Tag: Coronavirus

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How have employers responded to COVID-19?

A recent survey of businesses reveals a variety of trends about COVID-19 in the workplace.
    • Nearly 6 out of every 10 employers has had an employee test positive for COVID-19 (double the number from April).
    • 92 percent require on-site employees to wear masks in common areas and mandate physical distancing.
    • 93 percent have enhanced cleaning protocols.
    • More than 1 in 2 are taking employees’ temperatures and performing other daily health screenings, while only 2 percent are requiring (legal but impractical) COVID-19 diagnostic testing and 1 percent (illegal) COVID-19 antibody testing.
    • 73 percent are allowing employees to work from home based on a fear of contracting COVID-19 without any risk factors.
    • 20 percent are discouraging domestic travel, and nearly 45 percent are requiring employees to work remotely or take a leave of absence for a 14-day quarantine upon their return.
    • Despite all of these measures, 21 percent of employers have received a COVID-19 related complaint from employees.
What has your experience been? On track with this survey? Or different? Please share in the comments below.
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SAFE TO WORK Act would offer employers a significant shield from employee COVID-19 lawsuits

COVID-19, coronavirus, public health crisis
Earlier this week, Senate Republican introduced their $1 trillion COVID-19 economic stimulus package. Among other proposals the bill contains the SAFE TO WORK Act [pdf], which would provide employers a significant shield from liability for lawsuits related to coronavirus exposure by requiring gross negligence or willful misconduct that actually causes a personal injury before liability could attach.
Employers would receive significant protections from employment-related COVID-19 lawsuits brought by employees.
If passed, the law would provide significant protections to employers under OSHA, the FLSA, the WARN Act, Title VII, the ADEA, the ADA, and GINA.
Generally, in any action, proceeding, or investigation resulting from or related to an actual, alleged, feared, or potential exposure to coronavirus, or a change in working conditions caused by a law, rule, declaration, or order related to coronavirus, an employer would not be subject to any enforcement proceeding or liability if the employer—
  • Was relying on and generally following applicable government standards and guidance
  • Knew of the obligation under the relevant provision; and
  • Attempted to satisfy any such obligation by: (i) exploring options to comply with such obligations and with the applicable government standards and guidance (such as through the use of virtual training or remote communication strategies); (ii) implementing interim alternative protections or procedures; or (iii) following guidance issued by the relevant agency with jurisdiction with respect to any exemptions from such obligation.
The law would also provide liability for any workplace coronavirus testing, except for personal injuries caused by the gross negligence or intentional misconduct of the employer or another person.
The law would prohibit a finding of joint employment status or of an employment relationship under any of the above noted statutes and the NLRA, ERISA, and the FMLA, if an employer provides or requires—
  • Coronavirus-related policies, procedures, or training
  • Personal protective equipment or training for the use of such equipment
  • Cleaning or disinfecting services or the means for such cleaning or disinfecting.
  • Workplace testing for coronavirus.
  • Temporary assistance due to coronavirus, including financial assistance or other health and safety benefits.
Finally, the law would amend the WARN Act to make clear that employers are not required to provide WARN notices for shutdowns or mass layoffs that are “a result of the COVID–19 national emergency.”
This law will put a premium on employers understanding, implementing, and enforcing required and recommended COVID-19 safety rules and protections. If you don’t already have these in place your workplace, (1) why not, (2) what are you waiting for, (3) you now have quite the incentive to do so, and (4) you really shouldn’t need this economic incentive to protect the health and safety of your employees.
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Should employers be testing employees for COVID-19?

COVID-19, coronavirus, public health crisis
Fortune magazine asks: “Why some companies are screening employees for COVID-19, while others have opted out?” This is a legitimate question.

Let’s start with the law. Does the law (in this case, the ADA) permit an employer to test employees for COVID-19? Yes, an employer absolutely may administer a COVID-19 test before permitting employees to enter the workplace.

From the EEOC:
[E]mployers 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.
Just because employers can test doesn’t mean they should test. Why shouldn’t an employer test even though the law allows for it?
1/ Because these tests only measure a small slice of time, and therefore are not a reliable indicator of whether an employee is bringing COVID-19 into the workplace. Unless you are going to test every employee every day (see no. 2 below for why this isn’t feasible or practical), a negative test only establishes that an employee does not actively have the COVID-19 virus within their system at the time the test was administered.
2/ Because tests aren’t necessarily reliable. A team from John Hopkins Medicine has concluded that COVID-19 tests have a false negative rate of at least 20% if used too early after infection. If one in five employees who tests negative for COVID-19 is carrying the virus, why test at all?
3/ Because tests are expensive and not available in a large enough quantity. Testing every employee every day will cost an employer a small fortune, while at the same time unnecessarily using testing resources that could be put to better use (i.e., for those who actually have COVID-19 symptoms). It’s for this same reason (among others) that I believe restarting professional sports right now is crazy. Those players are being tested every single day, using up valuable testing resources that are in too short supply as is.
What should an employer do instead of testing? All employers should require employees to self-monitor for COVID-19 symptoms, and upon the presentation of any such symptoms, report to the employer and isolate per CDC guidelines. Thereafter, the employer should contact its local department of health, contact trace, and quarantine those who were in close contact as needed. That’s about the best you can hope to do to help stop this virus from spreading in your workplace. The law allows you to require testing if you want, but why bother?
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Tesla fires workers for staying home after giving them permission to stay home

reopen businesses

“Carlos, there is no need to feel that you are going to lose your job. If at this time you do not feel comfortable returning to work, you can stay home without penalty and take the time unpaid.”

That email, sent from Tesla’s acting human resources director to a now terminated employee, will be central to that employee’s wrongful termination lawsuit pending against the automaker.

The employee claims that Tesla retaliated against him because he pressured the company to release information about its health and safety protocols following reports of employees testing positive for coronavirus after returning to work in late May.

The timing does not look great for Tesla. The “you can stay home without penalty” email came one day before the employee spoke out against Tesla at a news conference about conditions at the plant and his fear of returning to work … and one day prior to Tesla emailing the employee to tell him his job was at risk.

Within hours of that news conference, Tesla’s human resources department emailed a “Failure to Return to Work” notice, advising of termination without an immediate return to work. The employee (and a co-worker who received a similar notice and also openly questioned the company’s safety during the pandemic) opted to remain on unpaid leaves because of their health and safety concerns. They claim their terminations are in retaliation for their vocal questioning of their employer’s commitment to safely reopening and operating its manufacturing plant.

Also read: Lawsuit highlights risk of businesses not reopening safely and correctly

There is nothing inherently unlawful about ending an employee’s leave of absence and requiring their return to work (even during this pandemic). However, when an employer ends the leave within hours of an employee openly and vocally challenging health and safety issues, retaliation becomes a real concern.

Whistleblower retaliation is one of the biggest legal risks facing employers during this pandemic. OSHA, the National Labor Relations Act, and myriad state laws protect employees from retaliation for raising health and safety concerns at work. Instead of risking a lawsuit by removing a “difficult” employee from the workplace, employers should view them as an opportunity to improve. Why are they raising issues? How do they feel unsafe? What can we do to improve and make all employees feel safer? If we are doing everything we can to provide as safe of a workplace as possible, how do we communicate that fact to employees?

Also read: When employees return to work, consider these guidelines

Far from an opportunity to terminate, employee health and safety complaints (always, but especially during this pandemic) present an opportunity to listen, improve, and strengthen your relationship with your employees. Employers that do not understand this opportunity are risking dangerous and costly retaliation lawsuits.

Also read: COVID-19 and workers’ compensation

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Employee claims his remote work request got him fired

remote workers, stressed out

An employee suffers from high blood pressure and lives with his 81-year-old mother. He’s an engineer and began working from home for his employer in mid-March when his state shut down non-essential businesses. His employer, however, remained open, and several weeks later required him to return to in-person work in the office. He refused, requesting continued work from home. The company refused that request and fired him for job abandonment. The employee sued for disability discrimination.

The employer argues that the employee’s high blood pressure is not a disability warranting accommodation, and it has no obligation to accommodate the employee because he lives with his elderly mother.

Also read: Permanent working from home works well if you have the right technology

As to the latter argument, the employer is likely correct—it doesn’t have to accommodate an employee because of the employee’s association with someone with a disability, even if that family member falls into one of the COVID-19 high-risk groups.
I also think, however, that this employer may have issues with the denial of the employee’s work-from-home request for his own alleged disability. It’s possible that this employee was entitled to work from home as a reasonable accommodation. We don’t know, however, because the employer never asked for any medical information from the employee as to the need for the request.
According to Tchankpa v. Ascena Retail Group, “Employers are entitled to medical documentation confirming the employee’s disability and need for accommodation.” If on-site attendance is presumed to be an job essential function (as noted by the Tchankpa court) then an employer would have to consider offering an accommodation to meet that essential function. Telework might be one such accommodation. But the employer won’t know that unless it engages in the interactive process with the employee.
And that’s where this employer failed. The employee asked for an accommodation and the employer refused it without consideration and without gathering the necessary information from the employee.
So, yes, you might be able to deny an employee’s work from home request. To be clear, in most cases I don’t think you should. But it is possible. You just have to do it the right way, which will always include the interactive process to determine if the employee is disabled and if the request is medically indicated to permit the employee to perform the essential functions of the job. For high-risk employees with a doctor’s note, however, denying the request takes a huge legal risk.
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CDC now recommends that people wear cloth face coverings in public

COVID-19, coronavirus, mask

As COVID-19 cases spike nationwide, and the CDC warns that we have “way too much virus” to control the pandemic, that same agency just released new guidance recommending that people wear cloth face coverings when in public.

The highlights:
  • CDC recommends that people wear cloth face coverings in public settings when around people outside of their household, especially when other social distancing measures are difficult to maintain.
  • Cloth face coverings may help prevent people who have COVID-19 from spreading the virus to others.
  • Cloth face coverings are most likely to reduce the spread of COVID-19 when they are widely used by people in public settings.
  • Cloth face coverings should NOT be worn by children under the age of 2 or anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
workforce management procedures, covidFor reasons that still baffle me, the use of cloth face coverings is a political issue, and not a science issue. Since this issue has become politicized to the point of endangering people’s lives, let’s look at, and debunk, the counterarguments people use against wearing masks in public.
1. A mask won’t stop me from catching COVID-19.
You are correct. A mask won’t stop you from catching COVID-19. But they will stop you from spreading it to someone else. The science is clear and irrefutable—if a majority of us wear masks when in public, we’d reduce the spread of this virus to an acceptable level, and if all of us do so we’d effectively stop the spread outright. If you don’t want to wear a mask for yourself, wear one to protect your family members, your friends, your co-workers, and others.
2. I’m not sick. 
Just because you don’t feel sick doesn’t mean that you’re not carrying COVID-19. It could also mean that you are a pre-symptomatic or asymptomatic carrier of the virus who could still nevertheless transmit it to someone else. You aren’t wearing the mask to protect yourself; you’re wearing it to protect others.
3. I’m not high-risk for Covid-19 complications.
Just because you are younger or lack any of the underlying medical conditions that places you at higher risk of Covid complications doesn’t mean that those you come into contact are as well. Think of your friends and family members, the friends and family members of your co-workers, and the friends and family members of those with whom you come into contact at the grocery store or anywhere else in the world. Again, you aren’t wearing the mask to protect yourself; you’re wearing it to protect others. (Do you sense a theme here?)
 
4. I have a constitutional right not to wear a mask.
No, you don’t, no more than you have a constitutional right to enter a business without wearing a shirt or shoes, to drive without a seatbelt, or to smoke on an airplane. The government can require you to wear a mask when outside of our house to protect the health and safety of others during a pandemic, period. If a government can’t maintain rules to keep us healthy and safe, why have a government at all?
5. Wearing a mask will harm my health. 
No, it won’t. People incorrectly claim that masks decrease the wearer’s oxygen intake, increase their inhalation of toxins and carbon dioxide, and cause their immune system to shut down. These claims are simply not true. If they were, doctors, nurses, and other medical staff in operating rooms would be falling ill daily. If you have a legitimate disability that a facial covering would negatively impact, the ADA might provide you some relief in the form of a reasonable or public accommodation. Otherwise, science simply does not support the claim that masks will harm the health of a healthy person. Moreover, if you think it’s hard to breath wearing a mask, you’ll really think it’s hard to breathe with your lungs drowning in fluid while on a ventilator.
6. Masks are part of a government conspiracy to control me and my actions.
Seriously? Do I even need to discuss this argument? Talk to me when you remove your tinfoil hat.
The bottom line: wear a mask.
If we simply wash our hands, and maintain an appropriate amount of social distance and wear a mask when around others, we’d all be able to go about some semblance of our normal lives. And since that’s all what we all want to do, why do some make this issue so damn hard?
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Judge hands McDonald’s a whopper of a rebuke for its COVID-19 response

chief people officer McDonald's

A month ago I reported on a novel lawsuit filed against McDonald’s Corporation in which the plaintiffs sought to have the fast-food conglomerate’s alleged failure to comply with health guidance and provide PPE to its employees declared a public nuisance.

chief people officer McDonald'sLast week, the judge granted the plaintiffs a preliminary injunction, concluding that they were likely to succeed on the merits of their claims. In so ruling, he concluded that the company fell short in its obligation to keep safe its employees and its customers.

Also read: When employees return to work, consider these guidelines

An issue in the case was McDonald’s exception to its face-covering and social distancing policy, which states, “Please note that individuals may be closer to each other than 6 feet, and pass each other momentarily, as long as it’s not for a period of 10 cumulative minutes or more.”

The court did not find that policy was reasonable (or likely to be lawful) under any set of circumstances during this pandemic.

McDonald’s has created an environment that leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families and the public as a whole and conflicts with the Governor’s Order on social distancing potentially undoing any good it has done as we fight this incredibly contagious disease. …
“Trying your best” in a pandemic can still cause substantial interference with the public health in a pandemic, especially when employees are not expected to remain 6 feet apart for periods of less than ten minutes. Defendants’ inability to ensure that employees are appropriately covering their face when not 6 feet apart is unreasonable given the magnitude of the potential consequences. …
McDonald’s social distance training is not in compliance with the Governor’s Order, nor has the Court been made aware of any CDC guidance that supports McDonald’s 10 minute exception to social distancing protocol. …
This potentially hazardous combination contradicts the Governor’s Executive Order and Illinois public safety guidelines on social distancing which require people to maintain a 6 foot distance from each other or wear a mask. The current McDonald’s environment leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families, and the public as a whole and conflicts with the Governor’s Executive Order.
This is the opinion of one judge in one state court on a novel legal theory. However, it does illustrate that employers are taking some (a lot of?) legal risk if they ignore, flout, misstate, or misapply state or local safety and reopening rules. Learn the rules for your jurisdiction, and train your managers and supervisors on them so that they can enforce them to keep everyone as safe (and legally compliant) as possible.
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Must you accommodate an employee with a high-risk family member?

ADA, coronavirus, acommodate

One of the questions I have received most from clients during this pandemic comes in some variation of the following: “An employee [does not want to come into work/wants to work from home/wants a leave of absence] because s/he lives with someone who is at high risk for coronavirus complications. What do we do?”

In other words, must you accommodate an employee for the employee’s close family member’s disability?

According to the EEOC, the answer is, “No.”

Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

According to me, however, the answer is, “It depends” (on how you’ve historically treated similar requests by similarly situated employees).
The ADA not only protects employees with disabilities, but it also protects employees associated with individuals with disabilities. There is, however, one critical difference between these two types of protections. The former imposes on employers an obligation to offer reasonable accommodations, while the latter does not. This difference, however, does not mean that employers in all cases can deny accommodations to employees associated with individuals with disabilities.
If an employer has a history of accommodating employees similarly situated to an employee requesting an accommodation for an employee associated with someone at risk for coronavirus complications, the employer would be open to claim of disparate treatment by denying the employee’s accommodation request. Thus, an employer must scrutinize its decision to deny an accommodation request for an employee’s family member against similar requests by other similarly situated employees to avoid a claim of disparate treatment.
Of course, the ADA is a floor and not a ceiling. An employer is always free to accommodate any employee’s request for any reason. As the EEOC points out, “[A]n employer is free to provide such flexibilities if it chooses to do so.” Further, during the pandemic, the DOL “encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.”
Moreover, there are myriad business reasons why an employer might choose to grant an accommodation in this case.
  1. It’s the ethically or morally correct thing to do.
  2. It will help you to retain a quality employee.
  3. Granting the accommodation will create goodwill, strengthening the employee’s loyalty to your company.
  4. You will avoid the potential for bad press or negative social media if you deny the request, or worse, fire an employee seeking an accommodation under these circumstances.
For these reasons, I generally favor granting the accommodation. Unless there is a legitimate and overriding business reason to deny an accommodation request to an employee who, during the COVID-19 pandemic, seeks remote work or a leave of absence because he or she does not want to endanger a high-risk family member, grant the request. It’s the right thing to do, and, depending on the circumstances, it might also be the legal thing to do.
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How to communicate when an employee tests positive for COVID-19

essential workers; workers' compensation, mask

Positive COVID-19 tests are sadly the reality of 2020 and likely at least part of 2021.

Nationally, 2.23 million of us have tested positive for coronavirus. If your employees have been fortunate enough so far to avoid the virus, the odds are good that before this pandemic is over one or more of your employees will test positive.

Before we discuss the right way to communicate a potential workplace exposure to your employees, let’s explore the wrong way, via one of my favorite punching bags, the WWE.

Via Deadspin:

As “Monday Night Raw” was wrapping up last night, reports started to leak out that a member of WWE’’s developmental program had tested positive for COVID-19.… It’s hard to pinpoint which is the more galling aspect: that the talent and crew of WWE found out about the positive test the same way the rest of us did, through social media and the internet last night, or that everyone showed up to work thinking they were safe, or however close to that word they felt by working for WWE, when in fact they weren’t.

If one of your employees tests positive for COVID-19, your other employees deserve to hear the news from you, not from a Facebook post, a tweet, a local news reporter or otherwise. You just have to make sure you are communicating the news legally.
The ADA’s confidentiality rules still apply to these communications, and an employee’s positive coronavirus test is still a confidential medical record. This means that you cannot divulge to anyone else the identity of the employee(s) who tested positive. It does not mean, however, that you can’t (and shouldn’t) communicate to employees that they might have been in contact with someone who has tested positive (or is displaying symptoms consistent with COVID-19) and that they should be diligent about monitoring their own health for potential symptoms.
Your only limit is disclosing the identity of the corona-positive employee. Otherwise, you are free to make any communication you want.
And you should. Your employees will resent you if they learn of the diagnosis of their potential exposure from anyone but you. Moreover, you can flip the story around into one focused on everything you are doing to protect the health and safety of your employees.
Dear Employees:
It saddens us to inform you that one of your co-workers has tested positive for COVID-19. The law prevents us from telling you the identity of that co-worker, but we want to assure you that we will continue to support this employee as your co-worker heals from this virus, and we will welcome them back to join you at work once it is safe to do so.
We are doing everything within our ability and resources to keep you as safe and healthy as possible at work. Still, with many cases of COVID-19 transmitted before anyone knows they have been exposed, and with you only being at work for a fraction of you day, we cannot 100 percent guarantee the virus won’t enter our workplace.
We continue to require that you self-assess daily for your own potential COVID-19 symptoms (fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea). If you have any of these symptoms, please let us know, and do not return to work until you have received a negative COVID-19 test, or you are symptom-free for at least 72 hours and at least seven days have passed since your first symptoms.
We are also continuing to take the following steps to help ensure, as best as possible, your health and safety here at work:
  • Employees are required to wear masks or other facial coverings at all times while at work, unless you granted a specific exception (such as for safety, a medical reason, or because you are working alone in a closed office).
  • employees are required to maintain six feet of social distance from others at all times.
  • Employees must diligently wash their hands and otherwise use hand sanitizer (which we are providing in intervals around the workplace).
  • Employee must self-assess their own health before reporting to work, and no employee is permitted to come to work if they have any of the known symptoms of COVID-19.
  • Lunch room and other common areas are closed until further notice.
  • Each employee is responsible for cleaning their own work station at the end of each shift.
  • We are deep cleaning the entire workplace on a weekly basis.
Additionally, because of the unfortunate positive test, we had the facility deep cleaned and sanitized prior to anyone being allowed to reenter after we learned of the positive test.
Our commitment to your health and safety is our top priority. If you have any questions or concerns, please contact ______________. Our door is always open.
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President extends PPP loan forgiveness, signs Paycheck Protection Program Flexibility Act of 2020

CARES Act, coronavirus

The Paycheck Protection Program Flexibility Act of 2020, which President Trump signed into law on June 5, makes several key business-friendly changes to the small business loans made under the CARES Act’s Paycheck Protection Program.

Specifically, this Act:

  • Extends the “covered period” borrowers have to use PPP loans and qualify for loan forgiveness from the original eight weeks to the earlier of 24 weeks from loan disbursement or Dec. 31, 2020.
  • Extends until Dec. 31, 2020, the CARES Act’s June 30, 2020, deadline to rehire employees and reverse salary cuts of more than 25 percent.
  • Exempts borrowers from the reduction in loan fordeadline to rehire employees and reverse salary cuts of more than 25 percent. giveness because of a reduction in employee headcount if the borrower is able to document in good faith that from Feb. 15 through Dec. 31, 2020, the borrower: (a) was unable to rehire employees who had been employed on Feb. 15 or hire similarly qualified employees for unfilled positions by December 31, 2020; (b) was unable to return to the same level of business activity at which the borrower was operating pre-Feb. 15 as the result of compliance with requirements, guidelines, standards for sanitation, social distancing, or other COVID-19 employee or customer safety issues.
  • Lowers the threshold for the use of PPP loan funds for payroll purposes from 75 percent to 60 percent.
  • Allows for an agreed-upon extension of PPP loan repayment from two years to five years.
  • Eliminates the CARES Act’s restriction on the deferral of payroll taxes for employers who receive PPP loan forgiveness.
As Suzanne Lucas (aka the Evil HR Lady) points out, this Act’s biggest benefit might be the gift of time it gives to employers to staff up. “Hiring is always a difficult part of running a business, and the terms of the original PPP put pressure on companies to act quickly.” She added, “If you don’t need someone working yet, you can wait until you do need someone in the position.”
Suzanne is correct. Even in the best of circumstances, hiring is time-consuming and difficult.
The current circumstances are far from best, and businesses that took PPP money felt tremendous pressure to hire by June 30 to qualify for loan forgiveness. Employees hired in haste often lead to mistakes. These amendments offer significant relief through the benefit of added time.