entering the new normal · 2020-07-31 · entering the new normal how to minimize workplace...

Entering the New NormalHow to Minimize Workplace Liability

Featuring Jason Borchers

This program has been approved for 1 (HR (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

Presented by

JASON “JAKE” BORCHERS

Special CounselLittler Mendelson, P.C.

Fresno559-244-7500

jborchers@littler.com

The New Normal

“Even after the order is lifted, workplaces will continue to look and operate differently until a COVID-19 vaccine is available. Continued physical distancing, teleworking and other measures will continue to be

necessary to keep workers and customers safe.”

- Washington Governor Jay Inslee

Employment Laws Impacting Our Post-COVID-19 Workplace

• The Families First Coronavirus Protection Act (FFCRA)

• The Paycheck Protection Act (PPA)

• State and Local Social Distancing Ordinances

• The Worker Adjustment and Retraining Notification Act (WARN)

• Title VII of the Civil Rights Act of 1964

• Family Medical Leave Act (FMLA)

• Workers’ Compensation

• National Labor Relations Act (NLRA)

• Workplace Safety (OSHA)

• Employee Retirement Income Security Act (ERISA)

• The Americans With Disabilities Act (ADA)

• Employee Privacy Laws

• Fair Labor Standards Act (FCRA)

• State Wage and Hour Laws

Litigation We Are Seeing Already

• Workplace Safety

• Workers’ Compensation Claims

• Invasion of Privacy

• Wage and Hour

• WARN Act

Agenda

• Minimizing Legal Exposure Returning to Work• Creating a Return to Work Strategy• Employee COVID-19 Screening• Documentation and Employee Privacy• Managing Employees Returning to Work• Managing Employees Fearful of Returning to Work• Wage and Hour Compliance

• Managing Facility Closures

• Recent COVID-19 Updates

Managing Employees Returning to Work

Reassessing the Workplace

• Create a Reopening Plan• Considerations should include, at

minimum:• Assessment of federal/state/local

restrictions• Workplace safety• Workflow• Staffing• Performance expectations• Compensation• Infectious disease response plan

• Communicate plan to employees

Employee Health Screenings

Health Screening and Testing – Legal Issues

• Types of allowable testing

• Pay for time spent waiting to be checked, and reporting time

• Availability of time off

• Exclusion of symptomatic employees – how to do so discreetly?

• Consideration of safety, privacy and recordkeeping issues

Types of Testing

• Employee Self-Administered Testing• Questionnaires• Temperatures

• Employer Administered Testing• Temperature checks• Anti-Virus Swab Tests• Antibody Blood Testing

• Physician Administered Testing

Antibody Testing

Q: CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?

No. • Unlike anti-viral test, constitutes a “medical examination”• Does not meet ADA’s “job related and consistent with business

necessity” standard• Unlike a viral test – which tests for an active case of COVID-19 – an

antibody test only tests whether ever infected• Interim guidance. Stay tuned…

Working Time – Temperature Checks / Health Questionnaires

• In states that follow federal law…• Completing temperature checks or health

questionnaires, or waiting in line to do the same, at work likely not “working time”

• But long wait times may influence this issue…• Stagger times• Consider paying extra 5-10 minutes to cover screening

• Potential risk: Arizona, Connecticut, Illinois, Maryland, Minnesota, Nevada, New Jersey and Oregon

• Probable risk: Arkansas, California, Colorado, DC, Pennsylvania, Washington, and Wisconsin

• What about physician visits?

Working Time – Temperature Checks / Health Questionnaires

• In states that follow federal law…• Completing at home likely not working time too

• States with higher risks from prior slide?• If it is working time, “commute time” converts to work under “continuous

work day” theory• Solutions?

• Allow temperature screens or health questionnaire checks to take place any time during the day before reporting to work

• Untether to start of shift or coming to work• Pay 5 - 10 minutes to cover screening

EmployeePrivacy

Medical Privacy

• Health Insurance Portability and Accountability Act (HIPAA)?• Applies to health care entities and insurers and some others in their role as providers or health

insurers• Does not apply to employers in their role as employers!

• State Privacy Laws• Employer who receives medical information must “ensure the confidentiality and protection from

unauthorized use and disclosure of that information”

• Americans With Disabilities Act• Applies to “Medical Records”• Separate forms and in separate files from regular personnel records • Protected medical information must be treated as confidential. Need to know basis only!

Confidentiality of Information

May an employer store COVID-19 related medical information in existing medical files, including the results of taking an employee's temperature or self-identification as having this disease, or must the employer create a new medical file system solely for this information?

Yes. All medical information must be stored separate and apart from the employee’s regular personal records, but may be stored in an existing employee medical file.

If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?

Yes. The employer needs to maintain the confidentiality of this information.

Confidentiality of Information

May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?

May a temporary staffing agency or a contractor that places an employee in an employer's workplace notify the employer if it learns the employee has COVID-19?

Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer/client may need to determine if this employee had contact with anyone in the workplace.

What if…Employees Do Not Want to Return to

What If Employees Refuse to Return?

A generalized fear of returning to work not protected. However…• More pressure points for the unsafe workplaces• CARES Act unemployment law – reasonable fear allows a quit with extra

unemployment• What is “reasonable fear”?• Many state laws require notifying employees of their unemployment rights

• Paid emergency leave law (FFCRA) • 6 reasons for paid sick leave (two weeks)• Child care needs allow up to 10 more weeks of paid leave

• Also an issue for union organizers

What If Employees Refuse to Return? (Cont.)

1. Create and Document a COVID-19 Specific Safety Plan

2. Communicate the Plan

3. Identify Potential Protected Leaves/Whisteblower Complaints

4. Consider Accommodations

5. Document!

6. Make It Clear You Will Report Refusals

7. Report to Unemployment

What if…COVID-19 Shows Up in the Workplace?

Exposure Control Plan

Before returning employees to work, develop your exposure control plan, including protocols for:

• Sending employees home• Instituting contact tracing to identify other employees;• Cleaning the workplace• Recordkeeping• Reporting to health agencies (only required in a very few jurisdictions);• Responding to complaints• Dealing with “perceived positives” (as opposed to confirmed diagnosis)• Reporting to OSHA

What About Primary Exposure In the Workplace?

Employee is diagnosed with COVID-19

Contact local Department of Public Health for guidance

Identify individuals who may have been

exposed

Clean the workplace (abate the hazard)

Options: Close down the facility for 14 days

and offer PTO/Sick Leave/Telecommuting

CDC Recommended Cleaning Protocols

If it has been less than 7 days since the COVID-19 positive individual was at the workplace:Close off any areas used for prolonged periods of time by the sick person and open widows or increase air ventilation to shorten the time it takes respiratory droplets to be removed from the air.

If more than 7 days have passed since the COVID-19 positive individual was at the workplace: Additional cleaning/disinfection is not necessary.

If possible, wait up to 24 hours before beginning cleaning and disinfecting.

CDC Recommended Cleaning Protocols

• Clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the confirmed-case focusing especially on frequently touched surfaces. This includes shared electronic equipment like tablets, touch screens, and keyboards used by the ill persons.

• Cleaning staff must have the appropriate PPE – PPE does not include respirators, but does include disposable gloves and gowns for all tasks, including handling trash.

• Gloves and gowns should be removed carefully to avoid contamination of the wearer and the surrounding area.

• Cleaning staff should immediately report breaches in PPE (e.g., tear in gloves) or any potential exposures to their supervisor.

Wage & Hour Concerns

Working Time – Cleaning Protective Equipment?

• Generally wash and wear items that can be washed with other personal items … and

• Provide a sufficient, reasonable number of items, then

• Cleaning masks is not generally“working time.”

Working From Home - Reminder

• Home work for administrative and corporate employees difficult to track

• Need to scrutinize continuously how we are capturing home work time

• Reimbursement for business expenses?

“Hazard” or “Hero” Pay Issues – Non-Exempt Employees

• Non-Exempt - Pay only on “straight time” hours?• Can pay different rate for different work• Work performed during overtime hours is not

“different” from work performed during straight time hours

• Just say no

• Exempt – Can pay additional compensation without jeopardizing exempt status

• Special California Wrinkle – Production or Flat Sum Bonus

• Production Bonus: usually tied to hours worked (i.e., gets larger the more hours worked)• Use FLSA half-time overtime calculation• Ex: $500 bonus ÷ 96 hours worked in pay period x ½ x

16 overtime hours = $41.67• Should be earned and paid as an hourly rate (e.g.,

$2.00 per hour in addition to base hourly rate)

• Special California Wrinkle – Production or Flat Sum Bonus• Flat Sum Bonus: not tied to hours worked (i.e., does not increase

no matter how many hours worked)• Must use CA 1.5 overtime calculation• Ex: $500 bonus ÷ 80 regular hours worked in pay period x 1.5 x

16 overtime hours = $150.00• Avoid lump sum bonuses (e.g., $200 each week, $300 if work

through the end of the month)

Payment for Extra Tasks

• Additional pay to compensate employees for additional cleaning and disinfecting tasks

• Must be included in the regular rate for non-exempt employees

Notice Requirements for Change in Pay

• Most states require prior notice of change to be provided

• Wage Theft Protection Act notices• California, Minnesota, and New York specifically require

updated notice be provided

• Pay reductions may require significant prior notice• Ex: Missouri requires 30 days prior notice

Thanks for joining us!pridestaff.com

This program has been approved for 1 (HR (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

entering the new normal · 2020-07-31 · entering the new normal how to minimize workplace...

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