All information in this COVID-19 Response Resource issue is effective as of April 14, 2020.
In response to stay at home directives and orders, businesses throughout the Intermountain West have furloughed, laid off or terminated many of their employees. In other cases, employers have sent employees home to telework. At some point, those directives will loosen or expire, businesses will re-open and employees will be brought back to the workplace. Business owners should plan now what that "re-opening" will look like. Below are crucial questions business owners need to ask as part of this planning process. The specific answers to these questions may differ depending on the type, nature and circumstances of the business involved. Our team can help you navigate these issues. Please contact any of the Parsons employment lawyers listed at the bottom of this article for such help.
1. Is my business “essential?”
As state and local governments start relaxing stay-at-home orders, they likely will redefine which businesses are essential. Employers will need to work with legal counsel to determine if they are an “essential business” under all relevant orders at any given time and the extent to which they may re-open and under what conditions.
2. Should I bring all my employees back at the same time? Should I stagger their return? In what order? Should I hire different employees?
One of the first questions a business owner should ask is who should be brought back and when. This not only implicates immediate operational needs it implicates numerous legal considerations. Among other considerations, employees should be brought back in a way that minimizes risks of exposure to vulnerable individuals, potential claims of discrimination and violations of union or seniority rights. Furthermore, if a business has received a Paycheck Protection Program (PPP) loan, it is critical that the business manage its workforce in a way that maximizes loan forgiveness under the PPP program
3. Should I create an FFCRA Policy?
Even though we anticipate that we will soon be “over the peak” and many businesses will be able to reopen or resume full operations, the reality is that COVID-19 is going to be with us for several months, if not years. The Families First Coronavirus Response Act (FFCRA) created new leave rights (through the end of 2020) for employees impacted by the COVID-19 pandemic, such as becoming ill with the virus, having a family member become ill, being subject to a quarantine or directive to stay at home, or having to care for a child whose school or day care center has closed. These new leave rights require new leave policies. Because the regulations implementing the FFCRA provide employers with important options in administering leave rights under the FFCRA, it is critical that these new leave policies be fashioned and implemented in a way that maximizes these options to the benefit of each business.
4. May I ask my employees (or new applicants) questions about their exposure to COVID 19 or require them to have their temperature taken before returning to work?
Generally, yes, but there are limitations. Employers have an obligation under OSHA to keep their workplaces safe. Businesses have general obligations to take reasonable measures to avoid exposing their customers or invitees to the virus. At the same time, the Americans with Disabilities Act (ADA) creates boundaries about what employers may ask employees regarding their health and about health-related tests that may be required of employees as well as imposes strict confidentiality requirements for health-related information. To complicate matters, instances may arise when employers acquire information that may require reporting to health officials and persons who may have been exposed. Employers will need to properly manage these competing obligations as employees return to work and know what to do when a problem arises.
5. What if my employees do not want to return to work because they are making more money through unemployment?
Through the Coronavirus Aid, Relief, and. Economic Security Act (CARES Act), the federal government has made unemployment insurance for some employees temporarily more financially beneficial than working. Employers must be ready to respond appropriately and effectively to employees who do not want to lose out on these enhanced unemployment benefits.
6. What are my obligations regarding keeping a safe workplace?
Responding to obligations under OSHA to keep workplaces safe with respect to COVID-19 is an important aspect of "re-opening." Lawsuits are springing up across the country claiming that employers have negligently or willfully exposed workers to the CO,VID-19, leading to employees’ deaths. Some of these lawsuits include allegations that may potentially defeat liability protections under state workers’ compensation laws. Employers will need to stay abreast of and comply with all CDC and OSHA guidelines as well as any stricter local or industry specific guidelines and requirements, both to prepare workplaces for returning workers and to maintain safety during ongoing operations. Employers must also have a plan in place in case of a new outbreak in the workplace.
7. What do I do about employees who do not want to return to the workplace for fear of exposure?
Employers must carefully communicate appropriate information about measures that have been taken to make the workplace safe, and invite employees to share appropriate concerns and ideas. Employers must also be prepared for the reality that some individuals will not want to return to work or will insist on returning to work only under certain conditions and must have appropriate plans for dealing with such situations. These plans must balance operational, legal and reputational considerations.
For questions regarding this or other related matters, contact Sean Monson at (801) 536-6714 or smonson@parsonsbehle.com, Christina Jepson at (801) 536-6820 or cjpeson@parsonsbehle.com, Liz Mellem at (406) 333.0530 or amellem@parsonsbehle.com, Susan Motschiedler at (801) 536-6923 or smotschiedler@parsonsbehle.com.
