September 14, 2020
FDIC Issues Final Rule Revising and Codifying Section 19 to Allow Greater Employment Opportunities for Individuals With Certain Minor Criminal Offenses on Their Records
The Federal Deposit Insurance Corporation (FDIC) approved a final rule to revise and incorporate into the FDIC’s regulations a longstanding Statement of Policy (SOP) related to individuals with certain criminal offenses on their records who seek employment in the banking industry.
Section 19 of the Federal Deposit Insurance Act (Section 19) prohibits any person from participating in banking who has been convicted of a crime involving dishonesty, breach of trust, or money laundering, or who has entered a pretrial diversion or similar program in connection with the prosecution for such an offense, without first obtaining written consent from the FDIC.
Based on filings over the past several years, the FDIC expects that the revisions in the final rule will reduce applications required under Section 19 by 30 percent. All of these changes will reduce regulatory burden on financial institutions and individuals.
CDC Updates Guidelines on When COVID-19-Positive Workers Can Return
The Centers for Disease Control and Prevention has revised its guidance on when those with COVID-19 may be released from self-isolation and thereby return to work.
Previously, the CDC had identified two different strategies for this determination: symptom-based and test-based. Under the latter, an individual could stop self-isolating once symptoms abated and the individual had two consecutive negative COVID-19 tests at least 24 hours apart. The CDC no longer recommends the test-based strategy in general, since studies have shown that the vast majority of those who test negative also meet the criteria of the symptom-based strategy. The test-based strategy may still be used for those who are severely immunocompromised, in consultation with infectious disease experts.
Additionally, the CDC updated its symptom-based strategy. The CDC now states that self-isolation of those with symptoms may be discontinued when:
Those without symptoms may discontinue self-isolation after 10 days have passed from the positive COVID-19 test.
CDC Issues COVID-19 Communication Plan for Critical Infrastructure Employers
On August 4, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued a communication plan titled “COVID-19 Communication Plan for Select Non-healthcare Critical Infrastructure Employers.” The purpose of the plan is to outline actions certain critical infrastructure employers may consider to disseminate COVID-19 messages with employees more effectively. The plan suggests key messages employers may consider to inform employees and provides prepared CDC communication materials in multiple languages for use in the workplace.
A key recommendation in the plan is that employers should consider multiple means by which to communicate COVID-19 messages to employees and other stakeholders, such as through letters to employees, small group meetings (presumably maintaining social distancing and other mitigation measures), social media posts, onsite televisions or video monitors, text messages, and posting materials throughout the workplace in areas such as cafeterias, locker rooms, bulletin boards, restrooms, entry areas, breakrooms, and other similar locations. The CDC recommends communicating key messages to employees on a regular basis based on what is happening in the specific workplace and community. The plan contains links to helpful CDC posters, handouts, social media messaging, and videos, many of which are available in multiple languages.
With respect to the substance of employee communications, the CDC recommends focusing on two primary messages:
The plan offers suggestions regarding general messages applicable to all employees, such as the importance of staying home when sick, information regarding COVID-19 symptoms and how the disease is spread, and the importance of mitigation precautions such as social distancing and face coverings. The plan also contains tailored recommendations for communications to different categories of employees. For example, the plan offers messages for workers who are “at higher risk for severe illness,” workers who are sick with symptoms or have been diagnosed with COVID-19, managers and supervisors, and workers who may have been exposed to COVID-19.
Often, workplace safety measures are only as effective as the degree to which managers and employees take the risks and safety measures seriously. The CDC communication plan offers information that may be of interest to all employers, but, in particular, those with critical infrastructure workers may want to review the plan while considering how to augment the company’s communications practices around the issue of COVID-19.
EEOC Issues Guidance on Opioid Addiction in Employment
The U.S. Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents on August 5, 2020, addressing accommodation issues under the Americans with Disabilities Act (ADA) for employees who use opioid medications or may be addicted to opioids. They provide employers insight into how the EEOC envisions information exchange and accommodation efforts.
Use and Misuse of Codeine, Oxycodone, and Other Opioids; Information for Employees is for employees. How Health Care Providers Can Help Current and Former Patients Who Have Used or Misused Opioids Stay Employed is for healthcare providers. The documents are in a question-and-answer format.
The stated purpose of both is to “provide clarity to the public regarding existing requirements under the law.” The guidance documents do not “have the force and effect of law” or “bind the public in any way.” They do not contain any new information about reasonable accommodations under the ADA but may provide helpful technical assistance now as the opioid epidemic reportedly has worsened during the COVID-19 pandemic.
“Opioids” include prescription drugs, such as codeine, morphine, oxycodone (OxyContin, Percodan, Percocet), hydrocodone (Vicodin, Lortab, Lorcet), and meperidine (Demerol), as well as illegal drugs like heroin. They also include buprenorphine (Suboxone or Subutex) and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment (MAT) program.
Guidance for Employees
The guidance educates employees that employers may fire them and take other adverse employment actions based on illegal drug use, including illegal opioid use (such as heroin use). In addition, employers may disqualify employees if another federal law requires or permits them to do so.
However, employees may seek accommodations under the ADA if they are taking lawfully prescribed opioid medications (including opioids prescribed as part of a MAT program), or if they are recovering or recovered opioid users. The EEOC notes that opioid addiction (sometimes called “opioid use disorder” or “OUD”) is itself a diagnosable medical condition that can be an ADA disability.
The EEOC explains that a reasonable accommodation “is some type of change in the way things are normally done at work, such as a different break or work schedule (e.g., scheduling work around treatment), a change in a change in shift assignment, or a temporary transfer to another position.” Employees may ask for, and employers may suggest, other modifications or changes. However, an employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation. An example of an accommodation is an altered schedule to allow an employee to attend group meetings or therapy sessions to avoid relapse.
Employees who need a reasonable accommodation must ask for one. The employer may ask the employee for a written request or to fill out a form, and to generally describe how the employee’s work is affected by the disability. The employer also may ask for a letter from the employee’s healthcare provider that shows the ADA disability and explains why the employee needs a reasonable accommodation because of it. If a reasonable accommodation would allow the employee to perform the job safely and effectively, and does not involve significant difficulty or expense, the employer must provide the accommodation. If more than one accommodation would work, the employer can choose one of them.
Drug Testing and Safety Issues
Employees subject to drug testing should be given an opportunity to explain lawful opioid use that may cause a positive test result. If an employee is using opioid medications lawfully, but the employer is concerned about whether the employee can perform the job safely, the employee may ask for a reasonable accommodation.
If the employee is not disqualified from performing their job by federal law and is not using opioids illegally, an employer still may have concerns that the employee cannot perform the job safely, even with a reasonable accommodation. The employer must show the employee poses a significant risk of substantial harm and may ask the employee to undergo a medical evaluation.
Additionally, a leave of absence may be a reasonable accommodation in appropriate cases.
Guidance for Healthcare Providers
The guidance explains the type and form of medical information that will be useful to healthcare employers who request documentation for an employee’s reasonable accommodation or to establish the individual can perform a certain job safely and effectively.
Blueprint for Completing Documentation to Support the Request
As suggested by the title, the healthcare provider guidance offers a blueprint for drafting medical documentation to support an employee’s request for reasonable accommodations related to the use or a history of misuse of opioids. The guidance includes examples of potential reasonable accommodations, a summary of the types of information the provider should include, and suggestions for crafting the response.
The guidance gives providers examples of potential reasonable accommodations, including an altered schedule “(e.g., scheduling work around treatment),” temporary transfers, unpaid leave, and shift changes. It also flags what employers are not required to do. Examples include lowering production or performance standards, “eliminat[ing] essential functions,” “pay[ing] for work that is not performed,” or “excus[ing] illegal drug use on the job.”
The guidance also states that medical documentation is “most likely to support your patient’s request” if it explains:
The guidance outlines the significance of the healthcare provider’s safety assessment. It states, “If an employer asks whether your patient poses a safety risk, it is likely asking for medical information that will help it to decide whether the patient’s disability creates a safety risk significant enough to justify suspension or other adverse action under the law.” It further explains that such actions are warranted only if the safety risk poses a “direct threat,” which means a significant risk of substantial harm to self or others than cannot be eliminated or reduced to an acceptable level with a reasonable accommodation.
A restriction such as “no operating heavy machinery” is insufficient. The guidance lists the factors employers must evaluate when making a direct threat assessment: “the level of risk posed by a disability, taking into account the probability that harm will occur, the imminence of the potential harm, the duration of the risk, and the severity of the potential harm.”
Additionally, the EEOC suggests that the healthcare provider consider and assess any risks the patient’s condition may present in light of the type of work the patient performs on a day-to-day basis; the type of equipment they use; their access to harmful objects or substances; any safeguards in place at the worksite; the type of injury or other harm that may result if one of the identified medical events or behaviors occurs; and the likelihood that injury or other harm would in fact occur as a result of the event or behavior. If a healthcare provider does not have all of this information, but needs it to make an accurate assessment, the provider should ask the employer for it, the guidance states.
Although the technical assistance documents were created for employees and healthcare providers, they are worth a close reading by employers. They provide insight into how the EEOC envisions the information exchange and necessary accommodation efforts related to opioid-related disabilities. Employers must ensure that they do not make employment decisions that are influenced by the social stigma around substance abuse and recovery. The agency has a long history of pursuing cases where employers made adverse employment decisions based on unsupported conclusions about an applicant’s or employee’s ability to perform a job due to a positive drug test result for opioids or for lawful use of opioids. When an employer believes the use of opioid medication may create a safety risk, the EEOC reminds employers that the direct threat defense requires an assessment based on objective evidence, and often a medical opinion.
New York Employers Must Think Twice Before Taking Adverse Action for Marijuana Use
New York continues to be at the forefront with employee-friendly laws, regulations, and court rulings. The state’s treatment of marijuana in the workplace is no exception. In 2020, New York City implemented a new drug-testing ban for job applicants, and its courts continue to expand and protect the rights of employees who use medical marijuana. Accordingly, employers should beware.
NYC Prohibition on Testing Applicants for THC
As we previously reported, beginning May 10, New York City prohibited employers from testing prospective employees for the presence of tetrahydrocannabinol (THC), the active ingredient in marijuana. The law has exemptions, including certain safety-sensitive positions, and any jobs with mandatory testing under federal laws. The law also does not bind employers who are a party to a collective bargaining agreement that “specifically addresses” the drug testing of applicants.
On March 10, the New York City Commission on Human Rights proposed additional rules, which identify positions that will be subject to testing “with the potential to significantly impact the health or safety of employees or members of the public.” If finalized, the Commission’s proposed rules would clarify that employers may test applicants for THC if:
The Commission’s proposed rules also clarify that “significant impact on health and safety” does not include concerns that a positive drug test “indicates a lack of trustworthiness or lack of moral character.” Adoption of the rules has been delayed due to COVID-19, but if they are implemented, any violations may result in civil penalties up to $250,000 as well as consequential damages, punitive damages, and attorneys’ fees.
New York Employer Sued for Discharging Employee for Positive Marijuana Test
A recent New York state court decision puts employers on notice that they must proceed with caution when terminating an employee who fails a drug test for marijuana. Con Edison randomly drug tested Kathleen Gordon pursuant to the company’s drug-testing policy. Con Edison’s drug policy prohibits employees from working under the influence of drugs and maintains an informal policy of terminating employees with less than six months of service for a first offense. Gordon, an employee with less than six months’ service, failed the drug test, having tested positive for marijuana. After that test result, but prior to the date Con Edison terminated her employment, Gordon obtained a medical marijuana registry card in order to use marijuana to treat inflammatory bowel disease. Gordon then presented her medical marijuana registry card to Con Edison. However, despite notice of the “belated” medical card and her medical condition, Con Edison terminated her employment for violating the company’s drug-testing policy.
Gordon sued Con Edison, among others, for disability discrimination based on her disability and failure to accommodate a disability, in violation of the New York State Human Rights Law and New York City Human Rights Law.
Con Edison then moved to dismiss the case and argued, among other things that (1) Gordon was not a member of a “protected class”—a required element of her disability/failure to accommodate claims—because Con Edison terminated her for violating its drug policy prior to her being certified in New York as a medical marijuana patient; and (2) she could not show her termination gave rise to an inference of discrimination. In opposition, Gordon argued that Con Edison “understood” she was using marijuana at her doctor’s direction and Con Edison knew that she held a medical marijuana registry card prior to her discharge. Moreover, she claimed that despite that knowledge, Con Edison never discussed any accommodations with her prior to terminating her employment.
In the end, the court denied Con Edison’s motion. The court found that Gordon was a member of a protected class as a result of her status as a certified medical marijuana patient. Even though Gordon was not a certified medical marijuana patient at the time she failed her drug test, the evidence was undisputed that she had become a certified patient before her discharge, and that Con Edison was aware of this fact. In addition, because New York law considers medical marijuana cardholders to be disabled, Gordon had established she was a member of a protected class at the time of her discharge. The court also found that Gordon’s reasonable accommodation claim could proceed because she was a member of a protected class (also a required element of her accommodation claim). The court also noted that, at the very least, there was an issue of fact of whether Con Edison engaged in the required good faith interactive process to determine whether an accommodation existed as an alternative to terminating Gordon.
In sum, New York employers need to take caution when disciplining employees for an issue relating to marijuana. Employers should seek counsel early and get the decision right to avoid the risk and cost of a lawsuit.
Contrary to EEOC Pandemic Guidance, New York City Warns Employers Against Preferential Treatment of Older Workers
Employers are struggling to find a new normal in light of the ongoing pandemic. They are grappling with reopening businesses, implementing reductions in force and furloughs, and filling new employment needs through hiring and restructuring. They are also determining how to handle older workers—those 65 and older—who are more vulnerable to becoming seriously ill if they contract COVID-19. In recently issued general guidance (“Guidance”) and supplemental COVID-19 guidance (“Supplemental Guidance”) on age discrimination, the New York City Commission on Human Rights (“Commission”) addresses how entrenched stereotypes and prejudice regarding age (both of older and younger employees) can impact workers in all of these areas. The Commission discusses the impact of age discrimination, provides guidance on accommodations, cautions against certain practices, and offers recommended best practices for employers to create “intergenerational” workforces, particularly in light of the unique COVID-19 issues.
The Commission Affirms the Basic Principles of the City’s Broad Ban on Age Discrimination
The Guidance reminds employers of various tenets of New York City’s ban on age discrimination, including that the prohibition:
The Commission Reiterates That Age Need Not Be Accommodated and Warns Against Giving Preferential Treatment Based on Age
As we previously reported, the federal Equal Employment Opportunity Commission (“EEOC”) takes the position that neither the Age Discrimination in Employment Act (“ADEA”) nor any other federal law (such as the Americans with Disabilities Act (“ADA”)) requires employers to reasonably accommodate employees based on their age. The Supplemental Guidance similarly affirms that the New York City Human Rights Law (“NYCHRL” or “city law”), like federal law, does not require reasonable accommodation based on age. Thus, because age is not a protected basis for an accommodation under federal or city law, an employer is not required, for example, to provide an accommodation to an older worker who fears returning to work because of his or her age and wants to continue to telework. As the Commission explains, an employer is not obligated to provide an accommodation “based solely on concerns that older workers are susceptible to [a] significant health risk.” However, if an employer permits other workers to work from home, such as those with childcare responsibilities or employees with higher-risk household members, “it should also offer telework as an option to other employees, including older workers.”
The EEOC and the Commission differ, however, as to whether employers can provide preferential treatment to older workers. The EEOC advises that, since no federal law prohibits employers from accommodating older workers, employers may do so, even if the accommodation results in younger workers being treated less favorably. The Commission takes a different view.
The Commission instructs that while city law (like federal law) does not require reasonable accommodation based on age, the NYCHRL (unlike the ADEA) prohibits employers from giving older workers “preferential treatment.” Accordingly, if a covered New York City employer “is providing accommodations to its workers beyond those legally required, it must treat workers the same regardless of age,” unless the employer can demonstrate that the policy or practice having an unfavorable effect on one age group “bears a significant relationship to a significant business objective and there is no alternative approach that would avoid the disparate impact on that age group.”
The conflict between federal and city law arises from the fact that the NYCHRL protects individuals of all ages from discrimination, not just those 40 and older. Thus, city law forbids a policy or practice that favors older workers over younger workers (or vice versa), such as providing accommodations based on age. Under the NYCHRL, for example, employers may not implement a policy that “would permit older workers to work remotely while prohibiting younger workers from doing so.” This is exactly the opposite of the EEOC’s guidance on the same issue.
Like the EEOC’s COVID-19 guidance, the Supplemental Guidance also reminds employers of their obligation to reasonably accommodate an employee’s disability, unless doing so would pose an undue hardship on the employer or the disability “presents a direct threat that cannot be adequately mitigated by a reasonable accommodation.” The Supplemental Guidance stresses that employees “of all ages may have underlying health conditions that put them at higher risk for a serious illness if they become infected with COVID-19,” and, thus, “a legal right to an accommodation based on disability.” Accordingly, the Commission encourages employers to communicate their reasonable accommodation policies “when an employee expresses concerns about returning to work based on their age.”
Note: Under the ADA, once an employee requests an accommodation for a protected reason (e.g., a disability), the employer must engage in an “interactive process” with the employee to determine if a reasonable accommodation is available that would not result in undue hardship or pose a direct threat to the safety of others or the employer’s operations. Under the NYCHRL, however, employers are required to engage in a “cooperative dialogue” with an employee when they know or have reason to know that the employee may require a reasonable accommodation for a disability. Thus, in contrast with EEOC guidance, the Commission’s Guidance states that “if an employer knows that an employee has a medical condition that the employer is aware might place them at higher risk for severe illness if they get COVID-19, the NYCHRL requires the employer to engage the employee in a cooperative dialogue about a potential accommodation, even if the employee has not requested a reasonable accommodation.” (Emphasis added.)
The Commission Confirms Proper Screening and Testing Is Permitted
Like the EEOC’s guidance on COVID-19 testing, the Supplemental Guidance instructs that employers may require that workers “undergo tests such as temperature checks or diagnostic tests to confirm whether employees pose a direct threat to workplace health and safety due to infection, even though such examinations would ordinarily be prohibited in the absence of the COVID-19 pandemic.” The Commission emphasizes that such tests must be administered in a nondiscriminatory manner, i.e., mandated for all workers, and not just for those in a certain age (or ethnic, religious, etc.) group.
Note: If an employee requests an alternative method of screening due to a medical condition or due to their religion, employers should treat it as a request for a reasonable accommodation.
The Commission Cautions Against Stereotyping Older—and Younger—Workers
The Guidance stresses the Commission’s view that “the root of most discriminatory practices” is an employer’s conscious or unconscious reliance on stereotypes and assumptions about age, concerning both younger and older workers, such as an assumption that older workers “lack vigorous physical or cognitive capacity to perform a job” or that young workers are “lazy” and “lack commitment” to staying at one job for very long.
In the context of the COVID-19 pandemic, the Guidance states that such unlawful stereotyping occurs when employers require only older workers to telecommute, instead of returning to the workplace, based upon “perceptions about their risk of complication from exposure to COVID-19” due to their age. According to the Guidance, such a policy constitutes unlawful age discrimination under both the ADEA and the NYCHRL because it has an adverse, disparate impact on older workers, notwithstanding that the employer may be acting out of genuine concern for the older workers’ well-being.
The Supplemental Guidance also more broadly warns employers against making “assumptions about older workers’ interest, willingness, or capacity to work due to the health risks posed by COVID-19.” Accordingly, just as an employer may not require older employees to work remotely, they also “cannot justify [other potentially] discriminatory actions, including layoffs, by relying on stereotypes or assumptions that older workers, for example, are not ‘tech savvy enough’ to successfully telework.”
To minimize the risk of running afoul of the law, the Commission recommends that “[d]uring the pandemic, consistent with guidance from public health authorities, employers should permit employees to carry out essential job duties through telework whenever possible.”
The Guidance offers other examples of policies and practices based, at least in part, on stereotypes or assumptions that can result in disparate impact age discrimination. The following illustrations from the Guidance are particularly relevant as employers reopen or expand their business amid the pandemic:
The Commission Warns Against Disparately Treating Older Workers
Disparate treatment includes “being subjected to lesser terms or conditions of employment, including denials of work opportunities, demotions, or unfavorable scheduling because of a person’s age.” The Guidance states that for instance, an employer may not pass over an employee for a promotion because the new position requires extensive travel and the employer assumes that the employee, an older person, is not physically or mentally “up to the job.”
Disparate treatment may also involve more overt discriminatory behavior, such as a supervisor repeatedly addressing an older worker as “old man,” “pops,” and “grandpa,” or referring to a young worker as “kid” and “youngster.” The Guidance instructs that such treatment can rise to the level of harassment if an employee “is subjected to behavior that is demeaning, humiliating, or offensive because of [the employee’s] age.” Further, the Guidance stresses that “an employer’s single comment made in circumstances where that comment would signal discriminatory views about one’s age may be enough to constitute harassment.” The Commission also reminds employers that even a person who is not the target of such conduct but simply a witness to it may “feel its impact and have legal recourse.”
The Commission Reminds Employers That Retaliation Is Prohibited
The NYCHRL prohibits a covered employer from retaliating against a worker because that person engaged in protected activity. As the Guidance explains, protected activity includes engaging in good faith in any of the following activities: (i) opposing a discriminatory practice; (ii) complaining internally about age discrimination; (iii) filing a complaint with the Commission or another enforcement agency or a court; or (iv) “testifying, assisting, or participating in an investigation, proceeding or hearing related to an unlawful practice under the NYCHRL.” Unlawful retaliation also can occur when an employer takes adverse action “that is reasonably likely to deter [individuals] from engaging in such activities.”
The Commission Provides Suggested Best Practices
The Guidance provides a list of best practices, most of which are focused on recruitment and hiring policies and practices. For example, the Guidance recommends ensuring that job advertisements and requirements do not dissuade or prevent older workers from applying. The Guidance also recommends including age in diversity programs and providing training on implicit bias.
What New York City Employers Should Do Now
Don’t Forget to Check, and Re-Check, the California Reopening Guidelines
Just one week after its release on July 24, California has already issued an updated version of its COVID-19 Employer Playbook for a Safe Reopening, which is intended to offer employers clear and practical guidance on how to safely reopen their businesses during the Coronavirus Disease 2019 (COVID-19) pandemic. In the latest update, employers are instructed to contact the local health department in any jurisdiction where a COVID-19 employee resides (as well as communicating with the local health department in the jurisdiction where the workplace is located) when there is an outbreak in a workplace. It defines an “outbreak” as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.” The updated version also adds additional guidance for employers who are considering whether to temporarily suspend operations due to a COVID-19 infection.
In addition, on July 28, 2020, the California Department of Industrial Relations (DIR) quietly released its own “Safe Reopening FAQs for Workers and Employers,” which provides additional helpful guidance for both businesses and workers on topics such as an employer’s safety obligations, face coverings, medical (including temperature) checks, returning to work, and liability waivers.
Some highlights include:
Employer Safety Obligations
Returning to the Worksite:
With so many updates frequently taking place, employers should ensure HR professionals and in-house counsel are remaining vigilant and monitoring the rapidly evolving guidance.
New Mexico Implements Employer Reporting Rule for COVID-19 Cases
In addition to other measures New Mexico is taking to try to control the coronavirus pandemic, effective August 5, 2020, the Occupational Health and Safety Bureau of the New Mexico Environment Department (NM OSHA) implemented an emergency amendment to its injury and illness reporting regulation, 11 NMAC §5.1.16. The new provision, which will remain in effect for 120 days unless it is made permanent, requires employers in New Mexico to report to NM OSHA any case in which an employee tests positive for coronavirus disease 2019 (COVID-19) within four hours of the employer learning about it. Notably, a Department spokesperson confirmed that the Department interprets the reporting requirement to cover any employee who reports a positive test, including employees whose illness is not work-related. This four-hour reporting requirement is so far the most stringent reporting rule an OSHA agency has enacted.
General Injury and Illness Reporting Requirements
In 2014, federal OSHA updated its Rule (29 CFR §1904.39(a)) that requires employers to report certain injuries and illnesses to OSHA. Specifically, any work-related fatalities must be reported within eight hours, and any work-related inpatient hospitalization, amputation, or loss of an eye must be reported within 24 hours. States that operate their own occupational safety and health plans, including New Mexico, were required to adopt measures at least as protective as this rule. Accordingly, in 2015, New Mexico updated its reporting rule to include these same obligations.
On May 19, 2020, federal OSHA issued updated guidance addressing when employers have to record an employee case of COVID-19 on their OSHA 300 log. As with reportable injuries and illnesses, an employee’s COVID-19 infection must be “work-related” to need to be recorded, and that determination may not be obvious in most workplace settings. OSHA has not provided specific guidance about when employers must report COVID-19 cases.
New Mexico’s emergency rule—which requires reporting of COVID-19 cases that are not necessarily work-related and within four hours—therefore exceeds these requirements.
The Bottom Line
Based on this new rule, employers in New Mexico need to implement processes to ensure reports of employees testing positive for COVID-19 are made timely. This includes making sure supervisors at all locations know to contact a central person in the company who can make the report whenever they hear that an employee tests positive for COVID-19.
The report can be made by email, telephone or facsimile to NM OSHA at email@example.com; by phone (505) 476-8700; or by fax (505) 476-8734.
Maryland Salary History Ban and Wage Range Notice Requirement to Take Effect October 1
On October 1, 2020, a new Maryland law related to compensation will:
The new law amends Maryland’s existing Equal Pay for Equal Work (EWEW) law. Its requirements, which will apply to all private, state, and local government employers in Maryland, add to existing provisions that set nondiscrimination and equal pay standards and prohibit employers from requiring employees to keep their pay information confidential.
Wage History Restrictions
Maryland joins approximately 18 other states and nearly two dozen local jurisdictions in limiting the circumstances in which employers may request or use a job applicant’s wage history information. (Neighboring Virginia and the District of Columbia currently have wage history restrictions only for government agencies).
Under the new Maryland law, employers may not seek wage history information from an applicant or the applicant’s current or former employers and may not rely on wage history in screening applicants, considering applicants for employment, or setting initial pay.
There is one narrow exception: Once the employer makes a job offer (including a compensation offer), the employer may seek to confirm and may rely on any wage history voluntarily provided by the applicant in order to support the employer making a compensation offer higher than the employer’s original offer.
Wage Range Requirement
The new law also requires employers to give job applicants, upon request, “the wage range for the position for which the applicant applied.” “Wage range” is not defined, and the law does not explain what steps employers need to take to comply with the law if they do not have pre-determined wage ranges for every job classification.
Existing Protections Related to Compensation
As a reminder, the EWEW contains other protections for employees related to compensation. The EWEW prohibits Maryland employers from providing “less favorable employment opportunities” based on sex or gender identity and from paying employees of one sex or gender identity less than other employees when both employees work in the same establishment (which may include different workplaces of the employer within the same county) and perform work of “comparable character” or work “on the same operation, in the same business, or of the same type,” except for specified reasons including, for example, a nondiscriminatory seniority or merit increase system.
The EWEW also contains a pay transparency requirement, which provides that employers may not prohibit employees from “inquiring about, discussing, or disclosing” their own or a co-worker’s pay. (Another recent amendment to the EWEW, which also goes into effect October 1, clarifies that retaliation is prohibited when an employee inquiries about not only a co-worker’s wages, but also the employee’s own wages.) However, employers may establish reasonable “time, place, and manner” limitations on such conversations by written policy. The pay transparency rule does not apply when an employee, such as a Human Resources staff member, who has access to the wage information of other employees as part of his or her essential job functions, discloses another employee’s pay information without permission, except in the course of an investigation or legal proceeding. (As we discussed here, Virginia recently adopted a pay transparency provision that became effective July 1, 2020; D.C. also has a pay transparency law.)
Violations of the wage history and wage notice requirements are subject to civil penalties of up to US$300 for each applicant for whom the employer is not in compliance, and up to US$600 for each subsequent violation. Other violations of the EWEW are subject to actions for damages and/or injunctive relief by the employee or the Attorney General, in addition to potential civil penalties.
Employer Next Steps
All employers in Maryland should ensure that their policies and practices comply with the new wage history and wage notice amendments to the EWEW and the EWEW generally. Specifically, employers should remove any requests for prior pay information from job applications and should train recruiters and managers on all EWEW requirements. Employers who do not currently have formal wage ranges for each job classification should consider establishing a range for each new job posting, which could be shared with applicants who request it.
Georgia COVID-19 Pandemic Business Safety Act Goes Into Effect
The Georgia COVID-19 Pandemic Business Safety Act (the “Act”) went into effect upon the Governor’s signature on Wednesday, August 5, 2020. The full language of the Act is available here. This law limits a business’s liability for claims based on the transmission of COVID-19 at its premises unless a plaintiff can meet the high bar of establishing gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm on the part of a business. This protection is automatic for Georgia businesses, including healthcare facilities and healthcare providers (which are separately listed in the Act).
The Act provides for an additional layer of protection by adding a rebuttable presumption that any person entering a business’s premises has “assumed the risk” associated with COVID-19 transmission. A business creates this presumption by posting signs in at least 1-inch Arial font at its entrances with the following language:
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.
The signs must be “apart from any other text,” meaning this is the only message conveyed on the signs. The Act does not expressly state that it is necessary to post signs at all entrances, but the most cautious approach would be to do so. It is also a good idea to take pictures of the posted warnings to document that the business complied with this requirement.
Businesses can also invoke the rebuttable presumption by including on “any receipt or proof of purchase for entry” to a premise the following language, in at least ten-point Arial font, placed apart from any other text:
Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.
Businesses that issue tickets or wristbands for entry can include this language on those entry items to meet the requirements of the law.
Notably, on its face, the Act indicates that its protections would apply to claims by employees because the protections apply to any person that would bring a claim based on transmission of or exposure to COVID-19. That said, the Act makes clear that it does not impact Georgia’s workers’ compensation laws. Therefore, the Act will not affect the ability of an employee to bring a traditional worker’s compensation claim relating to the transmission of or exposure to COVID-19. The issues associated with such a claim are beyond the scope of this article, but AGG’s Employment Team can provide further guidance. Further, there may be nuanced situations in the employment context that warrant further discussion with counsel before relying on the Act’s protections as a matter of policy.
The Act includes a sunset provision so that the protections only apply to claims “accruing until July 14, 2021.” Because this sunset provision sets the deadline based on the accrual of claims, the protections will apply to claims asserted after July 14, 2021, so long as the alleged transmission or exposure happened before then.
Some Hospitality Employers in Nevada Must Establish Virus-Combatting Protocols Including Cleaning, Testing, and Paid Time Off
On August 11, 2020, Nevada Governor Sisolak signed Senate Bill No. 4 (SB 4) into law. While SB 4 received significant media attention for its provision shielding businesses from liability related to COVID-19 under certain circumstances, SB 4 also includes a host of significant new measures meant to enhance worker safety for many Nevada employers in the hospitality industry. Such employers will want to pay special attention to its provisions mandating cleaning standards and other related protocols to combat COVID-19. Importantly, the required protocols include, among other things, a response plan allowing testing and paid time off for employees who are experiencing symptoms of COVID-19 or who have been exposed to the novel coronavirus.
Which Employers Must Adopt the Protocols and Standards?
Within 20 days of the governor’s approval, SB 4 requires the director of the Department of Health and Human Services to adopt initial regulations mandating that some but not all employers in Nevada establish standards and protocols aimed at limiting the transmission of COVID-19. But which employers will be required to establish the required standards and protocols?
The new regulations will apply to “public accommodations facilities.” Under SB 4, a “public accommodations facility” is: a hotel and casino, resort, hotel, motel, hostel, bed and breakfast facility or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily or weekly basis.
Note further that the relevant provisions of SB 4 apply only to counties whose populations meet or exceed 100,000 people. According to the Legislative Counsel’s Digest of the bill, this includes Clark and Washoe Counties.
The legislation also provides that the director’s regulations will apply during “any period in which a public health emergency due to SARS-CoV-2 has been declared by the Governor and remains in effect.” In addition, the regulations apply on each day that the rate of positive COVID-19 test results for the county exceeds 5% in any rolling 14-day period within the preceding 90 days, or on each day that the number of new cases in the county exceeds 100 per 100,000 residents in the same periods.
What Must the Protocols Include?
Under SB 4, the director must adopt regulations mandating that covered public accommodations facilities establish three sets of protocols to limit the spread of the novel coronavirus and mitigate its effects. The first set of protocols requires covered facilities to establish a set of finite “standards for cleaning that are designed to reduce the transmission of SARS-CoV-2.” Required standards include, among other things, the “use of cleaning products that are qualified by the United States Environmental Protection Agency for use against SARS-CoV-2” and regular cleaning of high-contact areas and items. Additionally, employers operating a covered facility must post in certain conspicuous locations a one-page summary of the standards adopted in accordance with the first set of protocols and a list of key contact persons at public health agencies. Upon request, they must also provide employees or their bargaining representatives a physical or electronic copy of the standards adopted. Finally, covered facilities are prohibited from advising or incenting guests to decline daily in-room housekeeping.
The second set of mandatory protocols requires covered facilities take certain steps other than cleaning procedures to limit the transmission of COVID-19. The protocols involve the implementation of a finite set of policies regarding social distancing, hygiene, and personal protective equipment. Among other requirements, the policies must include encouraging guests and employees to remain six feet apart, structuring employees’ breaks and workstations to facilitate social distancing, providing access to hand sanitizer and instructions on the frequency of handwashing, and distributing masks and other appropriate protective equipment to employees at no cost to them. In addition, the protocols must also include a requirement that staff be trained “concerning the prevention and mitigation of SARS-CoV-2 transmission in the manner prescribed by the Director.”
The third set of required protocols requires covered facilities to “establish, implement and maintain a written SARS-CoV-2 response plan designed to monitor and respond to instances and potential instances of SARS-CoV-2 infection among employees and guests.”1 The response plan must designate a person or set of persons to oversee and carry out the plan and its COVID-19 testing requirements. The plan must further designate an area “where employees will check in every day to receive contact-free temperature measurement and review questions to screen for exposure to SARS-CoV-2.”
The response plan mandates testing of employees in four circumstances:
Testing must be at no cost to the employee and may be performed on-site or at a testing facility selected by the employer. The plan must prohibit symptomatic employees from returning to work while they await the results of their test, and it must include a provision requiring guests to leave and seek medical attention if they report testing positive for the novel coronavirus or a COVID-19 diagnosis.
Paid Time Off Requirements
Employees who are tested for reasons 2, 3, or 4 are entitled to:
Notably, this paid time off entitlement applies each time an employee is tested for reason 2, but only the first instance the employee is tested for reason 3 and 4.
SB 4 also mandates that where an employee tests positive for the novel coronavirus or is otherwise diagnosed with COVID-19, the response plan must allow the employee “to take at least 14 days off” if the employee “is working or has been recalled to work at the time of the result or diagnosis.” The plan must provide that “at least 10” of those 14 days will consist of “paid time off.”
The paid time off benefits must not be deducted from a paid time off benefit provided by the employer by virtue of NRS 608.0197 or other policy or contract. However, it may be deducted from paid sick leave provided pursuant to the emergency paid sick leave provisions of the Families First Coronavirus Response Act. The paid leave benefits are to be calculated at the employee’s base rate of pay.
Notably, employers operating covered facilities may submit a request to the director to increase or decrease the days provided under this type of leave. The director may grant the request, “if it is consistent with the recommendations of the Centers for Disease Control and Prevention of the United States Department of Health and Human Services concerning time off for employees who test positive for SARS-CoV-2 or are otherwise diagnosed with COVID-19.”
SB 4 provides that its provisions relating to the required response plan do not preclude an employee who is exposed to the novel coronavirus or who is diagnosed with COVID-19 from “choosing to perform his or her duties remotely instead of taking time off if the job duties of the employee are conducive to remote work.” The legislation does not expressly state whether an employer operating a covered facility may require such an employee to work remotely, however.
What Virginia’s New COVID-19 Regulations Mean for Health Care Employers
Virginia’s ETS will require health care employers to reexamine and modify existing protocols, policies, and procedures to ensure compliance.
On August 12, 2020, Troutman Pepper published an advisory summarizing the workplace requirements of Virginia’s new COVID-19 Emergency Temporary Standards (ETS) for infectious disease prevention. While most of the ETS is already in effect for Virginia employers, the employee training and infectious disease preparedness and response plan requirements go into effect on August 26, 2020 and September 25, 2020, respectively. The Virginia Department of Labor and Industry (DOLI) published tools and fact sheets on its website to assist with employer compliance. In this advisory, we focus specifically on the rules applicable to health care employers, which are subject to stricter safeguards due to their employees’ potential to directly engage with patients who have COVID-19. While many components of the ETS will seem familiar due to its similarity to CDC and federal OSHA requirements, Virginia’s ETS will nonetheless require health care employers to reexamine and modify existing protocols, policies, and procedures to ensure compliance.
As previously described, the ETS first requires that employers assess the workplace for hazards and job tasks that can expose employees to COVID-19. Based on this assessment, employees may have tasks that are classified on a spectrum of risk levels from Lower to Very High. Health care employers may have employees falling into each of the different risk groups. For example, the following is a breakdown of how certain health care jobs may fall under the ETS risk classification:
By August 26, 2020, employers are required to provide COVID-19 training for all employees. However, employers with any employees at a Medium or above risk level must provide a more rigorous training, evidenced by detailed written certification, and must include at a minimum:
Since all health care providers are likely to have employees who are Medium risk, health care providers must have their employees complete the more rigorous training by August 26, 2020. Template training materials are available from the DOLI on its website and can be customized by health care providers based on their specific circumstances and risks.
Infectious Disease Preparedness and Response Plan
By September 25, 2020, employers who have at least one employee who falls within the High or Very High risk hazards, in addition to employers with Medium risk hazards employing 11 or more employees, must develop and implement an Infectious Disease Preparedness and Response Plan and designate a responsible person who is knowledgeable in infection control principles and practices as they apply to the facility or service. As with the more rigorous COVID-19 training, all health care providers are likely required to complete a written Infection Disease Preparedness and Response Plan.
Health care providers may find that they have already considered and implemented various policies and procedures that address certain aspects of the required Infectious Disease Preparedness and Response Plan. To the extent they have done so, to comply with the ETS, these considerations, policies and procedures must be documented in writing. A template plan is available from the DOLI on its website and can be customized by health care providers based on their specific circumstances and risks.
As noted in the earlier advisory, the ETS requires all employers adopt a variety of policies, including a system for receiving reports of known or suspected COVID-19 cases; rapid notification to interested parties upon discovery that an employee is infected with COVID-19; return-to-work strategies; and enforcing physical distancing, among others. In addition to these requirements, the ETS imposes additional controls on employers with employees subject to Medium, High, and Very High risk hazards. The following is a breakdown of the general categories of requirements with which employers will be required to comply, depending on the hazards and risk level of job tasks being performed at the worksite.
The above is a general summary of key standards, which may be subject to “feasibility” or “availability” exceptions. Moreover, the presence of a higher risk hazard may create obligations for the employer to all its employees, irrespective of individual risk classification. Accordingly, achieving compliance will vary upon the specifics of the workplace.
New D.C. Law Requires Employers to Adopt COVID-19 Safety Policies
On Aug. 13, 2020, the District of Columbia enacted the Protecting Businesses and Workers from COVID-19 Emergency Amendment Act of 2020. The new law requires D.C. employers to implement social distancing and worker protection policies that adhere to the mayor’s July 22, 2020, Order 2020-080, titled “Wearing of Masks in the District of Columbia to Prevent the Spread of COVID-19” (the mask order). Employers must implement these policies no later than Aug. 20, 2020.
The new law also prohibits employers from retaliating against an employee because the employee: (1) tests positive for or is quarantining because of COVID-19; (2) is caring for someone who has symptoms of or is quarantining because of COVID-19; (3) attempts to exercise any right under the act; or (4) acts to prevent a violation of the act.
Workplace Protection Provisions
The new law requires D.C. employers to implement policies that adhere to the mask order’s requirements:
Exceptions to the mask requirement exist. For example, the law does not require masks when: (1) an employee is in an enclosed office that no one else is permitted to enter; (2) a person is unable to wear a mask due to a medical condition or disability; (3) an employee is physically unable to remove a mask; or (4) required job equipment precludes wearing a mask.
The new law allows employers to require employees to report a positive COVID-19 test but makes clear that an employer may not disclose the identity of an infected employee except to the Department of Health or another appropriate district or federal agency.
The law requires employers to adopt social distancing policies but does not clarify what policies are compliant. Presumably, policies and procedures that limit unnecessary interaction between people within 6 feet and require face masks within 6 feet would comply. The mayor may issue additional guidance to clarify what policies employers must implement.
The new law prohibits employers from retaliating against an employee who refuses to work under conditions that do not comply with the social distancing and worker protection requirements of the law, or for exercising his or her rights under the law. For example, employers may not take adverse employment action against an employee who refuses to serve a customer or client, or work within 6 feet of an individual, who is not complying with workplace protections. It also prohibits employers from retaliating against an employee because: (1) the employee tested positive for COVID-19; (2) the employee was exposed to someone with COVID-19 and needs to quarantine; or (3) the employee is sick and waiting for a COVID-19 test result. Finally, the law prohibits an employer from retaliating against an employee because the employee “is caring for or seeks to provide care for someone who is sick with COVID-19 symptoms or who is quarantined.” If the mayor issues interpretive guidance, it may clarify the scope of this protected activity.
Despite these employee protections, the new law makes clear that an employer may restrict an employee who has tested positive for COVID-19 from entering the workplace until a medical professional has cleared the employee to return to the workplace or until a period of quarantine recommended by the Department of Health or U.S. Centers for Disease Control and Prevention has elapsed.
The mayor or attorney general may investigate potential violations of the new law. The mayor may assess administrative penalties of $50 per employee per day for a repeated or willful failure to implement the required policies violation. The mayor may also assess a $500 administrative penalty for each instance of retaliation against an employee. The attorney general is authorized to sue employers for violations and seek back pay, equitable relief, and attorneys’ fees and costs. No private right of action exists under the law.
Tennessee Governor Signs COVID-19 Liability Shield into Law
Tennessee Governor Bill Lee signed the Tennessee COVID-19 Recovery Act into law on Monday, August 17, 2020. The Act protects businesses, healthcare providers, schools, non-profits, and other entities and individuals from liability for damages in legal actions involving COVID-19, unless the claimant proves by clear and convincing evidence that the business, healthcare provider, school, non-profit, entity, or individual proximately caused the loss, damage, injury, or death by an act constituting gross negligence or willful misconduct. This protection was a legislative priority of the Tennessee business community.
Several other states have passed similar legislation or issued executive orders shielding businesses from liability, including neighboring states Georgia, Alabama, and Arkansas. Businesses are protected from COVID-19 related lawsuits brought by customers, the public and employees. Employees may still bring workers’ compensation claims. The Act does not affect an employee’s right to file complaints about workplace safety with the Tennessee Occupational Safety and Health Administration (TOSHA) or OSHA.
As further protection under the Act, any claimant alleging COVID-19 liability must file a verified complaint pleading specific facts outlining the defendant’s purported gross negligence or willful misconduct. The claimant must also file a certificate of good faith stating the claimant or claimant’s counsel has consulted with a physician licensed in Tennessee or a bordering state, and the physician has provided a signed written statement that the physician is competent to express an opinion on exposure or contraction of COVID-19 and that physician believes the alleged damage was caused by an alleged act of the defendant. Failure to comply with these requirements subjects the action to dismissal with prejudice.
The Tennessee COVID-19 Recovery Act became effective upon Governor Lee’s signature. The Act applies to all claims arising from COVID-19, except those for which a complaint was already filed on or before August 3, 2020.
FTC Alleges California Purveyor of Background Reports Misled Consumers to Think its Reports on Individuals Might Contain Criminal and Other Records
The Department of Justice on behalf of the Federal Trade Commission sued a California-based purveyor of background reports, alleging that the company has deceived consumers with “teaser background reports” that often falsely claimed to include information about arrest, criminal, and sex offender records, and also engaged in misleading billing and marketing practices.
According to a complaint filed by the Department of Justice on behalf of the FTC, MyLife.com, Inc., and its CEO Jeffrey Tinsley have stated through their website that the company’s background reports on particular individuals may contain arrest, criminal, and sexual offender records—even when they did not include such information—to try to persuade consumers to sign up for auto-renewing premium subscriptions.
The complaint alleges that, in many instances, consumers searching the MyLife.com website for an individual’s background report are shown search results that imply, often falsely, that the subject of a search may have records of criminal or sexual offenses—records that can be viewed only by buying a MyLife subscription. The complaint alleges that MyLife’s misleading statements led some consumers to believe they or other individuals had arrest or criminal records when they did not, or if they only had minor traffic citations.
The complaint maintains that MyLife is a consumer reporting agency (CRA), assembling and selling consumer reports that include information such as court or arrest records and sex offender records. MyLife has touted in testimonials that its reports were useful to those making housing, lending, and employment eligibility decisions.
CRAs must comply with the Fair Credit Reporting Act (FCRA), which requires them to take steps to ensure that they only provide consumer report information to those with a “permissible purpose” for receiving it; that they ensure the maximum possible accuracy of the information; and that they allow consumers to dispute and correct information in their consumer reports.
The complaint alleges that MyLife has violated the FCRA by, among other things, failing to maintain reasonable procedures to verify how its reports would be used, to ensure the information was accurate, and to make sure that the information it sold would be used only for legally permissible purposes.
Many consumers have purchased premium memberships because of the misleading information about criminal or arrest records in the “teaser background reports.”
The complaint alleges that MyLife’s misleading billing practices violated the Restore Online Shoppers’ Confidence Act. For example, MyLife did not clearly disclose upfront charges, or that consumers’ subscription would automatically renew, and the company made it difficult for consumers to cancel their subscriptions or obtain a refund. In addition, the complaint alleges that the company misrepresented its refund and cancellation policies in violation of the Telemarketing Sales Rule.
The Commission vote to refer the complaint seeking civil penalties to the Department of Justice for filing was 5-0. The Department of Justice filed the complaint on behalf of the Commission in the U.S. District Court for the Central District of California.
NOTE: The Commission refers a complaint for civil penalties to the DOJ for filing when it has “reason to believe” that the named defendants are violating or are about to violate the law and that a proceeding is in the public interest. The case will be decided by the court.
Second Circuit Upholds Dismissal of FCRA Claim Due to Customer’s Failure to Allege Dispute to CRA
A three-judge panel in the Second Circuit recently affirmed a Connecticut district court decision dismissing a Fair Credit Reporting Act suit against Salisbury Bank and Trust Company because the customer had not notified a credit reporting agency of the alleged error in his credit report.
In Sprague v. Salisbury Bank and Trust Company, No. 19-3241, 2020 U.S. App. LEXIS 25157 (2d Cir. Aug. 10, 2020), Appellants borrowed money from Salisbury to purchase a home and, after several years, Salisbury initiated foreclosure proceedings. The parties stipulated to a $40,000 deficiency judgment. When Appellant later noticed his credit report improperly listed the mortgage as still open, he notified Salisbury, who acknowledged the erroneous report and informed Appellant that a correction had been made. Appellants subsequently learned that Salisbury did not correct the erroneous information until several months later.
Appellants filed a complaint alleging Salisbury violated FCRA by “negligently and willfully fail[ing] to perform a reasonable reinvestigation and correction of inaccurate information,” and by “engag[ing] in behavior prohibited by FCRA by failing to correct errors in the information that it provided to credit reporting agencies…after [Appellants] notified [Salisbury Bank] of the error.”
The district court dismissed the complaint reasoning Appellants failed to state a claim under 15 U.S.C. § 1681s-2(b) because they (1) did not plead that they notified a CRA of the disputed accuracy of Salisbury’s reports and (2) did not allege that a CRA notified Salisbury of the dispute. Further, the court reasoned Appellants failed to state a claim under 15 U.S.C. § 1681s-2(a) because there is no private right of action under this subsection.
The Second Circuit affirmed the district court’s conclusions as to both subsections of FCRA. First, the court held enforcement of 15 U.S.C. § 1681s-2(a) is restricted to federal and state authorities. Second, the court held that 15 U.S.C. § 1681s-2(b) is not implicated simply because a consumer contacts a furnisher, reasoning “the statute is clear that the notice triggering [a furnisher’s] duties must come from a CRA.” Because Appellants did not allege that a CRA notified Salisbury Bank of their dispute, nor did they allege that they notified a CRA of the discrepancy, they did not allege facts sufficient to state a claim under Section 1681s-2(b).
COVID-19 Latin America Employer Guide
Baker McKenzie released a COVID-19 Latin America Employer Quick Guide
An Employer’s Guide to Masking in the Workplace
Debates about the necessity of face coverings, and whether face mask requirements are enforceable, have received a great deal of public attention throughout the COVID-19 pandemic. Although instructions at the federal level for non-health care workers simply point to recommendations from the Centers for Disease Control and Prevention, some states and corporations have mandated the wearing of face masks.
Most states require masks in specified circumstances, such as when social distancing is not possible. However, an increasing number of jurisdictions are issuing rules requiring adults to wear face coverings in all indoor public spaces.
Mask mandates have given rise to concerns about the possibility of stifled oxygen flow and carbon dioxide poisoning. The Occupational Safety and Health Administration directly addressed the question of oxygen levels in a recent Frequently Asked Question, stating that “Medical masks, including surgical masks, are routinely worn by health-care workers throughout the day as part of their personal protective equipment (PPE) ensembles and do not compromise their oxygen levels or cause carbon dioxide buildup.”
However, an employee could have a medical condition that precluded him or her from wearing a mask. This could include respiratory, and even psychological, conditions. If an employer mandates the use of face masks in the workplace (whether based on its own policy or a legal requirement), and if an employee is unable to wear one, the employer should request medical documentation and consider making a reasonable accommodation for the employee. Under the Americans with Disabilities Act, reasonable accommodations could include temporarily assigning the employee to a work area where social distancing is possible or considering alternatives to face masks (including face shields or scarves), among other possibilities.
Retail and food service workers face dangers in the form of angry customers as they enforce mask use in their places of employment. A number of viral videos and news articles show confrontations in which employees are subject to verbal and even physical abuse from customers who refuse to wear masks. Some states now require companies to enforce face-covering laws, and some retailers have expressed resentment at being forced into the role of “mask police.” The policies are usually enforced through posted signage and verbal reminders from employees, who are most often instructed to avoid confrontations. Although employees might complain to OSHA about fears that confrontations could result in violence, it is unlikely that OSHA would issue a General Duty Clause violation for workplace violence in the absence of an actual physical altercation.
Face shields have been suggested by OSHA as an alternative in workplace situations when masks are not appropriate. This can include circumstances where the mask might become moist, or when employees are exposed to airborne chemicals that could collect on the surface of the mask. As already noted, allowing an employee to wear a face shield instead of a mask might be a form of reasonable accommodation under the ADA.
No federal agencies, however, have confirmed that face shields provide as much protection from COVID-19 as surgical masks or cloth face coverings. The CDC continues to recommend only masks or cloth face coverings. At least one state OSHA agency, the Washington Division of Occupational Safety and Health, has affirmatively stated that face shields are not an acceptable substitute for masks, and it is likely that other states might take issue with offering face shields as an alternative to masks.
We recommend that employers require their employees to use face masks or cloth face coverings in common areas, except in those circumstances where a face shield is considered safer or is being offered as a reasonable accommodation. Companies should also require customers and visitors to wear face coverings while in the workplace, and, if possible, should offer free masks to anyone who doesn’t have one. Employers with employees who have direct contact with the public should advise employees to avoid confrontations with customers or clients who refuse to comply.
Facing Your Face Mask Duties – A List of Statewide Orders, as of August 3, 2020
Governors and public health officials across the country have implemented stringent measures to help contain the spread of COVID-19, such as safer at home orders. Yet even as businesses begin to reopen, face coverings are likely to remain popular as a preventative measure. Numerous jurisdictions have encouraged—or mandated—citizens to wear face coverings when out in public, especially when social distancing cannot be maintained effectively. Some directives also obligate employers to provide masks to their employees.
To find out the jurisdictions where face coverings are recommended or required, please click on:
U.S. Employer Return-to-Work FAQs
This list of frequently asked questions and answers provides some initial guidance on how to navigate and mitigate the challenges employers may face as workplaces around the country begin to re-open or resume some operations. Companies will need to customize their policies to reflect their operations, and the guidance from federal and state agencies is rapidly changing.
1. When is it legally permissible to have employees return to the workplace?
State and local public health orders have, in some jurisdictions, mandated workplace closures for certain categories of businesses and organizations. These orders vary widely from state to state and even county to county, and the pace (and scope) at which they now are being lifted also varies. Ropes & Gray has a dedicated team of attorneys monitoring these developments, an overview of which is available here.
2. May employers instruct ill employees not to report to work?
Employees Displaying COVID-19 Symptoms
U.S. employers generally have the right to instruct visibly ill employees to stay away from the workplace in order to prevent the spread of illness. The Centers for Disease Control and Prevention (“CDC”) has issued interim guidance advising businesses to immediately separate and send home any employees, volunteers and others who appear to have symptoms of COVID-19. The Occupational Safety and Health Administration (“OSHA”) has issued similar guidance, noting that COVID-19 implicates employers’ duty to furnish to their workers “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The Equal Employment Opportunity Commission (“EEOC”) has likewise issued guidance reasoning that employers would not violate the Americans with Disabilities Act and its relevant regulations (together, the “ADA”) by requiring employees to stay home if they have symptoms of COVID-19. For a discussion of temperature checks of employees, see Question 4 below. Any policies requiring employees to stay away from the workplace would need to be applied consistently and narrowly tailored to meet specific health and safety objectives.
Employees With Pre-Existing Risk Factors
Employers may not generically exclude from the workplace employees whose health status or demographics put them at higher risk from COVID-19. But the ADA would permit exclusion if the employee’s presence in the workplace would constitute a “direct threat” to themselves or others, though the EEOC has emphasized that the “direct threat requirement is a high standard.” Consult with counsel before excluding an employee on the basis of a pre-existing condition, as any such action will require an individualized assessment of the particular employee’s circumstances and the available reasonable accommodations. See also Question 6, below.
Employees Who Are Pregnant
Employers may not exclude an employee from the workplace involuntarily due to pregnancy, nor may employers single out employees on the basis of pregnancy for adverse employment actions such as leave, layoff, or furlough. Although pregnancy itself does not trigger an employer’s obligations to make reasonable accommodations, pregnancy-related medical conditions may be disabilities covered by the ADA, and pregnant employees may be entitled to job modifications (such as remote work or leave) to the extent such modifications are available to other employees.
3. What certification may an employer require before allowing an employee to return to work?
Employers may require employees to provide fitness-for-duty or return-to-work certification after being treated for COVID-19 or quarantining at home at the direction of the employer or a public health official or health care provider. Employers also may require—and state or local reopening orders or guidance may recommend or compel—all returning employees to submit responses to screening questionnaires asking whether they have been diagnosed with, or are experiencing symptoms associated with, or potentially have been exposed to COVID-19. Questions could include:
Any required certification should be narrowly tailored to seek information that is job-related, consistent with business necessity and sufficient to make a determination an employee is not a “direct threat.” Employers should consult with counsel and follow and take into consideration any updates from the CDC and/or other public health authorities regarding their current assessment of the spread and severity of COVID-19.
Additionally, current government guidance cautions against mandating fitness-for-duty or return-to-work certifications that require a visit with a health care provider, whose availability may be limited under current circumstances and who thus may not be able to provide such documentation in a timely manner. Alternative approaches may include employee self-certification or a form, stamp, or email from a local clinic administrator.
4. Can employers require temperature checks, COVID-19 tests, or antibody testing before allowing employees to enter the workplace?
The EEOC has recently issued guidance stating that, pursuant to CDC guidelines, employers may not require employees to submit to antibody testing before allowing them to enter the workplace, because such a test is not sufficiently “job related and consistent with business necessity.”
By contrast, employers may require or administer checks such as a COVID-19 test or a temperature check before allowing entrance to the workplace. In addition, several states have issued laws or orders that require (e.g., Arizona and Colorado) or recommended (e.g., Tennessee and Connecticut) daily temperature checks of employees entering the workplace. Employers should consider outsourcing such testing to a third party that is qualified to perform clinical tests, and, if performing the test in-house, should ensure that the testing will be performed by personnel who are adequately trained and equipped with personal protective equipment (“PPE”). Employers should also undertake reasonably diligent efforts to ensure that the test to be administered is safe and reliable. An alternative—and potentially easier to administer—approach would be to require employees to take their own temperatures at home before reporting to work and certifying upon arrival to the workplace that they do not have a fever. It is possible that employees’ time spent taking their temperature at home would be counted as paid time under state law, though U.S. Supreme Court precedent suggests that this time would not be compensable under federal law.
Employers should be mindful of the practical limitations of such testing. For instance, all available testing (particularly temperature testing) is imprecise, and some infected individuals will pass the screening and some non-infected individuals will be turned away. Also, even an accurate test for infection is a valid result only for the time at which the test is taken, leaving undetected any subsequent exposure to, or incubation of, the disease. Finally, employers should consider carefully the logistics of testing, and whether it would force employees to queue or otherwise violate social distancing practices in a way that is ultimately counter-productive.
Employers likely do not need to obtain written consent before taking employees’ temperatures in this context if the test is not invasive, though they could consider requiring such a signed consent to be conservative, as a condition of allowing return to work. If a test is performed by a third party clinical provider the employee may also need to consent to the sharing of the results with the employer. Employers should consider providing a general notice and/or posting a disclosure at the site where temperatures are being taken (particularly in California, where such advance notice is required of certain businesses and the content of the notice prescribed). Employers should also be prepared to apply any temperature or other testing thresholds consistently, to avoid violating anti-discrimination laws. Results of any testing should be kept confidential like any other medical information received concerning employees (i.e., maintained separately from the employee’s personnel file and shared no more broadly than necessary). Note that New York has issued guidance indicating that an employer is prohibited from retaining the actual testing results (i.e., the specific temperature data of an individual), but may maintain records confirming that employees were screened and the results of such screening (e.g., pass/fail).
If an employee requests an alternative method of screening in order to accommodate a medical condition, employers should treat this request as they would any other request for accommodation under the ADA. If the employee’s disability is not obvious or already known, an employer may ask the employee for information and medical documentation to establish that the condition is a disability and what specific limitations require an accommodation, and then determine if that accommodation or an alternative accommodation can be provided. If the request is easy and inexpensive to accommodate, the employer might voluntarily choose to make the accommodation available to any employee who asks, without engaging in a full interactive process.
5. What obligations may employers trigger if they preclude employees from coming into the workplace?
If an employer sends an employee home or otherwise excludes an employee from the workplace due to COVID-19-related symptoms, illness (including a high temperature), or exposure, the employer may be required to provide such employee with paid leave or job-protected unpaid leave under various federal, state, and local laws (including the Families First Coronavirus Response Act (“FFCRA”) and similar state laws), as well as under any existing company policies, employment agreements or collective bargaining agreements.
Under some state and local laws (e.g., California, New York, Massachusetts), employees may also be entitled to reporting-time pay (i.e., wages that compensate employees who report to work as scheduled but who are not put to work) if they show up for work but their employer sends them home. For those employees located in states that do not require reporting-time pay, employees who report to work and are sent home may nonetheless be entitled to reporting-time pay under the terms of an employment agreement, company policy or collective bargaining agreement. Employees may also be entitled to pay under certain state and local “predictable scheduling” laws (including, for example, such laws in Seattle, New York City, and San Francisco) if they do not receive adequate notice of a scheduling change, though some cities (e.g., Chicago) explicitly provide an exception relating to advance notice for changes to an employee’s schedule and the payment of predictability pay in the event of a pandemic.
6. How far do employers need to go to accommodate employees with preexisting risk factors who are classified as high-risk for severe illness from COVID-19?
Employees With Disabilities
If an employee’s pre-existing risk factor (e.g., serious heart conditions, chronic lung disease, diabetes, severe obesity) constitutes a disability under local, state or federal law and an employee requests a reasonable accommodation, an employer must provide a reasonable accommodation unless doing so would pose an undue hardship (i.e., would result in significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business), and must engage in an interactive process with the employee in an attempt to define such an accommodation. Under the current circumstances, telework may be a reasonable accommodation, particularly for those employees who already have been working from home. Employers, however, should be mindful they are not treating employees differently based on protected characteristics (e.g., giving female employees more favorable treatment than male employees regarding flexible work requests, perhaps because of gender-based assumptions about childcare responsibilities). Other reasonable accommodations may include alternate work assignments, staggered work schedules or relocation of a desk or workspace. As discussed in Question 2, exclusion of the employee from the workplace may be permissible, but only after individualized assessment.
Based on current EEOC guidance, employers may now begin asking employees with known disabilities whether they will need reasonable accommodations in the future when they are permitted to return to the workplace. Likewise, employers may make information available to all employees regarding who to contact (should they wish to) in order to request accommodation for a disability that they may need upon return to the workplace, or send a general notice to all employees who are designated for return to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis and specifying whom employees should contact.
Employees With a Disabled Household Members and Older Employees
An employer is not legally required to provide a reasonable accommodation for an employee because that employee lives in the same household as someone, who, due to disability, is at greater risk of severe illness from COVID-19. Similarly, and in accordance with EEOC guidance, employers are not obligated to provide reasonable accommodations to employees based solely on age (absent a qualifying disability under the ADA). Nevertheless, there may be compelling employee morale, retention, liability risk (See Question 9) and/or other considerations that weigh in favor of flexibility.
7. Can employers instruct workers not to socialize during their off-duty time?
Some employers have considered establishing rules or guidelines that, at least for the near future, discourage employees who report to a physical workplace from engaging in leisure or other activities with anyone other than co-habiting family members. Although such a rule is in many ways un-monitorable and largely unenforceable, and although it seems intrusive by standards that preceded this pandemic, there may be some wisdom to it, in order to promote individual and group employee health and reduce workplace transmission risk. Before adopting rules of this nature, employers will need to navigate state laws that, in some jurisdictions such as New York and California, limit an employer’s ability to regulate lawful off-duty conduct. Employers subject to collective bargaining agreements may also need to carefully consider whether such a rule or guideline would trigger a bargaining obligation.
Employers should ensure that any policies they put in place are applied consistently and are narrowly tailored to discourage activities where employees cannot practice social distancing or otherwise comply with public health guidance.
8. What if an employee refuses to return to work?
An employer may terminate the employment of an employee who refuses to come to work out of concern of exposure to COVID-19 if that employee is (i) not disabled (or is disabled but no reasonable accommodation exists that does not impose an undue hardship on the employer) and (ii) not subject to protection under the National Labor Relations Act (“NLRA”), Labor Management Relations Act (“LMRA”) or Occupational Safety and Health Act.
In general, a non-disabled employee who refuses to come to work out of concern that he or she will contract COVID-19 is not entitled to a reasonable accommodation (e.g., teleworking) under the ADA. Employers should, however, be mindful that, apart from obvious physical disabilities, employees may have mental health conditions (e.g., anxiety disorder, obsessive-compulsive disorder, post-traumatic stress disorder) that entitle them to a reasonable accommodation under the circumstances. As in any disability accommodation process, employers may (i) ask questions to determine whether the condition is a disability; (ii) discuss with the employee how the requested accommodation would assist him or her and enable that employee to keep working; (iii) explore alternative accommodations that may effectively meet the employee’s needs; and (iv) request medical documentation if needed.
The NLRA prohibits retaliating against employees (whether or not represented by a union) who engage in protected concerted activity. Employees who act in concert to refuse to work because of unsafe or unhealthy conditions in the workplace could be deemed to be engaging in protected activity so long as they have a “good faith” belief that their health and safety are at immediate risk—even if they are mistaken. The LMRA contains similar protections and does not require that employees act in concert with each other to be protected. The LMRA would, however, require an employee to show more than a good faith belief, but rather present ascertainable, objective evidence supporting a conclusion that an “abnormally dangerous” workplace condition exists. Employers may temporarily replace employees who are acting under these NLRA or LMRA protections but should consult with counsel before securing permanent replacements.
Under the Occupational Safety and Health Act, employees may refuse to perform work if (i) they refused to work in “good faith,” meaning that they genuinely believed that an imminent danger existed; (ii) a reasonable person would agree that there is a real danger of death or serious injury; (iii) where possible, they asked the employer to eliminate the danger and the employer failed to do so; and (iv) there is not enough time due to the urgency of the hazard to get the imminent danger corrected through regular enforcement channels, such as requesting an OSHA inspection. While the Act does not expressly prohibit hiring a replacement for an employee who refuses to perform work under these standards, it does prohibit employers from retaliating against employees who exercise these rights, so employers should consult with counsel before discharging or permanently replacing an employee under these circumstances.
9. What liability risks exist should an employee contract COVID-19?
Employers could see personal injury claims from employees who allegedly contract the coronavirus while on the job. For instance, on April 6, 2020, the family of a Walmart employee who died of COVID-19 complications filed suit against Walmart, and a number of similar lawsuits have followed since. Plaintiffs in these cases, however, will face significant hurdles in successfully bringing these claims under current law. Several states (e.g., North Carolina, Louisiana and Georgia) have since passed legislation that protect employers (or, in the case of North Carolina, “essential businesses”) from liability claims over exposure to COVID-19, so long as the employer is acting in good faith in accordance with published guidance and has not caused harm through reckless, intentional, willful, or grossly negligence acts. Additionally, Senate Republicans recently unveiled the Health, Economic Assistance, Liability Protection and Schools (“HEALS”) Act, which would provide broad liability protections for businesses, schools and other institutions.
Workers’ compensation provides benefits (including wage replacement benefits and reimbursement for medical expenses) to employees who are injured or become ill in the course and scope of their job duties and (as to wage replacement benefits) are unable to work. Workers’ compensation claims are almost universally covered by workers’ compensation insurance policies, unless the employer has opted to self-insure. Workers’ compensation claims do not require any proof of negligence or fault, but, in general, the workers’ compensation regime preempts all common law and statutory claims against the employer arising out of workplace injuries, including claims of employer negligence. Some states allow exceptions to workers’ compensation exclusivity in limited circumstances, such as injuries caused by the employer’s “serious and willful misconduct” (a much higher standard than negligence). In some states where there is such an exception, the employee’s recourse would be a civil lawsuit; in others, the recourse is an award of double-damages (which is not insurable).
Workers’ compensation insurers may take the position that a COVID-19 infection is not a compensable occupational disease that arises out of employment, but rather is an “ordinary disease of life” that is not subject to workers’ compensation. Many workers’ compensation policies have a second coverage, typically called “Part B, Employer’s Liability,” to close this insurance gap. Some jurisdictions (e.g., California, and to a lesser extent Washington and Illinois) have taken action to make it more likely that COVID-19-related claims will be eligible for recovery through workers’ compensation.
Given the reality of community spread of COVID-19 and asymptomatic transmission, plaintiffs may also struggle to prove that the defendant (in a lawsuit) or the workplace (in a workers’ compensation claim, absent the actions taken by the states noted above) was the source of an infection.
Negligence and Standard of Care
While employers cannot prevent employees or their estates from filing claims or lawsuits due to COVID-19 exposure in the workplace (even if those claims ultimately have no merit), employers may be able to mitigate general liability risks by strictly following applicable guidance from the CDC and OSHA (as well as guidance from state and local authorities), educating and constantly communicating with employees so that employees self-monitor for symptoms and practice proper infectious disease control practices, and appropriately informing employees of risks and potential exposure. While it is not clear that following CDC or OSHA guidance would itself be sufficient to avoid liability, it is likely that failure to follow CDC or OSHA guidance would be used by plaintiffs as evidence of failure to fulfill the applicable standard of care.
10. Does requiring employees to adhere to personal cleanliness policies, or to wear masks or other personal protective equipment, have any legal implications?
Any personal cleanliness or workplace hygiene policies should be carefully drafted to include the latest guidance from federal, state and local public health authorities. Supervisors must apply such policies in a neutral and fair manner, in order to reduce the likelihood of claims of unlawful discrimination. Employers should provide facilities and supplies (such as sinks with hot water and soap, and alcohol-based hand-cleansing solution) necessary to comply with its workplace policies.
Requiring employees to wear PPE may trigger OSHA regulations, or comparable state regulations, that impose training and other requirements (e.g., requiring regular hazard assessments, training on proper equipment usage, provision and replacement of equipment). Requiring employees to wear simple masks or other face coverings may arguably trigger these regulations, but, for the duration of the pandemic, and until effective treatments and/or vaccines are identified and widely used, workers—especially in hard-hit geographic areas—should be strongly encouraged, and perhaps even required, to wear masks or other face coverings when interacting closely with colleagues, customers and visitors. In some jurisdictions, state or local law or guidance may require that masks or other face coverings be worn, in particular in situations where social distancing cannot be observed. Although this may upset some workers, rigorous adherence to this practice would likely reduce the risk of workplace transmission of COVID-19, as well as potential liability. If an employer requires masks, other face coverings or PPE, it should provide this equipment to employees. Employers should also be prepared to provide reasonable accommodations for reasons of disability or religion or other protected characteristics.
11. What specific steps can employers take to keep their workplaces safe?
OSHA has published general guidance for employers, which is available here. The CDC’s relevant guidance for employers is available here.
In addition, some employers are taking steps such as:
This information has been prepared by Validity Screening Solutions for informational purposes only and is not legal advice. The content is intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.