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. Criteria may differ in states with their own WARN act.

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 alone, however, the EDD may consider the following in determining whether an individual had good cause for refusing to work: (a) whether the business is not yet eligible for reopening under California or local guidance; (b) whether the business is complying with reopening requirements and other safety regulations; (c) whether the employee is a member of a vulnerable population that is at heightened risk for severe illness, including people older than 65 years old, individuals with weakened immune systems, or serious chronic conditions, such as heart disease, diabetes, or lung disease; (d) whether the employee has other COVID-19 related reasons for refusing to return, for example where an employee remains at home to care for a child whose school remains closed due to COVID-19 (determined on a case-by-case basis), where there is a cluster of COVID-19 cases or other circumstances making it unsafe for the employees to work. 

Employers should discuss an employee’s concerns to determine if there are any health or safety concerns that can be addressed.  An employer may have an obligation to engage in the interactive process to determine whether there is any disability requiring a reasonable accommodation.  Likewise, an employer may need to explore whether an employee has reasonable concerns about performing work under unsafe conditions and whether the employer has taken sufficient steps to guard against unsafe work conditions following CDC and Cal/OSHA guidance.

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. 

Click here for more info on the COVID-19 federal paid leave requirements signed into law.

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 if it is covered by the FFCRA. Under the FFCRA’, covered employers must give emergency paid sick time to any employee, regardless of the length of employment, for a qualifying reason related to COVID-19.  Specifically, employers with fewer than 500 employees are required to provide two weeks (80 hours) of paid sick leave (also referred to in these FAQs as “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).

The FFCRA also provides expanded family and medical leave provisions under the Family and Medical Leave Act (“FMLA”).  Under the law, employers with fewer than 500 employees must also provide up to 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 expanded family and medical leave (also referred to in these FAQs as “Paid Family Leave”) under the FFCRA.  Thus, the expanded family and medical leave benefits could not be used in the situation described above.

 

However, if the employee’s health condition that requires a reduced schedule would otherwise meet the eligibility requirements of the FMLA (and the employer is a covered employer under the FMLA), the employee may be entitled to protected unpaid leave for his health condition, which can be taken on an intermittent basis.  Bear in mind that an employee is entitled to a total of 12 workweeks of leave during a 12-month period set by the employer under the FMLA, including the expanded family and medical leave provisions added by the FFCRA.  Accordingly, if the employee takes any paid leave to care for a child whose school is closed per the expanded family and medical leave provisions, those weeks may be subtracted from the total 12-week protected leave period to which the employee may be entitled under the FMLA.   

 

Whether the employee is entitled to short term disability for his health condition will depend on the eligibility requirements of the applicable policy.   

Click here for more info on the COVID-19 federal paid leave requirements.

How should employees be counted under the FFCRA to determine whether an employer employs fewer than 500 employees?

An employer has fewer than 500 employees if, at the time the employee’s leave is to be taken, it employs 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:

  1. 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;  

  2. 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  

  3. 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 (“DOL”) encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety. 

 

To elect this small business exemption, an employer should document why its business with fewer than 50 employees meets the criteria set forth by the DOL, but is not required to (and should not) send those materials to the DOL.

 

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 DOL 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 maintain when my employee requests sick or expanded family and medical leave?  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 it and the requesting employee must provide, orally or in writing, the following information:

  • the name of the employee requesting leave;

  • the date(s) for which leave is requested;

  • the reason for leave; and

  • a statement 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 it and the employee must provide 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 it and the employee must provide 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 and the employee must provide:

  • 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.  The requesting employee is also required to provide written documentation in support of the paid leave as specified in applicable IRS forms, instructions, and information.   

 

You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

 

Finally, all existing certification requirements under the FMLA also remain in effect for leave taken for one of the existing qualifying reasons under the FMLA.

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.  IRS guidance states that the eligible employer may retain the portion of payroll taxes equal to the qualified leave wages (and allocable qualified health plan expenses and the share of Medicare tax on the qualified leave wages) to get the benefit of the tax credit, rather than having to deposit this amount with the IRS per the usual payroll tax deposit requirements in that calendar quarter. For example, if an employer pays $5,000 in required FFCRA sick/family leave wages (and allocable qualified health plan expenses and the share of Medicare tax on the qualified leave wages), and is required to deposit $8,000 in payroll taxes, including the taxes withheld from its employees, the employer is allowed to keep up to $5,000 of the $8,000 in taxes it was going to deposit for making the required leave payments.  

 

Furthermore, the IRS guidance explains that if the paid leave exceeds the amount of payroll taxes which an employer may retain to take the tax credit, than the amount in excess will be treated as an overpayment and refunded to the employer under Sections 6402(a) or 6413(a) of the Internal Revenue Code.  The overpayment will be subject to offset under section 6402(a) of the Code prior to being refunded to the employer.

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 take leave?

If your business 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:

 

  1. 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);

  2. the employee has been advised by a health care provider to self-quarantine related to COVID-19;

  3. the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

  4. 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

  5. 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.

In California, there may also be additional COVID-19 related supplemental sick leave benefits available for certain businesses (see Executive Order  N-51-20 covering supplemental paid sick leave for certain food sector workers) and in certain jurisdictions (see for example, see Oakland and Los Angeles COVID-19 related emergency paid sick leave ordinances).  Qualifying reasons may be greater than those under the FFCRA, for example, the Los Angeles ordinance includes as a qualifying reason for leave an employee who takes time off work because the employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system.

 

In general, whether operating in California or another state, employers should discuss an employee’s concerns to determine if there are any health or safety concerns that can be addressed.  An employer may have an obligation to engage in the interactive process to determine whether there is any disability requiring a reasonable accommodation.  Likewise, an employer may need to explore whether an employee has reasonable concerns about performing work under unsafe conditions and whether the employer has taken sufficient steps to guard against unsafe work conditions following CDC and Cal/OSHA guidance.

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 under the FFCRA?

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 10 days have passed since symptoms first appeared.  See also the CDC Guidance for businesses.

If an employee is caring for a child whose school or child care provider is closed, do they then qualify for paid sick leave and the expanded family and medical leave?

Yes.

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 a positive COVID-19 case? 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 Sick and/or Family Leave under the FFCRA?

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 only when they need to and are caring for the child (i.e., another parent or guardian is not available to provide care) and for up to a total of 12 weeks.

Is there a minimum employment requirement for Paid Sick Leave benefits?

No, Paid Sick Leave under the FFCRA 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 Sick and/or Family Leave under the FFCRA?

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 Paid Sick Leave under the FFCRA, 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. Calculating an employee's rate of pay for purposes of Paid Sick Leave is further explained in the DOL's FAQs, in particular, Questions 5 and 6.

Can you take Paid Sick Leave or Paid Family Leave intermittently?

 

Under the FFCRA, 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 under the expanded family and medical leave benefits of the FFCRA?

The maximum benefit is $200 per day for the 10 weeks or $10,000 in the aggregate (employees would also likely be entitled to up to 2/3 pay for the first two weeks of paid sick leave to care for a child whose school or daycare has closed due to COVID- 19 before expanded family and medical leave kicks in for a total potential benefit of $12,000).

Can expanded family and medical leave benefits under the FFCRA be taken intermittently?

Yes, paid leave to care for a child per the expanded family and medical leave benefits under the 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.  

 

Symptom-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.

 

Test-based strategy

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.

Is a shelter-in-place order or stay-at-home order considered quarantine for purposes of paid sick leave under the FFCRA? 

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.

 

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 World Health Organization declared the COVID-19 outbreak to be an global pandemic though, 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 EEOC guidance.

 
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.”  

 

The CDC states that screening employees is an optional strategy that employers may use, and that there are several methods that employers can use to protect the employee conducting the temperature screening. The most protective methods incorporate social distancing (maintaining a distance of 6 feet from others), or physical barriers to eliminate or minimize the screener’s exposures due to close contact with a person who has symptoms during screening.  The CDC provides the following examples to consider that incorporate these types of controls for temperature screening:

 

  • Reliance on Social Distancing: Asking employees to take their own temperature either before coming to the workplace or upon arrival at the workplace. Upon their arrival, the screener should stand at least 6 feet away from the employee and:

    • Ask the employee to confirm that their temperature is less than 100.4°F, and confirm that they are not experiencing coughing or shortness of breath.

    • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue.

 

The CDC notes that screening staff do not need to wear personal protective equipment (PPE) if they can maintain a distance of 6 feet.

  • Reliance on Barrier/Partition Controls: During screening, the screener stands behind a physical barrier, such as a glass or plastic window or partition, that can protect the screener’s face and mucous membranes from respiratory droplets that may be produced when the employee sneezes, coughs, or talks.  Upon arrival, the screener should wash hands with soap and water for at least 20 seconds or, if soap and water are not available, use hand sanitizer with at least 60% alcohol. Then, the screener should:

    • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue.

    • Conduct temperature and symptom screening using this protocol:

      • Put on disposable gloves.

      • Check the employee’s temperature, reaching around the partition or through the window, making sure the screener’s face stays behind the barrier at all times during the screening.

      • If performing a temperature check on multiple individuals, make sure to use a clean pair of gloves for each employee and that the thermometer has been thoroughly cleaned in between each check.  If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, the screener does not need to change gloves before the next check.  If non-contact thermometers are used, they must be cleaned and disinfected according to manufacturer’s instructions and facility policies.

    • Remove and discard PPE (gloves), and wash hands with soap and water for at least 20 seconds.  If soap and water are not available, use hand sanitizer with at least 60% alcohol.

 

  • Reliance on Personal Protective Equipment (PPE): If social distance or barrier controls cannot be implemented during screening, PPE can be used when the screener is within 6 feet of an employee during screening.  However, reliance on PPE alone is a less effective control and more difficult to implement given PPE shortages and training requirements.  Upon arrival, the screener should wash their hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol, put on a facemask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), and a single pair of disposable gloves. A gown could be considered if extensive contact with an employee is anticipated. Then the screener should:

    • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue, and confirm that the employee is not experiencing coughing or shortness of breath.

    • Take the employee’s temperature.

      • If performing a temperature check on multiple individuals, the screener should make sure to use a clean pair of gloves for each employee and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, the screener does not need to change gloves before the next check. If non-contact thermometers are used, they should be cleaned and disinfected according to manufacturer’s instructions and facility policies.

    • After each screening, remove and discard PPE and wash hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol.

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.

What are my record preservation obligations related to pre-work health screening, such as taking employee temperatures and asking symptom-based questions?

If you are implementing a pre-work health screening protocol, and you create a record that includes actual temperature data and/or actual answers to symptom-based questions, there are two important record retention issues to be aware of:

  1. The EEOC has been crystal clear that such records are “employee medical records” under the ADA, and therefore must be retained for at least one year, and must be retained in a confidential manner, outside the employee’s normal personnel file.

  2. Another problematic and controversial requirement is under OSHA’s “Employee Medical Record” Standard – 29 CFR 1910.1020.  If these records are covered by 1910.1020, then they have to be retained for decades – the duration of the employee’s employment with your company plus thirty years.

 

Recent OSHA guidance indicates that OSHA believes these records are employee medical records under 1910.1020, regardless of who takes the temperatures and makes the record.  CDC guidance seems to so indicate as well (where, in a footnote in its manufacturing guidance it states that “[e]mployers should evaluate the burdens and benefits of recording workers’ temperatures or asking them to complete written questionnaires. These types of written products become records that must be retained for the duration of the workers’ employment plus 30 years. See OSHA’s Access to Employee Exposure and Medical Records standard (29 CFR 1910.1020).”).

 

We disagree. The standard clearly states that an employee medical record is a record that is created by a professional in the medical field.  So, if your HR manager, plant manager, or some non-medical supervisor is the one taking the temperatures and creating the record, we believe that is not a medical record covered by OSHA’s standard.

 

Regardless, the best practice is here is to just NOT create a record, or not create a record that reflects the actual temperature or the actual symptom-based answers.  All that is necessary is reacting to the test and isolating and removing potentially sick employees from the workplace, or at most, simply documenting a pass/fail or enter/do not enter is all you need.

 

Preventing Exposure in the Workplace

Why should an employer require employees to wear face coverings?

The employer has a duty to protect all of their employees.  The CDC recommends individuals wear face coverings to cover their nose and mouth in the community setting, and a number of state and local jurisdictions are now recommending (and in some instances requiring) employees to wear face coverings.  The use of face coverings is an additional public health measure people can take to reduce the spread of COVID-19 in addition to (not instead of) social distancing, frequent hand cleaning and other everyday preventative actions.  A face covering is not intended to protect the wearer, but may prevent the spread of virus from the wearer to others.  This would be especially important in the event that someone is infected but does not have symptoms. 

Is an employer required to provide employees with face coverings to wear?

In general, face coverings are not personal protective equipment, so the employer has no obligation to provide face coverings under an obligation to provide or pay for PPE.  However, state or local orders may specifically require employers provide or pay for face coverings for employees.  In addition, some states laws may require employers pay for face coverings.  For example, California Labor Code requires employers to reimburse employees for all necessary business expenses.

Do employees have to clean their cloth face coverings?

CDC guidance states that face coverings “should be routinely washed depending on the frequency of wear.”If an employee’s face cover is visibly soiled, they should be provided a clean one or disposable face covering to wear instead.  In an effort to keep face coverings as clean and protective as possible, employees should not reverse, move or remove their face coverings unnecessarily in the workplace and should not share their face coverings with others.

If an employee says they cannot wear a face covering because of a medical condition, should we engage in the interactive process? Can we request medical documentation?  Can we refuse to allow that employee to work? 

Generally, yes to all 3 questions.  If the employer has determined that face coverings are an important measure to protect employees and help prevent the transmission of COVID-19, and an employee says they cannot wear a face covering because of a medical condition, the employer should engage in the interactive process, including requesting medical documentation (except in CT, NY and NJ), and an employer generally can and should prohibit employees from working without an appropriate face covering / unless a reasonable accommodation could be granted, such as the ability for the employee to work in a fully social distanced setting (at least six feet from other co-workers). Under the ADA, a requirement that employees wear face coverings is a job-related qualification standard and consistent with business necessity because it helps ensure that employees do not pose a direct threat to the health and safety of others.  While the ADA generally requires employers to provide a reasonable accommodation to employees who cannot meet a qualification standard because of a disability (unless doing so would impose an undue hardship), employers are not required to provide an accommodation that would pose a direct threat to others.  So, unless an employee works almost entirely by themselves, the ADA should permit the employer to keep an employee who cannot wear a face covering out of the workplace during the pandemic.

Please note that if an employer determines that, while face shields can provide some protection to the wearer, face shields do not protect those around the wearer as effectively as face coverings and thus are not acceptable for our distribution center environment.  During the interactive process, if an employee requests permission to use a face shield instead of a face covering, the employer should explain that perspective to the employee and invite them and their doctor to provide any information they believe establishes that the requested face shield is just as effective in protecting the safety of others.   Absent that, if the employee is unable or unwilling to wear an appropriate face covering, we should consider any other reasonable accommodations the employee or their doctor suggest (i.e. intermittent breaks to remove the face covering) but we should not allow an employee to be in the presence of others without an appropriate face covering and should accommodate these employees through an unpaid leave of absence (or telecommuting, if possible).  

In addition, just like with any other restriction or work limitation about which we are made aware, if an employee provides medical documentation stating that they cannot or should not wear a face covering because of a physical or mental condition, they should not be allowed to wear a face covering (even if they later say they can) unless and until the employer receives medical documentation stating that they can do so safely.  As with all reasonable accommodations, information obtained should be kept confidential and only shared with others with a need to know such information.  And the interactive process with the employee should be thoroughly documented.

 

Linked here is a Flow Chart for handling reasonable accommodation requests related to face coverings.

What if an employee says they cannot wear a face covering because it is offensive or counter to their religious beliefs? Can we request medical documentation?  Can we refuse to allow that employee to work? 

Generally, yes to all three questions.  An obligation exists to accommodate an employee’s sincerely held religious beliefs or practices, unless the accommodation would impose an undue hardship on the employer.   If an employee says they cannot wear a face covering because it is offensive or counter to their religious beliefs, Human Resources should engage in the same interactive process to determine whether a religious accommodation can be provided as it would for a request for a medical accommodation.  Thus, when an employee refuses to wear a face covering or requests an exception to this requirement we should determine if the refusal/request is supported by a religious belief or practice (such as interference with facial hair kept at a certain length for religious reasons).  If the answer to this question is yes, notify the Employment Law team (and Labor Relations if the employee is covered by a collective bargaining agreement) and follow the interactive process.  Note that you can, and should, request documentation supporting the employee’s religious beliefs and inability to wear a face covering in all states.  As with all reasonable accommodations, information obtained should be kept confidential and only shared with others with a need to know such information.  And the interactive process with the employee should be thoroughly documented.

What if an employee says they cannot wear a face covering because it interferes with their ability to safely do their job (e.g., the face covering fogs their glasses)? 

In determining whether it is safe to require face coverings, employers should conduct a hazard assessment to determine the impact (if any) to employees’ ability to safely perform their job responsibilities.  If an employee says their face covering is interfering with their ability to safely do their job, the employer’s Health and Safety department should speak with the employee and review the employee’s concerns to ensure there are no safety issues.  Indeed, OSHA recommends as much in its guidance for Hazard Identification and Assessment (to which CDC refers in its Interim Guidance for Businesses and Employers).  OSHA states that employers should conduct regular inspections of all operations, equipment, work areas and facilities, and have workers participate on the inspection team and talk to them about hazards that they see or report.  If the issue is that the face covering is fogging up an employee’s glasses, tight-fitting goggles, or anti-fog leans cleaner, may be provided as a solution.

What if an employee refuses to wear a face covering, but does not give an explanation for the refusal? 

The employer should clearly explain the importance of the requirement (“my mask protects you and your mask protects me”) and the employee should be asked to explain their reason for not wearing a face covering in writing (if they decline to do so please document the reasons offered, if any).  Assuming the refusal is not related to a medical condition, a safety concern, or a sincerely held religious belief or practice, the employee should be directed that they cannot work without a face covering.

What if an employee discloses that they are susceptible to COVID-19 infection because of their age or their own medical condition, but does not request a leave of absence?  Can we allow them to continue working?   

An employer cannot involuntarily remove higher risk employees from the workplace simply because of their age or potential disability.  An employer should discuss with the employee what other safety measures can be taken (beyond those already being offered) to protect the employee from COVID-19, such as a modified schedule, modified duties, isolated work location, enhanced protective gowns, erecting a temporary barrier that provides separation, or increased handwashing breaks.  These are only a few ideas since identifying an effective reasonable accommodation depends on, among other things, an employee’s susceptibility and specific job duties as well as the design of the workspace.  The employer should discuss possible ideas with the employee and attempt to be as flexible and creative as possible.

 

What if an employee says they cannot commute to work because they carpool or take public transportation to work, and are susceptible to COVID-19 infection because of their own medical condition? 

In that case, employers should engage in the interactive process and determine whether an accommodation (such as a leave of absence) can be offered.  Additionally an employer may, but is not required to, try to find ways to temporarily reduce reliance on public transit or carpools, which could take the form of parking benefits or commuting stipends that would allow and/or incentivize employees to take their own private transportation to work. An employer also could  consider staggered shifts and flexible schedules (if feasible) to allow workers to use public transit at off-peak hours.

What if an employee refuses to work with a coworker who recently returned from a COVID-19 leave of absence because the employee is susceptible to COVID-19 infection? 

Employers are encouraged to have a discussion with the concerned employee about the employer’s Return to Work Guidelines and about what safety precautions might make him/her feel more comfortable in the workplace. Depending on the circumstances, a reasonable accommodation (such as a temporary relocation to a different work area or a leave of absence) may be offered.

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.  Indeed, the CDC does recommend cohorting (grouping together) for certain industries, such as manufacturing.  In its Interim Guidance for Manufacturing Workers and Employers, the CDC states that “[c]ohorting may reduce the spread of SARS-CoV-2 in the workplace by minimizing the number of different individuals who come into close contact with each other over the course of a week, potentially reducing the number of workers outside of the cohort exposure to the virus.”

 

You will want to make sure that it’s 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.

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 recommends that employers protect employees at higher risk for severe illness (older adults and people of any age who have serious underlying medical conditions) through supportive policies and practices.  Namely, employers are recommended to support and encourage options to telework, if available; consider offering vulnerable workers duties that minimize their contact with customers and other employees (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this; offer flexible options such as telework to employees (to eliminate the need for employees living in higher transmission areas to travel to workplaces in lower transmission areas and vice versa); and/or ensure that any other businesses and employers sharing the same workspace also follow the same guidance.

Are employers allowed to administer COVID-19 tests before permitting employees to enter the workplace?

Yes.  In guidance updated on April 23, 2020, the EEOC explicitly addressed this issue.  Starting with the ADA requirement that any mandatory medical test of employees be “job related and consistent with business necessity,” and applying this standard to the current circumstances of the COVID-19 pandemic, the EEOC said “employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

 

In its guidance, the EEOC warns that, consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  Additionally, the EEOC stated that, based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

If a babysitter has symptoms of COVID-19, can we require the babysitter to stay at home?

Yes.  Whether you employ the babysitter directly or not, it is best practice to avoid contact with individuals who are exhibiting symptoms of COVID-19.  The CDC recommends that, for those sick with or think they might have COVID-19, individuals follow a series of protective steps, including staying at home, monitoring symptoms, using proper hand hygiene, etc.  Individuals who think or know they had COVID-19 and had symptoms may discontinue home isolation after three days with no fever, symptoms have improved, AND 10 days have passed since symptoms first appeared.  Alternatively, depending on such individual’s healthcare provider’s advice and availability of testing, individuals might get tested to see if they still have COVID-19.  If so, home isolation can end when the individual has no fever, symptoms have improved, and the individual receives two negative test results in a row, at least 24 hours apart.

What are your thoughts on requiring sick employees to obtain a return to work note from their physician? If an employee can’t get one, how can we be sure it’s safe to let him/her come back to work?

While normally you are required to ask for a doctor's note, as a practical matter, doctors and other health care professionals may be too busy during the pandemic to provide fitness-for-duty documentation.  Indeed, the CDC has recognized as much in its Interim Guidance for Businesses.  In its guidance, the CDC states, “Employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. Under the American’s with Disabilities Act, employers are permitted to require a doctor’s note from your employees to verify that they are healthy and able to return to work. However, as a practical matter, be aware that healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner. Most people with COVID-19 have mild illness and can recover at home without medical care and can follow CDC recommendations to determine when to discontinue home isolation and return to work.”  We recommend having the employee certify in writing that s/he has met the CDC’s guidelines for discontinuing home isolation.

In terms of OSHA's Risk Pyramid, what is the definition of "ongoing community transmission”?

Although OSHA does not define “ongoing community transmission” in its Guidance on Preparing Workplaces for COVID-19, the CDC does define “community spread.”  According to the CDC, community spread means people have been infected with the virus in an area, including some who are not sure how or where they became infected. 

 

“Ongoing community transmission” is used to describe the medium exposure risk jobs of OSHA’s Risk Pyramid.  According to OSHA, 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.  OSHA states that, “[i]n areas without ongoing community transmission, workers in this risk group may have frequent contact with travelers who may return from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category may have contact with the general public (e.g., schools, high-population-density work environments, some high-volume retail settings).”

 

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

  • Consider options to increase physical space between employees and customers such as opening a drive-through, erecting partitions, and marking floors to guide spacing at least six feet apart

  • Consider delivering products through curbside pick-up or delivery

  • Require employees and customers wear cloth face coverings

  • Offer 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

  • Offer gloves and respirators to employees for voluntary use at work

  • Have employee(s) stationed at entrance restricting customer entrance, wiping down carts with disinfect, and reminding customers to keep a six-foot distance from other customers

  • Remind customers throughout the store to maintain 6 feet distance from workers and other customers with verbal announcements by verbal announcements and written signage

  • Track number of customers in store to ensure occupancy does not exceed half of regular occupancy rate

  • Encourage customers to use touchless payment options, when available

  • Minimize handling cash, credit cards, reward cards, and mobile devices, where possible

  • 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)

 

Employer-Employee Confidentiality

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.

Are employers permitted to ask employees whether they are taking anti-inflammatory or temperature-reducing medication, even if the employee might be taking such medications for non-COVID-19 conditions that may be protected by ADA guidelines?

Structuring a question to employees in a way that it is specific to medication taken for the purpose of reducing a fever would be an acceptable practice and a good addition to a pre-work health screening protocol.  Since we are still in a pandemic, and during a pandemic, ADA-covered employers are specifically permitted to ask employees if they are experiencing symptoms related to the pandemic illness, that would include asking questions relating to fever and/or fever-reducing medications.  Note that if a record is create of the answers to such questions, the employer must maintain any other information about employee illness as a confidential medical record in compliance with the ADA.

 

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 relevant period (weekly or bi-weekly); or (2) by payments made separately from, but on the same weekly or bi-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?

 

Workers with reduced hours, though not fully unemployed, may be entitled to the additional $600 per week FPUC payment 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 new Paycheck Protection Program Flexibility Act (“PPPFA”) just passed on June 5, 2020,  the entire amount of a PPP loan may be forgiven if the funds are spent over a period of the earlier of 24 weeks after the loan was disbursed to the borrower or by December 31, 2020.  And, while the funds can be spent on mortgage interest, rent, and utilities, no more than 40% of the funds can be spent on costs outside of payroll costs.  This is an increase from the original PPP loan requirements, which mandated that 75% of the loan be spent on payroll costs.  Under the PPPFA, employers must now spend only at least 60% of the total PPP loan proceeds on payroll 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.  Under the PPPFA, so long as the borrower rehires the employees and/or restores the compensation by 12/31/2020, the borrower will be treated as if there has been no reduction in employees or compensation for purposes of forgiveness.  Note that this is a substantial extension from the original deadline by which employers were required to make up for any reduction in full time employees or compensation – June 30, 2020.  In addition, under the PPPFA, if a borrower can document an inability to rehire an individual who was employed as of February 15, 2020 and terminated thereafter, or hire a similarly qualified employee for the unfilled position, by December 31, 2020, there will be no FTE reduction for that position in the forgiveness amount.  Similarly, if a borrower can document an inability to return to the same level of business activity in which it was engaged before February 15, 2020 due to compliance with COVID-19-related guidance from HHS, CDC, or OSHA from March 1, 2020 to December 31, 2020, it will not have an FTE reduction in the forgiveness amount.   

 

If you don’t want to rehire employees or restore compensation during the forgiveness period, and do not qualify for the additional relief now provided for borrowers that have experienced full time employee reductions, 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 12/31/2020).  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 60% of total loan proceeds be spent on payroll costs.

 

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:

  1. The case is a confirmed case of COVID-19;

  2. The case is work-related as defined in 29 CFR 1904.5; and

  3. 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.).

 

While it is generally easy to establish that a case is a confirmed case (there must be at least one respiratory specimen that tested positive for SARS-CoV-2 virus), and that it involved one or more of the general recording criteria (note that quarantine can constitute days away from work to trigger recording, even if the employee is asymptomatic and would be physically able to work if only he or she was permitted into the workplace), the harder determination is whether it is work-related. 

 

To be work-related, the employer must determine that it is more likely than not that the exposure in the work environment caused the illness, based on a totality of the circumstances.  Recognizing the difficulty in making this “more likely than not” assessment, OSHA issued enforcement guidance on April 10, 2020, setting a very high bar to show work-relatedness for most employers (those outside healthcare, emergency response, and correctional institutions).  Essentially, the April 10 guidance said:

 

  1. If you are in the healthcare/emergency response/prison industries, you have to do the traditional, careful, case-by-case work-relatedness analysis of every confirmed case of COVID-19 among your employees; BUT

  2. If you are not in those very high risk exposure industries, then you do NOT have to do a work-relatedness analysis at all, UNLESS work-relatedness is staring you in the face; i.e., it is so obvious it is work-related because there is a cluster of cases among people who were working closely together, AND there is no other apparent exposure outside the workplace that could explain the employees’ illness.

 

Only a month later however, on May 16, 2020, OSHA rescinded its April 10 guidance and replaced it with new guidance (the one currently in effect).  The May 16 guidance no longer distinguishes between employers in, and outside of, healthcare, emergency response, and correctional institutions, and requires all industries to conduct individualized work-relatedness analyses.

 

In furtherance of this, OSHA declared that its enforcement approach will be to evaluate the “reasonableness of the employer’s investigation into work-relatedness.”  Namely, employers are “not expected to undertake extensive medical inquiries, given employee privacy concerns,” and may rely only “on the information reasonably available to the employer at the time it made its work-relatedness determination.”  OSHA states that it will be sufficient in most cases for employers to:

 

  1. Ask the employee how he believes he contracted the COVID-19 illness

  2. Discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and

  3. Review the employee’s work environment for potential SARS-CoV-2 exposure (which should be informed by any other instances of workers in that environment contracting COVID-19 illness).

 

If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.

 

​For more information on this issue, check out Conn Maciel Carey’s COVID-19 OSHA Recordkeeping and Reporting Resource Guide as well as our most recent article on OSHA COVID-19 Recordkeeping and Reporting

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, check out Conn Maciel Carey’s COVID-19 OSHA Recordkeeping and Reporting Resource Guide as well as our most recent article on OSHA COVID-19 Recordkeeping and Reporting.  Additionally, see our Fatality and Serious Injury Reporting Flow Chart for information on OSHA’s general reporting rule. 

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. 

 

Note: OSHA State Plan States may have stricter recording and/or reporting requirements.  For example, in California, recording obligations for recording COVID-19 cases are different in distinct ways, and reporting obligations are much broader, requiring employers to report any cases that occur in a place of employment, regardless of work-relatedness.  Check out our most recent article on Cal/OSHA COVID-19 Recording and Reporting.  Accordingly, employers are urged to check the requirements of their state(s).

What are our regulatory recording 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.  On March 16, 2020, OSHA issued enforcement guidance setting forth the particular standard that employers must follow with respect to COVID-19 cases, which requires employers in all industries to conduct individualized work-relatedness analyses.

 

In furtherance of this, OSHA declared that its enforcement approach will be to evaluate the “reasonableness of the employer’s investigation into work-relatedness.”  Namely, employers are “not expected to undertake extensive medical inquiries, given employee privacy concerns,” and may rely only “on the information reasonably available to the employer at the time it made its work-relatedness determination.”  OSHA states that it will be sufficient in most cases for employers to:

 

  1. Ask the employee how he believes he contracted the COVID-19 illness

  2. Discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and

  3. Review the employee’s work environment for potential SARS-CoV-2 exposure (which should be informed by any other instances of workers in that environment contracting COVID-19 illness).

 

If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.

 

OSHA goes on to identify the types of evidence that may weigh in favor of or against work-relatedness.  For instance, OSHA says, COVID-19 illnesses “are likely work-related” if:

 

  • Several cases develop among workers who work closely together and there is no alternative explanation;

  • The illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation; and

  • Job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

The guidance also indicates that an employee’s COVID-19 illness likely is NOT work-related if:

 

  • Only one worker in a general vicinity in the workplace contracts COVID-19;

  • Job duties do not include having frequent contact with the general public, regardless of the rate of community spread;

  • Outside the workplace, the infected employee associates closely and frequently with a non-coworker (e.g., a family member, significant other, or close friend) who has COVID-19.
     

Additionally, the case must be a confirmed case (there must be at least one respiratory specimen that tested positive for SARS-CoV-2 virus), and involve one or more of the general recording criteria (i.e., medical treatment beyond first aid; days away from work; etc.).

 

For more information on this issue, check out Conn Maciel Carey’s COVID-19 OSHA Recordkeeping and Reporting Resource Guide as well as our most recent article on OSHA COVID-19 Recordkeeping and Reporting.

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).

How do Cal/OSHA’s recent COVID-19 Recording and Reporting FAQs differ from Fed OSHA’s COVID-19 Recordkeeping guidance?

On May 27th, Cal/OSHA issued new guidance: “Recording and Reporting Requirements for COVID-19 Cases: Frequently Asked Questions.”  Here’s a link to a detailed article we prepared about the FAQs, and below is a summary of the key points from the guidance and how it differs from fed OSHA’s COVID-19 recordkeeping guidance.  Specifically, the Cal/OSHA FAQs establish COVID-19 related recordkeeping obligations for California employers that differ materially from fed OSHA’s earlier COVID-19 recordkeeping guidance, and which will result in cases having to be recorded on 300 Logs in California that would not be recordable anywhere else in the country.

 

Fed OSHA requires employers to record their employees’ COVID-19 infections only if:

  1. The COVID-19 infection is confirmed by a positive laboratory test of a respiratory specimen;

  2. The case involves one or more of the general recording criteria, including days-away-from-work for quarantine; and

  3. The case is work-related as defined by 29 CFR § 1904.5.

 

Fed OSHA’s guidance clarifies how employers must determine whether employee COVID-19 illnesses are work-related, requiring a fairly superficial case-by-case work-relatedness analysis for employers in all industries covered by the recordkeeping regulation.  OSHA requires recording COVID-19 cases only where it is “more likely than not” the illness was caused by an exposure in the workplace, based on reasonably available evidence, and in the absence of an alternative (non-work) explanation for the illness.  Cases are not presumed to be work-related, and in fact, because a non-work explanation for an employee’s illness generally will defeat a finding of work-relatedness, there is effectively a presumption against work-relatedness, or at the very least, a very high bar to clear to find a case to be work-related.  What is clear is that where there is real doubt about which exposure (at work or away from work) was the exposure that caused the illness, the case will not be work-related, and therefore, not recorded on the 300 Log.

 

The new Cal/OSHA FAQs, on the other hand, place unique recordkeeping burdens on California employers and flip the likelihood of finding work-relatedness on its head.  Contrary to federal OSHA’s “more likely than not” standard and the significant carve-out when there are identifiable alternative (non-work) explanations, the new Cal/OSHA FAQs establish a presumption of work-relatedness where there is any identifiable workplace exposure, such as:

  1. Interactions with people known to be infected with the virus

  2. Working in the same area where people known to have been infected had been

  3. Sharing tools, materials or vehicles with persons known to have been infected

 

Cal/OSHA’s guidance does not address whether the presumption is rebuttable at all, let alone what showing is needed to rebut it.  So, it is unclear how Cal/OSHA expects employers to evaluate circumstances where there is both an identifiable workplace exposure and also an identifiable non-work exposure, even one that is more likely to have caused the illness, other than a statement that suggests that “where there is uncertainty about whether an employee contracted COVID-19 at work, the employer should err on the side of” finding work-relatedness.  That is, of course, exactly the opposite of the standard set by fed OSHA’s guidance, and will surely result in more COVID-19 cases being recorded in California that would not be recorded elsewhere.  In addition to the contradictory work-relatedness standard, Cal/OSHA also expects cases to be recorded even in the absence of a confirmed positive lab test for the virus.  This will also result in certain cases being recordable only in California.

Is Cal/OSHA permitted to set a standard that is different than fed OSHA’s standard for recording COVID-19 cases?

As a general rule, State OSH Plans are required to be “at least as effective” as fed OSHA, which means, they generally are permitted to mandate that employers meet more stringent requirements than fed OSHA expects.  For example, State Plans have authority to ask employers to report more injuries and illnesses (which Cal/OSHA does), and they can set other unique, more stringent regulatory requirements, like fall protection requirements triggered at lower heights, lower PELs for chemical exposures, or more stringent PPE requirements.  But OSHA’s recordkeeping regulation at 1910.37(b)(1) provides: State-Plan States must have the same requirements as Federal OSHA for determining which injuries and illnesses are recordable and how they are recorded.  Accordingly, whether an injury or illness is recordable is one regulatory requirement about which state plans may not be more restrictive.  The idea is that a recordable should be a recordable no matter where you are; so Cal/OSHA may not lawfully require employers to record an injury or illness if that same injury or illness would not be recordable in a fed OSHA state.

 

An outcome-based analysis of Cal/OSHA’s guidance vs. fed OSHA’s guidance will surely reveal that there are cases that will have to be recorded in California that would not be recordable in fed OSHA states.  For example, if an employer determines that an employee with COVID-19 was briefly exposed to a co-worker who had previously contracted the virus while both were wearing respiratory protection, but the employee also lives with a spouse who contracted the virus a few days earlier, that employee’s COVID-19 illness would surely not but recordable in a fed OSH jurisdiction, but would be presumptively recordable in California.  That is impermissible.

Personal Protective Equipment

(Respirators, Dust Masks & N95s)

How do I know what PPE to select?  Is PPE required for COVID-19 response?

 

Not necessarily, but you must conduct a thorough hazard assessment to determine if workplace hazards are present, or are likely to be present, and determine what type of controls or PPE are needed for specific job duties.  When engineering and administrative controls cannot be implemented or are not fully protective, employers are required by OSHA standards to:

  • Determine what PPE is needed for their workers’ specific job duties,

  • Select and provide appropriate PPE to the workers at no cost, and

  • Train their workers on its correct use.

 

If the hazard assessment concludes that workers do not require PPE, such as a respirator or medical facemask for protection, employees should still be encouraged (or better yet, required) to wear a face covering at work.  Remember that face coverings are NOT considered PPE.  They may prevent workers, including those who don’t know they have the virus, from spreading it to others, but may not protect the wearers from exposure to the virus that causes 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.  OSHA stated in a 2018 Letter of Interpretation 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.”  It is important to keep in mind that if you do 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 no 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 respirators in light of the nationwide supply storage?

If N95 respirators are required (e.g., because of a PEL or employer policy), but supplies are unavailable, you should consider implementing new engineering or administrative controls to lower exposure levels, or consider providing higher level, reusable 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.  To the extent that 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. 

 

Additionally, OSHA has provided some relief in this area and issued temporary enforcement guidance, relaxing respiratory protection enforcement to extend the country’s respirator supply.  For example, in that guidance, OSHA informs that OSHA field offices will exercise enforcement discretion concerning the annual fit-testing requirements (e.g., employers may change the method of fit testing from a destructive, quantitative method to a non-destructive, qualitative method).  Also, OSHA field offices are directed to exercise enforcement discretion when an employer switches to an equivalent-fitting make/model/size/style N95 or other filtering facepiece respirator without first performing an initial quantitative or qualitative fit test.  Employers must demonstrate certain elements to be afforded the discretion, including performing initial fit test and reinforcing the importance of a fit check for adequate seal. 

What is Cal/OSHA saying about respirators?  And 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)?

Cal/OSHA does not recommend respirators or masks for most workers.  In its new guidance, Cal/OSHA relies on CDC recommendations, stating, “Current CDC guidelines do not recommend that the general public wear respirators or masks to protect against COVID-19. Consistent with CDC guidelines, and in light of current respirator and surgical mask shortages and their prioritization for health care workers, Cal/OSHA is not recommending respirators or masks for most workers at this time.”

 

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.  Cal/OSHA’s Respiratory Protection regulation (8 CCR 5144) is very similar to Fed OSHA’s standard, and Fed OSHA has stated (in a 2018 Letter of Interpretation) that “the employer may allow the voluntary use of respirators even where an exposure assessment shows respirator use is not required.”  Cal/OSHA has 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 it is important to keep in mind that if you do 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 no potential exposure in the workplace that should have made respirator use mandatory.

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 FDA’s comparison of surgical masks and N95s.  Comparatively, surgical masks, “may be effective in blocking splashes and large-particle droplets, [but] 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.

 

Alternatively, given the CDC’s recommendation that people wear face coverings where social distances are hard to maintain, many employers now require, or will be requiring, their employees to wear face coverings while onsite.  You can request that contractors, vendors, visitors, etc. do the same to protect your workforce.

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 EEOC guidance.

 
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 too in light of 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, you can ask employees about their symptoms associated with COVID-19. 

What if an employee requests PPE beyond what is already being provided (e.g., a gown or a face shield)?

If an employee requests additional PPE like a gown or face shield because of a medical condition (e.g., they have an underlying condition, such as diabetes and therefor may be  particularly susceptible to COVID-19), the employee should evaluate and determine whether they can provide a reasonable accommodation. 

What if an employee comes to work with their own PPE (e.g., a gown or a face shield)?  Should we let them wear it?

 

Personal PPE may only be used after a hazard assessment has been conducted, determining that the PPE will not present a hazard to the employee or others.  Face shields, if authorized and worn, must be worn in conjunction with a face covering.

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?

In April, OSHA issued an enforcement memorandum that recognized the difficulty with meeting these types of technical deadlines during the COVID-19 pandemic due to business closures, restrictions on travel, limitations on group sizes and stay-at-home orders, which impact the availability of employees, consultants, and contractors to provide necessary services, as well as access to medical testing facilities.  As a result, OSHA is exercising its enforcement discretion to relax enforcement of many regulatory obligations if complying with these obligations is not feasible or doing so would pose an unreasonable risk of virus transmission among the employer’s workforce.  Per this Enforcement Memo, OSHA 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.

The main takeaways from the new enforcement policy are:

  • Where an employer is unable to comply with OSHA standards that require annual or recurring audits, reviews, training, assessments, inspections, physicals or testing because of the Coronavirus pandemic, AND the employer has made good faith attempts to comply, OSHA “shall take such efforts into strong consideration in determining whether to cite a violation.”

  • But where the employer cannot demonstrate any efforts to comply or why trying to comply would be more hazardous, a citation may issue as appropriate. 

 

To evaluate an employer’s good faith compliance efforts, OSHA will review whether the employer explored other options to comply with the applicable standards and will look for any efforts to implement interim alternative protections.  OSHA will also be looking for documentation and other evidence of the employer’s efforts to comply or for the reasons that compliance would have created an unreasonable risk of exposure to employees. 

For example, in the case of annual audiograms, employers generally contract with a third-party service to bring a mobile audiometric testing facility to the employer’s workplace.  But due to travel restrictions or social distancing protocols, the employer or the third-party provider likely had to cancel the visit.  To show good faith in this scenario and enhance the likelihood that OSHA will exercise enforcement discretion, an employer should be prepared 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, that it considered alternative options for compliance, implemented alternative protective measures (e.g., enhanced enforcement of hearing protection requirements), and that there is an intent to reschedule the audiograms once the health crisis has passed.   
 
Based on this guidance, we would recommend creating a paper trail showing that the audiograms, or similar annual physicals, 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 and/or the COVID-19 related policies and practices of the third-party provider.  This paper trail could include confirmation of scheduled services with the third-party provider or communications with the third-party provider to schedule the services, internal correspondence on the decision to delay because of COVID-19, a formal or informal memo detailing the reasons for delaying 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.  Documentation should also include all efforts to explore alternative options of compliance (where such alternative forms exist) and the interim alternative protections provided to employees, such as engineering or administrative controls (e.g., if implementing enhanced enforcement of hearing protection requirements, documentation of hearing protection inspections conducted at the facility). 
 
Once the threat of COVID-19 spread has passed, OSHA will expect to see the employer exercise good faith to return to compliance as soon as possible.  Thus, the Company should try to get a date for the audiograms or other annual physicals scheduled promptly.  Indeed, the Enforcement Memo expressly provides for a program for OSHA to conduct monitoring inspections once normal activities resume at a random sampling of worksites where citations were not issued to ensure the employer has returned to full compliance.

On-Site OSHA Inspections

Are there any limitations or instructions to OSHA's field offices about on-site inspection activity?

On May 19, 2020, OSHA issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) which provides instruction and guidance to Area Offices and compliance safety and health officers for handling COVID-19-related complaints, referrals, and severe illness reports.

 

Eliminating COVID-19-related hazards remains a top priority for OSHA.  As states lift COVID-19 restrictions and workplaces reopen, OSHA will continue to evaluate COVID-19 cases under one of two general frameworks.

 

1. In geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to adhering to its typical inspection planning procedures, as outlined in its Field Operations Manual (FOM), when prioritizing reported events for inspections, except that:

  • OSHA will continue to prioritize COVID-19 cases; and

  • OSHA will utilize non-formal phone/fax investigation or Rapid Response Investigation (RRI) in circumstances where OSHA has historically performed such inspections (e.g., to address formal complaints) when necessary to assure effective and efficient use of resources to address COVID-19 related events.

 

2. In geographic areas experiencing sustained elevated community transmission or a resurgence in community transmission of COVID-19, OSHA will exercise discretion, considering available resources.  This includes the following:

  • OSHA will continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection, and will be particularly attentive to on-site investigations for high-risk workplaces (i.e., workplaces in the medical community where there is greater risk for exposure to known or suspected cases of COVID-19 due to “aerosol-generating procedures”) and workplaces with high numbers of complaints or known COVID-19 cases.

  • Where resources are insufficient to allow for on-site inspections, OSHA will initiate remote inspections for these types of reported events, with the expectation that it will complete an on-site investigation if/when resources become available.

  • Where limitations on resources do not allow for an on-site or remote inspection, OSHA will investigate through RRI, identifying any hazards, providing abatement assistance, and confirming abatement.

  • OSHA will develop a program to conduct monitoring inspections from a random sample of fatality or imminent danger cases where it could not complete inspections due to resource limitations.

  • Use nonformal phone/fax investigations instead of on-site inspections in lower-risk exposure industries, where doing so can address the relevant hazard(s).

 

The Updated Plan continues to bracket COVID-19 risk exposure into three categories: (1) high/very high exposure; (2) medium exposure; and (3) low exposure.  Based on these categories and the distinction between geographic areas with a resurgence versus a decline in COVID-19 transmission, the Updated Plan provides detailed procedures and guidance for how OSHA should handle COVID-19-related complaints, inspections, and citations during the COVID-19 pandemic.  Thus, whether employers will be subject to OSHA’s normal investigation procedures will depend on: (1) whether they fall within the very-high/high, medium, or low risk exposure category; and (2) whether there is a resurgence of COVID-19, transmission in the geographical area.

Is there an OSHA policy for COVID-19 enforcement discretion relating to missed deadlines, etc.? 

Yes.  On April 16, 2020, OSHA issued an enforcement memorandum entitled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic,” providing enforcement relief for employers who exercise good faith in the context of this extraordinary health crisis.  The temporary policy is based on the agency’s enforcement discretion to relax enforcement of many existing regulatory obligations if complying with these obligations is not feasible or if doing so would pose an unreasonable risk of virus transmission among the employer’s workforce.  It applies broadly to employers in all industry sectors, and will remain in effect indefinitely throughout the pandemic.

 

The heart of the new enforcement policy is this:

 

  • Where an employer is unable to comply with OSHA standards that require annual or recurring audits, reviews, training, assessments, inspections, or testing because of the Coronavirus pandemic, AND the employer has made good faith attempts to comply, OSHA “shall take such efforts into strong consideration in determining whether to cite a violation.”

  • But where the employer cannot demonstrate any efforts to comply or why trying to comply would be more hazardous, a citation may issue as appropriate.

 

As part of OSHA’s assessment whether an employer engaged in good faith compliance efforts, OSHA will evaluate whether the employer explored other options to comply with the applicable standards (e.g., by remote training, virtual inspections, etc.), and will look for any efforts to implement interim alternative protections.  OSHA will be looking for documentation and other evidence of the employer’s efforts to comply or for the reasons that compliance would have created an unreasonable risk of exposure to employees.  Such documentation may include contracts or invoices showing that the training or auditing service had been timely scheduled before the COVID-19 outbreak, and communications with the providers about the cancellation because of the pandemic.

 

OSHA will also expect to see that the employer demonstrated further good faith attempts to return to compliance as soon as possible following the reopening of the workplace, renewed availability of third party services, and/or the relaxing of the various social distancing related policies.  Indeed, the enforcement memo expressly provides for a program for OSHA to conduct monitoring inspections once normal activities resume at a random sampling of worksites where citations were not issued in order to ensure the employers have returned to full compliance.

 

To further clarify the types of regulatory requirements that OSHA is relaxing by way of this guidance, the memo includes an Annex that lists “Examples of Situations Where Enforcement Discretion Should be Considered,” which includes:

 

  1. Annual Audiograms

  2. Process Safety Management Requirements

    • Process Hazard Analysis Revalidations (on a five-year cycle)

    • Annual review and certification of Operating Procedures

    • Periodic Refresher Operator Training

  3. Annual Hazardous Waste Operations Training

  4. Annual Respirator Fit Testing and Training

  5. Periodic Maritime Crane Testing and Certification

  6. Construction Crane Operator Re-Certification or Re-Licensing Examinations

  7. Periodic Medical Evaluation for Respirator Use

 

This list is intended to be illustrative, not exhaustive.  We could see similar requirements like periodic powered industrial truck training or medical surveillance requirements covered by the same principles espoused by this policy.

 

For more details, see our article on OSHA's Enforcement Policy Relaxing Regulatory Compliance During the COVID-19 Crisis

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 and others with elevated risk exposures and to develop a permanent rule) 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 CARES Act bill that was signed by President Trump.   The bill was introduced in both the House and Senate by Democrats in early March, 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.  Although the federal government has not acted on a rule, there is some movement from State Plan States, such as Virginia, that are developing regulations to reduce the risk of exposure to COVID-19 in workplaces. 

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 did not take 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.  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.  In recent weeks, we have seen a uptick in wrongful death lawsuits against employers related to COVID-19, but none of those cases have reached a final outcome.

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)?

While OSHA has not specifically provided instruction on how to handle an employee notification of a confirmed case of COVID-19, the CDC has.  The CDC guidance recommends that employers:

 

  • close off any areas used for prolonged periods of time by the sick person;

  • wait a period of time before cleaning and disinfecting to minimize potential for other employees being exposed to respiratory droplets;

  • clean dirty surfaces with soap wand water before disinfecting the area;

  • disinfect surfaces using products that meet EPA criteria for use against SARS-Cov-2; and

  • identify which employees may have been exposed to the virus and may need to take additional precautions – i.e. inform them of possible exposure and instruct to stay home for 14 days/telework, if possible.

 

Sick employees should follow CDC-recommended steps. Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers.

 

Finally, depending on your industry, you should confer with respective state and county health departments, as there are several state and local orders requiring employers to report confirmed cases amongst their staff to the respective health department.  This requirement is typically required of healthcare providers, laboratories, or other medical professionals.

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. 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 shutdown and cleaned with cleaning disinfectants 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?

While most employers have been able to resume some form of operations, they are certainly different than before.  There are several administrative and engineering controls, and safe work practices that can be implemented to combat COVID-19 in the workplace. 

 

First, employers should enact additional safety and health precautions such as plenty of soap and hand sanitizer, hand-washing reminders, relaxed sick leave policies, etc.  We also encourage employers to implement "social-distancing," including placing reminders throughout the workplace and decals on the floors.  To further limit human interaction, employee work shifts can be staggered, as well as break times.  Employers should also consider curbing non-employee access in the workplace. 

 

Second, although physical modifications to the workplace may be challenging, there are several things employers can do to decrease the potential hazard in the workplace. For instance, employers should consider increasing air filtration system capabilities and replacing filters more frequently.  Furthermore, in areas where employees cannot maintain a six-foot distance in the workplace, employers should consider rearranging the work area or, if infeasible, installing plastic barrier guards around employee workstations.

 

Third, all employees should be required to wear a face covering in the workplace, such as a cloth covering or surgical mask.  This is still the recommended course of action from the CDC, and OSHA has affirmatively stated that failure to implement such measures may be a violation of the General Duty Clause.

 

Fourth, employers should increase cleaning measures.  In addition to employees maintaining clean work spaces, employer cleaning staff should routinely wipe down high touch surfaces and common elements and areas, such as lobbies, bathrooms, and hallways.  Employers should also consider deep clean sanitizing of the workplace on a routine basis, especially after notification that an employee confirmed positive for COVID-19.

Finally, employers should document all of their efforts in a site-specific COVID-19 Exposure Control Plan. Not only do several states (including California and New York) require such a plan, both OSHA and the CDC recommend that employers adopt them.  Indeed, the CDC states in its Interim Guidance for Businesses and Employers that “[a]ll employers should implement and update as necessary a [COVID-19 preparedness, response, and control plan] that [i]s specific to [the] workplace, identifies all areas and job tasks with potential exposures to COVID-19, and includes control measures to eliminate or reduce such exposures.”  Likewise, in one of OSHA’s earliest guidance documents regarding the pandemic, OSHA states, “If one does not already exist, develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19.”  Because OSHA enforcement of COVID-19 issues will fall under the agency’s catch-all General Duty Clause, citations for COVID-19 exposure will rely on guidance the employer did not meet, including OSHA’s own guidance.  Thus, not having an exposure control plan could very well lead to an OSHA citation.  The bottom line is that in order to avoid an OSHA inspection, you must have an effective response to protect against COVID-19 in the workplace, and the key to this — and to demonstrating to OSHA that you have an effective response in place — is a coherent, written Exposure Control Plan.

As a boutique law firm focused on Workplace Safety and Labor & Employment Law, Conn Maciel Carey has been working with our clients since the beginning of this crises to develop customized COVID-19 Exposure Control Plans.  In most cases, we hold a series of conference calls with leadership, HR, safety, and operations, after which we provide a customized Exposure Control Plan that will help protect employees and customers, and also provide a line of defense against the mounting potential exposure to regulatory and tort liability.  If you would like help developing such a plan, please contact any of the attorneys at Conn Maciel Carey.

For more information, please contact Eric J. Conn or Kara M. Maciel.

Eric J. Conn

Chair, OSHA • Workplace Safety Practice Group

Conn Maciel Carey LLP

202-909-2737

econn@connmaciel.com

Kara M. Maciel

Chair, Labor • Employment Practice Group

Conn Maciel Carey LLP

202-909-2730

kmaciel@connmaciel.com

 
 
 
 
 
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