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protocols underway in most states as COVID-19 infections rates have begun to slow in certain areas, OSHA has rescinded the April 20 Guidance and has reinstated the agency’s work-relatedness analysis for all employers.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.


  • 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.

On May 13, 2020, New Jersey Governor Phil Murphy issued Executive Order 142 , which allows for the resuming of non-essential construction projects (subject to certain conditions and restrictions), the reopening of retail businesses (curbside pickup only) and permitting public gatherings of more than 10 people so long as attendees stay in closed (or socially distant) vehicles.   Some of the provisions of Executive Order 142 take effect immediately, and others at 6:00 a.m. on Monday, May 18, 2020.

Non-Essential Construction

Previously, Gov. Murphy permitted the operation of essential construction projects (with restrictions) pursuant to Executive Order 122  (which we wrote about here).  Now, by Executive Order 142, he has allowed all construction projects to resume, on condition that the construction businesses adopt policies that include, at minimum, the following requirements:

  • Prohibit non-essential visitors from entering the worksite;
  • Engage in appropriate social distancing measures when picking up or delivering equipment or materials;
  • Limit worksite meetings, inductions, and workgroups to groups of fewer than 10 individuals;
  • Require individuals to maintain six feet or more distance between them wherever possible;
  • Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;
  • Identify congested and “high-risk areas,” including but not limited to lunchrooms, breakrooms, portable rest rooms, and elevators, and limit the number of individuals at those sites concurrently where practicable;
  • Stagger lunch breaks and work times where practicable to enable operations to safely continue while utilizing the least number of individuals possible at the site;
  • Require workers and visitors to wear cloth face coverings, in accordance with CDC recommendations, while on the premises, except where doing so would inhibit the individual’s health or the individual is under two years of age, and require workers to wear gloves while on the premises. Businesses must provide, at their expense, such face coverings and gloves for their employees. If a visitor refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline entry to the individual.. Where an individual declines to wear a face covering on the premises due to a medical condition that inhibits such usage, neither the business nor its staff shall require the individual to produce medical documentation verifying the stated condition;
  • Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
  • Limit sharing of tools, equipment, and machinery;
  • Where running water is not available, provide portable washing stations with soap and/or alcohol-based hand sanitizers that have greater than 60% ethanol or 70% isopropanol;
  • Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery;
  • When the worksite is an occupied residence, require workers to sanitize work areas and keep a distance of at least six feet from the occupants; and
  • Place conspicuous signage at entrances and throughout the worksite detailing the above mandates.

This portion of Executive Order 142 is effective at 6:00 a.m. on Monday, May 18, 2020, and expressly supersedes certain relevant sections of Executive Order 122 and related Administrative Orders.

Non-Essential Retail

Non-Essential retail businesses will be permitted to reopen to the public as of 6:00 a.m. on May 18, 2020, but only if they adopt policies that include, at a minimum:

  • Customers shall not be permitted to enter the brick-and-mortar premises, but shall be permitted to pick up goods outside of the establishment that they have already ordered (“curbside pickup”);
  • In-store operations shall be limited, wherever feasible, to those employees who are responsible for the operations required for curbside pickup;
  • Customer transactions shall be handled in advance by phone, email, facsimile, or other means that avoid person-to-person contact, wherever feasible;
  • Customers shall notify the retailer by text message, email, or phone once they arrive, whenever feasible, or make best efforts to schedule their arrival time in advance. The customer shall be asked to remain in their vehicle, if arriving by car, until store staff delivers the purchase;
  • Designated employees shall bring goods outside of the retail establishment and place the goods directly in a customer’s vehicle whenever feasible; and
  • Retail businesses operating in shopping malls are permitted to operate by curbside pickup, in accordance with the other requirements of this paragraph, but employees must bring the goods to customers at the exterior of the mall and shall place them directly in a customer’s vehicle whenever feasible. The indoor portions of shopping malls shall remain closed to the public, consistent with Gov. Murpy’s prior Executive Order 107 (which we wrote about here).

Additionally, non-essential retail business employers should, at a minimum:

  • 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;
  • Require frequent sanitization of high-touch areas to which workers have access; and
  • Require workers to wear cloth face coverings and gloves when interacting with other workers or customers and require workers to wear gloves when in contact with customers or goods. Businesses must provide, at their expense, such face coverings and gloves for their employees.

Public Gatherings

Executive Order 142 states that any gathering that complies with the following rules will not violate Paragraph 5 of his prior Executive Order 107:

  • Attendees participating in the gathering must arrive in a vehicle and they must remain in that same vehicle during the entire gathering;
  • Each attendee’s vehicle must remain entirely closed at all times, meaning that the windows, doors, sunroofs, and tops of the vehicle must be closed at all times, unless:
  • The vehicle is more than six feet from any other vehicle or individual, except for, as applicable, the limited number of individuals organizing or maintaining the gathering; or
  • A law enforcement officer, appropriate public official, or private security guard asks any attendee to open the vehicle’s windows, doors, sunroofs, and/or tops.
  • If there are individuals organizing or maintaining the gathering, and who are not in closed vehicles, such individuals must follow all applicable Executive Orders and Administrative Orders, and must wear cloth face coverings or more protective face coverings in any settings where other social distancing measures are difficult to maintain, except where doing so would inhibit that individual’s health; and
  • To the degree that a gathering requires pre-payment, or seeks donations of any kind, contactless options for pre-payment or donation, such as online or by telephone, must be offered wherever feasible.

Executive Order 142 clarifies that: (a) the above provisions supersede prior applicable Executive Orders to the extent they prohibited recreational and entertainment events where customers do not leave their vehicles; and (b) if any individual leaves their home to participate in any gathering that complies with the above, it shall not be a violation of prior Executive Order 107.

The above provisions regarding public gatherings are effective immediately.

Plan participants and their beneficiaries may now have extra time to exercise some of their rights under the employee benefit plans in which they participate.  On April 28, 2020, the Department of Labor, the Internal Revenue Service, and the Department of the Treasury issued a joint notice extending certain timeframes applicable to employee benefit plans. The joint notice was published as a final rule in the Federal Register on May 4, 2020 (“Final Rule”), issued pursuant to Section 518 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as recently amended by the CARES Act.  (For more information on the CARES Act, please refer to the article posted here.) The Final Rule applies to all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Internal Revenue Code of 1986, as amended.

Length of Extension

The Final Rule extends certain deadlines until the end of the “Outbreak Period.”  The Outbreak Period begins March 1, 2020 and expires 60 days after the end of the declared COVID-19 national emergency, or another date if provided by future guidance.  (If different Outbreak Period end dates occur for different parts of the country, DOL will issue additional guidance regarding the application of the relief it has provided.)  For example, if the emergency declarations end on June 29, 2020, the Outbreak Period will expire on August 28, 2020.  However, pursuant to Section 518 of ERISA, the extension may not exceed one year.

Deadlines Affected

Plans must disregard the Outbreak Period when calculating deadlines related to the following elections:

  • the 30-day or 60-day period (as applicable) for an individual to request a HIPAA special enrollment;
  • the date for claimants to file benefit claims and appeals under the plan’s claims and appeal procedures;
  • the date for claimants to file a request for external review after receipt of an adverse benefit determination;
  • the date within which a claimant may file information to perfect a request for external review;
  • the 60-day COBRA election period;
  • the 45-day deadline for initial COBRA premium payments and the 30-day deadline for other COBRA premium payments; and
  • the date for individuals to notify the plan of a qualifying event or determination of disability under COBRA.

The Final Rule also extends a deadline applicable to employers for providing COBRA election notices.  (For more information on extended COBRA deadlines, please refer to our recent post here.)

Next Steps for Plan Sponsors

Due to the importance of the elections covered by the Final Rule, plan sponsors should communicate them to employees as quickly as possible. Additionally, plan sponsors will need to work with their third-party administrators to ensure that they are ready to implement the extensions granted by the Final Rule.

We previously have described certain country-specific initiatives to re-open the economy, and we have provided insights on issues that employers should consider when employees are allowed to return to the workplace.  Over the past several weeks, some local governments around the globe have begun slowly to initiate progressive measures to revise and even rescind COVID-19 emergency legislation, orders and lockdowns.  These governments now are grappling with workplace-specific issues.  As such, employers must determine how to maintain their duty of care to all employees and to protect employees’ health and safety, while safeguarding employees’ privacy.

This inevitable and inherent tension underlies the discussion surrounding several workplace issues, including (i) COVID-19 testing, (ii) taking temperatures, (iii) requiring face coverings and (iv) disclosing COVID-19 exposure in employee return to work questionnaires.  The below analysis highlights some general themes and practices before providing some country-specific information.  Note, however, that this is intended as a high-level overview of the applicable legal issues in certain jurisdictions, and this country-specific information likely is not sufficiently comprehensive or exhaustive to address fact-intensive inquiries and concerns.

COVID-19 Testing

Assuming that COVID-19 tests are available and can produce accurate results quickly, certain countries, including Australia and Brazil, allow employers to require employees to submit to COVID-19 tests.  In such countries, the principle of protecting employees’ health is paramount in relation to employee privacy concerns.  Employers, however, may be required to support such a request with a lawful and reasonable purpose.  For example, employers must comply with privacy laws when requiring COVID-19 testing of employees and failure to do so may render such requests unlawful.  In addition, prior to requiring a COVID-19 test, employees may have to show or report COVID-19 symptoms.  Many countries also require employers to obtain employee consent in a certain form prior to mandating COVID-19 testing.  For example, in Luxembourg, Thailand and the United Kingdom, employee consent should be obtained in writing.  That said, some countries, including France and Germany, among others, do not allow employers to require COVID-19 testing of employees because, for example, (i) nasal swabs are invasive and employers unlikely are able to justify that such a test is necessary and proportionate, except in very exceptional cases, (ii) employers are not allowed to require employees to submit to any type of health check and/or (iii) employers cannot process any medical data of employees.  Some other countries, including the Netherlands and Singapore, do not allow employers to require COVID-19 testing, and instead only company doctors or medical professionals may assess whether employees should take a COVID-19 test.

Temperature Screening

Across international jurisdictions, assuming that thermometers are adequately cleaned and sanitized, employers overwhelmingly are allowed to require employees to have their temperature screened prior to entering the workplace.  Temperature screenings generally are considered the least drastic measure to maintain employees’ health and safety at the workplace.  Several countries, including China, Colombia, Indonesia and Malaysia, among others, legally require employers to screen employees’ temperatures as part of a standard health measure.  Other countries, including Japan, also allow employers to screen employees’ temperatures, but as a best practice, employee consent should be obtained in advance.  Furthermore, in Belgium, prior to screening employees’ temperatures, employers should consider obtaining the advice of the company doctor and health and safety committee.

Despite the international community’s broad support for allowing employers to screen employees’ temperatures, some countries, including Luxembourg and the Netherlands, do not allow employers to screen employees’ temperatures prior to entering the workplace because medical data, including temperature, is employees’ medical data that cannot be processed.  In addition, while France does not ban temperature screening, it is not recommended.  Instead, the French government recommends that all employees (i) measure their temperature if they believe that they may have a fever and (ii) self-monitor the appearance of symptoms suggestive of COVID-19.  Even in jurisdictions where temperature screening is not permitted, it always is possible to request employees to monitor their own temperatures.

Face Coverings

Generally, employers likely may require employees to wear face coverings in the workplace during the COVID-19 pandemic to protect all employees’ health and safety.  This is true even in countries that are highly protective of employees’ privacy rights, including France and Germany.  Indeed, many countries, including Chile, China, Italy and Singapore, among others, require employees to wear face coverings in the workplace.  Employers should consider who will provide the face coverings, and if employees must provide their own face coverings, who will cover the costs of the face covering.

Disclosing COVID-19 Exposure in Return to Work Questionnaires

Prior to returning to the workplace, employees in many jurisdictions, including, for example, Brazil, Germany and Singapore, may be required to certify responses to questionnaires that inquire about COVID-19 diagnosis, symptoms and close contacts with individuals who are or have been diagnosed with COVID-19.  Requiring employees to certify certain COVID-19 information places a premium on workplace safety because collecting such information allows employers and local authorities to carry out COVID-19 response measures (e.g., contact tracing).  If employees answer “Yes” or refuse to answer any such question, local law in China, Hong Kong, Japan and New Zealand, among other jurisdictions, allows employers to prevent such employees from entering the workplace.

But in other jurisdictions, employee privacy rights are paramount, even in the context of workplace safety.  Note that employers always must comply with data protection laws when implementing protocols such as return to work questionnaires.  In Singapore, for example, employers must comply with the Personal Data Protection Act and ensure that (i) reasonable security arrangements are in place for the protection of collected information, (ii) collected information will not be used for purposes not related to COVID-19 response measures without employee consent or legal authorization and (iii) collected information will no longer be retained as soon as it is reasonable to assume that the COVID-19 response measures cease to exist.  Indeed, in Ireland, employers also may be obliged to demonstrate a strong justification for requiring employees to certify such information based upon necessity and proportionality.  In addition, in some countries, including the Netherlands, employers cannot process any medical data of employees.  Rather, only a company doctor or other medical professional may ask these questions.  Other jurisdictions, including France, completely ban employers from inquiring about COVID-19 exposure in such return to work questionnaires.

These are just some of the concerns that employers must consider.  Stemming from these complicated issues, employers must determine (i) how to respond to inevitable violations of policies and requirements (e.g., whether to follow a progressive disciplinary procedure or to terminate the employment relationship) and (ii) how to maintain the confidentiality of employee medical information while still notifying the applicable government authorities and employees who have had close contact with employees who have been diagnosed with COVID-19 or are suspected COVID-19 cases.

Generally, it is crucial that employers communicate effectively with employees when managing the COVID-19 return to the workplace phase.  To alleviate employees’ fears when returning to the workplace, employers should provide employees with a COVID-19 Safety Policy/COVID-19 Return to Work Policy that sets out the precautionary and preventative measures and controls that employers are implementing to ensure all employees’ health and safety.  Such a policy should identify and implement employers’ measures to mitigate the risk of infection (e.g., social distancing measures, wearing face coverings and maintaining high standards of hygiene and cleanliness).

In the end, COVID-19 legislation, emergency orders and lockdowns are dynamic, fluid and changing rapidly.  As a best practice, employers should seek legal counsel for timely analysis and guidance on any COVID-19-related issue.  Obtaining legal counsel also will allow employers to appreciate the cultural differences and nuances that permeate the multi-national employer-employee relationship generally and affect employers’ strategies and responses to the current COVID-19 pandemic.

As numerous jurisdictions now mandate citizens wear face masks in public, many retailers have begun requiring customers to cover their faces as a safety measure to mitigate against the spread of COVID-19 among employees and fellow customers.  Retailers intending to enforce a policy whereby it will turn away customers who refuse to wear face masks should be mindful of abiding by Title III of the Americans with Disabilities Act (“ADA”), which governs retails stores as a place of public accommodation.

May a Business Have a Policy Turning Away Customers Who Refuse to Wear Face Masks?

Likely yes, for the time being.  The ADA generally prohibits eligibility/screening criteria that tend to exclude individuals based on a disability, unless the criteria are necessary for the business to operate safely in providing its goods and services.  Those requirements must be based on actual risks and may not be based on speculation, stereotypes, or generalizations about people with disabilities.  At this time, businesses concerned about the safety of their staff and customers should be justified in relying upon guidance from the Centers for Disease Control and Prevention (CDC), as well as state and local governments’ orders, to justify policies forbidding customers without face masks from entering their stores.  However, as guidance and state/local rules change regularly, retailers should regularly track developments so as not to rely on something that is no longer current and applicable.  Moreover, as a best practice, and to avoid unwelcomed situations at the store, a business choosing to enforce such a policy should clearly communicate it to its customers (including in advance, e.g., via its website).

May a Business Turn Away Customers Who Refuse to Wear a Face Mask, Even Without a General Policy Requiring Face Masks Be Worn in Stores

 It depends.  The ADA permits a retailer to deny goods or services to an individual with a disability if their presence would result in a “direct threat” to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices or procedures or permitting another type of accommodation.  Whether a customer poses direct threat is an individualized, fact-sensitive inquiry. If a business does not have a clear policy of turning away customers who refuse to wear face masks, and turns away an individual for that reason, the business must be prepared to identify how/why that individual’s specific, observable, condition/behaviors made them a “direct threat”.  For example, if the person exhibited generally recognized symptoms of COVID-19 (such as aggressive coughing compounded with profuse sweating or visible difficulty breathing), refusal of service without a mask on an individualized basis may be justifiable.  Conversely, a business could be hard-pressed to successfully argue that a customer without a face mask posed a “direct threat” if he or she was asymptomatic or if there was some form of accommodation that would have allowed the person to be served (e.g., allowing someone to wear a scarf instead of a mask).  Upon refusing service on “direct threat” grounds, the store should contemporaneously document its actions and justifications in the event their decision is later challenged.

What If a Potential Customer’s Disability Is Uniquely Impacted Due to the Face Mask Requirement?

In limited circumstances, there could be a situation in which a customer cannot wear a face mask due to a legitimate health reason (e.g., a person with a respiratory condition who cannot have their breathing restricted).  In this case, pursuant to the considerations detailed above, a business may not need to alter their face-mask required policy, but in any event should attempt to accommodate that customer in an alternative manner that would continue to protect the store’s employees and other customers while also providing service to the customer (e.g., providing curb-side pick-up; no contact delivery; or assistance via online store services).

Face masks may also present communication barriers to individuals who rely on lip reading to communicate.  The ADA requires retailers to provide effective communication to individuals with disabilities through the provision of auxiliary aids and services that are appropriate for the nature, length, complexity, and context of the communication and the customer’s normal methods of communication.  Tools such as communication via text messaging, a disposable pen/pad, or a sanitized dry erase board could strike the right balance between achieving effective communication and helping to curb the spread of COVID-19.

The economic downturn caused by COVID-19 pandemic has resulted in an unprecedented number of layoffs, furloughs, and reduced hoursUnder the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), when employment is terminated or hours are reduced and there is a loss of coverage, employers (generally those with 20 or more employees) must provide notices to covered employees and their covered spouses and dependent children explaining that they have the right to elect to continue receive health care coverage. In addition, when a covered employee dies, COBRA requires employers to notify the employee’s spouse and dependent children that they have the right to elect to continue health coverage.  On May 1, 2020, the Department of Labor (“DOL”) issued a new model general notice and election notice (“Notices”) for the purpose of providing more information about how Medicare and COBRA interact.  In Frequently Asked Questions, issued with the Notices, the DOL states that employers may use the Notices to satisfy their COBRA notice obligations.

The Notices, however, do not address the joint DOL and Treasury COVID-19 guidance issued on April 29, 2020, which effectively extends the deadlines for issuing notices and making elections  for certain health and welfare plan actions and notices, by excluding the “Outbreak Period,” – i.e., the period between March 1, 2020, (the beginning of the COVID-19 national emergency declared by the president) and 60 days after the announcement of the end of the COVID-19 national emergency (or such other date announced by the DOL in a future notice). Specifically, the April 29 guidance states that group health plans must disregard the Outbreak Period when determining:

  • The 60-day deadlines for individuals to elect COBRA continuation coverage;
  • The deadlines for individuals to make COBRA premium payments; and
  • The deadlines for individuals to notify the plan of certain qualifying events (such as divorce or a dependent child aging out of plan coverage) or determination of disability as it relates to COBRA coverage.

In addition, the April 29 guidance states that group health plan sponsors and administrators may disregard the Outbreak Period when determining the date for providing a COBRA election notice, which would normally be within 14 days after the plan receives notice of a qualifying event, or within 44 days where the employer is the plan administrator.

At this time, it is not entirely clear whether employers should revise their COBRA notices to reflect the extended deadlines set forth in the April 29 guidance, or simply use the Notices that the DOL issued two days later. Since the updated model notices were issued only two days after the April 29 guidance was released, it appears that employers may not be required to update their notices. Future DOL guidance may address this.

Meanwhile, in light of the massive unemployment and loss of health care coverage, caused by the COVID-19 crisis, COBRA coverage changes appear to be on the horizon.  House Democrats have proposed the Worker Health Coverage Protection Act, H.R. 6514, which, as explained here, seeks to provide a COBRA subsidy for up to 15 months to cover 100% of the health premiums owed by unemployed and furloughed workers and, if enacted, would require employers to provide notices that include information about the availability of premium assistance. The bill is currently in committee. If Congress adopts this legislation, the May 1, 2020 model notices may soon become obsolete.

Employers planning layoffs and furloughs should review the May 1, 2020 model Notices and the April 29 guidance with their third-party administrators, insurance providers, and legal counsel, and monitor the status of H.R. 6514, to ensure compliance. As discussed here, there has been a wave of class action lawsuits alleging that employers and health plans failed to provide adequate COBRA election notices to employees.