Keeping You Up to Date on COVID-19 Employment Issues: Links to Our Alerts

Author: Dorrie Larison

We know that we are all feeling a bit overwhelmed by the fast-pace of information being circulated about employment related COVID-19 issues and laws. In an effort to help you organize and retain COVID-19 information in a concise way, you will find links below to each of the Employment Alerts, Blog Posts, and Webinars by Lathrop GPM on COVID-19 employment issues. We will continue to keep you up to date with Alerts and blog posts as the various federal and state agencies issues new laws, regulations, and answers to the questions posed by employers. Please check here on the Modern Workplace for updates or go to the Lathrop GPM website to find all of the COVID-19 Alerts by our various practice groups.

Employment Alerts from Lathrop GPM

• COVID-19 Federal Loan Assistance Programs | March 30, 2020
• Immigration Alert: DHS Suspends In-Person Inspection Requirement for Form I-9 and Extends Response Time for Notices of Inspection | March 27, 2020
• DOL Issues Q&A on Families First Coronavirus Response Act, Setting April 1 Effective Date for Paid Leave Provisions | March 25, 2020
• Executive Orders Requiring Stay-At-Home/Shelter-In-Place With Exceptions for "Essential Businesses" | March 24, 2020
• Tax Alert: What Employers and Self-Employed Individuals Need to Know About the Coronavirus Response Act Tax Credits for Emergency Paid Leave | March 23, 2020
• Coronavirus Response Act Provides for Paid Sick Leave and Paid FMLA Leave | March 18, 2020
• Coronavirus and the Workplace | March 6, 2020 

The Modern Workplace Blog Posts

• OSHA Issues Additional Guidance for Employers in Responding to COVID-19 | March 12, 2020

Webinars

• COVID-19 Webinar: The Employer's Perspective | March 26, 2020

OSHA Issues Additional Guidance for Employers in Responding to COVID-19

Author: Katy Fodness

Public health officials and business leaders are grappling with how to respond to the increasing number of presumptive and confirmed cases of COVID-19 across the United States. Seattle has closed public schools for two weeks in light of coronavirus and banned large gatherings, including sporting events. This week, many higher education institutions, including the University of Minnesota, Duke University, Georgetown, and the University of Notre Dame, canceled in-person classes and announced that they are temporarily switching to an online learning environment. Nationally, various music festivals, conferences, sports and other events have been canceled in light of concerns about the spread of coronavirus. In addition, on March 11th, President Trump announced that the U.S. would ban most incoming travelers from Europe except for individuals arriving from the U.K. With all of this going on, what are some things that employers should do to ensure that their workplaces stay as safe and healthy as possible?

One thing employers can do is review our firm’s recent coronavirus client alerts, available here:

• Coronavirus and the Workplace
• Franchisor’s Response to the Coronavirus Threat
• COVID-19, Contracts and Force Majeure

In addition, employers should continue to proactively track federal, state and local government guidance on the evolution of COVID-19 and recommendations for businesses.

One organization that has issued new guidance this week is the U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”).  On March 9, 2020, OSHA published Guidance on Preparing Workplaces for COVID-19. While the Guidance is not legally binding and does not impose any new legal obligations on employers, it is a helpful resource for employers in ensuring their workplaces are safe and healthy.

The 35-page OSHA guidance document identifies steps that all employers can take to reduce the risk of employee exposure to SARS-CoV-2 (the virus that causes COVID-19), as well as specific recommendations to protect workers based on their occupational risk of exposure to the virus. OSHA recommends that all employers:

• stay on top of guidance from federal, state, local, tribal, and/or territorial recommendations and resources about the workplace;
• develop an infectious disease preparedness and response plan that can guide protective actions against COVID-19, including: 
• identification of the ways employees may be exposed to the virus in the workplace;
• a plan to implement recommendations made by public health officials, such as contingency planning for increased absenteeism or the need for social distancing, staggering of work shifts, downsizing operations, delivering remote services, or adopting other exposure-reducing measures; and planning for interrupted supply chains or delayed deliveries; and
• identifying other steps to reduce the risk of worker exposure in the workplace
• prepare to implement basic infection prevention measures by:
• encouraging frequent and thorough handwashing, including providing workers, customers, and worksite visitors a place to wash hands or alcohol-based hand rubs;
• encouraging workers to stay home when sick;
• encouraging good respiratory etiquette (covering coughs and sneezes);
• providing tissues and trash receptacles to customers;
• establishing policies and practices like flexible worksites or hours when the appropriate health authorities recommend the use of social distancing;
• discouraging the sharing of phones, desks, offices, or other work tools and equipment, where possible; and
• maintaining regular housekeeping practices and using cleaners with EPA-approved emerging viral pathogens claims in accordance with manufacturer’s instructions
• develop policies and procedures to promptly identify and isolate sick individuals, where appropriate;
• develop, implement, and communicate about workplace flexibilities and protections, including:
• actively encouraging sick employees to stay home;
• adopting sick leave policies that are flexible and consistent with public health guidance;
• ensuring employees know and understand sick leave policies, including how to report that they are sick or experiencing symptoms of COVID-19;
• communicating with companies providing contract or temporary employees the importance of such employees staying home when sick; and
• providing training about proper hygiene practices and workplace controls, such as personal protective equipment (PPE).

As medical and public health knowledge of the respiratory illness caused by the coronavirus continues to evolve, the Guidance also identifies various ways to control what OSHA terms “workplace hazards,” including exposure to COVID-19. Some of these control measures include engineering controls (e.g., isolating employees from work-related hazards such as physical barriers like sneeze guards, ventilation symptoms, or drive-thru windows), administrative controls (e.g., discontinuing nonessential travel to locations with ongoing COVID-19 outbreaks, changing shifts to increase distance between employees during workweek), safe work practices (e.g., creating a work environment that promotes personal hygiene, requiring hand washing or use of alcohol-based hand rubs), and appropriate use of employer-provided PPE when appropriate based on the nature of the work performed  (e.g., facepiece respirators for those working within 6 feet of patients known to be, or suspected of being, infected with SARS-CoV-2). The Guidance also provides specific steps that employers should consider taking to protect employees performing “very high exposure risk jobs” to those who perform “lower exposure risk” jobs. 

While OSHA does not have a specific standard covering COVID-19, the agency has identified a number of general OSHA requirements that may apply and will minimize the risk of occupational exposure to COVID-19.  OSHA states that “the most relevant” standards for employers are:

• OSHA’s Personal Protective Equipment (PPE) standards, which require the use of gloves, eye and face protection, and respiratory protection;
• OSHA’s General Duty Clause, which requires employers to provide each employee with “employment and a place of employment, which are free from recognized hazards that are causing or likely to cause death or serious physical harm”;
• OSHA’s Bloodborne Pathogens standard, which OSHA notes applies to occupational exposure to human blood and other potentially infectious materials that do not typically include respiratory secretions, but may provide guidance that helps control the transmission of COVID-19; and
• OSHA’s standards applicable to use of hazardous chemicals used in disinfection.

In addition to keeping abreast of the evolving guidance provided by OSHA and the CDC, employers should also make sure to follow any recommendations of public health authorities and labor and industry agencies at the state or local level, which may have more stringent requirements.  Employers should also remain cognizant of their responsibility not to make any employment-related determinations based on race, country of origin, or any other protected class status, follow leave requirements under the Family and Medical Leave Act, and maintain the confidentiality of employees with confirmed COVID-19 to the fullest extent possible. 

Lions and Tigers and Bears — In the Workplace??

After a surge of unorthodox flight companions — ranging from pigs, to squirrels, and even a peacock — the U.S. Department of Transportation recently announced a proposed rule that would allow only specially trained emotional support dogs to qualify as service animals and to fly, free of charge, on domestic flights. This proposed rule change comes after multiple complaints from flight attendants, fellow passengers, and advocacy groups about the rise in untrained animals aboard domestic flights and the impact on others on flights. Such complaints have included allergies, safety concerns (i.e. biting, lunging, or animals going into “attack mode” while in a confined space), and sanitation.

Minnesota Supreme Court Upholds Minneapolis Minimum Wage Ordinance

Last week, the Minnesota Supreme Court issued a ruling that upheld the City of Minneapolis’s $15 per hour minimum wage ordinance. Graco, Inc. sued the City over the ordinance back in 2017, arguing that the state of Minnesota’s lower minimum wage law preempted the Minneapolis ordinance and seeking a permanent injunction against the ordinance’s enforcement. In a unanimous decision issued last Wednesday, the Minnesota Supreme Court held that the state legislature did not intend to occupy the field of minimum-wage rates. The Court also held that the City ordinance was valid, because it does not prevent employers from also complying with the lower state minimum wage. In other words, the state law sets a minimum wage floor for employers, but does not set a ceiling on the hourly rate that employers might be required to pay.

U.S. DOL Publishes Final Rule on Joint Employer Liability Under the FLSA

On January 12, 2020, the U.S. Department of Labor (DOL) published its final rule regarding joint-employer status under the Fair Labor Standards Act (FLSA), the federal wage and hour law. This final rule provides a more employer-friendly joint employer liability standard than previous guidance issued by the DOL under the Obama administration.

In recent years, many employment lawsuits have been brought against entities that do not technically employ the workers bringing the employment-related claims, but may exert some level of control or influence over their employment (such as staffing companies, franchisors, and general contractors). For example, franchisee employees have tried to make franchisors responsible as “joint employers” for wage and hour violations committed by franchisees. The final rule is meant to provide some clarity on how these claims should be analyzed. 

Welcome to the New Year — Required Changes to Wage and Hour Laws

Employers should be aware that the start of the New Year ushered in changes to federal, state and local government wage and hour laws. Some of those changes include the following:

• The minimum salary for executive, administrative and professional employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) has increased from $455 to $684 per week ($35,568 per year). 
• The annual compensation now required to meet the exemption under the FLSA for highly compensated employees has been raised to $107,432.

Workplace Tips for the Holiday Season

Happy Thanksgiving! With the holiday season upon us, we wanted to give you a quick refresher on some tricky workplace issues that are common this time of year.

Holiday Parties

While holiday parties can increase morale and provide an opportunity for team building, without planning and forethought, holiday parties can cause human resources issues that will follow you well into the new year.

Wage and Hour Issues

If you require non-exempt employees to attend a holiday party, you must compensate them for the time they spend there. If the party occurs during normal work hours, non-exempt employees are likely being compensated anyway, but pay is also required for off-hours parties if attendance is mandated. In addition, any mandatory time spent at the party counts as work time for overtime calculation purposes. The simplest way to avoid additional pay obligations, if desired, is to plan parties for non-work hours and to clearly communicate that attendance is optional for non-exempt employees.