Getting Back to Work in the COVID-19 Era: Human Resources and Employment Law Considerations for Operating in the Great Re-Awakening

As state and local governments gradually allow businesses to reopen in their jurisdictions, employers are faced with numerous and unprecedented challenges. In this briefing, we address major issues that individuals charged with human resources and employment law functions should consider in attempting to ensure the safe and successful return of operations.

I. Compliance with Reopening Requirements

A. State and Local Reopening Orders

Employers must first ensure they are compliant with the state and local rules governing the restarting of operations in the places they do business. 

An analysis of these materials reveals a number of recurring themes that most employers will need to address, irrespective of their locations:

• Wellness Checks: Many return-to-work orders set forth requirements regarding wellness checks—essentially basic health screenings administered to or performed by employees before they enter the workplace. The scope and specific components of the required wellness checks depend on the particular order. The orders also commonly require employers to educate their employees on the symptoms of COVID-19, as identified by the Centers for Disease Control (“CDC”), as well as when employees should stay home from work.
• Hygiene: Most return-to-work orders address handwashing and hygiene etiquette. Orders commonly include reference to handwashing techniques; the requirement that hand soap and/or hand sanitizer be made available in the workplace; educating employees and guests on coughing and sneezing etiquette; and suggesting alternatives to traditional personal greetings such as handshaking or hugging.
• Social Distancing: The majority of state and local orders require that individuals in a workplace maintain a distance of at least six feet from other people. Orders often identify specific locations in a workplace where social distancing should be emphasized, including desks, manufacturing areas, break rooms, cafeterias, common areas, and lines. In addition, capacity in certain areas, including bathrooms, is often mentioned, as are the permissibility of in-person meetings and gatherings of more than a certain number of individuals. Some orders also direct or encourage businesses to develop contactless transaction practices, including electronic payments, electronic document signing, and other forms of technology to assist with maintaining social distancing.
• Personal Protective Equipment and Face Coverings: Many state and local orders identify whether, when, and under what circumstances employees must use and/or be provided with personal protective equipment (“PPE”), including masks, goggles, face shields, and/or gloves. These items may be described as an alternative when social distancing is not possible, or may be an added measure that the order requires in addition to social distancing. There is some variance among the states regarding whether employers must provide employees and/or guests (e.g., customers) with face masks or simply require that employees or guests utilize some form of a face covering, presumably by bringing their own mask or face covering to use in the business. The Occupational Safety and Health Administration (“OSHA”) noted that it may be the employer’s responsibility to provide employees with any PPE (which may include face masks or coverings) needed to provide a safe and healthful work environment.
• Cleaning: Cleaning and sanitizing of workplaces is another frequently addressed topic in state and local reopening orders. As a best practice, businesses should expect to disinfect the workplace regularly and with special attention to high-touch areas, such as doorknobs, elevator buttons, common areas, and bathrooms. Businesses should confirm that cleaning solutions are compliant with CDC guidelines for disinfecting, should develop protocols for cleaning workplaces if an employee is diagnosed with COVID-19, and should ensure that cleaning crews are provided with appropriate PPE (including masks, gloves, and protective gowns, if necessary) and given training on additional cleaning requirements.

B. OSHA Requirements

Another major consideration as employers plan for employees and customers to come back into the workplace (or to come back in increasing numbers) is whether and how to adapt their physical space to limit the transmission of COVID-19. Employers have a general responsibility to provide a safe and healthful workplace for employees and other workers that is free from serious, recognized hazards. 

As part of this duty, OSHA expects employers to take protective measures to mitigate the risks of COVID-19 transmission and exposure in the workplace. To assist employers in determining what is appropriate for their operations, OSHA has issued  Guidance on Preparing Workplaces for COVID-19. Employers should carefully review OSHA’s guidance as they prepare their workplace for the return to operations. The protective measures appropriate for a given employer and workplace will depend on the nature and details of each employer’s operations and the COVID-19 risks that those operations pose.

II. Recalling the Workforce – Navigating Tricky Employee Relations Issues

A. Calling Employees Back from Furlough—Legal Pitfalls and Opportunities

1. Avoiding Discrimination Claims

Many employers are faced with picking and choosing portions of their workforce to recall from furlough, as a return to full operations is not yet feasible. Such employers should bear in mind that the decision not to recall an employee from furlough could itself form the basis of a discrimination claim, as an employee may assert that he or she was not selected for return because of a protected characteristic. For this reason, employers engaging in selective, phased, or gradual recalls should go about the selection process in much the same way they would go about conducting a reduction in force – with attention paid to ensuring that selections are made based on documented business considerations that would withstand court scrutiny and that selection criteria are applied consistently.

2. The WARN Act Trap

The federal Worker Adjustment and Retraining Notification (“WARN”) Act and many of its state law counterparts are not triggered by a layoff or furlough lasting less than six months. Comforted by this knowledge, many employers did not give any WARN notice when they furloughed all or part of their workforces earlier in the year. But what if circumstances have changed and enough employees will remain out on furlough past the six-month window so as to trigger WARN? For example, what if more than one-third of the workforce at a worksite will remain on furlough for longer than six months? It may be tempting to assume that the federal WARN Act’s 60-day advance notice requirement for mass layoffs provides the measuring stick to determine when to give notice – i.e., no later than 60 days prior to the furlough reaching the six-month mark. However, that is not the case. In an extended furlough situation, employers must give the notice as soon as it becomes reasonably foreseeable that the furlough will last longer than six months, even if it is more than 60 days out from the six-month mark.

3. What about my PPP loan?

Employers that have received Payroll Protection Program (“PPP”) loans have additional considerations when deciding which employees to bring back and when to do so. Perhaps the most significant feature of PPP loans is that they are eligible to be forgiven in whole or in part. The amount of forgiveness available is largely dependent on what an employer does with its employees and employee compensation after receiving the PPP loan. Having too little in payroll costs, or failing to remedy employee headcount or pay reductions, can both negatively impact the amount of loan forgiveness available.

Only the amount of PPP loan proceeds used for eligible costs during the eight-week period following the disbursement of the loan (the “Loan Period”) is eligible for forgiveness. In order to be eligible for maximum forgiveness on the proceeds used, at least 75% of these eligible costs must be payroll costs.^[1]The recall schedule for furloughed employees may impact whether an employer will have sufficient payroll costs during the Loan Period to maximize the opportunity for loan forgiveness.

In addition, the amount of loan forgiveness may be reduced if an employer recalls furloughed employees too slowly or implements or maintains certain pay reductions during the Loan Period.  Specifically, where an employer (i) averages fewer full-time equivalents during the Loan Period than it had during the applicable period prior to the PPP loan, the amount of forgiveness may be reduced proportionally, and (ii) pay reductions effective during any part of the Loan Period of greater than 25% over the applicable comparison period may also reduce the amount of forgiveness on a dollar-for-dollar basis. 

Complicating matters further, an employer may have the opportunity to “erase” these forgiveness reductions by correcting the headcount or pay reductions by June 30, 2020. Given the multifaceted loan forgiveness issues attendant to the PPP loans, we recommend that PPP loan employers carefully vet their recall plans with their legal and tax professionals to ensure that they are achieving the desired results.

B. Employee Screenings

The CDC has noted that screening employees for COVID-19 is a strategy that employers should consider using to reduce the spread of the virus in the workplace. Some state and local authorities have even mandated that employers conduct health screenings each day before employees enter the workplace, and, in some cases, have issued guidance setting forth the exact screening measures employers must implement. 

In general, there are three primary options when it comes to screening employees for signs of COVID-19: temperature checks, symptom inquiries, and testing.

• Temperature Checks: Although measuring an employee’s body temperature would typically be considered a medical examination under the Americans with Disabilities Act (“ADA”) and therefore only permissible in limited and individualized circumstances, the Equal Employment Opportunity Commission (“EEOC”) has counseled that such testing is permissible under the ADA in light of the community spread of COVID-19, the various precautions implemented by the CDC and public health authorities, and the fact that the virus is a direct threat to the health and safety of employees.
• Symptom Inquiries: The EEOC has also sanctioned certain medical inquiries—including the practice of asking entering employees if they are experiencing symptoms of the virus, whether they have COVID-19, and/or whether they’ve been tested for COVID-19—as permissible under the ADA.
• Administering COVID-19 Tests: Some employers have begun considering the practice of administering COVID-19 tests to employees entering the workplace. The EEOC has blessed this practice for COVID-19 in light of the pandemic, but cautioned that the ADA requires the tests to be accurate and reliable. Employers considering this measure, as it becomes more accessible, should review the Guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing and should continue to follow CDC guidance and updated information from public health authorities on this topic.

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Using any of the above health-screening measures, employers are permitted under the ADA to deny an employee access to the workplace if he or she has COVID-19 or the symptoms of the virus, because the illness poses a direct threat to the health and safety of other employees. Similarly, an employer will not violate the ADA by denying an employee access to the workplace if the individual refuses to have his or her temperature checked or if the employee refuses to answer questions regarding whether he or she has COVID-19, has been tested for the illness, or has any of the symptoms of the virus. Employers should be sure to check state laws for any contrary guidance regarding health screenings.

• Don’t forget about employee privacy!

Employers that screen their workforce for COVID-19 should ensure that they are not running afoul of privacy laws. The ADA requires that medical information be kept in separate medical files and treated as confidential. This means, among other things, that the information should not be included in a general personnel file. Employers also should treat as confidential the identity of an individual with COVID-19, a person’s temperature reading, the symptoms experienced by an employee, and any other information obtained by an employer through a disability-related inquiry or medical examination. Employers should also make sure they are complying with applicable privacy laws, such as the California Consumer Privacy Act, which may require certain disclosures.    

Employers are permitted to disclose the name of an employee to a public health agency when they learn the employee has COVID-19. Likewise, if a staffing agency or contractor learns that an individual it placed at an employer has tested positive for the virus, it may disclose the employee’s name to the employer so that the employer can determine who was in contact with the individual.

C. Other Frequently Asked Questions

1. What do we do about employees who refuse to report to work due to fear of COVID-19?

One common question emerging as employers plan to bring their workforces back is how to deal with employees who refuse to return to work citing a fear of contracting COVID-19. Handling these situations will be challenging, not just legally, but also from the standpoint of public relations and employee morale.

Legally, employers faced with this situation should consider the potential application of the ADA and/or Families First Coronavirus Response Act (“FFCRA”), as well as any state or local analogues to these laws. 

• ADA Considerations

If an employee indicates that he or she does not wish to return to work because of an underlying condition/disability that puts the employee at greater risk of suffering complications from COVID-19, then the employer may need to engage in the interactive process required by the ADA in order to determine whether a reasonable accommodation exists, absent undue hardship, that would allow the employee to perform the essential functions of his or her position. Reasonable accommodations may include, for example, allowing the employee to continue working from home, providing the employee with additional leave, and/or implementing additional safety-related measures in the workplace. In recent guidance, the EEOC has highlighted that an important “return to work” consideration is accommodation for individuals with an underlying medical condition that puts them at greater risk of a severe illness due to COVID-19.

• FFCRA Considerations

If the employer is subject to the recently enacted FFCRA (generally applicable to employers with fewer than 500 employees), then employees may be entitled to use up to 80 hours of Emergency Paid Sick Leave (EPSL) provided under the FFCRA, if he or she “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.” The Department of Labor has interpreted this provision to include situations where a health care provider has advised an employee to self-quarantine because the employee is particularly vulnerable to COVID-19. 

• Other Legal Considerations

If an employee does not have an underlying condition that constitutes a disability implicating the ADA and is not entitled to EPSL under the FFCRA, then there is currently no general federal protection for an employee who refuses to return to work due to generalized fear of contracting COVID-19. Assuming there is no state law that would provide protections for such an employee, and assuming the employee has used all accrued paid and/or unpaid time off available to him or her, an employer could discipline or terminate the employee for refusing to return to the workplace (for example, under the employer’s existing attendance policy). 

The legal landscape on this issue, however, is uncertain and is likely to remain so for the foreseeable future. There have been efforts at both the federal and state level to provide additional protections to employees expressing a fear of return to the workplace. Therefore, employers should consult with counsel before choosing to discipline or terminate an employee on this basis.

In addition, to mitigate risk associated with terminating employees in this situation, employers should consider whether they can return a fearful employee to the physical workspace in a later phase of reopening—essentially placing the employee at the end of the line of returning workers—in situations where the employer is implementing a gradual return to work.

2. An applicant is over 65…can I deny him employment because I’m concerned about his safety in our workplace? What about a pregnant applicant?

No. The anti-discrimination laws still apply to prevent employers from making employment decisions based on assumptions about an applicant or employee’s age, pregnancy, or other protected status, notwithstanding that the CDC has identified those who are 65 or older, and pregnant women, as being at greater risk of contracting COVID-19.

3. An employee is diagnosed with COVID-19…now what?

While maintaining the identity of the diagnosed employee as confidential, employers in most situations should notify other employees of the positive diagnosis of a coworker. As of the date of this briefing, the CDC continues to recommend this course of action. As noted above, notwithstanding the privacy requirements vis-à-vis third parties, employers are permitted to disclose the name of an employee to a public health agency when they learn the employee has COVID-19.

When a diagnosed employee is ready to return to work, employers may require a doctor’s note certifying fitness for duty before returning such employees to the workplace. The EEOC cautions, however, that given the demands on doctors and other health care professionals, “new approaches may be necessary,” such as accepting a form or an email certifying that the employee no longer has the virus. The CDC more bluntly states that employers should not require a negative COVID-19 test or a healthcare provider’s note before allowing an employee to return to work. 

III. Additional Recommendations for Employers

In addition to staying abreast of the ever-evolving advice and requirements being issued by the CDC, OSHA, EEOC, governors, and other governmental authorities, we recommend that employers create three sets of written documents to inform and to guide their return to work initiatives:

A. Covid-19 Preparedness and Response Plan

OSHA suggests that employers develop an “Infection Disease Preparedness and Response Plan.”  Some states, such as Michigan, are citing this plan as a requirement to reopening businesses. Employers should consider starting with a plan that addresses COVID-19 and later expanding on the plan to make it applicable generally to other infectious diseases. 

Employers can use the OSHA publication to identify topics to address, but should also consider outlining specific workflows, protocols, and plans for addressing a wide variety of challenges posed by COVID-19. The plan can include actions taken in the past – such as the rapid shutdown of in-person operations, the movement to a telework environment (if appropriate for the business), and steps to consider in reducing overhead in times of economic stress. The creation of a plan can be an opportunity to refine and to improve corporate reactions to legal, economic, and health and safety challenges and to begin planning for possible future outbreaks of the virus. 

B. Employee-Facing Documents

In addition to written communications outlining the terms and conditions of employees’ return to on-site work, employers should consider whether new or revised postings in the workplace are appropriate. Posting topics may include information regarding hygiene and social distancing protocols, and any other health and safety measures required by the employer or by government mandate. Handbooks and other written employment policies should also be reviewed for revisions and additions in light of the new normal – addressing issues including hygiene, social distancing, PPE, travel, telework, leaves of absence, sick pay, and other relevant topics.

C. Customer and Guest-Facing Documents

Employers also should prepare appropriate postings in the workplace to advise guests and customers of the measures the business is taking to protect their health and safety and actions required of guests and customers. Where to post signs and what content to include will depend on the business, but companies may consider posting (and in some states may be required to post) a sign near the entryway advising guests not to enter if they are experiencing COVID-19 symptoms. Companies may also consider preparing written communications to send to guests prior to their arrival onsite informing them of any new protocols and procedures.

If you have additional questions or need further assistance, please reach out to Shane Blackstone (sblackstone@winston.com), Aviva Grumet-Morris (agmorris@winston.com), or your Winston relationship attorney.

View all of our COVID-19 perspectives here. Contact a member of our COVID-19 Legal Task Force here. 

 

_{[1] “Payroll costs” generally include (i) salary, wages, commissions, or tips (capped at $100,000 on an annualized basis for each employee), (ii) employee benefits including costs for vacation and certain parental, family, medical, and sick leaves; (iii) allowance for separation or severance; (iv) payments required for the provisions of group health care benefits, including insurance premiums; (v) payment of any retirement benefit; and (vi) state and local tax withholdings on employee compensation.}