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Returning to Work - Reducing the Risk of Exposure
As the stay at home and shelter in place orders are slowly being relaxed and states are beginning to reopen for business, a major concern is how to reduce the risk of spreading the coronavirus in the workplace. In the construction business, where workers by necessity are often in close proximity, these issues are especially important. On April 24, we sent an e-blast that provided OSHA's recommendation on addressing the COVID-19 hazard on a construction site. You can access that e-blast by clicking here. But what about your office and administrative employees?
OSHA has published guidance listing 10 steps that all workplaces can take to protect workers and help prevent infection:
1. Encourage workers to stay home if sick.
2. Encourage respiratory etiquette, including covering coughs and sneezes.
3. Provide a place to wash hands or alcohol-based hand rubs containing at least 60% alcohol.
4. Limit worksite access to only essential workers, if possible.
5. Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible.
6. Discourage workers from using other workers' phones, desks, or other work tools and equipment.
7. Regularly clean and disinfect surfaces, equipment, and other elements of the work environment.
8. Use Environmental Protection Agency (EPA)-approved cleaning chemicals with label claims against the coronavirus.
9. Follow the manufacturer's instructions for use of all cleaning and disinfection products.
10. Encourage workers to report any safety and health concerns.
Also be aware of any requirements that might be established by your state or local government. For instance, Pennsylvania has established detailed standards for construction firms getting back to work. In addition to many of the OSHA guidelines, Pennsylvania's requirements include having employees travel separately to the jobsite when possible, establishing jobsite screening measures, prohibiting visitors to jobsites, and establishing procedures for handling probable and confirmed cases of coronavirus.
Fundamentally, all construction companies should develop a coronavirus safety plan for each job. Pennsylvania requires each project to designate a "Pandemic Safety Officer" for each project (or on larger projects, a separate officer for each subcontractor). Such a safety officer may well become a best practice standard on construction sites generally. Finally, all construction companies need to know what the owners and general contractors require as well as any union rules or requirements that may apply.
If you have further questions about best practices for back to work safety, please e-mail Philip Siegel or Scott Calhoun. You can e-mail the both by clicking here.
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Coronavirus E-blast - EEOC Issues New Technical Assistance on COVID-19
On April 7, 2020, the U.S. Equal Employment Opportunity Commission ("EEOC") issued new updates and expanded the EEOC's COVID-10 technical assistance publication to address questions and issues related to employees returning to work. The updated publication (which can be found
here
) emphasizes that federal equal employment opportunity laws continue to apply during the COVID-19 pandemic, but importantly states that laws do not interfere with or prevent employers from following CDC or state/local public health guidelines for employers.
Return to Work Updates
The EEOC specifically updated and clarified the steps employers can take to screen employees returning to work consistent with the on the Americans with Disabilities Act ("ADA") and when employers may be required to make reasonable accommodations for employees. The EEOC continues to state that employers may make disability-related inquiries and conduct medical exams and screenings (including taking the temperatures of employees returning to work and asking questions about symptoms) if job-related and consistent with business necessity. In regard to reasonable accommodations for employees with underlying medical conditions, the new technical assistance states that an employee must first let their employer know that the employee needs an accommodation related to a medical condition. This request can be made verbally or in writing. After receiving the request, the employer may then ask questions or seek medical documentation to help decide whether there is a reasonable accommodation barring undue hardship that can be provided to the employee. The EEOC states that reasonable accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees, as well as erecting barriers or otherwise increasing the space to provide separation between employees. The EEOC specifically notes that if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.
Finally, the new technical assistance states that an employer may not exclude an employee from the workplace or jobsite solely because an employee has a higher risk for severe illness if the employee gets COVID-19. Such exclusion is only allowed when the employee's disability poses a direct threat to the employee's health that cannot be eliminated or reduced by a reasonable accommodation. To make such an exclusion, an employer would need to show that the employee has a disability that poses a significant risk of substantial harm to the employee's own health. Moreover, even if an employer determines that an employee's disability poses a direct threat, the employer still cannot exclude the employee from the workplace or jobsite unless there is no way to provide a reasonable accommodation. In most cases, employers will not be able to exclude employees with a higher risk for severe illness without violating the ADA.
As state stay-at-home orders are lifted and employees return to work, it is important that employers stay mindful their ADA obligations in order to prevent the possibility potential claims and violations. If you have further questions about best practices for back to work safety, please contact Philip Siegel
or Ben Lowenthal
. You can e-mail them both by clicking here.
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Form I-9 and E-Verify News in light of the Coronavirus
In light of the many shelter-in-place orders around the country, an in an effort to assist with social distancing guidelines, Immigrations and Customs Enforcement has reacted by making a few changes to the Form I-9 process. Also, USCIS has updated and revised its Handbook for Employers, which can be accessed
here.
During these unique times, until May 19 or within three business days after the termination of the current National Emergency, whichever is later, companies operating remotely with employees taking physical proximity precautions due to COVID-19 are not required to review the employee's identity and employment authorization documents in the employee's physical presence, as the law would otherwise required. The documents, however, must be inspected remotely. Employers must also obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2 of the Form I-9. Employers should also enter "COVID-19" as the reason for the physical inspection delay in the Section 2 Additional Information Field once physical inspection takes place after normal operations resume.
Once the documents have been physically inspected, the employer should add "documents physically examined" with the date of inspection to the Section 2 Additional Information Field on the Form I-9, or to Section 3, as appropriate.
This special rule only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are implemented. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
During this pandemic, it may be that new hires are unable to renew List B documents, such as a driver's license. Accordingly, the Department of Homeland Security issued a temporary policy regarding expired List B identity documents used to complete Section 2 of the Form I-9. As of May 1, identity documents found in List B set to expire on or about March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.
DHS instructs employers to record the document information in Section 2 under List B, as applicable, and then employers are instructed to write the word "COVID-19" in the Additional Information Field. Within 90 days after the temporary policy is terminated, employees are required to present a valid, unexpired document to replace the expired document presented when they were initially hired.
When the new document is presented, DHS instructs employers to record the number and other required document information from the additional document presented in the Additional Information Field, and to initial and date the change.
If an employee presents an acceptable, expired List B document that has been extended by the issuing authority, employers should enter the document's expiration date in Section 2 and enter "COVID-19 EXT" in the Additional Information Field. Employers may also attach a copy of the webpage or other notice indicating that the issuing authority has extended the documents.
If you have any questions about proper completion of the Form I-9, please contact Philip Siegel. You can e-mail Philip by clicking here, or you can call him directly at (404) 469-9197.
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Southern California Tire Company to Pay Back Wages After Denying Paid Violating the Emergency Paid Sick Leave Component of the Families First Coronavirus Response Act
On April 29, 2020, the U.S. Department of Labor Wages and Hour Division announced that Discount Tire Centers will pay an employee $2,606.00, two weeks of his regular rate of pay, in back wages for refusing to provide sick leave under the Families First Coronavirus Response Act. The employee's healthcare provider advised that he self-quarantine while awaiting a family member's test for coronavirus and sought paid sick leave. According to the Department of Labor's news release, Discount Tire Centers mistakenly believed that the employee needed to submit proof of a positive coronavirus test to qualify for paid leave.
In contrast, under the Act, an employee qualifies for paid sick time if the employee is unable to work or telework due to a need for leave because the employee:
- is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine related to COVID-19;
- is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
- is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
If leave is required under items 1-4 or 6 above, a full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on an average over a two-week period. If leave is sought under item 5, a full-time employee is eligible for up to 12 weeks of leave at 40 hours per week, and a part time employee is eligible for leave for the number of hours that the employee is normally schedule to work over a 12 week period.
The calculation of wages due is also dependent upon the reason leave is requested. Under items 1-3, the employee is to be paid at their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate. Under items 4 or 6, the employee is to be paid 2/3 of their regular rate or 2/3 of the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate. Under item 5, the employee shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate.
Under the Act, covered employers qualify for full reimbursement through tax credits for all qualifying wages paid under the Act. Further information on the requirements of the Families First Coronavirus Response Act and other useful resources for employers and employees can be found at the Department of Labor Wage and Hour Division's pandemic webpage, which can be accessed here
. Further, this firm is available to consult on all COVID-19 employment concerns.
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