As the COVID-19 landscape continues to evolve, government agencies have been releasing additional guidance on how employers should handle COVID-19 concerns in the workplace. This newsletter highlights significant recent developments that you may have missed.
OSHA Guidance on Reopening
OSHA has issued additional guidance for employers on safe reopening, available here. Employers should continue to follow OSHA and state guidance on safe reopening, including extending telework where possible, emphasizing sanitation and hygiene, maintaining social distance in the workplace, and following state and local requirements for face coverings.
Employers Cannot Use Antibody Tests to Screen Employees
The EEOC, based on CDC guidance, has announced that employers cannot use antibody tests to screen employees before returning to work. Employers are allowed to use COVID-19 viral tests, which test for active infections, to screen employees.
COVID Screening Information Should Be Treated as Confidential Health Information
For employers who are doing COVID symptom screening, such as temperature checks, any employee health information recorded should be stored separately from personnel files, in a secure, encrypted location. Do not store employee health data in personnel files. Alternatively, OSHA allows employers to perform temperature checks as a screening tool without writing down the result, eliminating the need to store the health information in the first place.
Handling Positive COVID Cases at Work
More clarity has emerged from the CDC on how to handle a situation where an employee has a confirmed case of COVID-19. The CDC recommends the following steps:
- Infected employees should stay home until cleared by a physician to return to work. If an employee cannot get a physician’s note, they should follow CDC guidance (available here) on when it is safe to end quarantine.
- Ask the infected employee to identify everyone within close contact (within 6 feet for more than 10 minutes) during the 48-hour period before the onset of their symptoms. All employees with close contact to the infected employee should be sent home for 14 days to quarantine. Quarantined individuals should self-monitor for symptoms and seek medical attention if necessary.
- Follow CDC guidance (available here) on cleaning and disinfecting the workplace, preferably with a third-party cleaning service.
- Notify all employees who work in the vicinity, even if they were not in close contact with the infected individual. Maintain confidentiality, but inform employees of the steps you are taking, including sending some employees home and sanitizing the workplace.
Employees Unwilling to Return to Work
The EEOC and OSHA have addressed two reasons why employees may be unwilling to return to work: health conditions and safety concerns. The EEOC is taking the position that employee health concerns, which may range from anxiety to respiratory problems to cancer, only need to be accommodated if they would otherwise qualify as a “disability” under the ADA, i.e., that they substantially limit a major life activity. Reasonable accommodations can include extending telework, adjustments to office space, or other accommodations that suit the employee’s needs. This position has been backed up in the recent U.S. District Court for the District of Massachusetts case Lin v. CGIT Systems, Inc., where the court held that an employer did not wrongfully deny an employee’s request for remote work due to high blood pressure.
On safety concerns, under OSHA, employees can refuse to work if it involves a risk of death or serious physical harm. COVID alone is unlikely to rise to the level of an imminent danger in an ordinary workplace that is following federal and state reopening guidelines. However, employers in high-risk facilities, such as meat processing plants or factories, should be aware of this risk. While employers cannot force employees to come to work if they fear for their safety, employees who refuse to work due to COVID-19 do not need to be paid.
DOL Has Begun FFCRA Enforcement Actions
The Department of Labor has begun enforcement actions for violations of the Families First Coronavirus Relief Act (“FFCRA”) after a brief 30-day period of non-enforcement following the enactment of the statute. The DOL has announced a number of enforcement actions and monetary penalties against employers who have failed to pay FFCRA leave or wrongfully denied FFCRA leave. The DOL appears to be taking a broad stance on when employees can take FFCRA leave. Employers should be sure to follow FFCRA and grant employees leave whenever necessary. Keep in mind that FFCRA leave is reimbursed by the federal government, so the ultimate cost of this leave is borne by the government, not the company. More details on FFCRA can be found in our earlier newsletter, available here.
FFCRA Leave Includes Summer Camp
The Department of Labor is taking the position that employees can take FFCRA leave if their child’s summer camp or other summer program has been cancelled. If an employee had not yet enrolled their child in the camp, they can still qualify for FFCRA as long as they can demonstrate that they were planning to enroll their child. However, the DOL has also clarified that FFCRA leave cannot continue to be used due to school closures now that the school year has ended.
PPP Loan Forgiveness Window Expanded
Congress amended the PPP loan program to allow the loans to be used for qualifying expenses over 24 weeks (up from 8 weeks). Employers can use up to 40% of loan proceeds on utilities and rent payments or mortgage interest (up from 25%).
$600 Unemployment Stimulus Payments End One Week Earlier Than Expected
Many workers have been relying on the additional $600 per week in unemployment under the CARES Act to get through COVID shutdowns. The additional $600 is slated to end on July 31. However, because July 31 is a Friday, it will not be included in the week ending Saturday, August 1. For most workers, their last unemployment benefit period with the additional $600 will be the prior week, which ends on July 25 in most states, including Massachusetts.
More Stimulus Money on the Way?
Congress is currently debating additional stimulus money, including extending unemployment stimulus payments (either in part or in full) through the end of the year, additional stimulus payments to taxpayers, and small business relief. Both parties have indicated that they will consider an additional stimulus package in mid-July.
As always, please reach out anytime if you have questions about your particular situation and COVID-19.