Best Practices and Lessons Learned for Employers as Pandemic Continues into Fall

Alert

10.01.2020

By Brittany Barrientos, Kristin Berger Parker, Alisa Nickel Ehrlich, Bernadette Sargeant, Pat Konopka, Erin Naeger, Amy Conway, Johnny Wang and Molly Walsh Keppler

Because the information regarding COVID-19 is constantly changing and evolving, employers are still facing uncertainty as to how to effectively manage their workforce whether they have returned to the office or are still working from home. This guide is intended to provide an update to Stinson's Return-to-Work Best Practices During the COVID-19 Pandemic and build off the lessons learned as employees return to work.

Governmental Orders and Resources Continue to Impact RTW Practices

Governors' executive orders, orders of local health officials, and new local laws and ordinances continue to impact whether and how businesses can return to work. Some businesses may forget that this is a constantly changing dynamic and not update their policies and protocols when such changes occur. Failing to do so is rife with risk as many of the proposed COVID liability shields that are being proposed require companies to be compliant with their local health orders to benefit from such protections.

While many state officials have eased the stringent orders that shuttered businesses, unexpected virus surges have led to new orders, restrictions and ordinances being enacted. Many of the orders that have followed the earlier stay at home orders establish health and safety protocols for businesses, including required health screenings for employees, and face covering requirements for employees and business visitors. Some orders also limit which employees can return to work, limit gatherings or occupancy, require physical distancing, and impose specific sanitation or other health and safety protocols in order for the business to operate. Many state officials have also issued quarantine mandates following travel to certain locales which impact employee leaves of absence and attendance.

In addition to the legally enforceable requirements intended to limit exposure to communicable disease, state officials and agencies have issued guidance and measures that are encouraged but are not enforceable, including industry-specific guidance to help mitigate the spread of COVID-19. While the various guidance may not have the effect of enforceable law, adherence to Centers for Disease Control and Prevention (CDC), state and local guidance may be the best defense to claims of virus exposure in the workplace.

It is imperative that employers identify all applicable state and local orders, ordinances and health official mandates that impact their workforce.

Personal Protective Equipment and Face Coverings

Face masks and face coverings have become a critical part of the conversation about how to control COVID-19. The CDC and the Occupational Health and Safety Administration (OSHA) recommend the use of face coverings in public and in the workplace. As of the date of this alert, 35 states mandate masks in some situations, and every state in the country has at least one county with an order requiring face coverings.

Kansas became an accidental experiment as counties were allowed to opt out of the Governor’s early-July executive order requiring face masks. In the aftermath of the executive order implementation, the highest-ranking state public health official said that data shows that the number of COVID-19 diagnoses per capita have remained steady in the 90 counties that opted out of the mask order, while the 15 counties with the mask mandate have decreasing cases per capita. South Carolina similarly allows counties to determine face mask requirements. Last week, state health officials attempted to quantify the differences and announced that counties which announced a mask mandate in late June saw a 67% decrease in cases compared to counties without a mask ordinance.

Adequately considering and implementing requirements surrounding face masks and face coverings can also have financial and long-term implications. In August, OSHA issued its second round of citations for COVID-related violations, and earlier this month announced a third round of citations. The citations issued by OSHA were issued to healthcare operations and food manufacturing facilities. They included failure to implement the Respiratory Protection Standard when healthcare employers required N95s, and failure to provide a workplace free from recognized hazards. The new citations are notable for two reasons: first, OSHA primarily sought the maximum civil penalty for each violation and issued serious citations; second, OSHA utilized the General Duty Clause for enforcement instead of citing a specific standard. In addition to enhancing workplace safety, considering OSHA requirements on the front end can minimize OSHA liability later.

As employers continue to incorporate mask orders into their workplaces, common issues to consider include:

Overlapping Requirements: Details of each order vary, sometimes significantly. As there is no federal requirement for masks, employers should look to both state and local orders to determine applicable requirements. This can be trickier than expected. For instance, as discussed above, Kansas has a statewide mask order. However, localities can opt out of the mask order and implement their own local order or proceed without a mask order.
Mask Policy: If employees are required to wear face coverings in the workplace, a best practice is having a Cloth Face Covering Policy that describes the purpose of face coverings, how to wear face coverings, inspecting face coverings, and the limitations of effectiveness of cloth face coverings. If employers are providing masks to employees, it is even more important to ensure employees understand what they are being provided. The policy should be distributed with masks and posted in the workplace or on intranet.
Administrative Controls: OSHA is now clear that cloth face coverings are not regulated as personal protective equipment (PPE). Cloth face coverings can be purchased or homemade, and primarily contain respiratory droplets from the person wearing the covering. They are not PPE and are not a substitute for PPE. However, OSHA has identified face coverings as an administrative control that can be part of safe workplace practices and incorporated into the facility’s Pandemic Plan or Preparedness Plan.
Personal Protective Equipment: In contrast, surgical masks are likely PPE and should be evaluated as part of each employer’s hazard assessment. OSHA’s PPE standard should be followed when surgical masks are required. N95s and other filtering face pieces are considered “respirators” and regulated by OSHA’s Respiratory Protection Program (RPP); voluntary and required use of respirators should be implemented in accordance with these standards. OSHA has a variety of COVID-19 guidance related to the RPP, including exercising enforcement discretion for some portions of the RPP and preservation of respirators. If facilities have areas where different types of masks are required, separate procedures should be created to ensure employees know which mask must be worn in which locations. Similarly, if a facility requires face coverings but allows employees to voluntarily wear respirators instead, they should follow applicable respiratory protection standards.
Exceptions: Even where face coverings are required by state or local order, exceptions may be necessary if employees raise concerns that face coverings impact their health or create a hazard. For example, if warehouse workers claim the summertime heat makes wearing masks difficult, this should be evaluated as part of safe workplace practices and a hazard assessment. OSHA recently released a guidance for use of cloth face coverings while working outdoors and in hot and humid conditions. OSHA reiterates that employers should be considering alternatives including allowing workers to remove face coverings when they can safely maintain six feet of physical distance, increasing hydration and rest breaks in air conditioned areas, allowing use of personal vehicles during breaks, avoiding scheduling strenuous tasks during the hottest parts of the day, altering work shifts to cooler parts of the day, and allowing workers to wear personal cooling items like icepack vests or cooling bandanas.
Immunity: In states with civil liability protection or immunity, both having and enforcing face covering policies may be even more critical. In Kansas, for instance, immunity from civil liability hinges on substantial compliance with public health directives.
Designs: While not OSHA-related, as use of face coverings has surged, they have become not just a safety precaution but a fashion statement. We recommend employers have a policy regarding appropriate use of face coverings in the workplace to minimize disruption. For example, employers may require masks be professional and appropriate for the workplace and must not violate other policies including anti-discrimination and harassment policies. Employers should consult with counsel to ensure that any such policies do not violate labor protections for concerted action.
Customer Considerations: If the workplace has customer-facing employees, there may be considerations not only for employee mask-wearing but also for customers. Employees have been subject to resistance from customers as they attempt to enforce mask policies. Having procedures, training and signage pointing to local requirements should be incorporated at customer-facing workplaces.

Testing/Screening Protocols

Employers considering testing employees for COVID-19 should be aware of the continued limitations of current testing capabilities and overall testing reliability. Global testing of the workforce can have limited value since the test only provides a snapshot in time. Moreover, it may take several days to receive the test results, which could result in an asymptomatic positive employee unknowingly spreading the virus in the workplace during that time. Additionally, OSHA advises that employers should act cautiously on negative COVID-19 test results and should not presume that individuals who test negative for COVID-19 present no hazard to others in the workplace.

Employers that decide to proceed with global testing of the workforce should consider the following:

Whether the tests are approved by the FDA and have adequate reliability
Whether testing records will constitute employee medical records, triggering an extended retention period
Development of a comprehensive testing policy, including at a minimum: who to test, when and how often to test, when to allow employees to return to work, whether employees will be paid during the time it takes to get tested, processes for notifying HR, other employees and contractors about a positive test, etc.

Another strategy employers may utilize to prevent the spread of COVID-19 in the workplace is symptom screening. Some jurisdictions now require employers to implement symptom screening, so be sure to check with your Stinson attorney about whether it is required in your area. Just like testing, there are limitations to this strategy. For example, asymptomatic individuals or individuals with mild non-specific symptoms may not realize they are infected and may pass screening.

Employees should not be allowed to enter the workplace if any of the following are present:

Symptoms of COVID-19
Fever equal to or higher than 100.4^oF
Employee is under evaluation for COVID-19 (for example, waiting for the results of a viral test to confirm infection)
Employee has been diagnosed with COVID-19 and not yet cleared to discontinue isolation
Employers may also implement restrictions based on close contact with individuals who have a confirmed or suspected COVID-19 diagnosis

Employers should also consider whether it will assign employees to conduct the screening or expect its employees to self-screen. If assigning employees to be screeners, the employer should take steps to protect those employee, including social distancing, PPE and/or physical barriers.

Testing, symptom screening and health checks are not a replacement for other protective measures such as social distancing. Employers should continue to implement the basic hygiene, social distancing, workplace controls and flexibilities, and employee training recommended by OSHA and the CDC in ways that reduce the risk of workplace spread of COVID-19, including by asymptomatic and pre-symptomatic individuals.

Employee Performance Management

As employees return to the workplace, attendance issues have become a common performance hot button. Some employees are suspected of using alleged COVID-19 symptoms to extend weekends. Other employees are not following social distancing and constantly exposing themselves to COVID-19 positive individuals and being placed in quarantine. When this is coupled with remote work and safety issues in the workplace, the problems compound tremendously. In responding to these situations, employers must be creative, while maintaining consistency in how performance management is being applied.

When it comes to remote work performance challenges, employers should continue and enhance regular communication with their employees to enhance employee productivity. Not surprisingly, many factors are likely to impact employee performance during remote work or as they return to the workspace, such as the need for childcare where children cannot physically return to school or the need for accommodations for disabilities that cause particular vulnerability to COVID-19. As addressed in other sections of this alert, attention to legal requirements and best practices in each of those areas will have a beneficial impact on employee performance.

In addition to regular communication regarding policies and procedures that will be in place to mitigate the risk of exposure to COVID-19 in workspaces, employers should continuously communicate with employees regarding performance expectations as they transition from remote to on-site work. For example, a decision that some employees will continue to work from home should be communicated before scheduled transition dates. A decision that some employees will continue to work remotely or that flexible schedules such as alternating weeks on-site with remote work should include updating existing telework policies so that it is clear what criteria are used to determine which employees will continue to telework some or all of the time and which employees will need to be on-site.

While employees transition to on-site or varying degrees of remote work, employers should be sure to communicate the performance expectations and metrics for measuring performance. Employers should also maintain and adapt performance feedback mechanisms as needed for effective communication with employees working remotely all or some of the time. It may be an effective approach for employers to allow employees working remotely some or all of the time to take the lead on whether more frequent check-ins – performance related or not – would be a good idea.

Finally, for employees that the employer suspects are engaging in bad faith or repeatedly exposing themselves to unsafe environments and being quarantined, approaching these issues from the standpoint of safety violations may provide a solution.

Managing Employee Leaves

As the pandemic continues into the fall, employers must continue providing emergency paid leave under the Families First Coronavirus Response Act (FFCRA). The FFCRA requires employers with 500 or fewer employees to provide emergency paid sick leave (EPSL) and emergency paid childcare-related leave (EFMLEA) to eligible employees for qualifying reasons discussed in more depth in our prior alert.

The U.S. Department of Labor's (DOL) guidance implementing the FFCRA have continued to evolve with the pandemic. Employers should be regularly reviewing the FAQs and working with legal counsel to ensure they are correctly applying the evolving FFCRA.

Even the DOL's guidance, however, is not always the most updated information. On August 3, the U.S. District Court for the Southern District of New York issued an opinion invalidating several of the regulations promulgated by the DOL to implement the FFCRA back in April:

The court invalidated the DOL regulations providing that an employee is not eligible for FFCRA leave if the employer does not have work available for the employee.
The court overturned the DOL's requirement that an employer consent to an employee using FFCRA leave intermittently. The court found that employees cannot take intermittent leave if the reason for the leave is because of the employee's own condition or risk for transmitting COVID, but found that there is no basis for requiring employer consent to intermittent leave for the other types of FFCRA leave—perhaps most notably, for EFMLEA leave taken to care for a child whose school or place of care is closed due to COVID-19 (see below regarding the DOL's updated FAQs on this point).
The court invalidated any regulatory requirement that documentation supporting the leave be provided prior to the leave being taken, to the extent inconsistent with the FFCRA. For example, the FFCRA itself only requires "such notice of [EFMLEA] leave as is practicable," and notice of EPSL after the first workday on which an employee receives paid sick time.
The court struck the DOL's definition of "health care provider," deeming it "vastly overbroad." The DOL's definition had focused on whether an entity was a health care provider, as opposed to whether the particular employee requesting leave was a health care provider. The court noted that under the DOL's definition, an English professor or cafeteria manager at a university with a medical school qualified as "health care providers."

On September 11, the DOL issued updated regulations (which took effect September 16, 2020), both reiterating and modifying its prior rules, which had been thrown into question by the New York federal court decision:

The DOL reiterated its requirement that work be available, and that FFCRA leave was not available when the employer was closed, the employee was furloughed or laid off, or there was not otherwise work available to the employee. Under such circumstances, the DOL noted that, "the individual would have no work from which to take leave. The department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but for cause of his or her inability to work."
The DOL also affirmed that intermittent leave could only be taken with the employer's consent. It reasoned that, under the FMLA, intermittent leave was permissible where such leave was medically necessary, but that such a framework did not fit the FFCRA. However, the DOL noted that in the case of EFMLEA leave for a hybrid school schedule, each day the school closed to students was a separate reason for leave, and so in effect, leave may be taken only on the days that the school is closed and employees can (and must) work on the days that school is open.
The updated FAQs do not require that documentation of the need for FFCRA leave be provided in advance of leave, but the required documentation and information should be provided “as soon as practicable.”
In perhaps its most significant substantive change from the initial rule, the DOL issued a new, narrower definition of health care provider for purposes of the FFCRA. That new definition now includes two groups:
1. Anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
2. Any other person who is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who do not provide direct heath care services to a patient but are otherwise integrated into and necessary to the provision those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are health care providers.

Under the revised regulations, the following are examples of employees who are not health care providers: information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.

Health care employers who have relied on the prior rule to deny FFCRA leave requests should work with counsel to determine how best to update policies, and whether any changes should be made retroactively, to address leave denied under the old rule.

Leave due to hybrid and distance learning. With the pandemic continuing to rage on, schools across the nation are struggling to implement educational programs this fall. In some cases, schools are continuing with distanced, remote learning for some period of time before returning to in-person learning. In other instances, many schools are contemplating a combination of in-person and virtual learning, while other schools are planning to do all in-person learning with a contingency plan of remote learning if faced with an outbreak of COVID-19 cases among teachers, staff or students. These various plans leave both employers and working parents in a quandary, especially for employees whose children will be doing remote learning or a combination of in-person and remote learning, as well as any employees whose children are sent home from their in-person school program in the wake of an outbreak. On August 27, the DOL added FAQs addressing these issues, including the following points:

FAQ 98: If a child's school is using a hybrid model, employees may take FFCRA leave on days when the child is not physically in school (and may not take FFCRA leave on days in which the child is physically in school). Note that this FAQ appears to mandate intermittent FFCRA leave even absent an employer's consent, which is consistent with the court's interpretation.
FAQ 99: If a child's school is physically open to a child, an employee who has voluntarily chosen a remote learning option is not eligible for EFMLEA leave under the FFCRA on days on which the school is otherwise open to the child. However, an employee whose child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, may be eligible for FFCRA leave.

Outside of the FFCRA, there is no federally protected leave for working parents who need time off due to childcare related reasons. Thus, employers can require that any employee who is not eligible for or has already exhausted his/her leave under the FFCRA perform their work duties and schedules as normally required in non-pandemic times. However, this could result in working parents resigning in order to provide the necessary care and educational assistance for their children, which can have impact on both the employee and the employer. For instance, workforce attrition can create challenges for employers such as difficulty finding new workers in the midst of a pandemic, operating at less than full capacity, and onboarding new employees in an environment that fluctuates between remote and non-remote. Employers should be wary of policies that may have a disparate impact based on protected class statutes, such as sex, marital status or familial status. In order to try and balance these risks, we recommend the following:

If an employee has already exhausted his/her leave or is not eligible, employers should offer part-time or flexible work schedules if at all possible, including remote work if possible, to allow employees to juggle the competing demands and maintain employment. Employers should come to an agreed upon schedule with the employee at the outset. Employers should also set out clearly defined performance expectations with measurable metrics for evaluating employee performance.
To ensure that employers remain able to operate at full capacity, we recommend cross training employees to be able to perform essential operations of the business to avoid lulls in operation if employees are out pursuant to FFCRA or other leave due to complications with school closures.

Additionally, as physical work locations reopen and demand increases, many employers are receiving (or reconsidering) requests from employees for medical leave or work from home, due to their status as high risk for COVID or due to a family or household member's being at high risk. Leave for these reasons may be eligible for EPLSA leave. However, for employers who are not covered by the EPSLA, or when employees have exhausted EPSLA leave, employers should consider whether other laws apply.

Leave due to an employee's high risk for COVID is not FMLA leave. Employees and their physicians may be completing FMLA applications or Certifications of Healthcare Provider under the FMLA, indicating that the employee needs leave due to an increased risk of contracting COVID, or of complications due to COVID. However, the DOL's guidance COVID-19 and the Family and Medical Leave Act Questions and Answers, is unequivocal that such leave is not protected under the FMLA:

Can an employee stay home under FMLA leave to avoid getting COVID-19?

The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with COVID-19 where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA. Employers should encourage employees who are ill with COVID-19 or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.

A request for leave or other accommodations because an individual is at higher risk for complications or severe illness if they contract COVID-19 should be analyzed under the ADA.

When considering employee requests for leave, employers should keep in mind that leave is only one of the potential accommodations that may be granted to higher risk individuals. The EEOC has issued (and continues to update) Q&A and other materials related to COVID-19 and the ADA, which include information regarding reasonable accommodation, direct threat, and return to work considerations.

Employers should also keep in mind that standard ADA interactive process and considerations apply to requests for leave or other accommodations during COVID. For example, while leave is often a reasonable accommodation when it is for a finite period that will allow an employee to return to work, indefinite leave has frequently been held to be not a reasonable accommodation.

Employers who granted leave as a temporary accommodation earlier in the pandemic may wish to engage with employees who have not yet returned, in order to gain additional information regarding the employee's expected return to work date, and whether alternate accommodations are possible to allow the employee to return to the workplace.

During this process, employers may wish to be proactive in informing the employee and their physician with information regarding any specific COVID-19 related hazards and mitigating measures applicable to the employee's job site or position, e.g., distance from other workers, interactions with others, ability or requirement to wear a mask at all times, sources of ventilation, etc.

The EEOC has suggested the following examples of potential reasonable accommodation (Q&A G.5):

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

Not all of these accommodations may be feasible in every position.

The EEOC has reiterated that, consistent with general ADA jurisprudence, employees are not legally entitled to accommodation of a family member's (rather than the employee's own) susceptibility to COVID.

Unemployment Insurance Considerations

Employers have found employees reluctant to return to work due to safety concerns and the availability of pandemic unemployment benefits, including enhanced unemployment benefits available earlier this year under the CARES Act and executive order. According to the Department of Labor, a worker who refuses to work due to COVID-19 safety risks may not be disqualified from receiving unemployment benefits. Many states provide that work that unreasonably exposes a worker to safety risk is unsuitable, and refusing such work does not disqualify a worker from unemployment benefits. Most states make that determination on a case-by-case basis.

However, employees may be more motivated to return to work with the expiration of the $600/week supplemental benefit under the CARES Act, and dwindling funds for the $300 per week federal supplement provided by executive order.

Rather than layoffs, employers experiencing a slowdown may consider participating in their state's shared work program. Under such programs, employers select employees who will work reduced hours and receive partial unemployment benefits. Under the CARES Act, employers continue to be relieved from impact to their experience rating when participating in shared work programs through the end of 2020. See, e.g.: Minnesota Alternative Layoff, Kansas Shared Work Program, Missouri Shared Work.

If an employer must layoff or furlough workers, employers should remember that the federal WARN Act, and similar state law mini-WARN acts, may require specific notice be given to the impacted employees. Layoffs due to the COVID-19 pandemic are not exempt from these laws' notice requirements. Circumstances that may trigger notice requirements include situations in which temporary furloughs become permanent layoffs.

COVID-19 Liability Legislation Update

Federal and state legislators continue to propose and pass legislation intended to limit or shield businesses from liability due to COVID-19 related causes. Businesses should continue to track these laws as they pass, as many implement requirements and restrictions in order to qualify for the limitation of liability.

Federal Legislation

On July 27, 2020, Senate Majority Leader Mitch McConnell proposed his HEALS Act legislative package. The liability portion of the package, SAFE TO WORK, if passed, would provide liability relief for businesses, healthcare workers and facilities, educational institutions and local governments. The HEALS Act is still being negotiated at this time and it does not appear that legislation will be passed before November elections.

There is currently no federal law in place that limits or protects businesses from liability for COVID-19 related claims.

State Legislation

Arkansas, Georgia, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Mississippi, Nevada, New Jersey, New York, Oklahoma, Tennessee, Utah, Washington, DC, Wisconsin and Wyoming have all passed varying types of legislation limiting liability for COVID-19. Some laws limit immunity to just healthcare workers, while others extend it to all types of businesses. A key component of almost all of these laws, though, is a requirement that a business follow, in good faith, the instructions of a health officer in order to qualify for the liability immunity. Businesses should carefully review the local orders of their health officials with regard to re-opening requirements to ensure they qualify for the immunity. These laws also do not provide protection for gross negligence or willful or wanton misconduct.

Additional companion legislation with many of these laws are amendments to state workers' compensation laws allowing a rebuttable presumption that an employee contracted COVID-19 from work and allowing workers' compensation claims.