Getting Back to Work in Uncertain Times – Guidelines for Employers

For the past several weeks, a majority of U.S. workplaces have been effectively shut down. In response to numerous state and local “stay home” orders issued in the wake of the COVID-19 pandemic, many employers throughout the country have faced dramatic changes in their workforce. Many employees have been working remotely, while others have been furloughed or laid off. As the President and Governors start looking at easing restrictions so that more businesses may reopen, employers need to be mindful of legal and practical considerations.

The issue of easing stay-home restrictions is not without controversy. The daily news cycle is replete with vastly differing opinions on whether it is too soon to ease restrictions or if easing restrictions to enable more workplaces to open is the correct move. Regardless of the state and national implications, employers need to be mindful that within their own workplaces, they will likely face similar reactions from their own workforce. Some employees may not yet feel safe to venture out or return to work (“I can’t believe they are making us come back to the office already!”) while other workers will embrace the return (“It’s about time!”). Employers will need to recognize that there are rational, legitimate concerns from both camps, and employers will need to effectively communicate with their employees to ensure them the workplace will be safe upon their return.

Employers should be working now to develop an action plan on returning employees to the workplace. Employers will need to carefully plan out things such as:

When will we be legally permitted to reopen?
- Each State has its own stay home and quarantine orders. From all indications, the loosening of such restrictions will not be an all-at-once event; rather, the restrictions are likely to ease over time so that certain workplaces are permitted to open earlier than others. While “essential businesses” have largely remained open throughout the past few weeks, other employers will need to ensure that state and local restrictions have been lifted in a way that permits employees to return to the workplace.
Which employees should we bring back?
- Many employees have been working remotely (teleworking) for the past few weeks. Many of those working from home have found themselves to be more efficient and productive than they expected, and some employers may want to revisit their work-from-home and telecommuting policies to permit more employees to work remotely more often.
- For employers who have faced the difficult decision to furlough or lay off workers, decisions need to be made on which employees will be brought back first. The process for selecting which employees to bring back must be done in a non-discriminatory manner. If furloughed or laid off employees feel that they were pushed to the back of the line due to a protected characteristic, of if the employer’s selection process has an adverse impact on a particular protected group, they may consider filing a claim against the company.

Once employees return to work, employers need to be vigilant to ensure workers do not engage in harassing or discriminatory conduct towards co-workers. Since the outbreak of the pandemic, many individuals of Asian descent have reported that they have been subjected to critical stereotypes, including blame for the virus itself. Just this week an Atlanta restaurant reported that an employee found a sign at work depicting Winnie the Pooh eating a bat with chopsticks below the words “Wuhan Plague.” Employers need to be mindful of these issues and enforce their non-discrimination and non-harassment policies.

Before employees return to the workplace, employers will need to take measured steps to ensure that the workplace is as safe as possible and processes are in place to address employees who may develop symptoms of the illness or who are exposed to others who have the virus.

Workplace Safety Considerations

In response to the leveling off of infection rates, some states have begun the process of easing restrictions imposed by state executive orders declaring public health states of emergency. To date, the approach taken by most Governors is a graduated easing of the restrictions for limited sectors of the state’s economy, while simultaneously imposing strict, health-based guidelines for the reopening of those businesses.

Under Georgia’s Executive Order issued on April 20, 2020, for instance, Governor Kemp ordered that all medical practices and other healthcare related businesses that have elected to cease operations should begin treating patients as soon as practicable in accordance with the Centers for Disease Control and Prevention (“CDC”) Guidelines. Further, the order provides that gyms, bowling alleys, hair studios, and massage therapies may begin in person Minimum Basic Operations on Friday, April 24, provided that they implement measures designed to mitigate the exposure and spread of COVID-19. The Executive Order then proceeds to list 20 health-based measures[1] which employers “shall implement” upon opening for business.

In addition to ordering the observance of the listed health-based measures, the Executive Order also limits business to “minimum basic operations,” which directs businesses to limit their operations to the minimum, necessary activities to maintain the value of their business while remaining open to the public. By way of example, the Georgia order prohibits business establishments from allowing more than 10 persons to gather in a single location when those persons cannot be separated by at least 6’ in compliance CDC minimum specifications.

Businesses that comply with executive orders easing some restrictions are typically released from liability to any other individual, partnership, association or corporation by reason of complying with the terms of the state’s executive order. While this release is a major benefit to business establishments who choose to open, it in no way releases those establishments from potential liability under federal or state OSHA regulations for providing a safe work environment for all employees.

Under OSHA, employers must comply with safety and health standards and regulations issued and enforced by OSHA or an OSHA approved State Plan. Where no safety and health standards and/or regulations have been issued, such as the case with COVID-19, OSHA relies on the General Duty Clause 5(a)(1) that requires employers provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

To satisfy the requirement of the General Duty Clause, employers must undertake a hazard identification analysis to identify the steps that should be taken in order to reduce the risk of worker exposure to COVID-19. Every hazard analysis contains three basic elements: (1) identification of workers at high risk; (2) identification of potential sources of exposure; and (3) identification of appropriate control measures. Once the hazard identification analysis is complete, employers are encouraged to use this information to develop an Infectious Disease Preparedness and Response Plan (“IDPRP”). IDPRPs should, at a minimum, follow federal, state and local recommendations to develop contingency plans for situations that may arise as a result of the outbreak, as well as making specific recommendations for employees based on the type of work and their exposure risk. Current OSHA guidelines recommend that IDPRPs consider the following:

The need for social distancing, staggered work shifts, downsizing operations, delivering services remotely, and other exposure reducing measures.
Options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs in order to continue operations or deliver services.
Increased rates of worker absenteeism.
Interrupted supply chains or delayed deliveries.

Plans should also consider and address steps that employers must take in order to reduce the risk of worker exposure to COVID-19 in their workplace which would include engineering and administrative controls appropriate to the individual workspace. For detailed guidance on how to develop an IDPRP specific to your workplace, please refer to SGR’s Employer Guidance on Preparing the Workplace for COVID-19, which can be found here.

As an employer, your best defense against OSHA liability is to have a robust IDPRP, and to strictly adhere to its policies and procedures. These plans are also an employer’s best defense against OSHA’s anti-retaliation claims filed by employees who have either complained to OSHA about workplace conditions, or refuse to return to work based on reasonable fears of exposure to COVID-19. OSHA’s whistleblower provisions prevent employers from taking disciplinary actions, but only to the extent that the employee’s fear was “reasonable at the time it was made.” Having a fully developed IDPRP is an employer’s best defense against such a claim.

Employee Screening and Related ADA Considerations

As discussed above, employers will need to take measures to ensure a safe workplace. Employers should ensure they have procedures in place to deal with potentially infected employees and employees who have been diagnosed with COVID-19, including regular monitoring to ensure employees displaying symptoms of COVID-19 are asked to leave work immediately. Employers should consider requiring employees to provide a certification or similar release from a medical provider or applicable health care official prior to returning to work. If an employee is unable to obtain a certification from a medical provider, employers should follow CDC guidance and any applicable state guidance addressing when employees may safely re-enter the workplace. Employers may also wish to consider use of an employee self-certification upon reentry if the employee is unable to obtain a certification from a medical provider.

Additional procedures following a COVID-19 diagnosis should include contact tracing within the workplace and ensuring those employees who worked in close proximity to the infected employee are sent home to self-quarantine for the recommended amount of time. Supervisors should be instructed not to reveal confidential medical information, which includes the identity of the infected individual.

Recently issued EEOC guidance addressing return to work issues confirms the following actions remain permissible under the Americans with Disabilities Act (ADA) in light of the COVID-19 pandemic:

Employers may take temperatures of all individuals entering the workplace, including employees, vendors and customers/guests.
Employers may ask employees if they are experiencing COVID-19 symptoms, have been diagnosed with COVID-19, or if they have had potential exposure to COVID-19.
Employers may require employees to report if they are experiencing COVID-19 symptoms, have been exposed to an individual exhibiting symptoms, or have been diagnosed with COVID-19.
Employers may administer a COVID-19 test – to detect the presence of the virus – before permitting employees to enter the workplace. (The EEOC also reminds employers they must take steps to ensure the tests are accurate and reliable, and should refer to federal guidance outlining safe and effective methods.)
Employers may (and should) continue to observe infection control practices in the workplace to prevent COVID-19 transmission.
Employers may adopt any other screening that is implemented pursuant to advice from the CDC and public health authorities for a particular type of workplace.

The EEOC guidance also reminds employers they must continue to adhere to ADA reasonable accommodation requirements, including the requirement to engage employees in the interactive process when an employee with a disability requests a reasonable accommodation in connection with infection control efforts and/or workplace safety measures.

Finally, employers should remain apprised of any applicable state-issued guidance or executive orders addressing the reopening of workplaces. Employers may be subject to additional state requirements under those orders or guidance, including the requirement to monitor employees for likely COVID-19 symptoms and measure employee body temperatures.

Leave Considerations

Employers should remain mindful of their obligations under the federal Families First Coronavirus Response Act (FFCRA) and other federal laws mandating leave that may be applicable in the COVID-19 context, including the Family and Medical Leave Act (FMLA) and the ADA. A more detailed summary of employer leave obligations under the FFCRA can be found here.

State and local leave laws also may be applicable. Some cities and states have enacted new laws to address COVID-19 concerns, while many other state and local laws have been amended and/or expanded to provide employees with additional leave rights in the COVID-19 context.

Impact on Paycheck Protection Program Loan Forgiveness

Employers who have received loans under the Paycheck Protection Program (“PPP Loans”) will need to be mindful about how employees returning to work may affect the portion of their PPP Loans that may be forgivable. Only certain costs are eligible for forgiveness, and changes to headcount and wages can reduce the forgivable amount.

Costs Eligible for Forgiveness. A PPP Loan is eligible for forgiveness in an amount equal to payroll costs and certain mortgage, rent and utility costs incurred during the 8-week period beginning on the date of origination of the loan (the “Covered Period”). However, payroll costs must make up at least 75% of the forgiveness amount.

“Payroll costs” are (i) salary, wages, commissions, or similar compensation; (ii) cash tips or equivalent; (iii) payments for vacation, parental, family, medical, or sick leave; (iv) severance pay; (v) payments required for the provisions of group health care benefits, including insurance premiums; (vi) payment of any retirement benefit; and (vii) payment of state or local tax assessed on the compensation of employees. Payroll costs do not include (i) cash compensation for an individual employee in excess of an annual salary of $100,000; (ii) compensation paid to employees whose principal place of residence is outside the US; and (iii) certain payments for which tax credits are allowed under the Families First Coronavirus Response Act.

Reduction for Headcount Reduction. The loan forgiveness amount is prorated down if the average monthly number of full-time equivalent employees (“FTEs”) during the Covered Period is less than either (i) the average monthly number of FTEs during the period from February 15, 2019, through June 30, 2019; or (ii) the average monthly number of FTEs during the period from January 1, 2020, through February 29, 2020, as elected by the borrower.

Reduction for Wage Reductions. The loan forgiveness amount is also reduced by the amount of any reduction in total salary or wages of an employee during the Covered Period that is in excess of 25% of the total salary or wages of the employee during the most recent full quarter during which the employee was employed before the beginning of the Covered Period. For these purposes, only employees whose annualized wages and salary for any pay period during 2019 did not exceed $100,000 are taken into account.

Under certain circumstances, a headcount or wage reduction that occurs between February 15, 2020, and April 26, 2020, can be corrected so that a reduction of the forgivable amount can be avoided.

The attorneys at Smith, Gambrell & Russell continue to monitor developments with the COVID-19 pandemic and will provide additional updates. In the meantime, if you have any questions about this client alert, please contact your SGR Labor and Employment counsel.

[1] 1) screening and evaluating workers; 2) workers showing signs of illness do not report; 3) enhance workplace sanitation; 4) hand washing or sanitation; 5) provide PPE; 6) prohibit worker gatherings; 7) permit breaks/meals outside of office for social distancing; 8) telework if possible; 9) staggered shifts; 10) virtual meetings; 11) remote intangible service delivery; 12) discouraging sharing of equipment/work spaces; 13) prohibit handshaking; 14) display hygiene notices in workplace; 15) suspend signatures and PIN entry devices; 16) enforce social distancing; 17) provide alternative points of sale; 18) increase physical space; 19) provide disinfectant/sanitation products; and 20) at least 6’ physical space among workers. For full Executive Order, access here.