Faegre Drinker Biddle & Reath LLP

Employment Law and COVID-19: Making Sense of It All

July 2020

Presenter

As a former Human Resources function leader, CPA, and employment litigator, Susan Kline brings practical advice and solutions to firm clients. Susan leads the Compliance, Training and Transactions team within the firm’s Labor and Employment Group. Her down-to-earth manner and top-notch skills make her a trusted advisor for clients large and small. With a reputation for understanding client concerns and needs, she counsels employers on the ever-expanding maze of labor and employment laws, including issues of leave and disability management, investigations, complex issues in performance management, and resolving potential claims.

Susan KlinePartnerCOVID-19 Response TeamFaegre Drinker

When and How to Resume Business Operations

• Challenge:• Novel virus with evolving virology• Conflicting recommendations and restrictions among federal, state and local authorities

• Action Plan:• Establish a COVID-19 Task Force to ensure best practices are being implemented and followed in

connection with company’s response to pandemic• Stay apprised of guidance from CDC, OSHA, state, local and/or territorial health agencies and

consider how to incorporate those recommendations and resources into workplace-specific plans

Goal: Keep Your Workforce Safe And Continue The Mission of Service ToPatients/Consumers

When and How to Continue Essential Work and Resume Office Operations

• What employee guidelines will be required?• Should employees be allowed to continue to work remotely?

• Scenario: A work group has been functioning productively under a remote work arrangement. As the office starts to reopen, the group leader insists that his team members all resume working onsite because it’s better when everyone has their colleagues right next door.

• Should employers resume meetings and conferences?• Should employers resume business travel?• Should employers resume or allow office celebrations and

events?• What policies should be in effect upon return to work?

Key Elements of a Return to Work Plan

• Summarize containment efforts• Reduced capacity, cleaning, screening, social distancing, masks,

personal hygiene, travel • Share BEFORE employees return onsite

• Reporting – Do you want employee cops?• Protocols when symptomatic, positive or exposed

• STAY AT HOME• Address paid sick leave/family leave/FFCRA• Contact tracing• Address requests for medical documentation?

• When returning to the office will be allowed• Accommodations for at risk employees

Screening• Testing (if feasible)• Temperature monitoring• Symptom screening via questionnaire and reporting

protocol• Leave options for employees off work to prevent

potential virus spread or due to high risk if exposed• Visitor screening protocols

Distancing• Physical partitions; visual cues such as floor markings• Space reconfiguration; room occupancy limits• Workspace reassignment; revised human “traffic

patterns”• Staggered scheduling (working days, hours, breaks)• Common area occupancy restrictions or closure• Continued telework• Virtual meetings• Avoid queueing at time clocks, elevators, etc.

Sanitizing• Hand washing and hand sanitizer• Regular cleaning with OSHA-compliant products• Frequent disinfection of commonly touched surfaces• Frequent disinfection of shared equipment (or

suspension of sharing)• Readily available disinfecting products for employee use• Potential upgrades to air filtration and ventilation• Hands-free devices where possible

Hygiene• Hand washing stations (including outside of restrooms to

reduce congregating) and hand sanitizer• Face covering supplies and use• Other PPE such as disposable gloves where appropriate• Reminder signage• No shared food items; only prepackaged or boxed food

offerings

Training

Health Risk Screen and Acknowledgement

• Do you have a temperature of 100.4 degrees Fahrenheit or higher?• Have you traveled by air within the past 14 days?• Have you participated in a gathering consisting of 10 or more people in close proximity (defined as being

within six feet, for 10 minutes or more) within the past 14 days?• Have you been asked to self-quarantine or isolate at home in the past 14 days?• Have you been diagnosed with COVID-19, or told by a treating health care provider that you are

presumptively positive for COVID-19, unless you have since been tested for COVID-19 with a two consecutive negative test results at least 24 hours apart and have no fever or atypical cough, shortness of breath or difficulty breathing?

• Have you been in recent close personal contact (defined as being within six feet, for 10 minutes or more, during the last 14 days) with anyone diagnosed with COVID-19 or demonstrating symptoms of COVID-19 as described below?

• Have you developed any of the following symptoms: an atypical cough; atypical shortness of breath or difficulty breathing; a temperature of 100.4 degrees Fahrenheit or higher; atypical chills, shakiness, new muscle pain or body aches, sore throat, increased fatigue, nausea, vomiting, diarrhea, chest pain or new loss of taste or smell?

IF YES TO ANY QUESTION – STAY HOME AND CONTACT HR

CDC and EEOC Guidance

• General resource: www.cdc.gov/coronavirus

• What you should know about COVID-19 and the ADA, the Rehabilitation Act and Other EEO laws: www.eeoc.gov

• When can people discontinue isolation/return to work? • Discontinuation of isolation for persons with COVID-19 not in healthcare settings:

www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html

• Who is at higher risk and entitled to accommodations?• https://www.cdc.gov/coronavirus/2019-ncov/downloads/COVID19-What-You-Can-Do-High-Risk.pdf

• Age 65+, asthma, chronic lung disease, serious heart conditions, immunocompromised (including due to smoking, prolonged use of corticosteroids), obesity 40 BMI or higher, HIV/AIDS, diabetes, chronic kidney disease

COVID-19 Testing In the Workplace

• Can we do work site SARS CoV-2/Viral testing?• EEOC, CDC and OSHA: Yes – with precautions

• Should we do antibody/serology testing? • 6/17: EEOC issues Guidance that requiring antibody testing before allowing employees to re-

enter the workplace is not allowed under the ADA • CDC Guidance: antibody tests should not be used as a basis for decisions about allowing

workers back on the job• Note: CDC and EEOC Guidance may be adjusted if the presence, durability and duration of

immunity can be established

June 18: OSHA’s Reopening Road Map for Non-Essential Businesses

• Three Phases • Phase 1: Continued telework, limit # in workplace, accommodations for high-risk individuals and

those with household members at higher risk, limit non-essential travel• Phase 2: Continued telework, continued accommodations, resume non-essential travel, ease limits

on # in workplace• Phase 3: Unrestricted staffing

• Recommend employees do own home screenings• Employers who conduct screenings and record results may have to adhere to access to employee

exposure and medical records• Still need to track local health departments, state requirements and follow CDC guidance• Employers need policies to prevent, monitor and respond to COVID-19• Use generous sick leave to keep symptomatic employee’s at home• No retaliation for compliance with guidelines or raising concerns• Review Q&A: https://www.osha.gov/Publications/OSHA4045.pdf

June 11: EEOC Employer Best Practices in COVID-19

• Employers can’t exclude older/pregnant employees from the workplace just because they are high-risk

• No legal requirement to provide accommodation to employees with high-risk family members – but nothing precludes giving accommodations

• Allow high-risk employees to continue remote work if requested and feasible

• Caregiver support: be accommodating even if not legally required. Uniformly apply. Don’t treat females differently from males.

• Publicize your policies on COVID-19 “Alternative Work Arrangements” and accommodations, and be sure to train managers

• Be aware of risks of, and train to prevent, harassment of Asian, especially Chinese, employees –including via electronic harassment by teleworkers

• Treat requests for alternative temp and symptom screening procedures as requests for reasonable accommodations.

Summary - Key Considerations for a Return to Work Plan

• Share BEFORE employees return onsite, and provide enough advance notice to allow them to prepare

• Be prepared to modify• Requires regular monitoring of CDC and other federal, state and local guidance/orders

• Incorporate training• Consider phased returns and surveys• Coordinate with your landlord• Anticipate potential future shelter-in-place orders • Establish teams if needed

• Monitor COVID-19 updates• Personal Protective Equipment (PPE) – estimate needs, procurement, distribution, proper use• HR and employee health – testing, quarantines, accommodations• Internal communications/updates/training• Customer/vendor/3rd party communications

Practical Realities

Environmental and Business Considerations

Practical Realities: Environmental and Physical Considerations

• What logistical considerations (i.e., supply sourcing) should employers consider related to the physical workspace? • Will physical workplace modifications be necessary?• Source plexiglass

• Will work hours need to be modified?• Are there new cleaning and hygiene regimen requirements?

• Quotes on cleaning per CDC/OSHA compliance

• How to enforce infection control practices (hand washing, social distancing, use of PPE, limit on conference room/office meetings)?

• How to draft, communicate and train on safety response policies

Practical Realities

Health Screenings and other HR Challenges

Health Screening and Other Health Considerations

• Can employers require the use of PPE (masks, gloves, etc.) in the workplace?

• If PPE use is required, can employees request accommodations for modified protective gear and must employers provide accommodation?

• Must employers provide the PPE employees are required to use?

• What if a non-exempt employee reports to work without required PPE?

• What if an employee refuses to wear PPE, or wear it correctly?

Health Screening and Other Health Considerations

• Should non-exempt employees be paid for screening time?

• What protective measures should be taken for the employees conducting health screening?

• What procedures should be in place for conducting the screening at work?

• Must workplace screening comply with the ADA?

Practical Realities: HR Issues

• Should employers take steps to prevent workplace harassment related to COVID-19?

• What if an employee objects to business travel for COVID-19 related reasons?

• What should employers do if an employee has just returned from a high-risk travel area?

• What if an employee refuses to report to work for a COVID-19 related concern such as reluctance to use public transportation or to travel through a “hot spot”?

Practical Realities

Hiring Issues

Practical Realities: Hiring Issues

• How should employers conduct employee interviews when hiring?

• When hiring, may employers screen applicants for COVID-19?

• May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

• May an employer delay the start date of an applicant who has COVID-19 or related symptoms? Is high-risk?

• May an employer withdraw a job offer if the individual has COVID-19 or related symptoms, but is needed to start work immediately?

Practical Realities

Leave and Disabilty Related Considerations

Practical Realities: Leave Considerations

• What if an employee becomes ill with COVID-19 or is placed under quarantine after the business reopens?

• What if an employee is needed to care for someone with COVID-19, or a child whose school or day care is closed due to COVID-19, after the business reopens?

• Should my company adopt a special COVID-19 sick leave policy?

• Are employees with pre-existing mental illnesses that have been exacerbated by this pandemic entitled to reasonable accommodations?

Practical Realities: Disability Related Inquiries and Medical Exams

• Where must employers store onsite medical exam results?

• What files are considered medical files?• May employers disclose the identities of

employees diagnosed with COVID-19?• Should employers defer discussion of onsite

reasonable accommodation needs until the employee is called back onsite?

• May employees previously approved for reasonable accommodations request additional or different accommodations?

• Is the interactive process still required?• Can employers take the pandemic conditions

into account in evaluating undue hardship?

COVID-19 Lawsuits

What to Expect

COVID-19 Litigation – Current Landscape

• Companies sued for exposing customers and employees to COVID-19

• Approx. 1000 COVID-19-related cases, nearly all against businesses

• Federal and state governments are mobilizing to enact protections against liability to business in order for businesses to continue or resume operations• Lobbyists are seeking tort and enforcement liability for employers that would shield businesses

from liability over COVID-related claims as long as an employer does, in fact, responsibly comply with government guidelines

• May 12, 2020: Senate Judiciary Committee hearing to evaluate potential liability protections for businesses and assess their impact on employers and workers • Senators concerned with the economic impact of businesses facing liability, risk to employees

without employer accountability, lack of enforceable federal safety standards and the legal implications of overriding state tort laws

COVID-19 – Exposure Claims

• OSHA complaints since Feb. 2020• Over 5000 federal complaints – Over 12,500 state complaints

• Contraction of COVID-19 in the workplace (negligence theory)• If infected at work, WC should be the exclusive remedy• Some states are moving toward a rebuttable presumption that “essential workers” who are infected

with COVID-19 were infected on the job

• Wrongful death claims – Walmart, meatpacking industry (JBS)• Intentional Tort Exception to WC Bar

Key for mitigation of these risks: following CDC guidance for workplace infection prevention, with good documentation (checklists, communications, copies of guidance as published at the time of the decision); strong HR-legal partnership for responding to COVID-19 related employee concerns.

COVID-19 Retaliation Claims

• Retaliation for having:• Requested leave (Family and Medical Leave Act and COVID-specific leave entitlements)• Requested disability accommodation (Americans with Disabilities Act and state/local protections)• Objected to unfair terms and conditions of employment (National Labor Relations Act)• Reported unsafe working conditions (OSHA, state workplace safety laws) or engaged in other

whistleblowing activity• Filed a workers compensation claim

• Wrongful denial of leave rights

Other COVID-19 Claims

• Wage/hour claims on bases such as:• Compensability of time spent laundering cloth face coverings• Time spent waiting for temperature screenings• Collective action against Sherwin Williams on 6/20 for not factoring COVID-19 bonuses into OT rate• Inadequate business expense reimbursement for remote work costs (CA rather than federal FLSA) • Remote work converting outside sales to inside sales

• Discrimination claims• Age (excluding 60/65 and older from returning to work onsite, regardless of health condition)• Disability discrimination (excluding high-risk workers from RTW) • Disparate impact/treatment in RIFS, or selection as to who remains on furlough

• Harassment claims • Offensive comments/conduct based on ethnicity, related to perceptions of national responsibility for

pandemic

Thank you!Susan Kline+1 317 237 1059susan.kline@faegredrinker.com