Part 8 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

If there has been one, singular guiding principle or mantra that has sustained us, challenged us, and in some cases, inspired us over these last few months, this is it: “Don’t Waste the Crisis.” It is also the mantra that will propel us forward.

Flashback to the eve of Governor Cuomo’s Executive Order in March, shutting down New York State and New York City as the nation and the world watched. In the countdown leading up to its effective date, there was a palpable feeling of existential unrest – that life as we knew it was about to change and the duration of the change was unknown, but the nature and impact of the change felt heavy already.

The shut-downs initially made many us wonder – what are we going to do during this time? – and led many to think about catching up on all the things we ever wanted to watch, read, listen to, stream, learn, reorganize, redecorate, and remodel – all while potentially wearing athleisure (check, done).

But as the pandemic persisted, the questions evolved along more practical as well as philosophical lines, such as: What are we going to do with this time? Where are we going to live? Where will we work? How will we work?

And, now, we have reached an inflection point where we should consider what have we learned from this period that will make us better, stronger, and more resilient. How will this transform us as individuals, as families, as social creatures and as organizations? How will history remember what we did with this period? And what and how much of what we learned and accomplished will be (or should be) carried forward into whatever comes next?

What We Learned Is Powerful: Don’t Let it Go to Waste…

  1. Work Is Something That You Do – Not Necessarily Somewhere You Go

For many, and aside from those brave men and women serving on the frontlines whose workplace has by necessity remained at a physical site, the pandemic has caused us to shift our collective psychology around the nature and function of work itself. From an idea of work being somewhere you go – to work becoming something that you do. The balance, of course, is to avoid a situation where employees feel that they are working from home, and not living at work. One size is not going to fit all employers. A critical look at the right balance and mix that is right for your workforce will be a prudent exercise.

  1. We Always Had The Technology – We’re Only Just Now Leveraging Its Full Potential

Zoom, Slack, Google Chat, FaceTime, and WebEx are not new technologies. They have been around, invested in and accessible for years. But they have been underutilized, latent resources – until now, when the need and pace of their use has been accelerated. Companies should consider whether their employees can continue to work from home, and if so, how technology might facilitate that happening effectively, on a more permanent basis. Many companies are offering tech stipends to upgrade home equipment, including ergonomic furniture, printers, professional lighting, and a myriad of other tech gadgets. Others are working on their backend infrastructure, VPNs, and shared file services to upgrade functionality to improve the remote work experience, as well as to ensure data privacy and security are maintained. (Zoom bomb anyone?)

  1. Destigmatizing and Rethinking Remote Working

We may very well be at an inflection point in considering whether a job or function must or should be done from the office – ever. The next phase will likely see one of three models of working: (1) permanent remote working, (2) permanent in-office working, and (3) a hybrid model where employees will be expected to come into the physical office a certain number of days or certain weeks, and may or may not have a permanent place of working (e.g., transitioning to the “hoteling” model that is common in consulting firms).

Each model will have their value. Each will have their challenges. But, we may indeed be at a point where we resist automatically concluding that remote working is suboptimal and instead consider whether there are strategic advantages and cost saving opportunities, such as reducing rent, real estate and related costs with a smaller on premises work force. Certainly, many roles and job-duties will remain that cannot be performed remotely, but employers should look closely at the jobs and tasks that have been performed remotely for several months and evaluate what that might mean for flexible-work, part-time remote work, or “agile” working.

With many employees performing their roles effectively in a remote-work environment, companies may also want to reimagine using remote-work as a reasonable accommodation for an employee seeking one because of a disability – or for other reasons, even if not legally required. Plainly, if an employee who performed his job remotely during the pandemic requires emergency leg surgery putting him on crutches and unable to commute to work, an employer will have a difficult time claiming that performing the role remotely for several months would create an “undue burden” on the business.

  1. Staying Relevant and Connected Takes Work

Whether it be Zoom cocktail hours, coffee breaks, networking sessions, galas, concerts or conferences, the pandemic has forced us to think about new ways to stay top of mind for clients and partners, how to sell, and how to cut through the seemingly endless clutter of emails, webinars, networking sessions, and electronic/screentime overload. Managing an agile or entirely remote workforce has also made us rethink the concepts of face time, keeping employees engaged, and also thinking through new and creative ways of encouraging innovation, at a time when in-office, creative collisions are largely not possible. Inevitably, over the course of the last several months, you may have met or interacted with more colleagues, clients, and other connections – some new, some rekindled – and many more than you could have ever engaged with if you had to be in a physical office or jump on a plane for a meeting. Build on those relationships and effective ways of connecting in the next phase.

  1. Culture Comes Through In Crisis

As Peter Drucker famously said, “Culture eats strategy for breakfast.” We agree and would add, “…and culture comes through in a crisis.” How each organization has approached its short, medium and long-term response to the pandemic speaks volumes to the current workforce, the market, and will be noted by investors, recruits and history going forward – for good and for bad. Core to the cultural response is how management communicates with its employees, the level of transparency around issues of policy changes, leaves and accommodations, compensation and benefits, and even how a company approaches and executes on furloughs, reductions in force, and bringing back the workforce. This is where messaging and action from the senior leadership teams can truly shape the identity, culture and values of the organization for years to come.

The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently updated its COVID-19 Frequently Asked Questions (“FAQ”) regarding employers’ reporting obligations during the COVID-19 pandemic.

As previously reported, effective as of May 26, 2020, OSHA has declared COVID-19 a recordable illness for all employers.  Thus, employers are responsible for recording workplace cases of COVID-19 on a OSHA 300 Log if the case:  (1) is confirmed COVID-19, as defined by Centers for Disease Control and Prevention (“CDC”); (2) is work-related, defined as “resulting from events or exposures occurring in the work environment;” and (3) involves one or more of the general recording criteria, which include death, days away from work, medical treatment beyond first aid, or loss of consciousness.  Moreover, employers must report to OSHA any work-related fatalities or hospitalizations due to COVID-19.

An employer’s work-related analysis is critical, as only work-related cases of COVID-19 must be recorded and/or reported to OSHA. Per OSHA’s Revised Enforcement Guidance, in order to determine whether a COVID-19 case is work-related, employers may ask the infected employee how they believe they became infected, and while respecting employee privacy, may discuss at-work and out-of-work activities that may have led to the illness.  Employers should also review the employee’s work environment for potential sources of exposure.  Without an alternative explanation regarding COVID-19 exposure, there is a rebuttable presumption that COVID-19 exposure was work-related.  If an employer determines the COVID-19 case is not work-related, then the employer need not record the illness, but must keep its “work-relatedness” analysis in case questioned or investigated by OSHA at a later date.  While there is no specific guidance on the work-related analysis retention, OSHA has a five-year retention requirement for the OSHA 300 Logs (and the five-year clock begins at the end of the calendar year that these records cover).  Thus, it would be prudent to maintain any OSHA work-relatedness analysis and any OSHA 300 Logs for at least a five year period.

OSHA’s recently revised FAQ provide clarity on employers’ reporting obligations for work-related hospitalizations or fatalities due to COVID-19.  In relevant part, the FAQ set forth instructions on how to report certain work-related cases to OSHA, and the timing of such reports. The relevant Reporting FAQ state the following:

  1. How do I report the fatality or in-patient hospitalization of an employee with a confirmed, work-related case of COVID-19?

You may report a fatality or in-patient hospitalization using any one of the following:

      • Call the nearest OSHA office;
      • Call the OSHA 24-hour hotline at 1-800-321-OSHA (6742); or
      • By electronic submission, report online.

Be prepared to supply:  Business name; name(s) of employee(s) affected; location and time of the incident; brief description of the incident; and contact person and phone number so that OSHA may follow-up with you (unless you wish to make the report anonymously). 

  1. An employee has been hospitalized with a work-related, confirmed case of COVID-19. Do I need to report this in-patient hospitalization to OSHA?

Under 29 CFR §1904.39(b)(6), employers are only required to report in-patient hospitalizations to OSHA if the hospitalization “occurs within twenty-four (24) hours of the work-related incident.” For cases of COVID-19, the term “incident” means an exposure to SARS-CoV-2 in the workplace. Therefore, in order to be reportable, an in-patient hospitalization due to COVID-19 must occur within 24 hours of an exposure to SARS-CoV-2 at work. The employer must report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19. Thus, if an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, and determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination. See 29 CFR §§1904.39(a)(2), (b)(7)-(b)(8).

Employers should note that 29 CFR §1904.39(b)(6)’s limitation only applies to reporting; employers who are required to keep OSHA injury and illness records must still record work-related confirmed cases of COVID-19, as required by 29 CFR §1904.4(a) . . . (emphasis added). 

  1. An employee has died of a work-related, confirmed case of COVID-19. Do I need to report this fatality to OSHA?

Under 29 CFR §1904.39(b)(6), an employer must “report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident.” For cases of COVID-19, the term “incident” means an exposure to SARS-CoV-2 in the workplace.  Therefore, in order to be reportable, a fatality due to COVID-19 must occur within 30 days of an exposure to SARS-CoV-2 at work.  The employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19. Thus, if an employer learns that an employee died within 30 days of a work-related incident, and determines afterward that the cause of the death was a work-related case of COVID-19, the case must be reported within eight hours of that determination . . . (emphasis added).

These FAQ clarify that exposure to COVID-19 in the workplace is the ‘work-related incident’ that starts the clock for reporting COVID-19 hospitalizations or fatalities.  Thus, if an employer learns that an employee was hospitalized within 24 hours of a work-related incident, and determines later that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported to OSHA within 24 hours of that determination.  More stringently, if an employer learns that an employee has died within 30 days of a work-related incident, and determines later that the cause of death was a work-related case of COVID-19, the case must be reported to OSHA within 8 hours of that determination.

In sum, to comply with federal OSHA requirements during the COVID-19 pandemic, all employers must: (1) evaluate the work-relatedness for any COVID-19 case in the workplace, and maintain this analysis in the event of a later OSHA audit; (2) record COVID-19 confirmed work-related cases on an OSHA 300 Log; and (3) report to OSHA any work-related COVID-19 fatalities and hospitalizations, and pay particular attention to the new timing requirements. Of course, employers should note that many states have their own state OSHA rules and requirements (for example, California recently issued CAL/OSHA notice and reporting requirements); thus, employers should ensure compliance with both federal and state OSHA requirements in their jurisdictions.

EBG will continue to monitor OSHA developments and will provide updates on any recordkeeping or reporting requirements as the COVID-19 pandemic evolves.  For more information or questions regarding the OSHA FAQ, please contact the authors of this article, Robert O’Hara at rohara@ebglaw.com or Elizabeth Houghton at ehoughton@ebglaw.com.

In this installment of Epstein Becker Green’s “Class Action Avoidance” webinar series, attorneys Lauri F. Rasnick and Frank C. Morris, Jr. address potential discrimination class actions related to office reopenings, the changing way in which we work, and the impact that the pandemic has had on individuals in protected classes.

As many employers think about reopening their offices and other workspaces, they should consider how they do so very carefully in order to avoid decisions that may adversely impact certain protected groups or lead to disparate decision making.

This webinar outlines certain strategies employers can use to safely and inclusively call employees back to work, including implementing a recall protocol, performing pay equity analyses, providing COVID-19 safety training, and practicing involved oversight.

Watch the webinar below, on our website, or on YouTube. Learn more about the full Class Action Avoidance Series.

As featured in #WorkforceWednesday:  While some might expect U.S. Supreme Court nominee Amy Coney Barrett to be a pro-employer judge, her record on labor and employment decisions could tell a different story. Attorney David Garland discusses Judge Barrett’s record and what it could mean for employers should she be confirmed to the High Court. Read more about Judge Barrett’s record (subscription required).

Video: YouTubeVimeoMP4Instagram.

After repeated introductions over the course of several years in both the U.S. House of Representatives and the Senate, on September 14, 2020, the House passed HR 2694, the Pregnant Workers Fairness Act (“PWFA”). The stated purpose of the legislation is to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.” If passed by the Senate and signed into law, the Act would clarify employer obligations set forth in the 2015 United States Supreme Court decision in Young v. UPS and subsequent Equal Employment Opportunity Commission (“EEOC”) guidance.

The PWFA

The PWFA largely tracks the accommodation requirements under the Americans with Disabilities Act (“ADA”). Like the ADA, employers with 15 or more employees must provide reasonable accommodations to qualified employees unless the employer can show that such an accommodation “would impose an undue hardship.” The legislation defines the term “qualified employee” as “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if—

  1. any inability to perform an essential function is for a temporary period;
  2. the essential function could be performed in the near future; and
  3. the inability to perform the essential function can be reasonably accommodated.”

Examples of a pregnancy-related reasonable accommodation include additional breaks to drink water, a stool to rest upon, limiting heavy lifting, and temporary reassignment to different work. Also like the ADA, the PWFA requires that employers engage in an “interactive process” to determine the efficacy and feasibility of a requested accommodation.

Under the PWFA, it would be unlawful for an employer to deny reasonable accommodations to a qualified employee for the “known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.” The PWFA prohibits employers from requiring a qualified employee to (i) take paid or unpaid leave if a non-leave reasonable accommodation can be provided, or to (ii) accept an accommodation that is not “reasonable.” The PWFA would also make it unlawful for employers to take an adverse employment action against a qualified employee who requests or uses a reasonable accommodation related to pregnancy, childbirth or a related medical condition, or to deny “employment opportunities” to a qualified employee because of her need for a pregnancy-related accommodation.

As with the ADA and other anti-discrimination statutes, the PWFA would also prohibit retaliation against any employees who seek pregnancy or pregnancy-related accommodations or engage in protected activity related to the PWFA. Likewise, the anti-retaliation provision protects any employee who has filed a charge or assisted or participated in an investigation or proceeding under the PWFA. The PWFA, however, provides an affirmative defense to employers who have made “good faith efforts” to engage in the interactive process with an employee who seeks reasonable accommodations under the PWFA.

The EEOC would be the administrative agency tasked with enforcement of the PWFA. The EEOC would also be responsible for issuing PWFA regulations within two years of enactment of the proposed law. The rights and remedies afforded by the PWFA explicitly track those provided under Title VII of the 1964 Civil Rights Act (“Title VII”), including compensatory and punitive damages and attorneys’ fees. If enacted, as currently drafted, the PWFA would become effective upon enactment.

Young v. UPS and Subsequent EEOC Guidance

The PWFA seeks to address some of the questions arising out of the Supreme Court’s decision in Young v. UPS, 135 S. Ct. 1338 (2015) (“Young”) and to clarify employer obligations to pregnant workers. In Young, the Court narrowly interpreted the Pregnancy Discrimination Act (“PDA”), which added language to Title VII to provide that sex-based discrimination includes discrimination on the basis of pregnancy. The Court held that employers that provide accommodations to workers who are “similar in their ability or inability to work” need not give pregnant workers preferential treatment, but also may not deny accommodations to pregnant workers because such an accommodation would be more costly or less convenient than accommodations provided to other, similarly-situated workers. Young was intended to provide clarity to employers regarding their obligations under the PDA to accommodate pregnant workers. The decision, however, arguably created more uncertainty for employers.

In response to the Young decision, the EEOC issued guidance regarding the accommodation of pregnant workers. As the guidance explains, pregnancy is not in and of itself a disability under the ADA, although a condition arising from pregnancy or childbirth may be a temporary disability covered by the ADA. Further, the guidance provides that an employer may be required to accommodate certain employees who are pregnant or have a related condition (even absent a disability) under the PDA or under some states’ accommodation laws.

The Young decision and the EEOC guidance have, however, left a gap in the understanding of employers’ obligations to pregnant workers who do not have a demonstrable pregnancy-related disability, but who do need a form of accommodation merely as a result of their pregnancy. The PWFA seeks to bridge that gap by providing clear directives regarding the steps that employers must take when a qualified employee who is pregnant requests an accommodation during a pregnancy, that does not otherwise cause an ADA-covered impairment.

What This Means for Employers

At this time, it is unclear whether the Senate will pass the PWFA. In the event that the PWFA is enacted, employers will need to review and update their workplace policies and procedures to ensure compliance with the new law. Because the PWFA largely tracks the ADA, employers should already be familiar with the requirements to engage in the “interactive process” and to determine the reasonable accommodations that will suit a pregnant employee’s needs, while avoiding undue hardship to the employer.  Employers should also ensure that they are complying with any applicable state and local obligations concerning pregnancy accommodation. For example, both New York State and New York City have pregnancy accommodation laws.

Epstein, Becker & Green, P.C. will continue to monitor the PWFA and other legislative developments relevant to employers.

As featured in #WorkforceWednesday:  Workplace incidents—ranging from shootings and assaults to less severe violence—have spiked across a variety of industries during the COVID-19 pandemic. Attorney Beth McManus discusses the steps employers can take to address and prevent workplace violence in the current environment. Read more.

Video: YouTubeVimeoMP4Instagram.

As featured in #WorkforceWednesday:  The appropriate response to an employee’s controversial off-duty or other conduct, particularly conduct that occurs on social media, has long been an uncertain area for employers. And in these polarized times, that uncertainty is only growing. Attorney Adam Forman speaks to how employers can legally respond to offensive employee conduct that occurs beyond the workplace.

Video: YouTubeVimeoMP4Instagram.

Part 7 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

What can jazz teach us about COVID-19? What lessons can we learn from the great masters like Miles Davis, John Coltrane, and Duke Ellington at this very moment?

As it turns out—a lot.

In a unique way, jazz, a truly American, musical art form, perhaps perfectly embodies this moment. Jazz is about democracy – about different people, from different backgrounds, experiences, ethnicities, coming together – inclusively – to make music and make things happen – to swing. Jazz is about working things out musically with other people – who have their own ideas, their own vision, and who may very well disagree with one another – but who need to overcome their differences to work together to create something bigger and better than themselves – for the greater collective.

Importantly for this moment, jazz is not just about playing—it’s about listening.

And perhaps most relevant to the context of the workplace, jazz can teach us a lot about improvisation. About working without a script. About adapting. About taking in information, from a variety of sources, and responding—in the moment—to create ideas, programs, ways of communicating and working that we may not have previously thought possible. And doing so repeatedly to build resiliency for ourselves, our families and for our organizations.

Witness the COVID-19 pandemic that continues to foist constantly changing laws, regulations and guidance on employers. This guidance has and will continue to change. New science will (hopefully) emerge, ushering in new health and safety best practices and ways of working. These changes may not happen in a linear or predictable fashion, as we have already seen. And so, as much as possible, employers should be prepared to improvise by:

Being on the Lookout for Evolving Guidance – Because Things Will Change (again and again)…

New and evolving guidance forces employers to perform an incredibly difficult task—to hit moving targets.

At the start of the pandemic, health experts rapidly honed in on transmission through physical contact, and the importance of frequent hand washing. Scientists then focused on wearing masks to prevent spreading the virus through droplets. On September 20, 2020, the CDC revised its guidance to reflect the risk of COVID spreading through aerosols (as opposed to droplets) only to reverse course on September 21. As our knowledge of the virus continues to grow, employers should expect to make additional changes to business practices and the physical layout of the workplace to incorporate evolving best practices, or even to consider whether and to what extent the physical office remains relevant to their current-future business model. Laws, regulations, and regulatory guidance also change with (alarming) rapidity. To select one recent example, on August 8, President Trump issued a Presidential Memorandum concerning the deferral of payroll tax withholdings effective September 1. On Friday August 28, the IRS issued guidance regarding how to implement such deferrals, providing employers one business day, August 31 before the deferrals could go into effect. The IRS did not confirm that such deferrals were optional until September 3.

The specific content of new guidance is largely unpredictable, but employers can buy precious time to adopt to changing circumstances by staying alert—by not assuming that today’s guidance and best practices are static, as they are anything but that.

Adopting Resilient Systems to Support Improvisation

Preparing to improvise requires developing and cultivating a system and a culture for changing plans. The CDC advises people to maintain 6 feet of distance from one another. As a thought experiment, what would happen if tomorrow, the CDC changed its recommendation from 6 feet to 10 feet? Employers would need to adjust their reopening plans by reconfiguring the workplace, perhaps increasing the proportion of employees who work remotely to make more room in the office, provide additional staggering of when employees start and end work, etc… Employers would need to communicate the changes to employees, and work with employees whose other obligations (e.g. child care) may not fit with the new work schedules. In short, reopening employers need a robust system to change plans, communicate those changes to employees, and (if possible) accommodate those employees who cannot adapt to the changing requirements.

While it might seem counterintuitive, employers can actually prepare to improvise by ensuring they have not just the systems and procedures, but also the culture and mindset to:

  • Identify and even anticipate (to the extent possible) new developments in law, regulations and best practices;
  • Decide, with a combination of courage and humility, to change plans;
  • Communicate changes to employees clearly and with transparency, always with a sense of fairness and an awareness of the human condition; and
  • Work to accommodate employees who require accommodations with respect to those changes.

The last item is particularly important for limiting risk and building a great culture, as will be discussed in a future blog post.

Conclusion

Throughout the pandemic, employers have and continue to take extraordinary steps to continue to operate, all the while keeping employees safe through remote work, alterations to physical workspaces, and other individualized accommodations. Whether driven by law, policy or culture, each of these adaptations are extraordinary, commercial examples of improvisation in action.

Our improvisations of 2020 may very well become the new standard in 2021 and beyond…

The Connecticut Commission on Human Rights and Opportunities (“CHRO”) recently extended the deadline for employers to provide sexual harassment training for their employees, from October 1, 2020, to January 1, 2021, due to the COVID-19 pandemic. The CHRO announcement is available here.

The CHRO website states that this is a blanket extension, and employers do not need to make a request to obtain the extension. Previously, the CHRO announced a 90-day extension for employers, under limited circumstances, which required employers to make a written request to the CHRO seeking an extension and to provide the reasons why an extension was necessary.

The “Act Combatting Sexual Assault and Sexual Harassment” (“Act”), which took effect on October 1, 2019, and which we reported about in detail here, significantly expanded the obligations of employers to provide training and education regarding sexual harassment and available remedies. Pursuant to the Act, employers of three or more employees are now required to provide two hours of such training to all employees. Employers with less than three employees must provide two hours of sexual harassment prevention training to supervisors only. Previously, only employers with 50 or more employees were required to provide supervisors with two hours of training on state and federal sexual harassment laws.