Effective April 17, 2020, the Connecticut Department of Economic and Community Development (DECD) significantly revised its recently issued Safe Workplace Rules for Essential Employers (the “Rules”).  Specifically, the Rules have been updated to include a requirement that all employees of essential businesses wear masks while working.  The DECD’s original rules did not contain any provision regarding masks.  Now, the DECD has significantly modified the mask requirements as follows:

  • Employees of essential businesses are required to wear a “mask or other cloth material” that covers his or her mouth and nose while in the workplace, except while on break time to eat or drink.
  • Employees who work alone in segregated spaces (e.g. cubicles with walls and private offices) may remove their masks while at their cubicle, office or work station. These employees, however, must still wear a mask from the time they enter the building until the time they arrive at their workstation, and any time they leave their workstation and move around common areas, such as going to the restroom.
  • Employees who work in congregate settings (e.g., open manufacturing floors, warehouses, areas open to the public, shared offices or similar settings), must wear a mask while at their workstations.
  • Continuous wearing of masks is not required in outdoor workspaces where employees do not regularly come within six feet of each other.
  • An employee is not required to wear a mask when doing so would be “contrary to his or her health or safety because of a medical condition.” If an employee declines to wear a mask due to a medical condition, an employer cannot require medical documentation.
  • Essential employers are required to issue masks or cloth face coverings to employees. If an essential business cannot do so, due to shortages or supply chain difficulties, it must provide employees with materials and the CDC’s tutorial on how to create a cloth face covering.  Alternatively, an essential business can compensate employees for the reasonable and necessary costs of materials used to make a mask or face covering. There is no requirement for a N95 face mask to be provided.

Essential employers must also require its customers and visitors to wear masks or face coverings while on the premises. Essential businesses can, if they chose, provide face coverings to customers or other visitors upon, or prior to, entering the essential business.  An essential business, however, may not require a customer or visitor to use a mask or face covering when doing so would be contrary to their health or safety due to a medical condition; and the essential business may not require a customer or visitor to produce medical documentation.  In addition, an essential business may not require a child in a childcare setting or a child under two years old to wear a face mask or covering.  Further, it may not require an older child to wear a face mask or covering if the child is unable to safely place the mask on its face; or, if the parent or person responsible for the child is unable to safely place the mask on the child’s face.

Essential businesses should modify their existing policies regarding face masks while the COVID-19 pandemic continues.  Also, since the Rules have changed in the short time since they have been issued, there may be further changes and adjustments.  Epstein Becker & Green, P.C. will continue to monitor these developments and will alert you to any changes or adjustments.  In the meantime, if you have any questions or need assistance drafting or modifying your existing COVID-19 policies so that they are legally compliant, please contact Peter M. Stein, Deborah Cannavino, Carol J. Faherty, or your Epstein Becker & Green, P.C. attorney.

On April 29, 2020, the Los Angeles City Council simultaneously passed two ordinances in response to COVID-19 that could potentially have long lasting and far reaching impacts on applicable businesses: the Right of Recall Ordinance and the Worker Retention Ordinance. The Mayor has until May 11, 2020, to act on both of the ordinances. These ordinances, pending approval of the Mayor, will be effective 31 days from their publication date.

Right to Recall Ordinance:

While the true impact of the ordinance remains to be seen, the City Council’s claimed purpose behind the Right of Recall Ordinance (“Recall Ordinance” was to enact, for employees of certain limited employers, “legal protections for workers laid off due to the pandemic.” Essentially, the Recall Ordinance requires the specified businesses to attempt to rehire laid off workers before offering open positions to new employees. However, while the Recall Ordinance was ostensibly passed as a measure against the impacts of COVID-19 and the various stay-at-home orders which shuttered these businesses, the Recall Ordinance does not have a sunset clause and will remain law until the City Council repeals it.

Applicable Employers

The Recall Ordinance applies to Airport Employers, Commercial Property Employers, Event Center Employers, and Hotel Employers. The Ordinance provides specific definitions for each type of employer:

  • Airport Employer: Any employer, regardless of size, that provides any service at the Airport or provides any service to any employer servicing the Airport, and is required to comply with the Los Angeles Living Wage ordinance, Los Angeles Administrative Code Section 1-.37 et seq. However, this does not include (1) an airline; or (2) an employer that is party to an agreement with the airport that contains a worker rehire requirement. The “Airport” is defined under the Recall Ordinance as the City of Los Angeles Department of Airports and each airport which it operates in the city.
  • Commercial Property Employer: An owner, operator, manager or lessee, including a contractor, subcontractor or sublessee, of a non-residential property in Los Angles that employs 25 or more janitorial, maintenance or security service workers. However, only the janitorial, maintenance, and security service workers who perform work for a Commercial Property Employer are covered by the Recall Ordinance.
  • Event Center Employers: An owner, operator, or manager of a publicly or privately owned structure in Los Angeles of more than 50,000 square feet or with a seating capacity of 1,000 seats or more that is used for public performances, sporting events, business meetings or other similar events.
  • Hotel Employer: An owner, operator or manager of a residential building in the City designated or used for public lodging or other related service for the public and either contains 50 or more guestrooms or has earned gross receipts in 2019 exceeding $5 million. A Hotel Employer includes the owner, operator, manager or lessee of any restaurant physically located on hotel premises.

Laid Off Worker Defined

The Recall Ordinance defines laid off worker as any person (1) who performs at least two hours of work, “in a particular week,” within the geographical boundaries of Los Angeles for an employer, (2) has a length of service with the employer of six months or more, and (3) whose most recent separation from active employment by the employer occurred on or after March 4, 2020, as a result of a lack of business, a reduction in work force or other economic, non-disciplinary reasons. Employees of an Event Center Employer who are in managerial, supervisory or confidential positions are excluded from coverage.

Rebuttable Presumption of Non-Disciplinary Termination

The most striking provision in the Recall Ordinance, outside the possibility of punitive damages, is that it creates a rebuttable presumption that any termination occurring on or after March 4, 2020, was for a non-disciplinary reason. This means that the burden rests on the employer, if challenged, to show that an employee was terminated for disciplinary reasons and does not have a right to recall. This is a significant modification of the at-will standard long codified under California Labor Code section 2922. The Recall Ordinance therefore essentially imposes on covered employers a just cause termination standard, long advocated by labor unions and plaintiffs’ lawyers.

Right of Recall

The Recall Ordinance establishes that there shall be a priority made for certain workers laid off during the COVID-19 pandemic. A laid off worker is qualified if that worker (1) held the same or similar position at the same site of employment at the time of the laid off worker’s most recent separation from active service with the employer; or (2) is or can be qualified for the position with the same training that would be provided to a new worker hired into that position.

If more than one laid off worker is entitled to preference for a position, the employer must offer the position to the laid off worker with greater seniority at the employment site.

Implementation

The employer is required to make an offer of recall to a laid off worker for any position which is or becomes available after the effective date of the Recall Ordinance for which the laid off worker is qualified. The offer must be made in writing to the last known mailing address of the employee, by electronic mail, and by text message. A laid off worker who is offered a position pursuant to the Recall Ordinance must be given at least five (5) business days to respond to the offer. Unlike similar recall rights which may be contained in employer policies or collective bargaining agreements, the Recall Ordinance does not have a time limitation in which the laid off worker maintains these rights. Consequently, an employee laid off in March 2020 may need to be reoffered a similar position that becomes available years later.

Significant Legal Remedies

The Recall Ordinance provides significant legal remedies to laid off workers who believe that a former employer has violated it.  A laid off worker may bring an action against an employer for violating the Recall Ordinance and may be entitled to: (1) hiring and reinstatement rights, (2) actual damages suffered by the laid off worker or statutory damages in the sum of $1,000, whichever is greater, (3) punitive damages, and (4) attorneys’ fees and costs. Any employer who has litigated any type of employment discharge case in Los Angeles is unfortunately aware that the plaintiff’s attorneys’ fees award is often in the high six figures and Los Angeles juries frequently hand out seven figure punitive damages awards. Conversely, however, the Recall Ordinance provides that a prevailing employer is only entitled to recover its attorney’s fees and costs if a court determines that the laid off worker’s lawsuit was frivolous.

The Recall Ordinance does, however, provide a limited safe-harbor provision and internal remedies exhaustion provision. Specifically, before filing a civil action a laid off worker must provide written notice to the employer of the provisions of the article alleged to have been violated and the facts supporting the alleged violation. The employer then has 15 days from receipt of the notice to cure any alleged violation.

Exemption for Collective Bargaining Agreements

If a collective bargain agreement (“CBA”) already contains a right of recall provision on the effective date of the Recall Ordinance, then the recall provision within the CBA shall supersede it. However, when the CBA expires or is open for renegotiation, the provisions of the Recall Ordinance may only be waived if a waiver is explicitly set forth in the CBA in clear and unambiguous terms.

If a CBA does not include a right of recall provision at the time the Recall Ordinance becomes effective, then it applies. Nonetheless, a CBA may be amended at any time to explicitly waive with clear and unambiguous terms the provisions of the Recall Ordinance.

No Waiver of Rights

Except for in a CBA provision as described above, any waiver by a worker of any or all of the provisions in the Recall Ordinance will be deemed void and unenforceable. This is significant as it essentially requires an employer to provide the recall rights to a terminated or laid off employee even if they provide them severance or otherwise reach an amicable resolution of the employee’s separation.

Rules and Regulations

While the final version of the Recall Ordinance may leave employers with ample questions, the Los Angeles Office of Wage Standards of the Bureau of Contract Administration will eventually promulgate Rules and Regulations, which will hopefully clear up any confusion with the Recall Ordinance or limit some of its impact.

Worker Retention Ordinance

The COVID-19 Worker Retention Ordinance “Retention Ordinance”) subjects certain businesses within Los Angeles to worker retention provisions when a change of ownership or control occurs within two years following the declaration of emergency resulting from the COVID-19 pandemic. While ostensibly tied to the impacts of the pandemic, labor unions have been pushing the City Council to provide these exact same restraints on the covered businesses for many years.

Applicable Businesses

The Retention Ordinance applies to the same employers covered by the Recall Ordinance: Airport Businesses, Commercial Property Businesses, Event Center Businesses, and Hotel Businesses. These businesses are defined the same way they are defined in the Recall Ordinance other than the term “employer” is replaced by “business.”

Applicable Workers

Under the Retention Ordinance, a “worker” is defined as an individual who was employed by the incumbent business employer and:

  • who has a length of service with the incumbent business employer for six months or more;
  • whose primary place of employment is a business subject to a change in control,
  • who is employed or contracted to perform work functions directly by the incumbent business employer, or by a person who has contracted with the incumbent business employer to provide services at the business subject to the change in control; and
  • who worked for the incumbent business employer on or after March 4, 2020, and prior to the execution of the transfer document.

The Retention Ordinance excludes from coverage all managerial, supervisory, or confidential position employees of any covered employer (as opposed to just the Event Center Business exclusion in the Recall Ordinance).

Responsibilities of the Incumbent Business Employer

The incumbent business employer is required to provide to the successor business employer the name, address, date of hire, and occupation classification of each worker, within 15 days after the execution of a transfer document.

The incumbent business employer must post written notice of the change in control of the business at the location of the affected business within five business days following the execution of the transfer document. This notice must remain posted during any closure of the business and for six months after the business is open to the public under the successor business employer. The notice must contain, at a minimum, (1) the name of the incumbent business employer and its contact information, (2) the name of the successor business employer and its contact information, and (3) the effective date of the change in control. The notice must be posted in a conspicuous place at the business that is visible to all employees and applicants for employment.

Responsibilities of the Successor Business Employer

The successor business employer must maintain a preferential hiring list of workers and is required to hire from that list for a period beginning upon the execution of the transfer document and continuing for six months after the business is open to the public under the successor business employer.

If the successor business employer extends an offer of employment to a worker, the successor business employer must retain written verification of that offer for at least three years from the date of the offer. This verification must include the name, address, date of hire, and occupation classification of each worker.

90 Day Transition Period

A successor business employer is required to retain each worker hired pursuant to the Retention Ordinance for a minimum of 90 days, and a worker can only be discharged for cause during this 90 day period. The successor business is required to provide a worker with a written offer of employment for this transition period and the offer must remain open for at least 10 business days from the date of the offer. At the end of the 90 day period, the successor business employer must perform a written performance evaluation for each worker retained pursuant to the Retention Ordinance. A record of this written performance evaluation must be retained for a minimum of three years.

If the worker’s performance during the 90 day period is satisfactory, then the successor business must consider offering the worker continued employment. Notably, the Retention Ordinance only mandates that the business “consider” offering the worker, but does not state that it is required.

If during the six months that the successor business employer is required to maintain a list of workers identified by the incumbent business employer, the successor business employer determines that it requires fewer workers than the incumbent business employer did, then the successor business employer must offer the position to the worker in the same occupational classification with the greatest seniority with the incumbent business employer.

Legal Remedies

A worker who believes their rights pursuant to this Ordinance have been violated may bring an action against either the incumbent business employer or the successor business employer. The available remedies include (1) hiring and reinstatement rights, (2) front or back pay for each day of the violation, and (3) value of the benefits the worker would have received under the successor business employer’s benefits plan. Similar to the Recall Ordinance, a court may also award attorneys’ fees and costs to a worker who prevails, but only to a business if it obtains a court determination that the worker’s lawsuit was frivolous.

Also similar to the Recall Ordinance, the worker must take certain steps before filing an action: (1) the worker must provide written notice to the incumbent business employer and/or the successor business employer of any alleged violations, and (2) the business must be given 15 days from the receipt of the written notice to cure the alleged violations.

Exemption for Collective Bargaining Agreements and No Waiver of Rights

The same provisions in the Recall Ordinance regarding CBAs and No Waiver of Rights are found in the Retention Ordinance.

Rules and Regulations

As with the Recall Ordinance, the Los Angeles Office of Wage Standards of the Bureau of Contract Administration will eventually promulgate Rules and Regulations on the Retention Ordinance.

New Jersey Governor Phil Murphy and Superintendent of the State Police Colonel Patrick Callahan (who also acts as the State Director of Emergency Management) issued orders this week lifting some closures and reiterating or clarifying others, as follows.

Administrative Order 2020-10

On April 27, 2020, in Administrative Order 2020-10 (“A.O. 10”) , Col. Callahan clarified and amended Executive Order 107 (which we wrote about here).  A.O. 10, which became effective immediately, permits the reopening of certain business operations now deemed “essential retail business,” provided they adhere mandated precautions, but reiterates others that certain others must remain closed, as follows:

  • Pet grooming, pet daycare, and pet boarding businesses shall be considered essential retail businesses and be permitted to open, if they adopt in-person operation policies that include, at a minimum, the enhanced social distancing practices detailed in previously-issued Executive Order No. 122 (which we wrote about here), including limiting occupancy, allowing for contactless methods of payment, and requiring workers and customers to wear cloth face coverings while on the premises;
  • Stores that principally sell items necessary for religious observation or worship shall be considered essential retail businesses if they adopt in-person operation policies that include, at a minimum, the enhanced social distancing practices detailed in Executive Order 122;
  • Car dealerships may permit customers that have ordered and/or purchased a vehicle online or by phone to test drive the vehicle at the time of pick-up or prior to delivery, if the dealership adopts in-person operation policies that (a) include, at a minimum, the enhanced social distancing practices detailed in Executive Order 122; (b) permit the individual to access the vehicle alone; and (c) provide that the dealership is to appropriately clean and sanitize the vehicle after such test drive, if the customer does not purchase the vehicle;
  • Licensees, owners, operators, employees, or independent contractors of personal care services facilities (which were ordered to be closed to the public in Executive Order 107), are not permitted to provide personal care services in their own homes, the homes of others, or in any facility or business setting unless the individual personal care service provider is providing the service to their household members, immediate family or other individuals with whom the personal care service provider has a close personal relationship, such as those for whom the personal care service provider is a caretaker or romantic partner. A prior business relationship alone does not qualify as a close personal relationship, for purposes of this paragraph;

Executive Order 133

On April 29, 2020, Gov. Murphy issued Executive Order 133, which allows the reopening of golf courses and state parks, with specific recommendations and policies to enhance social distancing and to protect the public from the spread of COVID-19, as described below.  All prior applicable Executive and Administrative Orders are superseded to the extent inconsistent with the following new rules. Executive Order 133 takes effect at 6:00 a.m. on Saturday, May 2, 2020.

State Parks

Executive Order 133 allows all state parks and forest to open to the public for the following passive recreational activities in which social distancing can be readily achieved:

    • Fishing;
    • Hunting;
    • Boating;
    • Canoeing;
    • Hiking;
    • Walking;
    • Running or jogging;
    • Biking;
    • Birding; and
    • Horseback riding.

The following, however, are to remain closed at all state parks and forests:

    • Picnic areas;
    • Playgrounds;
    • Exercise stations and equipment;
    • Chartered watercraft services and rentals;
    • Swimming;
    • Pavilions;
    • Restrooms; and
    • Other buildings or facilities, including, but not limited to, visitor centers, interpretive centers, and interior historical sites.

The following recommendations and policies shall apply to all state parks and forests:

    • Employees and visitors should wear cloth face coverings while in the park or forest in all settings 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;
    • Available parking must be limited to 50% of the maximum capacity at one time, and visitors are prohibited from parking in undesignated areas, including in roadways and other undesignated areas;
    • No picnicking is allowed, and no picnic blankets, chairs, coolers, and other such personal property may be carried into any state park or forest;
    • Visitors must practice social distancing and stay six feet apart whenever practicable, excluding immediate family members, caretakers, household members, or romantic partners;
    • No organized or contact activities or sports are allowed; and
    • Gatherings of individuals, including in parks, are prohibited.

In addition, Executive Order 133, mandates that all recreational campgrounds and transient camp sites at campgrounds must remain closed.  Residential campgrounds, which includes mobile home parks, “condo sites,” and existing/renewing 2020 yearly seasonal contract sites, however, may remain open.

Finally, county parks which were closed by Gov. Murphy’s Executive Order No. 118  issued on April 7, 2020 are permitted to be open. Those parks that were closed by county order before April 7, 2020, may be reopened by order of the county of jurisdiction.  All county and municipal parks must adhere to the social distancing restrictions applicable to state parks summarized above, In addition, counties and municipalities may impose additional restrictions at their respective parks in response to COVID-19. Counties and municipalities may also impose additional restrictions on the ability of residential campgrounds, including mobile home parks, to accept new transient guests or seasonal tenants.

Golf Courses

Executive Order 133 allows golf courses to reopen, but such businesses must adopt policies that at minimum:

    • 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;
    • Stagger tee times so that they are 16 minutes apart, and limit tee times to two players, except for immediate family members, caretakers, household members, or romantic partners;
    • Limit use of golf carts to single occupant only, excluding an individual’s immediate family members, caretakers, household members, or romantic partners;
    • Require frequent sanitization of high-touch areas, following CDC guidelines;
    • Ensure cleaning procedures following a known or potential exposure at the golf course in compliance with CDC recommendations;
    • Ensure that the golf course is sufficiently staffed to perform the above protocols effectively and in a manner that ensures the safety of players and staff;
    • Restrict players’ ability to touch common surfaces when retrieving golf balls by installing pins, placing cups upside down or partly above ground, or utilizing a shallow cup;
    • Close all golf center buildings, pro shops, and other buildings and amenities to the public;
    • Remove bunker rakes and other on-course furniture like benches, water coolers, and ball washers;
    • Ensure that the flagstick remains in the golf hole at all times, and instruct players to avoid touching the flagstick or hole;
    • Discontinue club and equipment rentals;
    • Prohibit the use of caddies;
    • Place additional restrictions on areas of the golf course, as necessary, to limit person-to-person interactions and facilitate appropriate social distancing, including but not limited to, specific holes, putting greens, FootGolf courses, and short game areas;
    • Employees, players, and other individuals should wear cloth face coverings in all settings on the golf course 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; and
    • Require players to always maintain appropriate social distancing by remaining six feet apart from each other.

Executive Order 133 makes clear that miniature golf courses and driving ranges, as well as other places of public amusement, remain closed pursuant to Executive Order 107.

The COVID-19 pandemic and the efforts to limit its spread caused a sudden and dramatic shutdown of large sections of the U.S. economy.  Governmental shelter in place orders requiring non-essential businesses to temporarily close forced untold numbers of businesses to furlough or terminate most, and in many cases all, of their employees with little or no warning. For larger employers, mass layoffs and terminations of operations such as these, would normally trigger notification requirements under the federal Worker Adjustment and Retraining Notification (“WARN”) Act (as well as state WARN-type laws, where applicable).

Briefly, WARN requires employers to provide 60 days’ advance notice to affected employees, unions, and designated state and local governmental entities of a mass layoff or plant closing. The failure to provide required notice may, among other things, result in an employer’s obligation to pay employees for each missed day of notice.  For the emergency shutdowns caused by the COVID-19 pandemic, however, providing such advance notice before furlough or layoff has been largely impossible, and as the shut-downs continue, may remain difficult for many months to come. In these emergent circumstances, many are asking: Does WARN apply now? Are there circumstances when an employer may be excused from providing WARN notice? When will a violation occur? What do I need to know about WARN?

To help answer questions such as these the U.S. Department of Labor has published WARN Act COVID-19 Frequently Asked Questions (“FAQs”), to provide guidance regarding employers’ WARN compliance obligations, employees’ rights and exceptions to the law’s notice requirements in circumstances such as the COVID-19 pandemic.

Of particular note, the FAQs remind employers of two significant provisions of WARN that may apply to a pandemic emergency shutdown, either excusing the employer from the Act’s notice requirements, or permitting less than 60-days’ notice.

First, the FAQs explain that a temporary layoff or furlough lasting less than six months is not counted as an employment loss under WARN.  Thus, if employees are recalled to work within 6 months, no WARN notice is required at all.

Second, the FAQs discuss the “unforeseeable business circumstances” exception to WARN’s 60-day notice requirement.  In short, the exception applies to mass layoffs and plant closings caused by business circumstances that were not reasonably foreseeable at the time that 60 days’ notice would have been required.

Of importance, “unforeseeable business circumstances” is not a true exception to the WARN notice requirement; rather it a defense employers may rely on to provide less than 60 days’ notice of termination.  To avail itself of the defense, an employer must issue compliant WARN notices as soon as practicable, and must affirmatively invoke the exception with a short statement in the notice explaining how the business circumstance was not reasonably foreseeable, and that the circumstance was caused by some sudden, dramatic, and unexpected action or condition outside the employer’s control.  The FAQs remind that the employer bears the burden of proving that the exception applies in any given situation.

The FAQs quote language from the WARN regulations that a government-ordered closing of an employment site that occurs without prior notice may be an unforeseeable business circumstance. The guidance does not, however, definitively state that the exception applies to all COVID-19-related layoffs and terminations, nor does it state that the COVID-19 pandemic suspends WARN notice requirements. Rather, the guidance cautions employers that they must remain mindful of their potential WARN obligations.

Thus, for example, the FAQs explain that even if an employer believes a WARN exception applies to a situation where WARN notice would otherwise be required, the employer must still provide employees, unions, and governmental entities with fully compliant notices, even if the notice is given less than the full 60 days in advance of the upcoming terminations.

Employers must also keep in mind applicable state WARN-type laws.  These state laws vary and do not necessarily match WARN.  For example, some state WARN laws do not have an “unforeseeable business circumstances” exception, and others do not have an exclusion for temporary layoffs lasting less than 6 months.

Thus, while the FAQs are a useful reference, in general, it is important to consult with knowledgeable employment counsel to confirm whether any significant reduction in force — temporary or permanent — implicates WARN, and that all appropriate steps are taken to ensure that any exception to WARN is, indeed, applicable.

On Monday, April 27, 2020, Governor Gregory Abbott announced Phase One of his much anticipated plan to reopen Texas, while minimizing the spread of COVID-19.  Governor Abbott accompanied his announcement by issuing Texas Helping Texans: The Governor’s Report to Open Texas (“Report”), and Executive Order No. GA-18 (“EO GA-18” or “Order”), pursuant to which all retail stores, restaurants[1], movie theaters, malls, museums and libraries are allowed to reopen on Friday, May 1, 2020, with a 25% occupancy limitation.  Within shopping malls and museums, all interactive areas must remain closed, as well as food-court dining and play areas.  EO GA-18 allows for increased occupancy limits of up to 50% in rural areas and counties with five or fewer confirmed cases of COVID-19, as verified by the Texas Department of State Health Services (“DSHS”).

EO GA-18 also provides that social distancing must continue to be maintained, and the Report includes special guidance for individuals over the age of 65, encouraging them to continue to stay home, if possible.  As previously outlined in Executive Order No. GA-15, as of April 22, 2020, medical offices may perform elective surgeries that meet certain requirements, and dental offices are permitted to perform medically necessary procedures.   All Texas schools must remain closed for the remainder of the academic year.  Public swimming pools, bars, gyms, salons, interactive amusement venues, including bowling alleys and video arcades, and tattoo and piercing studios are to remain closed through Phase One, which begins on May 1, 2020, and will continue through May 18, 2020.  Lastly, any person entering the State of Texas as their final destination through an airport, from the states of California, Connecticut, New York, New Jersey, Washington, and the cities of Atlanta, Chicago, Detroit or Miami, must self-quarantine for a period of 14 days from the time of entry into Texas or the duration of their stay in Texas, whichever is shorter.  This Order to self-quarantine does not apply to people traveling in connection with military service, emergency response, health response, or critical-infrastructure functions, as may be determined by the Texas Division of Emergency Management.

The Report, and these latest executive orders, issued this week, were informed by the Governor’s Strike Force to Open Texas, which consists of Lieutenant Governor Dan Patrick, Speaker of the House Dennis Bonnen, Attorney General Ken Paxton, and Texas Comptroller Glenn Hegar.  The Strike Force also includes a team of health officials and specialists, and a number of Texas executives and entrepreneurs.

While this first phase of the initiative to reopen Texas may be welcome news for some businesses, many businesses, including movie theaters and restaurants have expressed hesitation and unwillingness to reopen until certain procedures, equipment and necessary training are put into place to ensure the safety and well-being of their employees and patrons.  Other issues cited with this reopening timeline include an absence of specific government health guidelines, lack of staff willing to report to work, and the financial burden of operating at 25% capacity, which may result in revenues well below the cost of doing business.

Just as businesses are weighing the pros and cons of reopening as early as this Friday, so are many Texas workers weighing the opportunity of earning a paycheck and going back to work against the risk of exposure to COVID-19 and the potential forfeiture of unemployment benefits as a result of refusing to return to work.  Employees who refuse to return to work, not due to an underlying health condition or being 65 or older, may be deemed ineligible to continue receiving unemployment benefits.   The Texas Workforce Commission (“TWC”) provides that in order to qualify for unemployment benefits, workers must be “willing and able to work all the days and hours required for the type of work you are seeking.”  The TWC also generally provides that “if the business is legally open, the employee is an essential worker for the business, the workplace meets [Occupational Safety and Health Administration (“OSHA”)] safety guidelines, the employer follows CDC-recommended pandemic guidelines, and the employee is not under any local orders to stay at home, the employer would be able to replace an absent worker with someone else who is available and willing to work.”  Workers may, however, be eligible to collect partial unemployment, as long as their work involves reduced hours, equivalent to 25% of their unemployment benefits.  A day after Governor Abbott announced Phase One of the plan to reopen Texas, TWC said that it is developing parameters for what might allow Texans to continue qualifying for unemployment insurance if they refuse to return to work at a business reopened by EO GA-18, because of fear of contracting or spreading COVID-19.  While reinforcing that its determinations of eligibility for unemployment insurance benefits are made on a case-by-case basis, the TWC stated that it is working to develop clarity on what might constitute good cause for not returning to work, and “may need to review” situations where workers are not comfortable returning to reopened businesses in areas where COVID-19 cases continue to be a factor.

Epstein Becker Green is continuing to monitor these developments, and ways in which these reopening measures and guidelines, following the COVD-19 pandemic, in Texas, and throughout the country, will impact employers, and will provide further updates as they become available.  In the meantime, should you have any questions or need further guidance on this or any COVID-19-related issue, please contact Greta Ravitsky or Anastasia A. Regne.

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[1] Restaurants with alcohol sales making up less than 51% of their gross receipts may provide dine-in services at up to 25% of their total listed occupancy. Valet services are prohibited except for disabled patrons.

Epstein Becker Green’s Employee Benefits and Executive Compensation practice is proud to present a new “Benefits Guidance in the Time of COVID-19” webinar series. You can access these courses on your own schedule. Keep up to date with a range of benefits and compensation considerations, or obtain an overview of an important topic impacting your company.

Each webinar of this limited series will be uploaded to the firm’s Coronavirus Resource Center as well as the Employee Benefits and Executive Compensation practice page. If you would like a list of the final episodes sent directly to you, please subscribe to the Employee Benefits and Executive Compensation or Coronavirus (COVID-19) mailing lists.

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In our inaugural segment, Gretchen Harders, Member of the Firm in the Employee Benefits and Executive Compensation practice, in the New York office, presents on “Continuing Health Coverage During Leave, Furlough, or Temporary Layoff.”

Employers should consider continuing to provide furloughed or temporarily laid-off employees with health coverage to avoid termination of insurance contracts and should continue to provide employees with health coverage during the COVID-19 pandemic. During this webinar, learn more about eligibility and coverage under group health plans, employer strategies to pay the employee premium, the provision of subsidized COBRA, considerations under the Family and Medical Leave Act and other leaves of absence, health coverage considerations for the return of furloughed and laid-off employees, and how to address these issues if temporary layoffs are extended or become permanent.

Consumer complaints regarding alleged price gouging have been increasing as the COVID-19 pandemic continues. Generally, price gouging occurs when there unreasonable increase the price of a consumer good (or service) during a public emergency. Although we are facing a national emergency, except for a March 23, 2020, executive order issued by President Trump prohibiting hoarding and price gouging of certain critical supplies, there is no federal price gouging law. Although there are proposal pending in Congress to more broadly prohibit price gouging, currently, the issue is primarily governed by state law. Most, but not all, states affected by the pandemic have price gouging laws or orders, which typically provide that a consumer may file a complaint with the state’s consumer affairs department that then may be prosecuted (or otherwise resolved) by the state’s Office of the Attorney General.

While price gouging certainly has occurred during the pandemic, many complaints of alleged impermissible price gouging are based consumer misperception or misunderstanding about what is occurring in the market place, rather than profiteering. In other words, things aren’t always as they seem.

Supply and Demand

Before the outbreak, retailers would typically have had available a variety of options for a particular product or item, allowing the consumer to choose from a wide variety of quality, color, size and price options to select the product or item they wished to purchase .  With so many people sheltering at home, basic retail goods, such as toilet paper, paper towels, cleaning supplies and eggs, are in high demand and short supply.  Thus, consumers may no longer be able to find their preferred option available and that instead may have to choose a different, and sometimes more expensive, option. .Thus, for example, a consumer who may be accustomed to purchasing generic toilet paper that has sold out, may be constrained to buy a more expensive name brand. This is not price gouging; this is supply and demand.

Increased Wholesale Costs

Additionally, with so many goods in short supply and high demand, wholesale costs are rising, which in turn lead to increased retail costs. Take a commodity like eggs. The Washington Post  The Washington Post recently reported that the demand for eggs had increased 44% since a year ago, and that wholesale price of eggs had risen 180% since March 2020 for a variety of reasons.  Higher wholesale costs naturally lead to higher retail costs. Generally, speaking it is permissible for a retailer to reflect its cost of goods in the price that it charges consumers.  Consequently, it is not surprising that many consumers are finding that the retail cost for eggs has increased.

Scaled Back Promotions

Finally, faced with inventory shortages and personnel shortages, retailers are also having to scale back on promotions, such as reduced price sales. While consumers may be accustomed to regular or weekly sales, discontinuing a regular practice does not translate to being price gouging. The promotions make no sense if the retailer cannot be certain it can obtain the promotional items or obtain the items in sufficient quantities to satisfy consumer demand.  Indeed, running such a promotion would only increase consumer frustration or lead to a complaint when the consumer arrives at the store and sees that the limited supply of sale items is not on the shelves.

Conclusion

Price gouging and profiteering are fairly obvious: unreasonably increasing prices to take advantage of consumers during a state of emergency. But not every price increase constitutes price gouging.

In March 2020, as the severity of the COVID-19 pandemic in the United States began to emerge, state and local governments took historic steps to shut down all nonessential activity in their jurisdictions.  As of April 20, “at least 316 million people in at least 42 states, three counties, 10 cities, the District of Columbia and Puerto Rico” were subject to some form of a government order or proclamation calling for all nonessential workers to stay-at-home (except for necessary trips to places such as pharmacies and grocery stores).  Whereas these critical shelter-in-place (“SIP”) measures have helped to slow the progression of the virus, they have also had a devastating effect on most sectors of the economy. In just the five-week period ending April 18, 26.4 million workers had filed new claims for unemployment compensation.

In an effort to stimulate the economy – while still prioritizing public health and safety – the federal government as well as a number of state and local governments have begun to explore, and in some cases implement, strategies to gradually reopen certain sectors of the economy.  In assessing such plans, employers need to be mindful of both the practical hurdles and legal pitfalls inherent in such initiatives, and ensure that their return-to-work policies and practices are as safety-focused and otherwise legally sound as possible.  This is no easy task as the business community, along with government officials and the public at large, attempt to navigate largely uncharted territory.

The Federal Government’s Initiative:  “Guidelines for Opening Up America Again”

The federal government did not issue a SIP order affecting local governments, private-sector businesses, or the public generally.  Rather, the White House declared a national emergency on March 13, 2020, and, in conjunction with the Centers for Disease Control and Prevention (“CDC”), has periodically released and updated guidelines, such as those published on March 16, 2020—“30 Days to Slow the Spread”—which encouraged work from home, home schooling, social distancing, sound personal hygiene practices, and other voluntary measures to reduce the spread of COVID-19.  As noted above, the decision to issue SIP orders and the extent of such orders has rested with the states and, in some cases, cities and counties.

Accordingly, when President Trump recently decided to focus on encouraging return-to-work initiatives, the federal government again offered guidance rather than a mandate. On April 16, 2020, the White House and CDC released Guidelines for Opening Up America Again (“Federal Guidelines”), a multi-phased, data-based approach to reopening a local economy while simultaneously mitigating the “risk of resurgence” and protecting vulnerable populations (e.g., the elderly and those with underlying health issues), which states (or regions), employers, and individuals may voluntarily choose to follow, in whole or in part.  Throughout the proposed process, each state or region would retain the authority to devise its own timeline and procedures for easing SIP restrictions and setting the specific standards for individuals and businesses to resume specific activities.

Proposed State or Regional Gating Criteria

The Federal Guidelines propose three phases to reopening the local economy.  Prior to initiating each phase, however, the Federal Guidelines instruct that each state or region satisfy the following specific “gating criteria” (to be modified as may be appropriate to the locality’s particular circumstances):

  • Symptoms: A 14-day period in which there is a “downward trajectory” of both flu-like illnesses and COVID-19-like “syndromic” cases;
  • Cases: A 14-day period of a downward trajectory of documented cases or positive cases “as a percent of total tests within a 14-day period (flat or increasing volume of tests)”;
  • Hospitals: The ability to treat all patients without crisis care; and
  • Testing: A “[r]obust testing program in place for at-risk healthcare workers, including emerging antibody testing.”[1]

“Core State Preparedness Responsibilities”

In addition to the gating criteria, the Federal Guidelines recommend that the state or region satisfy the following standards—referred to as “Core State Preparedness Responsibilities”—prior to implementing each of the three phases:

  • Testing and Contact Tracing
    • Ability to quickly set up “safe and efficient screening and testing sites” for symptomatic individuals, persons exposed to COVID-19, and asymptomatic individuals belonging to various vulnerable cohorts (e.g., older people, lower-income individuals, racial minorities, and Native Americans), and the ability to trace contacts of COVID-19 results.
  • Healthcare System Capacity
    • Ability to “quickly and independently” supply sufficient personal protective equipment (“PPE”), critical medical equipment, and intensive care unit (“ICU”) capacity to handle a “dramatic surge” in need.
  • Plans
    • To protect the health and safety of workers in critical industries, individuals working and living in “high-risk facilities” (e.g., senior care facilities), and employees and users of mass transit;
    • To communicate protocols for social distancing and face coverings; and
    • To “[m]onitor conditions and immediately take steps to limit and mitigate any rebounds or outbreaks by restarting a phase or returning to an earlier phase, depending on severity.”

General Guidelines for Employers

Notably, the Federal Guidelines also provide general instructions for employers to follow throughout each phase of the reopening. Specifically, the Federal Guidelines recommend that employers develop and implement policies, in accordance with applicable law and regulations, as well as industry best practices, on the following matters:

  • Mandating social distancing and PPE;
  • Implementing temperature checks;
  • Adopting sanitation practices;
  • Disinfecting common and high-traffic areas;
  • Limiting nonessential business travel;
  • Monitoring of the workforce for indicative symptoms (including prohibiting symptomatic workers from physically returning to the worksite until they are cleared by a medical provider); and
  • Developing and implementing policies and procedures for workforce contact tracing should an employee test positive for COVID-19.

As discussed in more detail below, the development and implementation of such policies and practices raise several legal issues.

The Three Phases of Reopening

With respect to the three proposed phases of reopening, the Federal Guidelines recommend the following:

PHASE ONE PHASE TWO PHASE THREE

For states and regions that satisfy the gating criteria:

State and Individuals

·       All vulnerable individuals should continue to shelter in place.

·       Everyone should practice physical distancing in public spaces.

·       “Social settings” should be limited to a maximum of 10 people; however, “[l]arge venues (e.g., sit-down dining, movie theaters, sporting venues, places of worship) can operate under strict physical distancing protocols.”

·       Non-essential travel should be limited.

·       Schools, daycare centers, and camps that are currently closed should remain closed.

·       Visits to senior facilities and hospitals are prohibited, but elective surgeries may resume on an outpatient basis.

·       Gyms may open if they adhere to “strict” physical distancing and sanitation protocols, but bars should remain closed.

Employers

·       Permit telework to the extent feasible.

·       “If possible,” return to work in phases.

·       To the extent it is doable, close common areas and enforce “strict social distancing” protocols.

·       Minimize non-essential travel and adhere to CDC guidelines regarding isolation following travel.

·       Consider “special accommodations” for employees who are members of a vulnerable population.

For states and regions with no evidence of a rebound and that satisfy the gating criteria a second time (e.g., another 14-day period of a “downward trajectory” of cases):

States and Individuals

·       Vulnerable individuals should continue to shelter in place.

·       With “proper physical distancing,” social settings may increase to groups of 50 people; however, large venues can operate under “moderate physical distancing protocols.”

·       Non-essential travel may resume.

·       Schools, daycare facilities, and camps may reopen.

·       Visits to senior care facilities and hospitals must continue to be prohibited, but elective surgeries may resume on an in-patient and outpatient basis.

·       Gyms can remain open if they adhere to “strict” physical distancing and sanitation protocols and bars may operate with “diminished standing-room occupancy, where applicable and appropriate.”

Employers

·       Continue telework to the extent possible.

·       Close common areas or “enforce moderate social distancing protocols.”

·       Continue special accommodations for members of a vulnerable population, where feasible.

 

For states and regions with no evidence of a rebound and that satisfy the gating criteria a third time (e.g., another 14-day period of a “downward trajectory” of cases):

States and Individuals

·       Vulnerable individuals may resume public interactions “but should practice physical distancing, minimizing exposure to social settings where distancing may not be practical, unless precautionary measures are observed.”

·       “Low-risk” populations should consider minimizing time spent in “crowded environments.”

·       Large venues may operate “under limited physical distancing protocols.”

·       Restrictions on visits to senior care facilities and hospitals are lifted.

·       Gyms must adhere to “standard” sanitation protocols; bars may operate “with increased standing room occupancy, where applicable.”

Employers

·       May resume “unrestricted staffing of worksites.”

 

Federal Guidelines: Unanswered Questions

The Federal Guidelines raise issues based on their own mandates and underscore more general issues that are likely to arise from most any state’s particular reopening plan.  For instance, with respect to the Federal Guidelines’ own directives, the materials contain no definitions, except for providing examples of “large venues” and a specific definition of “vulnerable individuals.”[2] What, for example, are “strict physical distancing protocols” (versus “moderate” ones)?  What are “special accommodations” for employees or members of the public who are vulnerable individuals?  Are special accommodations analogous to “reasonable accommodations” as defined by the Americans with Disabilities Act (“ADA”)?  The Federal Guidelines do not address such questions.

On a broader level, and except for a general instruction to follow applicable laws and industry best practices, the Federal Guidelines provide no concrete guidance for employers with respect to such matters as developing and implementing procedures for monitoring symptoms of COVID-19 among the workforce or creating and executing a contact tracing program.  The Federal Guidelines appear to implicitly assume that the states or regions will create such systems.  But what if the state or region where the employer is located does not establish a broad-based testing or tracing program accessible to the employer (remember, states are not required to follow the Federal Guidelines, and are free to initiate a return-to-work program without adopting any of the recommended measures),[3] nor are the states mandated to provide assistance or guidance to employers on such issues.  As a result, employers in many jurisdictions are likely to find themselves on their own with regard to developing and implementing these kinds of procedures and protocols.

Finally, even where a state or region develops a comprehensive return-to-work plan that includes, for instance, expansive testing and contact tracing protocols and that provides specific definitions for such terms as “strict physical distancing,” employers will remain obligated to ensure that their policies and practices comply with all applicable laws and regulations, such as the Occupational Safety and Health Administration’s (“OSHA’s”) safety and reporting requirements, the prohibition against disability, pregnancy, age, national origin, and other types of discrimination under federal, state, and local laws, and all applicable wage and hour laws (e.g., must employees be paid for time spent having their temperature taken?).

The law is in flux on many of the issues employers will confront as they plan return-to-work initiatives.  Indeed, new guidance emerges from various federal and state regulatory agencies and other governmental entities on a near daily basis.  Just last week, for example, OSHA issued new guidance on the reporting of COVID-19 cases at the workplace, and has indicated that it will continue to issue guidance that pertains to particular industries, and even more recently, the Equal Employment Opportunity Commission (“EEOC”) – for the fourth time in one month – clarified the kind of COVID-19-related testing that is permissible under the ADA.

Individual State Reopening Initiatives and Regional Pacts

A report in The New York Times on three states’ return-to-work initiatives, which were implemented on April 24, 2020, illustrates just the “tip-of-the-iceberg” issues inherent in reopening endeavors:

[T]hree states on Friday took tentative steps toward something resembling normalcy.  But across Georgia, Alaska and Oklahoma, it was anything but business as usual . . . A barber giving a trim in Atlanta, with a face mask and latex gloves in place, was dressed more like a surgeon preparing for an appendectomy.  Beauty salons were asking customers to sign legal waivers before they had their hair colored or curled… The Georgia cosmetology board issued guidelines for reopening spas and salons, suggesting the use of masks for clients and workers, temperature checks with infrared thermometers, screening questions (“Have you had a cough? Have you had a fever?”), and by-appointment-only rules.  But the guidelines were not being followed in many reopened salons visited on Friday.

Other states, like Alabama, have set forth a nuanced approach to reopening.  On April 17, 2020, the Alabama Small Business Commission Emergency Task Force released “Reopen Alabama Responsibly,” a detailed, 158-page roadmap setting forth “Phase One” of the state’s return-to-work plans for a range of industries.  The report provides a comprehensive list of health and safety measures and protocols, specific to particular industries, which employers should have in place and ready to implement when they reopen.

For example, restaurants are advised to physically mark distances in waiting areas (or have customers wait outdoors) and to limit total capacity, as well as the number of guests at any one table, to ensure appropriate physical distancing at all times. In contrast, due to their unique structure and operational needs, manufacturing facilities are advised to customize a social distancing strategy based on the facility’s specific layout and workflow.  As of the date of this article, a timeframe for reopening Alabama businesses has not yet been set.

Similarly, the governors of California and New York have indicated that they, too, will take a cautious approach to reopening their respective states.  For example, on April 14, 2020, California Governor Gavin Newsom outlined six critical indicators the state will consider before modifying its stay-at-home order.  These include the capability:

  1. to monitor and protect communities through testing, contact tracing, isolating, and supporting those who are positive for or exposed to COVID-19;
  2. to prevent infection in people who are at risk for more severe COVID-19;
  3. of the hospital and health systems to handle surges in COVID-19 cases;
  4. to develop therapeutics to meet the demand;
  5. for businesses, schools, and child care facilities to support physical distancing; and
  6. to determine when to reinstitute certain measures, such as the stay-at-home orders, if necessary.

Other than laying out these preconditions, Governor Newsom has not yet identified any specifics or a timeline for when a return-to-work initiative might begin.

On April 26, 2020, New York Governor Andrew Cuomo announced a phased plan to reopen business activity in the state that offers some concrete details without a specific starting date for the plan.  In phase one, the state will reopen “low-risk” construction and manufacturing businesses in certain areas—like upstate regions of New York—that have experienced a 14-day decline in the hospitalization rate.

Phase two will entail opening certain industries “based on priority and risk level,” which means prioritizing businesses considered “more essential” but with “inherent low risks of infection in the workplace and to the customer.”  Throughout this process, adjustments will be made as needed, based on “the hospitalization rate, the infection rate, and other key health indicators.”  Notably, Governor Cuomo had previously announced plans to dramatically increase diagnostic testing and to initiate antibody testing, as such data is considered essential to mitigating the risk of a resurgence of COVID-19 cases.

Consistent with the Federal Guidelines, New York State also will implement a two-week waiting period in between phases of the plan to monitor the effect, i.e., to help ensure that the hospitalization and infection rates are not increasing as some workers begin to return to work. In addition, the New York plan tasks businesses and industries with creating comprehensive safety plans designed to lower the risk of infection at the worksite or place of public accommodation.

Finally, the New York plan emphasizes the importance of multistate cooperation to ensure safe and consistent policies. In fact, New York already has joined a multistate coalition to coordinate reopening plans with neighboring states.  To date, three such alliances have been announced across the country:

  • The Northeastern States Regional Alliance (“Multi-State Council”), including Connecticut, Delaware, Massachusetts, New Jersey, New York, Pennsylvania, and Rhode Island;
  • The Western States Pact, including California, Oregon, and Washington; and
  • The Midwestern States Regional Alliance (“Partnership to Reopen Regional Economy”), including Illinois, Indiana, Kentucky, Michigan, Minnesota, Ohio, and Wisconsin.

Generally, the members of these alliances emphasize that their primary goal is to make data-driven decisions as to when and how to restart their economies, and are particularly concerned with having adequate programs and protocols in place to conduct comprehensive diagnostic and antibody testing as well as contact tracing.[4]

Indeed, both health experts and business executives are emphasizing the critical role that effective testing procedures will play in ensuring a successful reopening of the U.S. economy. The Infectious Diseases Society of America, for example, cautions that states and cities should not start changing their social distancing policies until “widespread testing allows accurate surveillance of the coronavirus spread.”  Sounding a similar note, business executives reportedly have advised President Trump that the ability to screen employees and customers is essential to building the level of confidence in both workers and the public that will be essential to establishing a meaningful and sustainable reopening of the economy.

Conclusion

Aside from the Federal Guidelines, employers should become familiar with and analyze the return-to-work rules propounded in the states and regions in which they maintain stores, facilities, and/or offices.  Even if an employer is eligible to reopen its business in a particular jurisdiction, based on the guidance in that state or region, it should proceed with caution. For example, while a shutdown order on a particular sector may be lifted, other conditions may complicate a successful reopening, such as schools remaining closed or the unavailability of adequate testing materials.  Accordingly, employers may wish to take a “wait and see” approach, simply reviewing the results of those employers that have already engaged in the “reopening” of the economy, in order to monitor and analyze the results of such actions.

Furthermore, once employees are back at work, employers are not yet out of the woods.  Employers must take care to ensure that employees are healthy and safe in the workplace.  As such, employers should continue to review the ever-evolving guidance from governmental agencies, such as OSHA and the CDC, concerning best health and safety practices in the workplace. Employers will likely see that there is a “new normal” and that no “one size fits all” model is available.

Employers should further ensure compliance with new federal and state legislation passed during the COVID-19 crisis concerning sick leave and family and medical leave laws, and understand their obligations concerning testing and accommodations under the ADA and other antidiscrimination laws.

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[1] On April 25, 2020, the World Health Organization (“WHO”) reiterated that it remains unknown the extent to which the presence of antibodies provides immunity from re-infection.  In a series of tweets, WHO explained: “We expect that most people who are infected with #COVID19 will develop an antibody response that will provide some level of protection. What we don’t yet know is the level of protection or how long it will last.  We are working with scientists around the world to better understand the body’s response to #COVID19 infection.  So far, no studies have answered these important questions.”

[2] “Vulnerable individuals” are defined as (1) “elderly” individuals (though “elderly” is not defined); and (2) individuals with “serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.”

[3] For example, Georgia has initiated a return-to-work program notwithstanding that the number of new cases of COVID-19 in the state were trending up and thus did not meet the Federal Guidelines’ first gating criterion.  Notably, on April 23, 2020, Georgia Governor Brian Kemp issued an executive order providing additional guidance on reopening for both “critical” and “noncritical” infrastructure businesses, and requiring high-risk individuals to continue sheltering in place.

[4] Other states have recently issued some form of a reopening plan or guidance, including, but not limited to, Colorado, Kentucky, Michigan, Minnesota, New Jersey, Pennsylvania, Tennessee, and Texas.

On the heels of adding Return to Work guidance to its technical assistance for employers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Law” (discussed  here),  on April 23, 2020 the Equal Employment Opportunity Commission (“EEOC”) issued an update addressing COVID-19 testing by employers. This latest guidance acknowledges that COVID-19 presents a direct threat to the health of others sufficient to justify testing.  It cautions, however, that employers should only use tests that are “accurate and reliable.” Specifically the FAQ states:

A.6.   May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.”  Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19, because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.  Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.

Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, wearing face masks, if required, and other measures) in the workplace to prevent transmission of COVID-19.

As featured in #WorkforceWednesday: The COVID-19 pandemic has created a sudden imbalance in the labor market. While many employers are implementing layoffs or furloughs, other “essential” businesses are searching for additional employees to meet demand. Attorneys Nathaniel Glasser and Ian Carleton Schaefer discuss how employers can use creative approaches to address this imbalance. Read more about the strategies for employers (subscription required).

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