-19. This is reflected in an update issued today to the Equal Employment Opportunity Commission’s (EEOC)’s guidance document.
Moving on to OSHA’s guidance around PPE, OSHA’s COVID-19 guidance document identifies the four levels of worker risk of occupational exposure to SARS-CoV-2, the virus that causes COVID-19 – very high, high, medium, and lower. We believe that employees monitoring body temperature at employer entrances using contact thermometers would be classified under the medium risk category. This is because OSHA’s guidance states that medium exposure risk jobs include those that require frequent and/or close contact with (i.e., within 6 feet of) people who may be infected with SARS-CoV-2, but who are not known or suspected COVID-19 patients. Since employees monitoring body temperature using contact thermometers will have frequent and close contact with people who may be infected with the virus (which is everyone), they are likely at the medium exposure risk. OSHA informs that, workers with medium exposure risk may need to wear some combination of gloves, a gown, a face mask, and/or a face shield or goggles. While OSHA does caveat this by stating that PPE ensembles for workers in the medium exposure risk category will vary by work task, the results of the employer’s hazard assessment, and the types of exposures workers have on the job, since employees monitoring body temperature using contact thermometers are guaranteed to have some contact with people who may be infected with SARS-CoV-2, we would advise erring on the side of greater protection for these workers. Indeed, OSHA does warn that in rare situations, based on the work task, hazard assessment, and types of exposures, workers in this risk category may need to also use respirators.
Note there is another less intrusive option, and that is asking your employees to voluntarily monitor their own temperatures and report symptoms. From both a health and OSHA compliance perspective (especially with respect to the OSHA’s “catchall” General Duty Clause), this is absolutely a recommended practice that demonstrates what you are doing to help protect your workers. That could be a good option in light of the PPE shortages during this time. In that case, you might ask your employees to buy their own thermometers and check their temperatures themselves before coming into work, or supplying your employees with thermometers for that purpose. Additionally, because the outbreak has been declared a pandemic (as mentioned above), you can ask employees about their symptoms associated with COVID-19.
Are employers’ permitted to decline to allow employees to voluntarily use respirators (including N95 masks) upon a request from an employee?
Yes. If a respirator is not required because of exposures levels in the workplace, employers have the option to permit voluntary use or to decline to permit voluntary use respirators in the workplace. Here is a link to a 2018 OSHA Letter of Interpretation in which OSHA expressed the options nature of that decision. Specifically, OSHA states that “the employer may allow the voluntary use of respirators even where an exposure assessment shows respirator use is not required.” Similarly, in that same later, OSHA states: “If the employer determines that any voluntary respirator use is permissible, the employer must provide the respirator users with the information contained in Appendix D of the standard ("Information for Employees Using Respirators When Not Required Under the Standard".) If you permit the use of respirators other than filtering facepieces, you must pay for required medical evaluations for voluntary users and provide voluntary users with appropriate facilities and time to clean, disinfect, maintain, and store respirators.” One thing employers need to watch out for is that if they decline an employee’s request to voluntarily use an N95 mask, even one supplied by the employee himself/herself, then you may well have an employee complaint heading to OSHA, in which case you need to be confident that there is not a potential exposure in the workplace that should have made respirator use mandatory.
Annual Physical Requirements
Is OSHA willing to relax its requirements for employers to conduct annual physicals under medical surveillance requirements where doing so could increase likelihood of exposure to COVID-19?
We have discussed this specific question informally with a contact at OSHA, who has insight as to OSHA’s enforcement position during the COVID-19 pandemic, who explained that OSHA does recognize the difficulty with meeting these types of technical deadlines at this time. OSHA will likely be flexible in how it enforces these types of requirements, including the annual audiogram requirement, while the health threat continues and will be mainly looking at whether the employer is taking good faith, reasonable steps to comply while also protecting their employees from exposure to COVID-19. For example, in the case of annual audiograms, an employer should be able to demonstrate that the audiograms were scheduled or in the process of being scheduled, were temporarily postponed as a protective measure due to the COVID-19 exposure threat, and that there is an intent to reschedule the audiograms once the threat has passed. OSHA would probably also expect that employers take protective measures to ensure employees are not being exposed to increased noise levels.
Based on this informal guidance, we would recommend creating a paper trail showing that the audiograms had been or were being scheduled at the time the significant COVID-19 threat arose, but that they were delayed because of concern for the safety of your employees based on the guidance and recommendations from the CDC and/or local health authorities. This paper trail could include confirmation of scheduled audiograms with the third party provider or communications with the third party provider to schedule the audiograms, internal correspondence on the decision to delay because of COVID-19, an formal or informal memo detailing the reasons for delaying the audiograms because of COVID-19, and communications with the third party provider demonstrating an intent to reschedule as soon as possible after the COVID-19 threat has passed. You may also consider contacting your third party provider to see if they have already instituted a policy that would ban them from performing the audiograms. If so, that should also be included with the documentation you maintain on this decision.
Once the threat of COVID-19 spread has passed, the Company should try to get a date for the audiograms scheduled promptly. OSHA will be less flexible if it comes out to inspect 5-6 months after things have settled down and the audiograms have yet to be performed.
On-Site OSHA Inspections
Are there any limitations or instructions to OSHA's field offices about on-site inspection activity?
We are not aware of an OSHA-wide directive indicating where staff can and cannot visit. However, each Area Office has discretion to make safety and health determinations regarding their staff. We have seen wide variation in how the Area Offices are responding to COVID-19, including one with a CSHO carrying a warrant trying to conduct personal noise monitoring, another seeking face-to-face interviews with employees working from home, and yet another more than happy to have the employer’s representatives fly to the OSHA office for a face-to-face Informal Settlement Conference. If you find yourself at the end of a request from OSHA that is inconsistent with work restrictions you have implemented consistent with CDC guidance, we encourage you to push back and offer alternative accommodations, such as arranging site visits at a later date, coordinating telephone or video conference interviews (or even requesting written questions that can be answered in writing), and setting up telephone conferences for Informal Settlement Conferences, etc.
Emergency Infectious Disease Rule / National Emphasis Program
Is there any response from Congress in terms of an emergency infectious disease rule or national emphasis program by OSHA?
There was talk of the House Democrats forcing the COVID-19 Health Care Worker Protection Act of 2020 (which would have mandated OSHA to promulgate an emergency temporary infectious disease rule for healthcare employers only) into the COVID-19 stimulus and response bill, but the White House signaled it would not be signed if that was included, so it was pulled out before the House voted on it. It is not in the final bill that was signed by President Trump today. It is still a bill the House is working on, but based on the feedback from the White House, it does not look like it will go anywhere any time soon. Absent a legislative mandate, we expect to see more compliance assistance and guidance to healthcare employers than we do new rules or enforcement.
Employer Liability and Obligations
What liability might an employer have for failing to protect employees from exposures to COVID-19 (or failing to act quickly enough in that regard)?
With regard to OSHA liability, we think the answer is yes, particularly under the auspices of OSHA’s General Duty Clause. Given the amount of information published by OSHA (not to mention the CDC), we think that an employer that completely ignored the risk and took no steps to protect employees could be cited under the General Duty Clause. OSHA would likely argue that exposure to COVID-19 is a recognized serious hazard by pointing to all of this public guidance about the risks of COVID-19 and the precautions that can be taken to prevent exposure. Certainly, the more prevalent the outbreak is in your community, the more likely that OSHA would be to take enforcement action, and having confirmed cases among your employees would increase the likelihood of an enforcement action even further. With that said and with the fluid nature of this threat, an employer that makes a good faith effort to follow OSHA and CDC guidance in trying to protect employees should have low risk of facing an enforcement action from OSHA.
With regard to other liability (you mentioned negligence as a possible claim), this topic is a bit outside our core expertise and is likely a question that depends on state rather than federal law. But generally speaking, an employee’s exclusive remedy for personal harm caused in the workplace is limited to that available under the workers’ compensation laws set out by the state where the employee works. Some states have laws allowing additional damages for willful or grossly negligent conduct by an employer, but the conduct that would trigger such a finding differs among states, and the analysis will be very case-specific. To the extent this is a concern, we recommend that you consult with your workers’ comp. carrier or a local practitioner.
Is there anything from OSHA that speaks to what an employer must do upon notification of a confirmed employee case (other than the OSHA instruction re: recordability)?
We are seeing employers remove the infected employee from the worksite immediately, and then preventing their return until he/she is cleared by a medical professional. After a confirmed case, we recommend obtaining as much information as possible about the infected employee’s recent work contacts, including physical workplace locations and colleagues. The locations identified should be cleaned with cleaning disinfects on the EPA list and consider consulting a medical provider regarding whether colleagues exposed to the infected employee need to self-quarantined.
Are there any employer communication requirements to employees? How broad is the scope (i.e. only those in same immediate work area; entire plant)?
A general e-mail regarding self-monitoring and prompt notifications requirements regarding coronavirus is recommended to all employees. OSHA also suggests employers review their procedures regarding contractors, visitors, and other third parties who access the workplace. More guidance from OSHA is here. Regarding notifications to employees after a confirmed case of coronavirus, it is being left to employer discretion.
Is there any guidance on decontamination for areas that infected employees may have accessed or specific cleaning requirements prior to allowing other employees to return to working certain areas?
After a confirmed case, we recommend obtaining as much information as possible about the infected employee’s recent work contacts, including physical workplace locations and colleagues. The locations identified should be cleaned with cleaning disinfects on the EPA list and consider consulting a medical provider regarding whether colleagues exposed to the infected employee need to self-quarantined.
What is the protocol for continuing operations?
To the extent employers can continue operations, it seems they are moving forward with additional safety and health precautions in place, such as plenty of soap and hand sanitizer, hand-washing reminders, relaxed sick leave policies, etc.
We also encourage employers to implement "social-distancing," limit the number of employees in a meeting, and curb non-employee access in the workplace.
Conn Maciel Carey LLP
Conn Maciel Carey LLP