Michael Gore Hosts Palm Beach Chamber Webinar to Discuss Legal Considerations for Reopening Businesses

By Michael J. Gore

Michael Gore served as a featured speaker at a recent Palm Beach Chamber of Commerce webinar on the topic of legal considerations for employers tasked with reopening their businesses and implementing procedures to protect employees in the months following the COVID-19 outbreak.

We have outlined the following key considerations and resources for businesses and employers.

Employee Safety | OSHA Guidance on Preparing Workplaces for COVID-19

Employers should be mindful of and comply with applicable federal, state, and local orders and guidelines regarding employee safety in the workplace. Although not firm regulations, the guidance provided by OSHA should be considered “recommendations.” 

Employers are reminded of OSHA’s General Duty Clause:

• Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

The OSHA Guidance is comprised of two sections:

• “basic steps” that every employer can take to reduce exposure of COVID-19; and
• recommendations for employers and workers in specific risk categories.
  
  

  Basic Step #1: Develop a Preparedness and Response Plan

  • Your plan should be in writing and consider the levels of risk associated with worksites and job tasks.
  • Where, how, and what are the sources of exposure. This includes non-occupational risk factors at home and community settings.
  • Develop contingency plans if an outbreak occurs (e.g., increased absenteeism, need for social distancing).
    
    

  Basic Step #2: Infection Prevention Measures

  Employers should:

  • Promote and encourage hand washing and respiratory etiquette.
  • Encourage sick employees to stay home.
  • Provide employees, customers or visitors with tissues and trash cans.
  • Consider allowing continued teleworking or other measures to force social distancing such as staggered hours.
  • Increase and maintain thorough cleaning protocols.
  • Discourage sharing of phones and other devices. 
    
    

  Basic Step #3: Develop Policies and Procedures for Prompt Identification and Isolation of Sick Employees

  Employers should communicate procedures clearly but allow for flexibility in normal policies:

  • Encourage employees to self-monitor for symptoms.
  • Develop policies and procedures for employees to report when they’re sick.
  • Where appropriate, develop policies and procedures to isolate those who are sick.
  • Take steps to limit the spread (e.g., provide face masks, “if feasible and available”).
  • Ensure sick leave policies are flexible and make sure employees are aware of the policies.
  • NOT require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work.
  • Maintain flexible policies that permit employees to stay home to avoid ill staff from coming into the workplace for fear of losing their job; recognize that workers with sick family members may need to stay home to care for them.
  • Be aware of workers’ concerns about pay, leave, safety, health, and other issues that may arise during infectious disease outbreaks.
  • Provide information to workers about medical care in the event of a COVID-19 outbreak.
    
    

  Basic Step #4: Implement Workplace Controls

  • Engineering Controls (e.g., sneeze guards)
  • Administrative Controls (e.g., limit face-to-face meetings, discontinue non-essential travel)
  • Safe Work Practices (e.g., provide resources such as hand sanitizers)

  PPE:

  • OSHA Guidelines make it clear that prevention is key and more important than simply supplying PPE. The type of PPE is dependent on the risk category of the employee and worksite.
  • Also, OSHA Guidelines clarify that should PPE be required, the employer is “obligated” to provide it. Example: a nurse known to treat infected patients should be supplied PPE by the employer.
  • When PPE is required, follow OSHA’s Personal Protective Equipment (PPE) standards.
    
    
  Specific Risk Categories and Recommendations
  
  To help employers determine appropriate precautions, OSHA has divided job tasks into four risk exposure levels. The level of risk depends in part on the industry type, the need for contact within 6 feet of people known to be, or suspected of being, infected with COVID-19.
  
  
  • Very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures. Example: a morgue worker handling those who are suspected of having or who had COVID-19. See OSHA Guidelines for Administrative & Engineering controls for this level.
    
    
  • High exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19. Example: healthcare delivery and support staff (e.g., doctors, nurses, and other hospital staff who must enter patients’ rooms) exposed to known or suspected COVID-19 patients. See OSHA Guidelines for Administrative & Engineering controls for this level.
    
    
  • 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 COVID-19, but who are not known or suspected COVID-19 patients. PPE for workers in this category will vary by work task, the results of the employer’s hazard assessment and the types of exposures workers have on the job. Example: workers who may have contact with the general public (e.g., schools, high-population-density work environments, some high-volume retail settings).
  • The recommended “engineering controls” are the installation of physical barriers.
  • The recommended “administrative controls” include:
    • A combination of gloves, a gown, a face mask, and/or a face shield or goggles may be warranted (see above).
    • Offering face masks to ill employees and customers.
    • Keep customers informed about symptoms of COVID-19 and ask sick customers to minimize contact with workers.
    • Where appropriate, limit customers’ and the public’s access to the worksite.
    • Consider strategies to minimize face-to-face-contact.
    • Communicate the availability of worker health resources (e.g. on-site nurse).
      
      
  • Lower exposure risk jobs are those that do not require contact with people known to be, or suspected being, infected with COVID-19 nor frequent close contact with (i.e., within 6 feet of) the general public. Example: typical office worker who does not interact with the public and minimal interaction with co-workers.
  • Additional engineering controls are not recommended for these workers.
  • The recommended “administrative controls” are monitoring and communicating developments in guidance, including CDC guidelines. “Additional PPE is not recommended for workers in the lower exposure risk group.”
    
    
  NOTE: OSHA has additional guidelines for specific industries, i.e., healthcare, dentistry, emergency response, postmortem care, manufacturing, meat and poultry, retail operations, business travelers, etc. If OSHA has a published guideline for your industry, read it, understand it, and comply with it regardless of whether they are simply “recommendations.”

OSHA, FFCRA, FLSA, and the ADA Should All Be Top-of-Mind When Reopening the Business

OSHA

• As discussed previously, OSHA underscores employee safety as paramount.
• Have a documented plan based on risk factors and guidelines.
• Implement the plan.
• No retaliation against whistleblowers.

Families First Coronavirus Response Act (FFCRA)

The FFCRA also requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Be mindful of federal mandated leave requirements:

1. 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;
2. 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
3. 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.

Qualifying Reasons for Leave

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. has been advised by a health care provider to self-quarantine related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. 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; or
6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Duration

1. For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
2. For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay

1. For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
2. For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
3. For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
   
   Notice Requirements
   Direct and general notice, which may include both email and posters
   

Most Commonly Asked Questions

What does unable to work or telework mean?
You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework…. If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.

What if an employee has multiple reasons to take leave for the year?
An employee may take leave for more than one reason, but the overall caps apply. So, if an employee takes 48 hours under the Emergency Paid Sick Leave Act because his doctor advised him to self-quarantine, he will have 32 hours remaining. As a result, if he subsequently needs additional leave because his childcare provider closes due to COVID-19, he will be capped at 32 hours. However, under this circumstance (in need of childcare) the employee may be entitled to 10 weeks of partially paid leave under the Expanded Family Medical Leave after exhausting Emergency Paid Sick Leave Act leave.

The Americans with Disabilities Act (ADA) and COVID-19

Finally, the ADA requires certain employers to provide reasonable accommodations to employees with disabilities. The U.S. Equal Employment Opportunity Commission (EEOC) published guidance on ADA issues in light of COVID-19, which can be found here.

Be mindful of ADA obligations for employers with 15 or more employees:
• Interactive Process & Reasonable accommodations*;
• No discrimination or retaliation;
• Note the interplay between OSHA's requirements to protect employees and ADA confidentiality obligations; and
• EEOC relaxed guidelines in light of COVID-19.

*Generally, employers have an affirmative obligation under the ADA to engage in the “interactive process” to determine if a reasonable accommodation must be provided to the employee.

How much information can you request from employees?
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus.

Can employers take temperatures?
Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature.

Can employers compel employees to stay at home?
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.

Pre-testing before entering workplace?
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.

What happens when an employee requests a return to work?
A request for a doctor's note is permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

What about confidentiality?
Employee health information must always be kept confidential. This includes testing results including temperature testing at work.

What about reasonable accommodations?
Employees with known disabilities should be provided reasonable accommodations including the opportunity to telework. For those who cannot telework, changes to the environment may be necessary, i.e. sneeze guards.

What type of "undue hardships" justify not providing accommodations?
Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer's overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But, the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration. Note, however, this reason may be less compelling in light of PPP loans.

Employee Claims

Fair Labor Standards Act (FLSA)| Overtime & Wage Claims

With many employees continuing to work remotely, employers should remain mindful of their obligations under FLSA, including keeping accurate time and pay records. Some previously exempt employees may have lost their exempt status if they are no longer paid a “salary” or start performing more non-exempt duties than before, which would make them entitled to overtime. Additionally, reducing the salary of a “highly compensated” employee may also cause an exemption to be lost.

Overtime Pitfalls

• Exempt employees typically are those who (1) are paid a salary and (2) perform exempt duties. Exempt employees receiving a salary who have been furloughed or demoted may fall out of an exemption; meaning, overtime and minimum wage requirements apply!

• FLSA timekeeping requirements
Undocumented time may still be compensable time.

• Teleworking of non-exempt employees
Employees who telework from home may have undocumented, yet compensable time.

• Employees at the premises who are practicing social distance
Many employees fearful of interacting with co-workers will opt to take breaks at the desk including lunch breaks; Answering e-mails, phone calls, etc. during "break time" is compensable time and should be documented.

Solutions? Drafting and enforcing time-keeping policies.

ADA Claims

• Many health or medical conditions meet the definition of a “disability” under the ADA.
• Employees fearful of returning to work may ask for “accommodations” in many forms including teleworking.
• Employees who cannot telework may ask for PPE or other protective controls.

Whistleblower Claims

An employee who objects to an employer violating a law, rule, or regulation, and who suffers an adverse employment action as a result, may bring a claim for unlawful retaliation. The law, rule, or regulation could include quarantine orders related to the pandemic. Employees may also have retaliation claims for (i) overtime, (ii) workers compensation relief for an injury on the job, which may include a claim due to contracting COVID-19, (iii) unsafe workplace conditions in violation of OSHA standards and guidelines, (iv) discrimination, harassment, or hostile work environment, (v) leave under the FMLA or FFCRA.

Failure to Hire Claims

An employer may receive a claim for not bringing back an employee from a furlough, layoff, or reduction of pay if that employee had previously engaged in whistleblowing, would have been entitled to leave under federal law, or if there is some disproportionate treatment based on a protected status such as race, religion, sex, etc.


Employment claims are fact-specific and handled on a case-by-case basis. The potential exposure to claims by employees is vast and the scope of these claims continues to develop. As we enter this next phase of reopening the economy, employers who are mindful of the above and discuss evolving issues with an employment attorney will be ahead of the curve and in a better position to protect their business.

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