Now that states and local governments are beginning to relax Stay-at-Home orders, many employers are anxious to have their employees return to work and to some sense of normalcy. Employers that have received PPP funds will need to make sure they are appropriately managing employee payroll, including headcount, to take advantage of loan forgiveness.
During this return to work process, both practical and legal changes to the work environment may be necessary. Employers will need to make employees feel comfortable about returning to work by developing well defined policies that prioritize health and safety on the job. The following are some recommended actions for employers to take towards achieving this goal
Follow Government Orders and Guidance.
Employers should continue to follow local, state, and federal guidance regarding Stay-At-Home orders.
Prepare Workplace Policies and Facilities
Employers should develop a plan for how and when employees will return to work. If requiring all employees to return on the same day would create an unsafe environment, consider staggered shifts and alternating Work-From-Home days to reduce the number of people in the office at the same time or in close proximity to each other.
Essential to bringing employees back to work is to prepare a safe workplace, beginning with a review of OSHA’s Guidance on Preparing Workplaces for COVID-19. (https://www.osha.gov/Publications/OSHA3990.pdf ) that classifies jobs by risk level based on the likelihood of occupational exposure. The risk levels are useful in determining appropriate work practices and precautions for employees. While this “advisory” document may not create legal obligations, it provides identifiable steps employers can take to show that they are acting appropriately to protect employees.
OSHA’s Guidance suggests plans, policies, and workplace controls to implement based on an assessment of the workplace exposure risk for employees. These include:
- Development of an infectious disease preparedness and response plan
- Implementation of basic infection prevention measures;
- Development of policies and procedures for prompt identification and isolation of sick people;
- Communication about workplace flexibilities and protections;
- Introduction of engineering controls such as physical barriers and high-efficiency air filters;
- Establishment of administrative controls such as education and training measures and policy changes; and
- Use of personal protective equipment, such as face masks, where appropriate.
The CDC has recently released two resources to help employers with the return-to-work process. The first resource provides guidance on three topics: “Should you consider opening?”; “Are recommended safety actions in place?”; and “Is ongoing monitoring in place?” The second resource provides guidance for implementing cleaning procedures. (dc.gov/coronavirus/2019-ncov/community/pdf/ReOpening_America_Cleaning_Disinfection_Decision_Tool.pdf ). As employers develop and implement plans, policies, and workplace controls, they should refer back to the CDC for specific measures and consider questions like the following:
- What employee and customer screening is right for the facility?
- Should it include things like taking temperatures, wearing masks, and/or marking off six feet waiting distances?
- Do employees need to be paid for time spent on the health screening process?
- If employers require or permit PPE such as masks, do employers have to pay for it?
- What if an employee shows up with a cough?
- Should some employees still work from home?
- How do employers implement these safety precautions without doing anything discriminatory?
- What liabilities might employers have if an employee claims the workplace was not properly prepared for employees returning to work?
- Are there additional rules and regulations applicable to the employer’s specific industry?
Prevent Spread of COVID-19 with Basic Infection Prevention Measures
First and foremost, employers should consult CDC recommendations, both those that are generally applicable and those which may have been established for particular types of industries. The following include practical considerations implicated in most office settings:
- Establish disinfection stations for employees upon arrival and maintain adequate stock of disinfectants. Routinely clean and disinfect all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails, and doorknobs. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
- Review current cleaning procedures and update, if necessary, to ensure daily cleaning of entire work areas and deep cleaning on a weekly basis
- Communicate with building management regarding shared office building spaces (i.e., elevators, restrooms, foyers) to ensure that these areas are being cleaned and disinfected in accordance with CDC recommendations or as otherwise necessary to protect the workforce.
- Perform enhanced cleaning and disinfection after persons suspected or confirmed to have COVID-19 have been in the work area.
- Reinforce frequent and thorough hand washing with soap or other disinfectants.
- Encourage respiratory etiquette, including covering coughs and sneezes.
- Avoid employees’ use of one another’s phones, desks, offices, or other work tools and equipment when possible.
- Encourage or require employees to wear masks or face coverings in shared building spaces, such as elevators.
- Maintain social distancing for the foreseeable future. Reconfigure work spaces, when feasible, to maintain a distance of six feet between employees and consider use of visual signals to ensure that people do not get too close to one another.
- Close or limit communal area usage. Remove extra conference room chairs and install signage indicating the maximum number of people allowed in each room. Consider closing communal lunch areas or coffee stations.
- Establish or continue employee health screenings and procedures for prompt identification and isolation of sick employees. Depending on the nature of the business, methods may range from simple questions to employees about symptoms prior to entering the workplace to temperature screenings. Consider paying employees for screening time and commensurate waiting time to avoid potential wage and hour claims.
- Actively encourage sick employees to stay home and send home those who arrive with symptoms such as fever, cough, shortness of breath, etc.
- Establish return to work procedures for employees who are symptomatic.
Practical Matters Associated with Returning Employees to Work
The logistical hurdles associated with returning employees to work are among the most complex most employers have ever faced. The flood of COVID-19 information and misinformation makes some employees fearful of returning to work and, at the same time, makes other employees resistant to complying with any kind of social distancing measures. In addition, some employees are making more money while on unemployment than they did while working.
Further complicating this return to the workplace is the fact that most employers have never laid off or furloughed large groups of employees before, and are not aware of the logistical and legal issues associated with their return.
Employers should start by determining the circumstances under which the employees departed. Regardless of whether the employer described the action as a furlough, a layoff, or something else, the essential question is this: Was the employer/employee relationship severed? If so, then the employer is returning separated employees, which is very much like hiring them for the first time. If that relationship was not severed, then the employer is essentially returning employees from an unpaid leave.
Returning Separated Employees:
- Check normal policies and procedures for rehiring an employee and follow them;
- Review plan provisions for benefits such as 401K and health insurance, and follow applicable provisions for getting employees back on benefits;
- Collect new employment documentation, such as an application form, background checks, and drug tests, as appropriate;
- Remember Form I-9. Employers may need to complete new forms or complete section 3 of the prior Form I-9 for a particular employee.
- If not returning all separated employees, or if some employees will be chosen to work more hours than others, select employees in a non-discriminatory fashion.
Returning Employees Placed on Leave:
- Check normal policies and procedures for returning employees from leave and follow them;
- Review plan provisions for benefits such as 401K and health insurance, and confirm that the employees returning are still on the benefits they had before leave;
- If not returning all employees at once, or if some employees will be chosen to work more hours than others, select employees in a non-discriminatory fashion.
As employees return to the workplace, employers should be prepared to handle issues like these:
- If the employer is bringing employees back because the employer got a PPP loan, is the employer likely to let those employees go after the eight-week period relevant for loan forgiveness? If so, it may be necessary to provide a warning notice. Otherwise, the employer may have to pay those employees an additional 60 days’ pay and face other penalties for failing to give notice.
- How will employment contracts be impacted? If the employee had a contract for a definite term, did that continue to run while the employee was not working? Will a non-compete provision in the contract still be enforceable? Is this an appropriate time to have employees enter new non-compete or arbitration agreements?
- Will the employer pay any employees at different rates than what those employees made pre-COVID-19, even temporarily? Will any employees have different job duties than pre-COVID-19? If so, will these changes impact those employees’ exempt or non-exempt status?
- Is the employer going to change any workplace benefits as part of cost cutting? Will the employer have to amend or change any plans or policies as a result? Keep in mind some states (like North Carolina) have rules about providing notice of future changes in wages, including things like vacation and other paid time off.
- What arrangements were made for employee portions of health insurance premiums on furlough? Did the employer make them on behalf of the employees? If so, will arrangements need to be made to repay them?
- How will employers respond to employees who refuse to come back to work, either because they are afraid to return or because they are making more on unemployment?
- How will the employer respond to employees who raise concerns about returning to work because they fear getting COVID-19? Will it be necessary to accommodate employees who are in high risk categories? How will these issues be managed in light of legal requirements from OSHA and the National Labor Relations Act, among others?
Complying with New COVID-19 Laws
With the doors closed and workforce laid off or furloughed, employers may have paid little attention to the new laws that may impact their interactions with employees. Employers will have to get up to speed as employees return. Among the new laws to focus on are these:
Paid Leave Laws under the Families First Coronavirus Protection Act (FFCRA). This Act requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
Generally, the Act provides that employees of covered employers are eligible for:
Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
- Paycheck Protection Program Loans. Recipients of these loans need to maintain certain headcounts and payroll standards in order to take advantage of the loan forgiveness aspects of the loans.
- Employers who have not received PPP Loans may be able to take advantage of Employee Retention Credits.
Additional considerations when working through these new laws include the following:
- How will employers handle employees who say they cannot return because they have to be home to care for children who aren’t in school? Will it violate the non-discrimination or non-interference provisions applicable to the new leave laws to withdraw the offer to return because the employee cannot actually return?
- How does paying leave under the new paid leave laws interact with PPP loan funds? Will paying leave under the new leave laws be considered paying payroll out of PPP funds?
- Can employers give employees raises or bonuses with PPP funds to encourage them to return to work? Will those raises or bonuses be included in what can be forgiven?
- If employees refuse to return to work, how can an employer get the headcount where it needs to be for PPP loan forgiveness?
Be Mindful of Employee Leave or Disability Accommodation Laws
Some employees may be entitled to continue work from home or remain on leave of absence under state or federal law due to pre-existing health conditions. Further, be certain that the organization’s Human Resources personnel or leaders are familiar with new obligations under the FFCRA.
Communicate Policy Changes to Employees
Employers should communicate with employees what steps the company is taking to protect their health and ensure that updated policies and return-to-work procedures are disseminated to employees and that training is provided where appropriate.
Disability Accommodation and Covid-19
The Equal Employment Opportunity Commission (EEOC) has updated its technical assistance questions and answers for employers dealing with the COVID-19 pandemic. In the new “Return to Work” section, the EEOC included questions and answers about screening workers when entering the workplace and providing accommodations for personal protective equipment. The EEOC responses are in line with the ADA in that employers are allowed to make “disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.” This standard is met if medical exams and inquiries are required to exclude employees with a medical condition that poses a direct threat to health or safety.
“Direct threats” must be determined based on guidance from the CDC or other public health authorities. Currently, CDC guidelines state “employers should measure the employee’s temperature and assess symptoms prior to starting work.”
The EEOC also provided insight into whether employers must grant requests for modified protective gear. Employers are allowed to require employees to wear protective gear (masks and gloves) and observe infection control practices (hand washing and social distancing). However, the employer should discuss any accommodation requests and provide modifications or alternatives if feasible and does not cause undue hardship on the employer’s business.
The EEOC authorizes employers to ask now about requests accommodations that employees believe they may need when the workplace re-opens. To determine if a requested accommodation poses an undue hardship or “significant expense” during the COVID-19 pandemic, the EEOC states employers must weigh the costs of accommodations against its current budget, which may be lessened due to the pandemic. However, even under the current pandemic circumstances, there may be many no-cost or very low-cost accommodations.
It should be pointed out that the EEOC has clarified that, as in any non-COVID-19 related scenario, it is the employee’s obligation to inform his/her employer of the need for an accommodation due to medical condition, either in conversation or in writing. The employer may then ask questions or seek medical documentation to assess whether the employee has a disability under the Americans with Disabilities Act (ADA) and if that disability can be reasonably accommodated.
The EEOC has explained that an employer cannot bar an employee from the workplace even if it already knows that an employee has a medical condition that puts him/her at a higher risk for severe illness is he/she gets COVID-19 (for example, due to a prior disability accommodation request for the condition). Although an employer can bar employees with COVID-19 symptoms because they present a direct threat to coworkers, the analysis is different when dealing with a “direct threat to self.” That requires an individualized assessment of the employee’s particular medical condition – including the duration of the risk, nature and severity of the potential harm, likelihood the harm will occur, and imminence of the potential harm, as well as whether the employee can, notwithstanding the risk, perform the essential functions of the job without threatening his/her health, with or without accommodation. On this last point, the EEOC further explained that an employee’s medical condition is not considered a direct threat to themselves if the employer can reduce or eliminate the threat through a reasonable accommodation. Those accommodations could include adjustments to the workplace, such as relocating or reassigning the employee, or other options, such as leave or telework, particularly if the employer has granted telework permission to similarly situated employees without disabilities. Finally, the EEOC also clarified that any direct threat individualized assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence, both about the disability and transmission of COVID-19.
It is a near certainty that almost every employer will confront this sort of situation – an employee reluctant to return to work due to a particular medical condition (COPD, asthma, congestive heart disease, cancer, etc.) – as operations resume. The EEOC’s guidance makes plain that employers will need to address these situations on a case-by-case basis. It also confirms that employers will need to be creative and nimble as they address them to provide as much opportunity as possible for vulnerable employees to continue to work.
Jackson Lewis PC
Breazeale Sachse & Wilson LLP,
Brooks Pierce McLendon Humphrey & Leonard LLP
Squire Patton Bogg