On May 27, 2020, D.C. Mayor Muriel Bowser issued Order 0202-067, which details the Phase One limited reopening of non-essential businesses in Washington, D.C., to begin on Friday, May 29, 2020.  The Mayor’s decision to begin to reopen D.C. follows on the heels of prior orders of Governors Larry Hogan and Ralph Northam to reopen neighboring Maryland and Virginia, respectively.  Governor Hogan allowed certain nonessential businesses in Maryland to reopen on May 15, 2020, and on May 27, 2020, he issued Order 20-05-27-01, expanding its phase one reopening.  Governor Northam’s Executive Order 61 eased certain temporary restrictions throughout most of the Commonwealth of Virginia beginning on May 15, 2020, and Executive Order 62 permits the Northern Virginia Region, Richmond, and Accomack County to begin reopening on May 29, 2020.

Washington, D.C.

The recent Mayor’s Order lifts restrictions in the “Stay at Home” Order and allows certain businesses to reopen or expand operations starting on May 29, 2020, including nonessential retail businesses, barbershops and salons, and outdoor on-site restaurant service, under the following conditions:

  • Nonessential retail businesses
    • can open for outdoor pickup by customers or delivery of items ordered online or over the phone, and can continue Minimum Basic Operations; but
    • cannot open for indoor shopping or indoor pickup of items.
  • Barbershops and hair salons:
    • can provide services by appointment only, provided that services are limited to one customer per barber or stylist in the shop at one time and customer stations are at least six feet apart, and businesses are encouraged to keep customer information for the purpose of contact tracing; but
    • cannot provide services such as waxing, electrolysis, threading, and nail care.
  • Restaurants and other licensed food establishments (including taverns, nightclubs, and mixed-use facilities that serve food and that are approved to provide such outdoor service)
    • can open for outdoor dining, provided the dining occurs in areas approved by the District Department of Transportation and the Alcoholic Beverage Regulation Administration (ABRA), tables are spaced at least six feet apart with no more than six individuals, and sanitation and disinfection protocols are implemented;
    • are encouraged to use a reservation system, preferably online or via telephone, to avoid crowding; and
    • are further encouraged to keep customer logs to facilitate contact tracing.

To operate under Phase One Reopening, businesses must:

  • follow guidance provided by the Department of Health and the protocols required by prior Mayor’s Orders;
  • inform all employees that they should not report to work if sick and of applicable leave provisions; and
  • create a plan regarding COVID-19, including information about testing locations and guidance from the Centers for Disease Control and Prevention.

During Phase One, healthcare providers may continue to offer, or resume offering, services that will not unduly burden hospital capacity or COVID-19 related resources, including outpatient or other surgical procedures.  Thus, pursuant to this Order, non-emergency and elective procedures may resume.

Maryland

Under the extended Phase One Reopening Order in Maryland, religious facilities, retail establishments, manufacturing companies, beauty salons and barber shops, and restaurants may reopen under the following conditions:

  • Retail Establishments may open, but the total number of persons permitted into the establishment cannot exceed 50% of maximum occupancy.
  • Manufacturing businesses and facilities may open.
  • Foodservice Establishments, which includes restaurants, bars, and similar establishments that sell food or beverages, and social and fraternal clubs with dining facilities, beginning May 29, 2020, may serve food and beverages to customers in outdoor seating areas, provided they:
    • require all staff to wear face coverings;
    • ensure patrons are seated at least six feet apart, except for guests from the same household;
    • do not seat groups larger than six persons together, except members of the same household;
    • do not serve food in a buffet format; and
    • clean and disinfect each table between each seating in accordance with CDC and Maryland Department of Health (MDH) guidelines.
  • Beauty Salons and Barber Shops may open to provide certain hair services, provided they:
    • operate on an appointment basis only;
    • require all customers over the age of two to wear face coverings, except to the extent a face covering would make it impossible for services to be performed;
    • require staff to wear face coverings while in areas open to the general public and areas where interaction with other staff is likely;
    • ensure that the number of persons in the salon/shop does not exceed 50% of maximum occupancy; and
    • clean and disinfect the area in which services were performed in accordance with CDC and MDH guidance after providing services to each customer.
  • Religious Facilities may open, but the total number of persons permitted into a religious facility cannot exceed 50% of maximum occupancy.

Under the recent Maryland order, all businesses, organizations, and facilities permitted to open must follow all applicable social distancing guidance published by the CDC and the MDH, as well as any applicable Local Orders or the Secretary’s Directives.

Businesses may require staff and customers or visitors over the age of two to wear face coverings.  Any business that requires the use of face coverings must post signs at each entrance advising customers, visitors, and/or staff about the requirements.  Retail Establishments, however, must continue to comply with Order 20-04-15-01 regarding the use of face coverings and requiring implementation of physical distancing measures.

Virginia

Pursuant to Executive Order No. 61, the Commonwealth of Virginia began its Phase One of reopening on May 15, 2020.  Shortly after issuing that order, however, Governor Northam issued and then amended Executive Order No. 62, which granted the Northern Virginia Region, Richmond, and Accomack County a delay from the Phase One reopening and kept those areas in Phase Zero.  Effective May 29, 2020, Northern Virginia, Richmond, and Accomack County will join the rest of the Commonwealth in allowing certain businesses, including restaurants, nonessential retail businesses, fitness and exercise facilities, personal care and grooming services, indoor shooting ranges, and campgrounds to open with the following restrictions:

  • Foodservice Establishments may operate delivery, take-out, and outdoor dining and beverage service only, provided they:
    • do not exceed 50% of the lowest occupancy load on the certificate of occupancy;
    • seat parties of 10 patrons or less, at tables spaced six feet apart, unless the tables cannot be moved, in which case the parties must be seated at least six feet apart from other parties;
    • staff buffets with servers, and remove self-service food (except beverages), including condiments (which should be removed from tables and dispensed by employees);
    • use only self-service beverage areas that have equipment designed to dispense by a contamination-free method;
    • close bar seats and congregating areas to patrons except for through-traffic;
    • require employees working in customer-facing areas to wear face coverings; and
    • conduct a thorough cleaning and disinfection of frequently contacted surfaces every 60 minutes during operation, and clean tabletops, chairs, and credit card/bill folders in between patrons.
  • Nonessential Retail Establishments:
    • must limit occupancy to no more than 50% of the lowest occupancy load on the certificate of occupancy; and
    • require employees working in customer-facing areas to wear face coverings.
  • Fitness and Exercise Facilities may reopen for outdoor activities only so long as:
    • patrons, members, and guests remain at least ten feet apart during all activities;
    • hot tubs, spas, slash pads, spray pools, and interactive play features remain closed;
    • outdoor swimming pools are open for lap swimming only and are limited to one person per lane;
    • employees working in customer-facing areas wear face coverings;
    • employers clean and disinfect shared equipment after each use;
    • facilities prohibit the use of any equipment that cannot be thoroughly disinfected between uses;
    • businesses provide hand sanitizer stations or hand washing stations for patrons, members, and guests; and
    • all group outdoor activities do not have more than 10 guests, patrons, or members.
  • Personal Care and Personal Grooming services, which include beauty salons, barbershops, spas, massage centers, tanning salons, and tattoo shops, may reopen so long as:
    • occupancy does not exceed 50% of the lowest occupancy load on the certificate of occupancy;
    • there is at least six feet of physical distancing between work stations and only one appointment per service provider at a time;
    • service providers and employees working in customer-facing areas wear face coverings;
    • customers are provided with coverings or customers are asked to bring a face covering with them, which they must wear during the service;
    • services provided are limited to those that can be completed without clients removing their face coverings; and
    • a thorough cleaning and disinfection of frequently-contacted surfaces is conducted every 60 minutes in operation, and all personal care and grooming tools are cleaned and disinfected, or discarded, after each use.
  • Indoor Shooting Ranges may reopen with limitations similar to the above restrictions.

On May 26, 2020, Governor Northam issued Executive Order No. 63, detailing requirements for wearing face coverings inside buildings.  While these requirements, effective May 29, 2020, predominantly apply to patrons, the order specifically requires employees of essential retail businesses to wear face coverings whenever working in customer-facing areas.

*    *    *

As reopening in the DMV moves into Phase One, businesses should begin crafting and refining a written plan to reopen that meets the specified requirements in each jurisdiction in which they operate.  Certainly, the District of Columbia requires employers to have such a plan.  Developing a comprehensive reopening and safety plan is also a best practice that will aid employers in setting expectations for employees, addressing employee safety concerns, and limiting liability.  Employers should also train their staff on the plan and its requirements.

As every jurisdiction opens at different rates, businesses must remain cognizant of the changing requirements and ensure that their policies and practices evolve to meet these requirements.  Epstein Becker & Green, P.C., continues to monitor developments in the DMV and throughout the country.  Readers may contact the authors or their EBG attorney with any questions or needs for assistance in reopening or addressing any other COVID-19-related issue.

In EBSA Disaster Relief Notice 2020-01, “Guidance and Relief for employee Benefit Plans Due to COVID-19 (Novel Coronavirus) Outbreak” ( “Notice”), the DOL provided sponsors of defined contribution plans subject to ERISA relief from DOL enforcement action for failure to timely forward participant contributions and loan repayments to the plan during the period from March 1, 2020, and to the 60th day following the announced end of the National Emergency.   This DOL relief, however, appears to be limited to ERISA violations and does not appear to provide protection from the excise taxes under the Internal Revenue Code (“Code”).

This article summarizes the relief provided by the Notice and highlights legal risks that remain for plan sponsors.

The Notice and the Plan Asset Regulation

The Notice states that the DOL will not, “solely on the basis of a failure attributable to the COVID-19 outbreak”, take enforcement action for a temporary delay in forwarding participant contributions and loan payments to the plan.  To rely on the relief, plan sponsors and their service providers must act, “reasonably, prudently, and in the interest of employees to comply as soon as administratively practicable under the circumstances.”

Unfortunately, the Notice does not include any detail regarding the types of failures that would be solely attributable to the COVID-19 outbreak, or state what factors will be considered in making that determination.  Thus, for example, it is unclear whether a delay due to a system outage or lack of internet access because of increased usage, unavailable personnel, or closure order would be a failure attributable to the COVID-19 outbreak or whether the failure must be due directly to a specific employee of, or service provider to, the plan sponsor testing positive for COVID-19.  Similarly, the Notice does not specify what length of temporary delay is acceptable, or at what point a delay would be deemed no longer temporary.

The Notice is intended to provide relief from the requirements of DOL Regulation Section 2510.3-102 (“Plan Asset Regulation”), which requires employers to pay the contributions and loan repayments to the plan withheld from participants’ wages, as of the earliest date on which such contributions or repayments can reasonably be segregated from the employer’s general assets (i.e., the “Contribution Date”).  Although the Plan Asset Regulation provides a seven-business-day safe harbor Contribution Date for plans with fewer than 100 participants, there is no safe harbor for larger plans.  Rather, for larger plans, the Plan Asset Regulation requires that the Contribution Date  be no later than the 15th business day of the month following the month in which the participant contributions or loan repayments are received by the employer or would otherwise have been payable to the participant.

Failure to Forward Contributions and Payments by the Contribution Date

There are potential consequences under the fiduciary obligations of ERISA and prohibited transaction rules of Section 406 of ERISA and Section 4975 of the Code for plan sponsors that fail to forward participant contributions and loan repayments to a plan by the Contribution Date.  The required corrective actions, penalties, and excise taxes that may arise out of a failure to comply with the Contribution Date can be significant, as summarized below.

  1. Plan sponsors that breach their fiduciary duty by failing to forward employee contributions and loan repayments by the Contribution Date generally must make the plan whole by contributing an amount equal to the plan’s lost earnings for the period between the Contribution Date and the date on which the contributions and loan repayments are forwarded to the plan.
  2. In the case of such a breach of fiduciary duty, the DOL is required to assess a civil penalty under Section 502(l) of ERISA (codified at 29 U.S.C. Code § 1132) against the fiduciary in an amount equal to 20% of the amount recovered by the DOL in a settlement or adverse court decision.  The DOL will, however, reduce the penalty by the amount of any excise tax that the plan sponsor must pay because of a prohibited transaction under Section 4975 of the Code, as discussed below.
  3. If the DOL becomes aware that a plan sponsor has committed a prohibited transaction in violation of Section 406 of ERISA (codified at 29 U.S. Code § 1106), the DOL is required to advise the IRS.
  4. Section 4975 of the Code imposes an excise tax on plan sponsors that do not forward participant contributions and loan repayments by the Contribution Date. The excise tax is equal to 15% of the “amount involved” in such prohibited transaction, which is generally the missed earnings on the contributions and repayments discussed above.  If the transaction is not timely corrected, however, the excise tax increases to 100% of the amount involved.

For plan sponsors that experience a temporary delay attributable to the COVID-19 outbreak in forwarding participant contributions and repayments to the plan, the Notice provides relief from the corrective actions and penalties described in items 1 and 2 above, provided the plan sponsor complies with the requirements of the Notice.

The Notice does not address whether the DOL must still notify the IRS of prohibited transactions (described in item 3) for which the Notice provides relief.  Furthermore, the Notice does not provide relief from the potential liability for excise taxes under Section 4975 of the Code, as described in item 4.

Considerations for Plan Sponsors

 To the extent possible, plan sponsors should forward participant contributions and loan payments to the applicable plan by the Contribution Date.  If that course of action becomes infeasible and the IRS continues not to provide relief under Section 4975 of the Code, reliance on the Notice may become necessary.  In that case, plan sponsors should endeavor to make sure that (1) the delay can be shown to be solely attributable to the COVID-19 outbreak, and not due to unrelated reasons (even partially), and (2) any delay is short, so that it will be plainly deemed temporary.  In addition, such plan sponsors and their service providers will need to act reasonably, prudently, and in the interest of employees to ensure that  contributions and payments are contributed to the plan as soon as administratively practicable under the circumstances.

As featured in #WorkforceWednesday: One way employers can support employee mental health in today’s environment is ensuring that their benefits offerings include telemental health services. Attorneys Cassandra Labbees and Amy Lerman tell us more about telemental health and evaluating your benefits plans.

Video: YouTubeVimeoMP4Instagram.

On May 18, 2020, New Jersey Governor Phil Murphy issued  Executive Order 147, which allows for the resumption of certain outdoor recreational businesses (subject to conditions and restrictions), and loosens some of the restrictions that had been placed on golf courses.   Some of the provisions of Executive Order 147 took effect on May 19, 2020, and others will take effect at 6:00 a.m. on Friday, May 22, 2020.

Outdoor Recreational Businesses or Activities that Have Been Closed

Pursuant to Executive Order 147, the following outdoor recreational businesses or activities that were closed by previous Executive Order 107  (which we wrote about here) are permitted to reopen to the public or their members:

  • Archery ranges;
  • Batting cages;
  • Golf driving ranges;
  • Horseback riding;
  • Shooting ranges; and
  • Tennis clubs.

To reopen, these outdoor recreational businesses or activities must adopt policies that include, at minimum, the following requirements:

  • Require that reservations, cancellations and pre-payments be made via electronic or telephone reservation systems to limit physical interactions. Such policies shall, wherever possible, consider populations that do not have access to internet service or credit cards;
  • Limit capacity to no more than 10 people at the same time;
  • Install a physical barrier, such as a shield guard, between visitors and employees wherever feasible or otherwise ensuring six feet of distance between those individuals, except at the moment of payment;
  • Limit the use of equipment rented or otherwise provided by the recreational business to one person, excluding immediate family members, caretakers, household members, or romantic partners;
  • Demarcate and post signs that denote six feet of spacing in all commonly used and other applicable areas or where people may form a line;
  • Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
  • Provide employees break time for repeated handwashing throughout the workday;
  • Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;
  • Limit occupancy in restrooms that remain open to avoid over-crowding and maintain social distancing through signage and, where practicable, the utilization of attendants to monitor capacity; and
  • Require frequent sanitization of high-touch areas including, at minimum, the following cleaning protocols:
    • Routinely clean and disinfect all high-touch areas in accordance with the Department of Health (“DOH”) and CDC guidelines, particularly in spaces that are accessible to staff, customers, or members, or other individuals, and ensure cleaning procedures following a known or potential exposure in compliance with CDC recommendations;
    • Clean and disinfect equipment that is rented, including but not limited to, firearms, helmets, bats, mitts, gloves, balls, bows, arrows, clubs, and tennis rackets, in accordance with CDC and DOH guidelines; and
    • Train and equip employees to perform the above protocols effectively and in a manner that promotes the safety of the visitors and staff;
  • Place additional restrictions on areas of the business, as necessary, to limit person-to-person interactions and facilitate appropriate social distancing;
  • Immediately separate and send home workers who appear to have symptoms consistent with COVID-19 illness upon arrival at work or who become sick during the day;
  • Promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws;
  • Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19 illness; and
  • Continue to follow guidelines and directives issued by the DOH, the CDC and the Occupational Health and Safety Administration, as applicable, for maintaining a clean, safe and healthy work environment.

Executive Order 147 states that the following activities and business shall remain closed, even where they are located at outdoor recreational businesses or activities that are permitted to open:

  • Picnic areas;
  • Playgrounds;
  • Pavilions;
  • Fitness centers;
  • Locker rooms; and
  • Other buildings, amenities, or facilities, except for restrooms and facilities providing access to an outdoor facility where no other means of access is available.

In addition, amusement parks, arcades, and other places of public amusement (such as a boardwalk) that are located at outdoor recreational businesses or activities permitted to reopen pursuant to Executive Order 147 (or any other Executive Order issued after March 21, 2020), must remain closed pursuant to prior Executive Order 107.

Executive Order 147 also states that brick-and-mortar premises of all-terrain vehicle and dirt bike rental businesses must remain closed.  Consistent with prior Executive Order 142, however, they are permitted to reopen to the public for “curbside pickup,” provided they abide by the applicable terms of Executive Order 142  (which we wrote about here).  These businesses must also include protocols for cleaning and disinfecting rental equipment, in accordance with CDC and DOH guidelines.

Community Gardens shall be allowed to reopen provided they comply with the applicable recommendations and policies set forth in Executive Order 133, which reopened  state parks and requires policies, such as use of face masks, social distancing, operating at 50% capacity and prohibiting organized sporting and other activities and picnicking (and which we wrote about here).

Executive Order 147 reiterates that “[e]mployees, visitors, members, and other individuals should wear face coverings in any setting at outdoor recreational businesses or activities permitted to reopen . . .  and community gardens where other social distancing measures are difficult to maintain, except where doing so would inhibit that individual’s health, or where the individual is under two years of age.”  It also clarifies that “[n]othing in the terms of any Executive Order issued after March 21, 2020 shall be construed to limit, prohibit, or restrict access to benches and other resting places in parks, beaches, lakes, businesses, and recreational areas open to the public for individuals with medical conditions or mobility impairments.”

The above portions of Executive Order 147 that allow for the reopening of certain outdoor recreational businesses or activities are effective at 6:00 a.m. on Friday, May 22, 2020 and expressly supersede certain relevant prior Executive and Administrative Orders.

Loosening of Restrictions on Golf

In Executive Order 133 (which we wrote about here), Gov. Murphy permitted the reopening of golf courses, subject to certain restrictions (including a limit of two players per tee time and a prohibition on use of caddies).  Executive Order 147 loosens some of those restrictions, and now allows:

  • Four players per tee time;
  • Use of “forecaddies” (i.e., a person positioned up ahead on a golf hole whose job is to track golfers’ shots), but not caddies;
  • Club and equipment rentals, provided that such policy requires:
    • Rental equipment be limited to one person, excluding immediate family members, caretakers, household members, or romantic partners; and
    • Protocols for cleaning and disinfecting rental equipment, in accordance with CDC and DOH guidelines.
  • Restrooms to remain open, subject to frequent sanitization pursuant to, at minimum, the following cleaning protocols:
    • Routinely clean and disinfect high-touch areas at appropriate intervals in accordance with CDC and DOH guidelines, particularly in spaces that are accessible to staff, players, or other individuals, including, but not limited to, restroom facilities, counter tops, sinks, door knobs, other common surfaces, and other frequently touched surfaces;
    • Limit occupancy in restrooms that remain open to avoid over-crowding and maintain social distancing through signage and, where practicable, the utilization of attendants to monitor capacity; and
    • Train and equip workers to perform the above protocols effectively and in a manner that promotes the safety of public and staff.

Executive Order 147 states that Paragraph 9 of Executive Order 133 is superseded to the extent it closed golf driving ranges, limited tee times to two players, forecaddies and restrooms, and prohibited club and equipment rentals, but otherwise remains in full force and effect.

On May 19, 2020, the U.S. Department of Labor issued two COVID-19 related Enforcement Memos to provide updated guidance to OSHA investigators: (1) Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (“Revised Recordkeeping Guidance”), which reinstates  employers’ recordkeeping obligations for COVID-19 cases (29 CFR Part 1904) and (2) Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)  (“Updated Enforcement Response Plan Guidance”), which generally returns to  pre-COVID investigation policies, except to maintain COVID-19-related cases as a top priority and mandate the following of certain COVID-19-related precautions.

1.   Revised Recordkeeping Guidance

Under OSHA’s general record keeping requirements, employers must report work-related fatality and significant work-related injuries or illnesses that results in loss of consciousness, days away from work, restricted work or transfer to another job, or medical treatment beyond first aid.

On April 10, 2020, OSHA issued COVID-19-related recordkeeping guidance (the “April 10 Guidance”), which focused on three specific industries:  healthcare, emergency responders and correctional institutions, recognizing the difficulty that these employers might have making determinations about whether workers who contracted COVID-19 did so due to exposures at work. The April 10 Guidance created a rebuttable presumption of work-relatedness and recordkeeping obligations for COVID-19-related fatalities, hospitalizations and positive tests. The April 10 Guidance, did not, however, require employers in other sectors to make work-relatedness determinations unless there was objective evidence of a work connection and the evidence was reasonably available to the employer.

With return-to-work protocols underway in most states as COVID-19 infections rates have begun to slow in certain areas, OSHA has rescinded the April 20 Guidance and has reinstated the agency’s work-relatedness analysis for all employers. Specifically, under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if: (1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC); (2) the case is work-related as defined by 29 CFR § 1904.5 (3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

The Revised Recordkeeping Guidance also lists considerations for investigators (and employers) in determining work-relatedness:

The reasonableness of the employer’s investigation into work-relatedness:

  • Employers should not be expected to undertake extensive medical inquiries, given employee privacy concerns and that most employers’ lack of expertise in this area.
  • When an employer learns of an employee’s COVID-19 illness, the employer should:
    • Ask the employee how he believes he contracted the COVID-19 illness;
    • While respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and
    • Review the employee’s work environment for potential SARS-CoV-2 (e., the virus that causes COVID-19) exposure, taking into consideration any other instances of workers contracting COVID-19 illness.

The evidence available to the employer:

The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination, as well as information an employer may later learn.

The evidence that a COVID-19 illness was contracted at work.

The OSHA investigators should take into account all reasonably-available evidence to prove whether an employer has complied with its recording obligation. OSHA investigators are instructed to give due weight to any evidence of causation, pertaining to the employee illness provided by medical providers, public health authorities, or the employee herself.

OSHA acknowledges  that the analysis cannot be reduced to a ready formula, but notes that certain types of evidence may weigh in favor of (or against) work-relatedness, including for example:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation;
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation; and
  • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in an area with ongoing community transmission and there is no alternative explanation.

Conversely,

  • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread; and
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who has COVID-19; is not a coworker, and exposes the employee during the period in which the individual is likely infectious.

If, after a reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.

2.   Updated Enforcement Response Plan Guidance

The Updated Enforcement Response Plan Guidance for COVID-19 provides instructions and guidance to OSHA Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports.  It rescinds OSHA’s prior April 13, 2020 Interim Enforcement.

In geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to its pre-COVID-19 practices when prioritizing reported events for inspections, except that:

  • OSHA will continue to prioritize COVID-19 cases;
  • OSHA will utilize non-formal phone/fax investigations or rapid response investigations in circumstances where OSHA has historically performed on-site inspections when necessary to assure effective and efficient use of resources to address COVID-19-related events; and
  • In all instances, the Area Director (AD) will ensure that CSHOs utilize the appropriate precautions and personal protective equipment (PPE) when performing inspections related to COVID-19.

In geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission of COVID-19, OSHA will:

  • Continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. Particular attention for on-site inspections will be given to high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces with high numbers of complaints or known COVID-19 cases.
    • Where resources are insufficient to allow for on-site inspections, inspections for these types of reported events will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available.
    • Where limitations on resources are such that neither an on-site nor a remote inspection is possible, OSHA will investigate using a rapid response investigation (RRI) to identify any hazards, provide abatement assistance, and confirm abatement. RRIs are OSHA’s offsite investigation process conducted in response to an employer’s report of a severe injury. The RRI generally does not involve an onsite inspection of the workplace, rather, an employer is expected to conduct its own investigation into the work-related incident and share its findings with OSHA.
    • OSHA will develop a program to conduct monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.

Both May 19, 2020 memoranda, are “intended to be time-limited to the current public health crisis,” and will be effective on May 26, 2020 and will remain in effect until further notice.

As Michigan businesses begin the process of reopening, they must comply with Governor Gretchen Whitmer’s Executive Order 2020-91 (“Order”) regarding “Safeguards to protect Michigan’s workers from COVID-19.”  The Order includes detailed safety standards, with which employers in construction, manufacturing, retail, research labs, offices and restaurants, must comply, for the stated goal of protecting workers and customers from the novel coronavirus.

Whereas the specific safety standards required by the Order differ by industry, all businesses or operations that are permitted to reopen under any current or future executive orders must, at a minimum:

Preparedness and Response Plan – Develop a COVID-19 preparedness and response plan that can be readily provided to employees, labor unions and customers, via website, internal network, or by hard copy.  The plan, which must be consistent with OSHA’s “Guidance on Preparing Workplaces for COVID-19,” must be developed by June 1, 2020, or within two weeks of resuming in-person activities, whichever is later.

Work Site Supervisor – Designate one or more work site supervisors to monitor COVID-19 control strategies, and this person must be present at all times that workers are on-site.

Training – Provide COVID-19 training to employees that covers, at a minimum: (a) workplace infection-control practices; (b) proper use of personal protective equipment; (c) steps the employee must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19; and (d) how to report unsafe working conditions.

Screening – Conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19.

Social Distancing – Keep everyone on the worksite premises at least six feet apart from one another to the maximum extent possible, including through the use of ground markings, signs, and physical barriers, as appropriate to the worksite.

Face Coverings – Provide non-medical grade face coverings to their employees, and require employees to wear face coverings when they cannot consistently maintain six feet of separation from other individuals in the workplace.  Face shields should be considered when employees cannot consistently maintain three feet of separation from other individuals in the workplace.

Cleaning – Increase facility cleaning and disinfection to limit exposure to COVID-19, especially on high-touch surfaces (e.g., door handles), paying special attention to parts, products, and shared equipment (e.g., tools, machinery, vehicles).  In addition, employers must adopt protocols to clean and disinfect the facility in the event of a positive COVID-19 case in the workplace.  Employers must also make cleaning supplies available to employees upon entry and at the worksite and provide time for employees to wash hands frequently or to use hand sanitizer.

Positive and High Risk Cases – When an employee is identified with a confirmed case of COVID-19, within 24 hours, notify both: (a) the local public health department, and (b) any coworkers, contractors, or suppliers who may have come into contact with the person with a confirmed case of COVID-19.  Employers may not discharge, discipline, or otherwise retaliate against employees who stay home or who leave work when they are at particular risk of infecting others with COVID-19. Employer must also establish a response plan for dealing with a confirmed infection in the workplace, including protocols for sending employees home and for temporary closures of all or part of the worksite to allow for deep cleaning.

Travel – Restrict business-related travel for employees to essential travel only.

Additional Considerations – Encourage employees to use personal protective equipment and hand sanitizer on public transportation.  Promote remote work to the fullest extent possible.  And adopt any additional infection-control measures that are reasonable in light of the work performed at the worksite and the rate of infection in the surrounding community.

Notably, the Order expressly states that the foregoing workplace standards have the “force and effect of agency rules and will be vigorously enforced by the agencies that oversee compliance with other health-and-safety rules.”  In addition, any failure to abide by the rules will also constitute a failure to provide a workplace that is free from recognized hazards within the meaning of the Michigan Occupational Safety and Health Act.

Epstein Becker Green will continually monitor how the COVID-19 pandemic will impact Michigan employers and provide updates.  In the meantime, should you have any questions or wish further guidance on this or any COVID-19 issue during the current crises, please contact Adam S. Forman, Christopher A. McMican, or your Epstein Becker Green attorney.

On April 30, 2020, the California Supreme Court (“Court”) ruled that claims brought pursuant to California’s Unfair Competition Law (“UCL”) and the False Advertising Law (“FAL”) are not entitled to a jury trial.

In Nationwide Biweekly Administration, Inc. et al., v. The Superior Court of Alameda County, the federal Consumer Financial Protection Bureau (“CFPB”) brought an action against Nationwide Biweekly Administration, Inc. (“Nationwide”) and others, alleging that Nationwide and the other defendants falsely advertised their services and as a result operated unfairly relative to their competitors in violation of the UCL and the FAL. The CFPB sought both injunctive relief and civil penalties.

Nationwide petitioned the court for a jury trial because the government sought civil penalties in addition to equitable relief, and CFPB moved to strike the jury claim. The trial court ruled in favor of CFPB holding that there is no guarantee of a jury trial and Nationwide appealed. On appeal by Nationwide, the Court of Appeals, reversed, ruling that the California Constitution should be interpreted to require a jury trial where the government seeks civil penalties. CFPB appealed to the California Supreme Court, which granted review.

The issue presented to the Court, was to decide whether actions brought under the UCL and FAL are “equitable claims” or “legal claims.” While legal claims are generally entitled to a jury trial, equitable claims are not. Most statutes provide plaintiffs the opportunity to collect damages or correct the harm that occurred to them. But, the FAL and the UCL fall into a different category of laws that instead provide for injunctive relief and civil penalties. CFPB argued on appeal that UCL and FAL claims and relief sought were equitable in nature and therefore did not entitle Nationwide to a jury trial because injunctions are court orders that require a party to cease its wrongful conduct (but not to correct harm), and civil penalties are fines (not damages). The Court agreed with the CFPB.

In its decision, the Court found that the legislature intended the UCL to be equitable in nature—and therefore not subject to a jury trial—for two reasons. First, the UCL statute originally only provided for injunctive relief (an equitable remedy), and second, the broad language of the statute evidences a legislative intent that it should be interpreted by the court and not a jury. With regard to the FAL, the Court similarly found that “past FAL decisions and the numerous FTC guidelines indicate, the determination whether an advertising or promotional practice should properly be found untrue or misleading within the meaning of the FAL depends upon the exercise of the type of equitable discretion and judgment typically employed by a court of equity.” In addition to ruling that Nationwide had no right to a jury trial under either the FAL or the UCL because claims under the two laws are equitable in nature, the Court also clarified and ruled that the California Constitution does not guarantee a jury trial under either statutes.

The Court was careful to note, however, that its decision was limited to the UCL and the FAL, and “express[ed] no opinion” on other statues that may provide for injunctive relief and civil penalties. Nevertheless, that the same logic that applies to the UCL and the FAL would appear to apply similarly to other statutes that likewise provide only for civil penalties, such as the Private Attorneys General Act (“PAGA”). Accordingly, the Court’s holding in Nationwide offers potentially strong support for arguing that PAGA, like the UCL and FAL, does not guarantee right to a jury trial.

On April 7, 2020, the California Court of Appeals (the “Court”) upheld summary judgment for two professional employer organizations (referred to in the decision as a “staffing agencies”) accused of harassment and discrimination by one of its “leased” employees. In Ducksworth v. Tri-Modal Distribution Services, the Court found that joint employers—and more specifically staffing agencies—cannot be held liable for harassment and discrimination claims absent a showing that they participated in or were involved in the alleged wrongful conduct.

Plaintiffs Bonnie Ducksworth and Pamela Pollock worked for decades as customer service representatives at Tri-Modal without ever being promoted, although Tri-Modal had promoted others. The two sued Tri-Modal Distribution Services and the two staffing agencies, Scotts Labor Leasing Company, Inc., and Pacific Leasing, Inc., that were their technical employers, claiming that they were denied promotions on account of their race. They brought claims of harassment and discrimination against all three companies.

Scotts and Pacific moved for summary judgment on the grounds that they could not be held liable because they were completely uninvolved in Tri-Modal’s promotion process and decision-making and were similarly uninvolved in the alleged harassment. The trial court agreed and granted their motion. Plaintiffs appealed.

In affirming summary judgment for Scotts and Pacific, the Court relied on several undisputed facts, which established that Scotts and Pacific had no involvement in the alleged wrongful conduct. For example, plaintiffs admitted that the staffing agencies had no input, nor did they have any “authority or make any decision the regarding the promotion of any employees leased to Tri-Modal.” Further, the plaintiffs admitted that they never made any work-related complaint to either staffing agency and never requested a raise or promotion from either. Moreover, Scotts and Pacific did not engage with the Plaintiffs on a day-to-day basis.

The Court held that Scotts and Pacific were essentially “innocent bystanders” and because of their lack of involvement could not be held liable simply by virtue of being the entities that leased the plaintiffs to Tri-Modal. The Ducksworth decision offers guidance to employee leasing companies, staffing agencies and other joint employers, that to reduce the risk of potential liability for workplace claims, they avoid becoming involved in the day-to-day workplace activities and employment related decision-making regarding their assigned employees.

Our colleagues

Following is an excerpt:

The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test.  A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation. Indeed, a dual-marked ballot might also mean that the employee who completed the ballot actually did not want to take a position either way.   The treatment of such a single dual-marked ballot can have dramatic consequences in a close election, as was the case in Providence Health & Services. …

Read the full article here.