On May 14, 2020, the Centers for Disease Control and Prevention (“CDC”) released a modified version of its previously withheld guidance on re-opening workplaces, schools, restaurants and bars, camps, child care programs, and mass transit systems during the ongoing COVID-19 pandemic. The CDC guidance appears in the form of checklists that serve as decision-making tools for businesses, school administrators, and others. In addition to the CDC’s guidance, it is important to check with state and local health officials to determine the most appropriate actions in your local community. Our previous alert describing an unpublished, comprehensive version of the CDC guidance can be found here.

Guidance for Workplaces

Before workplaces consider re-opening, they should ensure that:

  • Re-opening would be consistent with applicable state and local orders; and
  • The employer is ready to protect employees at higher risk for severe illness.

Next, workplaces should ensure that all of the following recommended health and safety actions are in place:

  • Promote healthy hygiene practices, such as hand washing and employees wearing a cloth face covering, where feasible;
  • Intensify cleaning, disinfection, and ventilation;
  • Encourage social distancing and enhance spacing between employees, including through physical barriers, changing the layout of workspaces, encouraging teleworking, closing or limiting access to communal spaces, staggering shifts and breaks, and limiting large events, when and where feasible;
  • Consider modifying travel and commuting practices. Promote telework for employees who do not live in the local area, if feasible; and
  • Train all employees on health and safety protocols.

If all recommended health and safety actions are in place, workplaces should then ensure that all of the following ongoing monitoring safeguards are in place:

  • Develop and implement procedures to check for signs and symptoms of employees daily upon arrival, where feasible;
  • Encourage anyone who is sick to stay home;
  • Develop a plan in the event an employee becomes sick from the virus or is exhibiting symptoms;
  • Regularly communicate and monitor developments with local authorities and employees;
  • Monitor employee absences and have flexible leave policies and practices; and
  • Be ready to consult with the local health authorities if there are any cases in the facility or an increase in cases in the local area.

Once all recommended health and safety actions and all monitoring safeguards are in place, workplaces may re-open but should continue to monitor according to the established safeguards.

Summary of Guidance for Workplaces

Preliminary Considerations Health and Safety Actions

Monitoring Safeguards

·  Re-opening is consistent with state and local orders.

·  Ability to protect higher risk employees.

·  Promote healthy hygiene practices.

·  Intensify cleaning, disinfection, and ventilation.

·  Encourage social distancing and enhance spacing between employees.

·  Consider modifying travel/commuting; promote telework.

·  Train all employees on health and safety protocols.

·  Develop and implement screening procedures.

·  Encourage sick employees to stay home.

·  Develop a plan for employees who become sick.

·  Regularly communicate and monitor developments.

·  Monitor employee absences; have flexible leave policies.

·  Consult with local health authorities concerning COVID-19 cases

Guidance for K-12 Schools

Before schools consider re-opening, they should ensure that:

  • Re-opening would be consistent with applicable state and local orders;
  • The school is ready to protect children and employees at higher risk for severe illness; and
  • The school is able to screen students and employees upon arrival for symptoms and history of exposure.

Next, schools should ensure that all of the following recommended health and safety actions are in place:

  • Promote healthy hygiene practices, such as hand washing and employees wearing a cloth face covering, where feasible;
  • Intensify cleaning, disinfection, and ventilation;
  • Encourage social distancing through increased spacing, small groups, and limited mixing between groups, if feasible; and
  • Train all employees on health and safety protocols.

If all recommended health and safety actions are in place, schools should then ensure that all of the following ongoing monitoring safeguards are in place:

  • Develop and implement procedures to check for signs and symptoms of students and employees daily upon arrival, where feasible;
  • Encourage anyone who is sick to stay home;
  • Develop a plan in the event a student or employee becomes sick from the virus or is exhibiting symptoms;
  • Regularly communicate and monitor developments with local authorities, employees and families regarding cases, exposures, and updates to policies and procedures;
  • Monitor student and employee absences and have flexible leave policies and practices; and
  • Be ready to consult with the local health authorities if there are any cases in the facility or an increase in cases in the local area.

Once all recommended health and safety actions and all monitoring safeguards are in place, schools may re-open but should continue to monitor according to the established safeguards.

 

Summary of Guidance for Schools

Preliminary Considerations Health and Safety Actions

Monitoring Safeguards

·  Re-opening is consistent with state and local orders.

·  Ability to protect children and higher risk employees.

·  Ability to screen students and employees.

·  Promote healthy hygiene practices.

·  Intensify cleaning, disinfection, and ventilation.

·  Encourage social distancing

·  Train all employees on health and safety protocols.

·  Develop and implement screening procedures.

·  Encourage sick children and employees to stay home.

·  Develop a plan for children and employees who become sick.

·  Regularly communicate and monitor developments.

·  Monitor student and employee absences; have flexible leave policies.

·  Consult with local health authorities concerning COVID-19 cases

 

Guidance for Restaurants and Bars

Before restaurants and bars consider re-opening, they should ensure that:

  • Re-opening would be consistent with applicable state and local orders; and
  • They are ready to protect employees at higher risk for severe illness.

Next, restaurants and bars should ensure that all of the following recommended health and safety actions are in place:

  • Promote healthy hygiene practices, such as hand washing and employees wearing a cloth face covering, where feasible;
  • Intensify cleaning, disinfection, and ventilation;
  • Encourage social distancing and enhance spacing at establishments, including by encouraging drive-through, delivery, curb-side pickup, spacing of tables and stools, limiting party sizes and occupancy, avoiding self-serve stations, restricting employee shared spaces, and rotating or staggering shifts, if feasible; and
  • Train all employees on health and safety protocols.

If all recommended health and safety actions are in place, restaurants and bars should then ensure that all of the following ongoing monitoring safeguards are in place:

  • Develop and implement procedures to check for signs and symptoms of employees daily upon arrival, where feasible;
  • Encourage anyone who is sick to stay home;
  • Develop a plan in the event an employee becomes sick from the virus or is exhibiting symptoms;
  • Regularly communicate and monitor developments with local authorities and employees;
  • Monitor employee absences and have flexible leave policies and practices; and
  • Be ready to consult with the local health authorities if there are any cases in the facility or an increase in cases in the local area.

Once all recommended health and safety actions and all monitoring safeguards are in place, restaurants and bars may re-open but should continue to monitor according to the established safeguards.

Summary of Guidance for Restaurants and Bars

Preliminary Considerations Health and Safety Actions

Monitoring Safeguards

·  Re-opening is consistent with state and local orders.

·  Ability to protect higher risk employees.

·  Promote healthy hygiene practices.

·  Intensify cleaning, disinfection, and ventilation.

·  Encourage social distancing and spacing at establishments

·  Consider modifying travel/commuting; promote telework.

·  Train all employees on health and safety protocols.

·  Develop and implement screening procedures.

·  Encourage sick employees to stay home.

·  Develop a plan for employees who become sick.

·  Regularly communicate and monitor developments.

·  Monitor employee absences; have flexible leave policies.

·  Consult with local health authorities concerning COVID-19 cases

Guidance for Other Institutions

The CDC provides similar guidance for re-opening camps, child care programs, and mass transit systems amid the pandemic. They also consist of: (1) considerations before re-opening; (2) recommended health and safety actions; and (3) ongoing monitoring safeguards.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On April 27, 2020, New Jersey Governor Phil Murphy announced guidance on lifting the stay-at-home restrictions he implemented on March 21, 2020. Governor Murphy’s The Road Back: Restoring Economic Health through Public Health (“the Plan”) provides six principles to guide the State in easing its stay-at-home restrictions; however, the Plan does not provide any specific dates on which the restrictions will be lifted nor does it provide any additional restrictions that will be implemented.

The Road Back: Restoring Economic Health through Public Health

Governor Murphy explained the following six principles and key metrics to guide the State’s decisions in easing or lifting existing restrictions:

  1. Demonstrate sustained reduction in new COVID-19 cases and hospitalizations. Specifically, the Plan provides that 14-day trend lines should show an appreciable and sustained drop in cases, hospitalizations, and other metrics. Hospitals should no longer be functioning under crisis standards of care.
  2. Expand Testing Capacity. The Plan calls for doubling the State’s diagnostic testing, and the ability to have priority testing for health care workers, essential personnel, and vulnerable populations.
  3. Implement Robust Contact Tracing. Under the Plan, the State will recruit and deploy an army of personnel who will identify and follow-up with individuals who test positive for COVID-19.
  4. Secure Safe Places and Resources for Isolation and Quarantine. This principle calls for providing individuals who do test positive in the future with a safe and free place to isolate and protect others from COVID-19.
  5. Execute a Responsible Economic Restart. This principle calls for the creation of Restart and Recovery Commission to advise on restarting the State’s economy. Specifically, the Plan calls for a methodical and strategic return to work based on the level of disease transmission risk and essential classifications while continuing social distance measures where feasible and appropriate. The Plan also calls for the use of any available federal funds and programs to support health care, individual, and small business recoveries.
  6. Ensure New Jersey’s Resiliency. Under the last principle, the State would prepare for the possibility of a resurgence of COVID-19 cases by ensuring hospitals, health care systems, and other health delivery facilities have inventories of personal protective equipment and ventilators. The State would also build its own personal protective equipment and ventilator stockpile

Also, although not specifically referencing the Plan, on May 13, 2020, Governor Murphy announced that nonessential retail businesses could reopen for curbside pickup and nonessential construction could resume effective May 18, 2020

Takeaway For Employers

As demonstrated above, the Plan does not provide specific details regarding when certain business and industries will reopen nor does it provide specific restrictions and/or guidelines that businesses will have to follow upon opening other than a general reference to social distancing where appropriate. Although employers should plan ahead by thinking of reopening plans and protocols, advice from the Restart and Recovery Commission will likely affect those plans. Employers will also need to take into account federal guidelines, such as those from the Centers for Disease Control and Prevention (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) in reducing employee exposure to COVID-19. In our previous alert, Employer Guidelines to Gradually Reopen After Stay-At-Home Orders Lifted, we outlined and summarized the CDC’s guidance on reducing exposure to employees in the workplace.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP


These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On March 7, 2020, Governor Andrew M. Cuomo declared a state of emergency in New York due to the COVID-10 pandemic and temporarily suspended or modified various rules to assist in coping with the disaster.  In order to respond to the crisis, on April 7, 2020, the Centers for Medicare & Medicaid Services (“CMS”) approved New York’s amendments in Appendix K to the Office for People with Developmental Disabilities (“OPWDD”) 1915(c) Comprehensive Home and Community-Based Services (“HCBS”) waiver.  Appendix K is a standalone appendix that may be used by states during emergency situations to request amendment to approved 1915(c) waivers.  In light of these measures, the OPWDD has issued the following guidance on modifications to care planning activities, community habilitation, day habilitation and prevocational services.

I. Interim Guidance Regarding Care Planning Activities

The guidance outlines the compliance requirements that have been temporarily waived by Appendix K and the Executive Order, retroactive to March 7, 2020, in order to provide the greatest amount of flexibility to monitor individuals’ health and safety and deliver needed support and services.  These waivers temporarily apply to Life Plans and Staff Action Plans during the COVID-19 state of emergency.

A. Face-to-Face Requirements Waived Unless Medically Necessary

In an effort to protect members and providers, the New York State Department of Health (“DOH”) has temporarily waived the requirement of face-to-face meetings for Health Home providers, including Health Homes Serving Adults, Health Homes Serving Children, and Care Coordination Organization/Health Homes (“CCO/HHs”).  Care managers may utilize telephonic or telehealth capabilities.  However, if a member has immediate care management needs, the care manager should assure a frequency of contact sufficient to keep the member healthy and safe.  See DOH COVID-19 Guidance for Health Homes at https://www.health.ny.gov/health_care/medicaid/ covid19/docs/2020-03-14_guide_hhsa_hhsc.pdf.

B. Annual Face-to-Face Life Plan Meetings Waived

Similarly, the annual face-to-face Life Plan meeting, and the annual assessments needed to complete the Life Plan, including the annual Developmental Disabilities Profile-2 (“DDP2”) and finalization of the Life Plan, may be postponed until the next semi-annual Life Plan review, but no later than six (6) months after the end of the state of emergency. Whenever possible, and if requested by the individual and/or their representative, the Life Plan meeting should proceed using telephonic, telehealth or other non-face-to-face methods.

C. Annual Level of Care Eligibility Determinations (LCED) Deferred

During the state of emergency, the annual LCED redetermination can be deferred for up to six (6) months from the original due date.

D. Coordinated Assessment System (CAS) Assessments

CCO/HH Care Managers have been temporarily relieved of duties related to coordinating CAS assessments, including gathering initial contact data for assessors, scheduling assessments, providing the supporting documents necessary to complete a CAS assessment, and attending a CAS assessment.  However, CCOs must develop direct access to the CCO care management system for CAS assessors to allow assessors to complete the CAS assessments without the help of Care Managers.  Care Managers should share and review the completed CAS assessments with the individual by telephone or mail within 30 days of receipt of the report.

E. Life Plan and Staff Action Plan Changes and Updates

During the public health emergency, services can be initiated while awaiting the Care Manager’s and individual’s representative’s Life Plan signatures.  Moreover, documentation of verbal or e-mail approval of proposed changes or additions to Life Plans are sufficient to deliver services, although verbal approval may only be used to initiate services while awaiting signature.  Corresponding Staff Action Plans must also be updated, although timelines have been waived until sixty (60) days after the end of the state of emergency.

In addition, the requirement that a service authorization request must be accompanied by a Life Plan, is also suspended.  Service amendments can be considered using other documents and a statement from the Care Manager about the need for any additional services or increase in services.

F. Requests for Service Authorization (RSAs) and Service Amendment Request Forms (SARFs)

During the state of emergency, if hand-written signatures are not possible or would cause undue delay, Care Managers and/or supervisors may use electronic signatures for the RSA and SARF.  Nor are signatures required on the RSA by the individual/family/representative if the Care Manager has documented that verbal agreement has been obtained, by writing “Verbal Agreement Obtained” on the signature line.

G. Medicaid Extensions

During the state of emergency, if hand-written signatures are not possible or would cause undue delay, Care Managers and/or supervisors may use electronic signatures for the RSA and SARF.  Nor are signatures required on the RSA by the individual/family/representative if the Care Manager has documented that verbal agreement has been obtained, by writing “Verbal Agreement Obtained” on the signature line.

II. Interim Guidance Regarding Community Habilitation

Community Habilitation is a Medicaid-funded program operated under OPWDD to provide training to people with intellectual and/or developmental disabilities so that they develop skills to live more independently in their homes or in the community.  The following modifications also apply to Community Habilitation services delivered by self-hired staff that are funded through a person’s Self Direction budget, and are in place throughout the state of emergency.

A. Location of Community Habilitation Services

The service definition and limits for Community Habilitation service have been temporarily modified to allow people who live in a certified residence with less than 24-hour staffing to receive Community Habilitation services in the residence, when the following conditions are met:

  • The person’s day service has been suspended due to COVID-19, or the person is unable to participate in the day service;
  • No day services can be delivered in the person’s residence; and
  • The daily Community Habilitation billing does not exceed six (6) hours of service per day, Monday through Friday.

In addition, Community Habilitation services may be provided in out-of-state locations, if necessary, for the safety of the service recipient, in accordance with the waiver service definition and the person’s Life Plan.  There should be no duplication of billing for Community Habilitation services and services otherwise provided in provider-owned residential settings.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Scheduling of Services for School Age Children and Young Adults

During New York’s COVID-19-related mandatory school closures, Community Habilitation may be temporarily delivered during weekday daytime hours to students who are authorized to receive Community Habilitation, up to the amount previously authorized for that individual.  Additional hours will not be authorized.

C. Billing Guidance on Community Habilitation

Community Habilitation providers will continue to bill the appropriate fee for services delivered under the current Community Habilitation fee schedule, at https://www.health.ny.gov/health_care/medicaid/rates/mental_hygiene/.

During the public health emergency, Community Habilitation agencies may temporarily provide and bill Medicaid for services that support the person and his or her family while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Community Habilitation and counted as part of the total billable service units.

Community Habilitation may also temporarily be provided remotely via telehealth, and without prior approval.  Community Habilitation providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

III. Interim Guidance Regarding Day Habilitation

As with Community Habilitation services, Day Habilitation services can help people to develop their self-help, socialization and adaptive skills for greater independence and community inclusion. People accessing day habilitation often contribute to their communities through volunteer work. The following modifications are in place throughout the state of emergency.

A. Location of Day Habilitation Services

The service definition and limits for Day Habilitation service have been temporarily modified to allow Day Habilitation the following alternate locations:

  • The person’s private home;
  • The person’s family home;
  • A provider owned or controlled certified or uncertified residential setting; or
  • Any other emergency residential setting, such as a hotel.

Prevocational Services may also be provided in out-of-state locations, if necessary, for the safety of the person, in accordance with the waiver service definition and the person’s Life Plan.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Billing Guidance on Day Habilitation

There may be no duplication of billing for Prevocational Services and services otherwise rendered in provider-owned or controlled residential settings.

During the public health emergency, Day Habilitation agencies may temporarily provide and bill Medicaid for services that support the person and his or her family while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Day Habilitation.

Prevocational Services may also temporarily be provided remotely via telehealth, and without prior approval.  Prevocational Service providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

Interim billing guidance to Day Habilitation providers was issued by OPWDD on March 24, 2020, regarding retainer day payments for service dates from March 18, 2020 through April 15, 2020, due to the suspension of these services effective March 18, 2020.  Billing instructions for service dates after April 16, 2020 will be forthcoming.

IV. Interim Guidance Regarding Prevocational Services

Prevocational Services prepare individuals with developmental disabilities for paid employment or meaningful community activities, such as volunteering.  The following modifications are in place throughout the state of emergency.

A. Location of Prevocational Services

The service definition and limits for Prevocational Services have been temporarily modified to allow Prevocational Services in the following alternate locations:

  • The person’s private home;
  • The person’s family home;
  • A provider owned or controlled certified or uncertified residential setting; or
  • Any other emergency residential setting, such as a hotel.

In addition, Day Habilitation services may be provided in out-of-state locations, if necessary, for the safety of the person, in accordance with the waiver service definition and the person’s Life Plan.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Billing Guidance on Prevocational Services

There may be no duplication of billing.  Day Habilitation provided in a supervised residence cannot be billed to Medicaid if the residential agency is also receiving an enhanced residential rate to reflect day-time staffing needs.

During the public health emergency, Prevocational Service providers may temporarily provide and bill Medicaid for services that support the person while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Prevocational Services.

Prevocational Services may also temporarily be provided remotely via telehealth, and without prior approval.  Prevocational Service providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

Interim billing guidance to Prevocational Service providers was issued by OPWDD on March 24, 2020, regarding retainer day payments for service dates from March 18, 2020 through April 15, 2020, due to the suspension of these services effective March 18, 2020.  Billing instructions for service dates after April 16, 2020 will be forthcoming.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP


These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On May 1, 2020, the New York Compensation Insurance Rating Board (“NYCIRB”) announced two adjustments for employers who are paying employees sidelined by the COVID-19 pandemic, leading to a less-expensive rate for Workers’ Compensation Insurance.

I. New Classification Code for Temporary Change In Duties (COVID-19)

A new classification code has been established for employees who have been reassigned due to New York’s stay-at-home order related to COVID-19, and meet one of the following conditions:

  • are not performing any work duties (idle); or
  • are performing clerical work duties at home.

For employees who meet these requirements, their associated payroll will be reassigned to classification code 8873 – Telecommuter Reassigned Employees.  The loss cost rate for classification code 8873 will mirror the rate for clerical office employees.  In most cases, this new classification will result in substantial savings for employers.

This change applies to new policies effective May 1, 2020, as well as to current policies as of March 16, 2020.  Further, the change is applicable as of the start of New York’s stay-at-home order and for up to 30 days after its conclusion.

II. COVID-19 Claims Excluded from Experience Rating

In addition, the NYCIRB announced that workers’ compensation claims for COVID-19 diagnosis or illness after December 1, 2019 are to be excluded from the experience rating calculations for individual employers, since these claims are unlikely to be a predictor of future claim costs incurred by employers.

Takeaway for Employers

As many employers are paying employees who are not currently working, or working in a different capacity due to New York’s stay-at-home order, employers may get some relief in workers’ compensation premiums.  Employers should track the payroll that is assignable to these reclassified employees to help with audits and billing.

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

On May 5, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued technical guidance addressing accommodations for the return to work of employees with underlying medical conditions, through responses to three frequently asked questions. On the same day, the EEOC withdrew its guidance on one of those questions which concerned accommodation of these employees under the “direct threat to self” analysis, explaining that the information was “misinterpreted” in press reports and social media. On May 7, 2020, the EEOC re-issued its guidance on accommodations for employees with underlying medical conditions.

First, the EEOC clarified that it is the employee’s responsibility to request a reasonable accommodation. If the employee does not make a request, the ADA does not mandate that the employer take any action. The request may be verbal or written, and need not use the term “reasonable accommodation.” However, the employee must communicate that he or she has an underlying medical condition that requires a change to meet the medical need. The employer may then ask questions or seek medical documentation to decide if the employee has a disability and if there is a reasonable accommodation that can be provided without undue hardship.

Second, the re-issued guidance provides that an employer who knows that an employee has an underlying medical condition that may place him or her at “higher risk for severe illness” from COVID-19 cannot exclude that employee from the workplace, unless the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation. The EEOC outlined steps employers must follow before reaching this conclusion.

In order to determine whether an employee poses a direct threat to himself or herself in the workplace, an employer must make an individualized assessment of the employee’s disability, taking into consideration the duration of risk, nature and severity of potential harm, the likelihood that harm will occur, imminence of potential harm, the severity of the pandemic in the particular area, and the employee’s job duties, likelihood of exposure to the COVID-19 virus at the worksite, and protective measures taken by the employer, including mandatory social distancing.

Next, even if the employee meets the direct threat to self test, the employer cannot exclude the employee from returning to the workplace, or take any other adverse action, unless no reasonable accommodation can be provided to eliminate or reduce the risk, absent undue hardship. The employer must engage in the interactive process and must consider accommodations such as telework, leave, or reassignment. An employee may only be excluded from the workplace if, after completing these steps, the facts support the conclusion that the employee poses a direct threat to himself or herself that cannot be reduced or eliminated by reasonable accommodation.

The third guidance issued by the EEOC provides examples of accommodations, absent undue hardship, that may eliminate or reduce a direct threat to self. They include providing enhanced protective gowns, masks, gloves and other personal protective equipment, erecting a barrier that separates the employee from others, removing marginal functions, temporarily modifying work schedules, or moving the location of the employee’s work. These are not exhaustive, and the EEOC encourages employees and employers to be creative and flexible.

Takeaway For Employers

As employers begin the process of reopening their businesses, they should be implementing strategies to mitigate the risk of infection in the workplace. However, some employees may have underlying medical conditions that place them at higher risk for severe illness if infected with the COVID-19 virus. Employers should address those situations on an individualized basis and engage in the interactive process to determine whether accommodations can be provided to eliminate or reduce the risk.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

As the COVID-19 pandemic shows signs of lessening and states begin to permit businesses to re-open, employers may face a new wave of coronavirus-related litigation.  This Client Alert details some of the types of litigation employers may see as business-as-usual begins to resume.

Wage and Hour Claims

The drastic business changes and transition to telework may result in employers being sued for wage and hour violations pursuant to the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).

The FLSA and the NYLL require employers to pay all employees for all hours worked and require employers to pay non-exempt employees at a premium overtime rate for any hours worked over 40 hours per week.  See 29 U.S.C. §§ 206-207; N.Y. Lab. Law §§ 652.

As businesses were shut down by New York State Governor Cuomo’s executive orders, and employees were forced to transition to working remotely, many employers have been confronted with challenges regarding tracking employees’ hours worked and ensuring that employees do not work through their meal and/or rest breaks.  These timekeeping challenges may result in lawsuits by employees claiming that they were not paid for all hours worked.

Another wage-and-hour issue resulting from the COVID-19 pandemic is whether employees are entitled to compensation for time spent on health-protective measures, such as (1) waiting for and receiving temperature checks, (2) waiting to receive or cleaning personal protective equipment, or (3) sanitization and hygiene training.  As these activities may constitute compensable time, employers may face claims that employees were not properly paid during these times.

Sick and Disability Leave

As a result of the ongoing pandemic, federal and state legislation has been enacted to provide employees who are unable to work due to circumstances relating to COVID-19 with emergency paid leave.  The federal government enacted the Family First Coronavirus Response Act (“FFCRA”), effective April 1, 2020, which requires covered employers to provide paid sick leave and expanded family and medical leave to eligible employees between April 1, 2020 and December 31, 2020.  Additionally, New York State enacted Emergency Paid Sick Leave (“N.Y. EPSL”), which guarantees job-protected paid sick leave to certain employees subject to an order of quarantine, and Emergency Paid Family Leave (“N.Y. EPFL”), which requires all employers to provide employees subject to a mandatory or precautionary order of quarantine or isolation or providing care for a minor dependent child subject to a mandatory or precautionary order of quarantine or isolation with paid leave.  During the COVID-19 pandemic, employees may also request (and may be entitled to use) leave pursuant to the Family Medical Leave Act (“FMLA”), New York’s Paid Family Leave Law (“N.Y. PFL”), and other local paid leave laws for pandemic and non-pandemic related reasons.

Employers need to ensure that they review employees’ requests for leave pursuant to these laws, properly determine employees’ eligibility for paid or unpaid leave, and appropriately compensate employees when required.  Employers may face legal action from employees if they fail to properly implement the emergency paid leave and other leave of absence laws by wrongfully denying time off, miscalculating pay, or retaliating against employees who request or use leave.

Discrimination Claims

Employers may also face litigation regarding disability discrimination pursuant to, inter alia, the Americans with Disability Act (“ADA”) and New York State Human Rights Law (“NYSHRL”) as a result of the COVID-19 pandemic and the transition to and from teleworking.

The ADA and NYSHRL give qualified workers the right to request and receive a reasonable accommodation that assists them in performing the essential duties of their position.  As in-office functions were shut down and businesses were forced to transfer their operations to teleworking, employers may face disability discrimination claims from employees who requested and did not receive reasonable accommodations to allow them to perform their job duties remotely.  Additionally, employers may be required to continue any reasonable accommodations they were providing prior to the pandemic to employees during the remote-work period.

Employers may also face disability discrimination claims as businesses re-open and employees return to work.  Employees who are particularly vulnerable to COVID-19 may request accommodations, including teleworking, to allow them to safely perform their job duties.  While many employers may have previously been able to argue that an employee’s physical presence at work was an essential function of the job or teleworking was an unreasonable accommodation, these arguments may be undermined if employers have continued their operations remotely during the pandemic without significant interruption.

Liability from Layoffs

WARN Acts Litigation

Rapid layoffs, furloughs, and the reduction of employees’ hours due to coronavirus-related business shutdowns may result in liability for employers who failed to comply with the federal Worker Adjustment and Retraining Notification Act (“federal WARN Act”), 29 U.S.C. § 2101 et seq., and the New York State equivalent, N.Y. Lab. Law § 860-a et seq. (“N.Y. WARN Act”) (collectively, the “WARN Acts”).  The notice requirements pursuant to the WARN Acts have not been suspended during the COVID-19 pandemic.

The WARN Acts require covered employers to provide employees with advance notice of an employment loss due to a mass layoff or plant closing.  An employment loss under both WARN Acts includes any of the following:  (1) a layoff exceeding six months; (2) a termination of employment for reasons other than discharge for cause, voluntary departure, or retirement; and (3) a greater than 50% reduction in work hours during each month of any 6-month period.  29 U.S.C. § 2101(a)(6); 20 C.F.R. § 639.3(f); N.Y. Lab. Law § 860-a(2); 12 N.Y.C.R.R. § 921-1.1(f).  Thus, employers who executed layoffs or implemented furloughs or hours reductions which ultimately last greater than six months may face lawsuits from employees for WARN violations.

Employers may argue that the exceptions to the WARN Acts for unforeseeable business circumstances and natural disasters excuse any failure to comply with the notice requirements.  See 20 C.F.R. § 639.9; 12 N.Y.C.R.R. §921-6.1 et seq.  However, it is unclear whether these exceptions apply to emergencies resulting from the COVID-19 pandemic

Discrimination and Retaliation Claims

Employers may also face discrimination and/or retaliation suits from laid off employees.  Former employees may claim that an employer’s selection of workers for layoff was based on a protected status or resulted in a disparate impact on workers of a protected class in violation of, inter alia, Title VII and NYSHRL.

Moreover, laid off employees may bring actions against their former employers claiming that they were retaliated against for requesting or taking leave pursuant to the FFRCA, N.Y. EPSL, N.Y. EPFL, or other leave of absence laws.  For example, a former employee has filed an action in federal court claiming that the airline she worked for retaliated against her by laying her off after she requested leave pursuant to the FFRCA. Jones v. Eastern Airlines, LLC, No. 20-cv-01927 (E.D. Pa. Apr. 16, 2020).

Employee Safety Actions

The Occupational Safety and Health Administration (“OSHA”) has issued guidance advising employers to follow the Center for Disease Control and Prevention’s coronavirus safety recommendations.  However, OSHA has not implemented specific requirements regarding safety measures to address coronavirus in the workplace.

As employees, particularly essential workers, become sick with coronavirus from workplace exposure, employers may face claims regarding unsafe working conditions.  Although the Occupational Safety and Health Act does not permit employees to directly sue regarding safety disputes, other than claims of retaliation, employers may face an increased number of worker’s compensation claims and state law actions regarding workplace illness.  Additionally, OSHA may bring enforcement actions against employers who have failed to ensure that the workplace is free of hazards that may cause death or serious physical harm, including coronavirus.  See 29 U.S.C. 654(a)(1).

Takeaway for Employers

Employers should continue to track and record employees’ hours worked, ensure paid and unpaid leave is provided to employees in accordance with the emergency paid leave and other leave of absence laws, and document non-discriminatory reasons for adverse employment decisions.  Employers should also contact their counsel prior to implementing health-and-safety practices, executing layoffs or furloughs, or reducing employees’ pay or hours.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On March 25, 2020 and on April 14, 2020, New Jersey Governor Murphy signed legislation amending the New Jersey Earned Sick Leave Law, the New Jersey Family Leave Act, and the New Jersey Temporary Disability Benefits Law.  These amendments expand protections for employees unable to work due to circumstances caused by COVID-19.  All of the amendments went into effect immediately.

New Jersey Earned Sick Leave Law (NJESLL”)

The NJESLL requires employers to provide covered employees with up to 40 hours of paid sick leave in a 12-month period.  N.J. Stat. § 34:11D-2.  The new amendments expand the qualifying reasons for employees to use their accrued paid sick leave to include:

  1. a closure of the employee’s workplace or the school or childcare facility of the employee’s child, by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other public health emergency;
  2. the declaration of a state of emergency by the Governor, or the issuance by a healthcare provider or the Commissioner of Health or other public health authority of a determination that an employee’s presence in the community, or an employee’s family member, who is in need of care by the employee, would jeopardize the health of others; or
  3. during a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.

New Jersey Family Leave Act (NJFLA”)

The NJFLA requires employers with 30 or more employees to provide qualifying employees with 12 weeks of job-protected unpaid family leave in a 24-month period to care for a family member with a serious health condition, or for the birth or adoption of a child.  N.J. Stat. §§ 34:11B-3, 34:11B-4.

Expanded Definition of a Serious Health Condition”

The new amendments to the NJFLA provide additional benefits to employees by expanding the definition of a serious health condition.”  Now, a serious health condition” includes an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of an employees family member due to:

  • a determination by a healthcare provider or public health authority that the employee or family member’s presence in the community may jeopardize the health of others; and
  • a recommendation, direction, or order by a healthcare provider or public health authority that the employee or employee’s family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

This expanded definition of a “serious health condition” only applies during a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority.

Limitation on Employers Right to Deny NJFLA Leave

The amendments clarify that an employer is not permitted to deny an employees request for family leave if the need for such leave is due to:

  • an order, direction, or recommendation by a healthcare provider or authorized public official that an employee’s family member, who needs care from the employee, be isolated or quarantined; or
  • a place of care of an employee’s family member being closed because of a state of emergency declared by the Governor or order of the Commissioner of Health or other authorized public official, during an epidemic of a communicable disease, or a known or suspected exposure to a communicable disease.

Expansion of Qualifying Reasons to Take NJFLA Leave

The amendments also expand the qualifying reasons that an employee may take family leave to address circumstances related to COVID-19.  An employee may now take NJFLA leave to:

  1. provide care or treatment for his or her child whose school or childcare facility has been ordered closed by a public official due to the epidemic or other public health emergency;
  2. provide care to a family member sick as a result of an epidemic of a communicable disease or known or suspected exposure to the communicable disease and subject to a restrictive determination by a public health authority, including a mandatory quarantine; or
  3. provide care to family member who, upon the recommendation of a healthcare provider or public health authority, voluntarily undergoes self-quarantine due to suspected exposure to a communicable disease.

Changes to NJFLA Leave Certification Requirements

The amendments change the requirements for certifications supporting an employees NJFLA leave.  Previously, under the NJFLA, an employer could require that an employees family leave to be supported by a certification issued by a healthcare provider.  N.J. Stat. § 34:11B-4.

The new amendments clarify that an employer may require an employees family leave to be supported by certification from a school, place of care for children, public health authority, public official, or healthcare provider where the leave is for an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease.  Such certifications must include specific information depending on the reason the employee takes family leave.

If family leave is sought by an employee for reason (1) listed above, the certification must include:

  • the date on which the closure of the school or place of care commenced; and
  • the reason for such closure.

If family leave is sought by an employee for reason (2) listed above, the certification must include:

  • the date of issuance of the determination; and
  • the probable duration of the determination.

If family leave is sought by an employee for reason (3) listed above, the certification must include:

  • the date of the recommendation;
  • the probable duration of the condition; and
  • the medical or other facts within the health care provider’s or public health authority’s knowledge regarding the condition.

Expansion of Intermittent NJFLA Leave

The amendments provide an employee with the right to take intermittent family leave due to an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable disease, subject to certain conditions.  An employee may take intermittent family leave if:

  • the employee provides his or her employer with advanced notice of the employee’s need for intermittent leave as soon as practicable; and
  • the employee makes a reasonable effort to schedule the leave so as not to unduly disrupt the employer’s operations and provide a regular schedule of when the intermittent leave will occur.

New Jersey Temporary Disability Benefits Law (NJTDBL”)

The NJTDBL requires employers subject to New Jerseys Unemployment Compensation Law, N.J. Stat. § 43-21-1 et seq., to provide temporary disability leave to employees who suffer a compensable disability not arising from or during the course of the employees employment and family temporary disability leave to provide care to a family member with a serious health condition.  N.J. Stat. §§ 43:21-27; 43:21-29.

As with the NJFLA, the new amendments to the NJTDBL provide that during a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, a compensable disability” and serious health condition” include an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of the employee or employees family member due to:

  • a determination by a healthcare provider or public health authority that the employee or family member’s presence in the community may jeopardize the health of others; and
  • a recommendation, direction, or order by a healthcare provider or public health authority that the employee or employee’s family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

The amendments also eliminate the waiting period for an employee to receive temporary disability benefits and provides that an employee who suffers from a disability caused by sickness as described above may receive benefits on the first day of the disability.

Takeaway For Employers

New Jersey employers should review and update their leave of absence policies to comply with the new amendments to NJESLL, NJFLA, and NJTDBL, which address employeesneed for leave resulting from circumstances related to COVID-19.  New Jersey employers should also be mindful to continue complying with all of the usual requirements of the NJESLL, NJFLA, and NJTDBL as employees may need leave for reasons unrelated to the COVID-19 pandemic

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

As discussed in our previous alert, on March 27, 2020, President Trump signed into law the CARES Act (the “Act”).  Section 2102 of the Act creates a temporary federal program called Pandemic Unemployment Assistance (PUA) that provides states with funding for up to 39 weeks of unemployment benefits for individuals. To address questions and concerns surrounding the administration of PUA benefits, the United States Department of Labor issued Unemployment Insurance Program Letter (UIPL) No. 16-20. The letter focuses on state administrative responsibilities and worker eligibility for PUA benefits, and serves as a useful overview of the program and how it will impact employers and workers.

State Duties

UIPL No. 16-20 notes that despite the fact that PUA is administered by states, it is a federally-funded program, with a statutorily defined time limit.  PUA is available retroactively starting with weeks of unemployment beginning on or after January 27, 2020, and ending on or before December 31, 2020. States are required to ensure public knowledge of PUA availability through state-wide news media coverage. However, states are not required to notify individuals about program availability.

Claims and Eligibility

  1. Overview

The PUA program is an emergency program for individuals who are ineligible for, or who have exhausted their entitlement to, regular unemployment compensation. While an individual must self-certify that he or she is unemployed, partially unemployed, or unable or unavailable to work because of a COVID-19 related reason – under PUA these individuals do not have to provide proof of employment or self-employment, nor does PUA take into account the individual’s principal source of income. In addition, to partake in the PUA program, an individual must be ineligible for Pandemic Emergency Unemployment Compensation (PEUC) under section 2107 of the CARES Act.  The PEUC provides individuals with 13 weeks of emergency unemployment insurance if they remain unemployed after they have exhausted their benefits or are not otherwise eligible for benefits.

  1. Telework

In most instances, PUA is not payable to an individual who has the ability to telework with pay. However, if domestic violence, sexual violence, or stalking prevents an individual from teleworking, the individual may be qualified to receive PUA if he or she is unemployed, partially unemployed, or unable or unavailable because of COVID-19 related reasons listed in section 2102(a)(3)(A)(ii)(I) of the CARES Act, such as a stay-at-home order.

  1. Working in Multiple States

Individuals living in one state and but self-employed in another state must file for unemployment with the state where they were working when they became unemployed, partially unemployed, or unable or unavailable to work because of a COVID-19 related reason. If an individual worked in multiple states at this time, the individual may file in any of those states.

  1. Students and Volunteers

A full-time student who works part-time, and who is unemployed, partially unemployed, or unable or unavailable to work because of a COVID-19 related reason, is eligible for PUA. Peace Corps and AmeriCorps participants who are no longer volunteering because their volunteer sites are closed due to COVID-19, and who have suffered losses of income, are also eligible for PUA.

  1. Individuals Who Refuse to Return to Work

Individuals who refuse to return to work when called back by their employers because they want to receive unemployment benefits are not eligible for PUA. If a state’s stay-at-home order is lifted, an individual who refuses to return to work because of general concern about COVID-19, but who does not have a COVID-19 related reason (as listed in section 2102(a)(3)(A)(ii)(I) of the CARES Act), is not eligible for PUA. Individuals who refuse an offer of work are also ineligible.

Individuals on approved unpaid medical leave from their employer who are not eligible for state unemployment compensation because they are unable to work, may qualify for PUA if the individual is on leave for a COVID-19 related reason. An individual does not have to test positive for COVID-19 to qualify for a COVID-19 related reason. Any diagnosis from a qualified medical professional, including one made via phone, is sufficient.

  1. Calculating Benefit Entitlement

There is no minimum monetary requirement for an individual to be eligible for PUA. However, base period wages are considered when calculating the individual’s weekly benefit amount.  The base period to be used is the most recent tax year, which is 2019.

The PUA weekly benefit amount will be the amount of compensation an individual would have been paid regularly under the state’s unemployment statue, using the state’s existing wage records and any additional supporting evidence provided by the individual. An individual will be provided the minimum PUA weekly benefit amount if the state does not have any existing wage records and he or she does not provide evidence to support a higher amount.

Takeaway

Employers looking to reduce work schedules in the wake of the COVID-19 crisis should consider whether their employees will qualify for partial unemployment under PUA in combination with other state assistance programs.  Programs such as PUA provide employers with flexibility in managing their businesses, and limiting terminations of employment.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

In New York, the stay-at-home order is currently set to expire May 15, 2020. As states prepare to lift stay-at-home orders, employers should plan ahead by thinking about what return-to-work protocols will look like for their businesses while considering federal, state, and local guidelines and regulations. Specifically, employers should take particular care to reduce exposure to COVID-19 for vulnerable workers, while making sure to be compliant with relevant American with Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”) regulations. Employers should also follow Centers for Disease Control and Prevention (“CDC”) and Occupational Safety and Health Administration (“OSHA”) guidance for reducing workplace exposure for all employees. All decisions should be made in collaboration with local health officials and other state and local authorities who can help assess the current level of mitigation needed based on levels of COVID-19 community transmission and the capacities of local public health and healthcare systems.

Guidance for Employers in New York

On April 28, 2020, Governor Andrew M. Cuomo outlined guidelines for New York’s phased plan to re-open businesses on a regional basis. Each region of the State – Capital Region, Central New York, Finger Lakes, Mid-Hudson Valley, Mohawk Valley, New York City, North Country, Long Island, Southern Tier, and Western New York – must follow these guidelines as part of the re-opening plan.

  1. CDC Guidelines: Based on CDC recommendations, once a region experiences a 14-day decline in the hospitalization rate, it may begin a phased re-opening.
  2. Industries: Businesses in each region will re-open in phases. Phase one will include opening construction and manufacturing functions with low risk. Phase two will open certain industries based on priority and risk level. Businesses considered “more essential” with inherent low risks of infection in the workplace and to customers will be prioritized, followed by other businesses considered “less essential” or those that present a higher risk of infection spread. Regions must not open attractions or businesses that would draw a large number of visitors from outside the local area.
  3. Business Precautions: Each business and industry must have a plan to protect employees and consumers, make the physical workspace safer and implement processes that lower risk of infection in the business.
  4. Building Health Care Capacity: To maintain the phased re-opening plan, each region must have at least 30 percent of hospital beds and ICU beds available after elective surgeries resume.
  5. Testing Regimen: Regions must implement a testing regimen that prioritizes symptomatic persons and individuals who came into contact with a known COVID-19 positive person, and utilizes frequent tests of frontline and essential workers. Regions must maintain an appropriate number of testing sites to accommodate their population and must fully advertise where and how people can get tested. The region must also use the collected data to track and trace the spread of the virus.
  6. Tracing System: There must be at least 30 contact tracers for every 100,000 people. The region must also monitor the regional infection rate throughout the re-opening plan.
  7. Isolation Facilities: Regions must present plans to have rooms available for people who test positive for COVID-19 and who cannot self-isolate.
  8. Regional Coordination: Regions must coordinate the re-opening of schools, transportation systems, testing and tracing with other surrounding regions.
  9. Re-Imagining Tele-Medicine: Regions must reexamine what virtual medicine will entail.
  10. Re-Imagining Tele-Education: Regions must reexamine what virtual learning will entail.
  11. Regional Control Rooms: Each region must appoint an oversight institution as its control room to monitor regional indicators during the phased re-opening, including hospital capacity, rate of infection, PPE burn rate and businesses.
  12. Protect and Respect Essential Workers: Regions must continue to ensure protections are in place for essential workers.

Governor Cuomo also announced the creation of the New York Forward Re-Opening Advisory Board to help guide the State’s re-opening strategy.

On April 29, 2020, Governor Cuomo announced that 35 counties have been approved to resume elective outpatient treatments. The Governor previously announced that the State would allow elective outpatient treatments to resume in counties and hospitals without significant risk of COVID-19 surge in the near term. The counties now eligible are: Allegany, Broome, Cattaraugus, Chautauqua, Chenango, Delaware, Dutchess, Essex, Franklin, Fulton, Genesee, Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Putnam, Saratoga, Schoharie, Schuyler, St. Lawrence, Steuben, Sullivan, Tompkins, Ulster, Wayne, Wyoming and Yates.

General Guidance for Employers with Vulnerable Workers

In addition, the CDC drafted new guidance that it is preparing to unveil for a phased re-opening of specific industries and businesses as states gradually lift their stay-at-home restrictions.   Among other things, the CDC provides recommendations for protecting workers who are at higher risk for severe illness from COVID-19. These vulnerable workers include individuals over the age of 65 and those with underlying medical conditions. Vulnerable workers should be encouraged to self-identify, and employers should avoid making unnecessary medical inquiries. The CDC provides the following general guidance for employers with vulnerable workers. The guidance consists of: (1) phases for re-opening; (2) safety actions to implement; (3) monitoring and preparing protocols; and (4) being prepared to close. Specific industries may require more stringent safety precautions and there may be essential businesses in which recommended strategies are not feasible.

  1. Re-Opening in Phases

The CDC recommends the gradual re-opening of businesses according to the following three phases based on levels of COVID-19 community transmission (from higher transmission areas to lower transmission areas):

  • Phase One: Re-open only if business can ensure strict social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; vulnerable workers are recommended to shelter in place.
  • Phase Two: Re-open only if business can ensure moderate social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; vulnerable workers are recommended to shelter in place.
  • Phase Three: Re-open only if business can ensure limited social distancing, proper cleaning and disinfecting requirements, and protection of workers and customers.

In all three phases, employers should:

  • Establish and continue communication with state and local authorities to determine current mitigation levels in the community;
  • Protect employees at higher risk for severe illness by supporting and encouraging option to telework;
  • Consider offering vulnerable workers duties that minimize their contract with customers and other employees (g., restocking shelves rather than working as a cashier), if agreed by the worker;
  • Ensure that any other entities sharing the same workspace also follow this guidance; and
  • Provide employees from higher transmission areas (e., earlier Phase areas) telework and other options as feasible to eliminate travel to workplaces in lower transmission areas (i.e., later Phase areas) and vice versa.
  1. Implementing Safety Actions

In all three phases, employers should implement the following safety actions to combat the spread of COVID-19:

  • Promote healthy hygiene practices;
    • Enforce handwashing, covering coughs and sneezes, and using cloth face coverings when around others where feasible; however certain industries may require face shields.
    • Ensure that adequate supplies to support healthy hygiene behaviors are available, including soap, hand sanitizer with at least 60 percent alcohol, tissues, and no-touch trash cans.
    • Post signs on how to stop the spread of COVID-19, properly wash hands, take everyday protective measures, and properly wear a face covering.
  • Intensify cleaning, disinfection and ventilation;
    • Clean, sanitize, and disinfect frequently touched surfaces at least daily and shared objects between uses.
    • Avoid using or sharing of items that are not easily cleaned, sanitized or disinfected.
    • Ensure safe and correct application of disinfectants.
    • Ensure that ventilation systems operate properly and increase circulation of outdoor air as much as possible by opening windows and doors, using fans, or other methods. Do not open windows and doors if doing so poses a safety risk to individuals and employees using the workspace.
    • Take steps to ensure that all water systems and features (e.g., drinking fountains, decorative fountains) are safe to use after a prolonged facility shutdown to minimize the risk of Legionnaires’ disease and other diseases associated with water.
  • Ensure social distancing; and
    • Consider installing physical barriers, such as sneeze guards and partitions, and changing workspace layouts to ensure all individuals remain at least six feet apart.
    • Encourage telework for as many employees as possible.
    • Consider rotating or staggering shifts to limit the number of employees in the workplace at the same time.
    • Replace in-person meeting with video- or tele-conference calls whenever possible.
    • Limit any sharing of foods, tools, equipment, or supplies.
  • Limit travel and modify commuting practices.
    • Cancel any events where social distancing of at least six feet cannot be maintained between participants.
    • Ask employees who use public transportation to consider using teleworking to promote social distancing.
    • Train all managers and staff in the above safety actions. Consider conducting the training virtually, or if in-person ensure that social distancing is maintained.

In Phase One, employers should implement the following additional safety actions to combat the spread of COVID-19:

  • Limit service to drive-throughs, curbside take out, or delivery options, if possible;
  • Close communal spaces, such as break rooms, if possible;
  • Cancel all group events, gatherings, or meetings of more than 10 people;
  • Restrict any nonessential visitors, volunteers, and activities involving external groups or organizations; and
  • Cancel all non-essential travel.

In Phase Two, employers should implement the following additional safety actions to combat the spread of COVID-19:

  • Stagger use of communal spaces, such as break rooms, and clean and disinfect in between uses;
  • Cancel all group events, gatherings, or meetings of more than 50 people;
  • Consider limiting any nonessential visitors, volunteers, and activities involving external groups or organizations; and
  • Consider resuming non-essential travel in accordance with state and local regulations and guidance.

In Phase Three, employers should implement the following additional safety actions to combat the spread of COVID-19:

  • Stagger use of communal spaces, such as break rooms, and clean and disinfect in between uses; and
  • Consider resuming non-essential travel in accordance with state and local regulations and guidance.
  1. Monitoring and Preparing Protocols

In all three phases, employers should establish the following monitoring protocols:

  • Checking for signs and symptoms;
    • Consider conducting routine, daily health checks (g., temperature and symptom screening) of all employees.
    • If implementing health checks, conduct them safely and respectfully, and in accordance with any applicable privacy laws and regulations. Confidentiality should be respected. The CDC has guidelines that provide examples of screening methods for general businesses.
    • Encourage employees who are sick to stay at home.
  • Plan for when an employee becomes sick; and
    • Employees with symptoms (i.e., fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell) at work should immediately be separated and sent home.
    • Establish procedures for safely transporting anyone sick to their home or to a healthcare facility.
    • Notify local health officials, staff, and customers (if possible) immediately of a possible case while maintaining confidentiality as required by the ADA.
    • Close off areas used by the sick person until after cleaning and disinfection. Wait 24 hours to clean and disinfect. If it is not possible to wait 24 hours, wait as long as possible before cleaning and disinfecting. Ensure safe and correct application of disinfectants and keep disinfectant products away from children.
    • Inform those who have had close contact with a person with COVID-19 to stay home and self-monitor for symptoms, and follow CDC guidance if symptoms develop.
  • Maintain healthy operations.
    • Implement flexible sick leave and other flexible policies and practices such as telework, if feasible.
    • Monitor absenteeism of employees and create a roster of trained back-up staff.
    • Designate a staff person to be responsible for responding to COVID-19 concerns. Employee should know who this person is and how to contact them.
    • Create and task communication systems for employees for self-reporting and notification of exposures and closures.
  1. Being Prepared to Close

Employers should check state and local health department notices daily about transmission in the area and adjust operations accordingly. Employers should also be prepared to close for a few days if there is a case of COVID-19 in the workplace or for longer if cases increase in the local area.

Specific Guidance for Schools and Day Camps

The CDC provides the following guidance to keep communities safe while resuming peer-to-peer learning and providing support for parents and guardians returning to work. The guidance consists of: (1) phases for re-opening; (2) safety actions to implement; (3) monitoring and preparing protocols; and (4) being prepared to close.

  1. Re-Opening in Phases

The CDC recommends the gradual re-opening of schools and camps according to the following three phases based on levels of COVID-19 community transmission (from higher transmission areas to lower transmission areas):

  • Phase One: Schools that are currently closed remain closed. E-learning or distance learning opportunities should be provided for all students. Ensure provision of student services such as school meal programs. Camps restricted to children of essential workers and for children who live in the local geographic area only.
  • Phase Two: Remain open with enhanced social distancing measures and for children who live in the local geographic area only.
  • Phase Three: Remain open with distancing measures. Restricted attendance to those from limited transmission areas (e., other Phase Three areas) only.

In all three phases, employers should:

  • Establish and continue communication with state and local authorities to determine current mitigation levels in the community;
  • Protect staff and students who are at higher risk for severe illness, such as providing options for telework and virtual learning;
  • Follow CDC guidance for Schools and Childcare programs;
  • Provide teachers and staff from higher transmission areas (i.e., earlier Phase areas) telework and other options as feasible to eliminate travel to schools and camps in lower transmission areas (e., later Phase areas) and vice versa.
  • Ensure external community organizations that use the facilities also follow this guidance.
  1. Implementing Safety Actions

In all three phases, schools and camps should implement the following safety actions to combat the spread of COVID‑19:

  • Promote healthy hygiene practices;
    • Teach and reinforce handwashing and covering coughs and sneezes among children and staff.
    • Teach and reinforce using cloth face coverings among all staff. Face coverings are most essential when physical distancing is not possible. Staff should be frequently reminded not to touch the face covering and wash their hands frequently. Information should be provided to all staff on proper use removal and washing of cloth face coverings.
    • Have adequate supplies to support healthy hygiene behaviors are available, including soap, hand sanitizer with at least 60 percent alcohol (for staff and older children who ca safely use hand sanitizer), tissues, and no-touch trash cans.
    • Post signs on how to stop the spread of COVID-19, properly wash hands, take everyday protective measures, and properly wear a face covering.
  • Intensify cleaning, disinfection and ventilation;
    • Clean and disinfect frequently touched surfaces within the school and on school buses at least daily (g., playground equipment, door handles, sink handles, drinking fountain) and shared objects (e.g., toys, games, art supplies) between uses.
    • To clean and disinfect school buses, the CDC provides guidance for bus transit operators.
    • Ensure safe and correct application of disinfectants and keep products away from children.
    • Ensure that ventilation systems operate properly and increase circulation of outdoor air as much as possible by opening windows and doors, using fans, or other methods. Do not open windows and doors if doing so poses a safety or health risk (e.g., allowing pollens in or exacerbating asthma symptoms) to children using the facility.
    • Take steps to ensure that all water systems and features (g., drinking fountains, decorative fountains) are safe to use after a prolonged facility shutdown to minimize the risk of Legionnaires’ disease and other diseases associated with water.
  • Ensure social distancing;
  • Limit sharing; and
    • Keep each child’s belongings separated from others’ and in individually labeled containers, cubbies, or areas.
    • Ensure adequate supplies to minimize sharing of high touch materials to the extent possible (g., art supplies, equipment, etc., assigned to a single camper) or limit use of supplies and equipment by one group of children at a time and clean and disinfect between.
    • If food is offered at any event, have prepackaged boxes or bags for each attendee instead of a buffet or family-style meal. Avoid sharing of foods and utensils.
    • Avoid sharing electronics devices, toys, books, and other games or learning aids.
  • Train all teachers and staff in the above safety actions. Consider conducting the training virtually, or if in-person, ensure that social distancing is maintained.

In Phases One and Two, schools and camps should implement the following additional safety actions to combat the spread of COVID-19:

  • Ensure that students and staff groupings are static as possible by having the same group of children stay with the same staff (all day for young children, and as much as possible for older children);
  • Restrict mixing between groups;
  • Cancel all field trips intergroup events and extracurricular activities (Phase One only);
  • Limit gatherings, events, and extracurricular activities to those that can maintain social distancing, support proper hand hygiene, and restrict attendance of those from higher transmission areas (Phase Two only; note that restricting attendance is for those from Phase One areas);
  • Restricted nonessential visitors, volunteers, and activities involving other groups at the same time;
  • Space seating/desks to at least six feet apart;
  • Close communal use spaces such as dining halls and playgrounds if possible; otherwise stagger use and disinfect in between use;
  • If the cafeteria or group dining room is used, serve meals in classrooms instead. Serve individually plated meals and hold activities in separate classrooms. Stagger arrival and drop-off times or locations, or put in place other protocols to limit direct contact with parents as much as possible; and
  • Create social distance between children on school buses were possible.

In Phase Three, schools and camps should implement the following additional safety actions to combat the spread of COVID-19:

  • Consider keeping classes together to include the same group of children each day, and consider keeping the same childcare providers with the same group each day;
  • Allow minimal mixing between groups. Limit gatherings, events, and extracurricular activities to those that can maintain social distancing, support proper hand hygiene, and restrict attendance of those from higher transmission areas (e., Phase One or Two areas);
  • Continue to space out seating and bedding (head-to-toe positioning) to six feet apart, if possible;
  • Consider keeping communal use spaces closed, such as game rooms or dining halls, if possible; if this is not possible, stagger use and disinfect in between uses;
  • Consider continuing to play each child’s meal, to limit the use of shared serving utensils;
  • Consider limiting nonessential visitors, volunteers, and activities involving other groups. Restrict attendance of those from higher transmission areas (e., Phase One or Two areas); and
  • Consider continuing to stagger arrival and drop off times and plan to continue limiting direct contact with parents as much as possible.
  1. Monitoring and Preparing Protocols

In all three phases, schools and camps should establish the following monitoring protocols:

  • Checking for signs and symptoms;
    • Implement screenings safely, respectfully, as well as in accordance with any applicable privacy laws or regulations. Confidentiality should be maintained.
    • School and camp administrators may use examples of screening methods in its guidance for child care programs that remain open as a guide for screening children. The CDC also has guidelines that provide examples of screening methods for general businesses, which can be used for screening staff.
    • Encourage staff or children to stay home if they are sick and encourage parents to keep sick children home.
  • Plan for when a staff, child, or visitor becomes sick; and
    • Work with school administrators, nurses, and other healthcare providers to identify an isolation room or area to separate anyone who exhibits COVID-19 like symptoms (i.e., fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell). School nurses and other healthcare providers should use standard and transmission based precautions when caring for sick people.
    • Establish procedures for safely transporting anyone sick to their home or to a healthcare facility.
    • Notify local health officials, staff, and families immediately of a possible case while maintaining confidentiality as required by the ADA.
    • Close off areas used by the sick person until after cleaning and disinfection. Wait 24 hours to clean and disinfect. If it is not possible to wait 24 hours, wait as long as possible before cleaning and disinfecting. Ensure safe and correct application of disinfectants and keep disinfectant products away from children.
    • Advise six staff members not return until they have met CDC criteria to discontinue home isolation.
    • Inform those who have had close contact with a person with COVID-19 to stay home and self-monitor for symptoms, and follow CDC guidance if symptoms develop. Provide options for virtual learning.
  • Maintain healthy operations.
    • Implement flexible sick leave policies and practices, if feasible.
    • Monitor absenteeism and have a roster of trained back-up staff.
    • Monitor health clinic traffic. School nurses and other healthcare providers play important roles in monitoring health clinic traffic and the types of illnesses and symptoms among students.
    • Designate a staff person to be responsible for responding to COVID-19 concerns. Employee should know who this person is and how to contact them.
    • Create and task communication systems for employees for self-reporting and notification of exposures and closures.
  1. Being Prepared to Close

Schools and camps should check state and local health department notices daily about transmission in the area and adjust operations accordingly. In the event a person is diagnosed with COVID-19 is determined to have been in the building and poses a risk to the community, programs may consider closing for a short time (e.g., 1-2 days) for cleaning and disinfection.

Specific Guidance for Restaurants and Bars

The CDC provides the following guidance for businesses in the food service industry (e.g., restaurants and bars) on ways to maintain healthy business operations and a safe and healthy work environment for employees, while reducing the risk of COVID-19 spread for both employees and customers. The guidance consists of: (1) phases for re-opening; (2) safety actions to implement; (3) monitoring and preparing protocols; and (4) being prepared to close.

  1. Re-Opening in Phases

The CDC recommends the gradual re-opening of restaurants and bars according to the following three phases based on levels of COVID-19 community transmission (from higher transmission areas to lower transmission areas):

  • Phase One: Bars remain closed and restaurant service should remain limited to drive-through, curbside take out, or delivery with strict social distancing.
  • Phase Two: Bars may open with limited capacity; restaurants may open dining rooms with limited seating capacity that allows for social distancing.
  • Phase Three: Bars may open with increased standing room occupancy that allows for social distancing; restaurants may operate while maintaining social distancing.

In all three phases, employers should:

  • Establish and continue communication with state and local authorities to determine current mitigation levels in the community;
  • Consider offering vulnerable workers duties that minimize their contract with customers and other employees (g., managing inventory rather than working as a cashier, or managing administrative needs through telework), if agreed by the worker; and
  • Provide employees from higher transmission areas (i.e., earlier Phase areas) telework and other options as feasible to eliminate travel to workplaces in lower transmission areas (i.e., later Phase areas) and vice versa.
  1. Implementing Safety Actions

In all three phases, restaurants and bars should implement the following safety actions to combat the spread of COVID‑19:

  • Promote healthy hygiene practices;
    • Enforce handwashing, covering coughs and sneezes, and using cloth face coverings by employees when near other employees or customers.
    • Ensure that adequate supplies to support healthy hygiene behaviors are available, including soap, hand sanitizer with at least 60 percent alcohol (perhaps on every table, if supplies allow), and tissues.
    • Post signs on how to stop the spread of COVID-19, properly wash hands, take everyday protective measures, and properly wear a face covering.
  • Intensify cleaning, disinfection and ventilation;
    • Clean, sanitize, and disinfect frequently touched surfaces (e.g., door handles, work stations, and cash registers) at least daily and shared objects (e.g., payment terminals, tables, countertops/bars, receipt trays, condiment holders) between uses. Use products the meet Environment Protection Agency (“EPA”) criteria for use against SARS-CoV-2 and that are appropriate for the surface. Prior to wiping a surface, allow the disinfectant to sit for the necessary contact time recommended by the manufacturer. Train staff on proper cleaning procedures to ensure safe and correct application of disinfectants.
    • Make available individual disinfectant wipes in bathrooms, and post reminders not to flush these wipes but they dispose of them in the trash.
    • Wash, rinse, and sanitize food contact surfaces, food preparation services, and beverage equipment after use.
    • Avoid using or sharing of items such as menus, condiments, and any other food. Instead, use disposable or digital menus, single serving condiments, and no-touch trash cans and doors.
    • Use touchless payment options as much as possible, when available. Ask customers and employees to exchange cash or card payments by placing on a receipt tray or on the counter rather than by hand. Wipe any pens, counters, or hard surfaces between use or customer.
    • Use disposable food service items (utensils, dishes). If disposable items are not feasible, ensure that all non-disposable food service items are handled with gloves and washed with dish soap and hot water or in a dishwasher. Employees should wash their hands after removing their gloves or after directly handling used food service items.
    • Use gloves when removing garbage bags or handling and disposing of trash and wash hands afterwards.
    • Avoid using food and beverage implements brought in by customers.
    • Ensure that ventilation systems operate properly and increase circulation of outdoor air as much as possible by opening windows and doors, using fans, or other methods. Do not open windows and doors if doing so poses a safety risk to employees, children, or customers.
    • Take steps to ensure that all water systems and features (e.g., drinking fountains, decorative fountains) are safe to use after a prolonged facility shutdown to minimize the risk of Legionnaires’ disease and other diseases associated with water.
  • Ensure social distancing; and
  • Train all employees in the above safety actions while maintaining social distancing and use of face coverings during training.

In Phase One, restaurants and bars should implement the following additional safety actions to combat the spread of COVID-19:

  • Limit service to drive-throughs, curbside take out, or delivery options only;
  • Provide physical guides, such as tape on floors or sidewalks to ensure customers remain at least six feet apart in lines or ask customers to wait in their cars or away from the establishment while waiting to pick up food. Post signs to inform customers of food pickup protocols;
  • Consider installing physical barriers, such as sneeze guards and partitions at cash registers, or other food pick up areas were maintaining physical distance of six feet is difficult;
  • Restricted the number of employees and shared spaces, including kitchens, break room, and offices to maintain at least a six-foot distance between people; and
  • Rotate or staggered shifts to limit the number of employees in the workplace at the same time.

In Phase Two, restaurant and bars should implement the following additional safety actions to combat the spread of COVID-19:

  • Provide drive-through, delivery, or curbside pick-up options and prioritize outdoor seating as much as possible;
  • Reduce occupancy and limit the size of parties dining in together the sizes that ensure all customer parties remain at least six feet apart (e.g., all tables and bar stools six feet apart, marking tables/stools that are not for use) in order to protect staff and other guests;
  • Provide physical guides, such as tape on floors or sidewalks and signage on walls to ensure that customers remain at least six feet apart and lines are waiting for seating;
  • Ask customers to wait in their cars or away from the establishment while waiting to be seated. If possible, use phone app technology to patrons when their table is ready to avoid touching and use of “buzzers”;
  • Consider options for dine-in customers to order ahead of time to limit the amount out of time spent in the establishment;
  • Avoid offering any self-serve food or drink options, such as buffets salad bars and drinks stations;
  • Install physical barriers, such a sneeze guards and partitions a cash registers, bars, host stands, and other areas were maintaining physical distance of six feet is difficult; and
  • Limit the number of employees and shared spaces, including kitchens, break room, and offices to maintain at least a six-foot distance between people.

In Phase Three, restaurant and bars should implement the following additional safety actions to combat the spread of COVID-19:

  • Provide drive-through delivery or curbside pick-up options and prioritize outdoor seating as much as possible;
  • Consider reducing occupancy and limiting the size of parties dining in together to sizes that ensure that all customer parties remain at least six feet apart (e.g., all tables and barstools six feet apart, marking tables/stools that are not for use) in order to protect staff and other guests;
  • Provide physical guides, such as tape on floors or sidewalks and signage on walls to ensure that customers remain at least six feet apart in lines or waiting for seating;
  • Consider resuming non-essential travel in accordance with state and local regulations and guidance;
  • If possible, use phone app technology to our patrons when their table is ready to avoid touching and use of “buzzers”;
  • Consider options for dine-in customers to order ahead of time to limit the amount out of time spent in the establishment;
  • Avoid offering any self-serve food or drink options, such as buffets salad bars and drinks stations; and
  • Install physical barriers, such a sneeze guards and partitions a cash registers, bars, host stands, and other areas were maintaining physical distance of six feet is difficult
  1. Monitoring and Preparing Protocols

In all three phases, restaurants and bars should establish the following monitoring protocols:

  • Checking for signs and symptoms;
    • Consider conducting daily health checks (g., temperature and symptom screening) of employees.
    • If implementing health checks, conduct them safely and respectfully, and in accordance with any applicable privacy laws and regulations. Confidentiality should be respected. The CDC has guidelines that provide examples of screening methods for general businesses.
    • Encourage employees who are sick to stay at home.
  • Plan for when an employee becomes sick; and
    • Employees with symptoms (e., fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell) at work should immediately be separated and sent home.
    • Inform those who have had close contact with a person with COVID-19 to stay home and self-monitor for symptoms, and follow CDC guidance if symptoms develop.
    • Establish procedures for safely transporting anyone sick to their home or to a healthcare facility.
    • Notify local health officials, staff, and customers (if possible) immediately of a possible case while maintaining confidentiality as required by the ADA.
    • Close off areas used by the sick person until after cleaning and disinfection. Wait 24 hours to clean and disinfect. If it is not possible to wait 24 hours, wait as long as possible before cleaning and disinfecting. Ensure safe and correct application of disinfectants and keep disinfectant products away from children.
    • Advise sick staff members not to return until they have met CDC criteria to discontinue home isolation.
  • Maintain healthy operations.
    • Implement flexible sick leave and other flexible policies and practices such as telework, if feasible.
    • Monitor absenteeism of employees and create a roster of trained back-up staff.
    • Designate a staff person to be responsible for responding to COVID-19 concerns. Employee should know who this person is and how to contact them.
    • Create and task communication systems for employees for self-reporting and notification of exposures and closures.
  1. Being Prepared to Close

Restaurants and bars should check state and local health department notices daily about transmission in the area and adjust operations accordingly. Restaurants and bars should also be prepared to close for a few days if there is a case of COVID-19 in the establishment and for longer if cases increase in the local area.

Specific Guidance for Other Industries

The CDC provides similar guidance for child care programs, communities of faith, and mass transit administrators. They also consist of: (1) phases for re-opening; (2) safety actions to implement; (3) monitoring and preparing protocols; and (4) being prepared to close.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

New York State is encouraging employers to consider its Shared Work Program as an alternative to laying off employees. The program allows employers to keep employees during a temporary slowdown by allowing employees to work reduced hours while receiving partial unemployment insurance benefits.  Full-time, part-time and seasonable employees are eligible.

Shared Work Plan

To take part in the Program, an employer must first design a Shared Work Plan.  The Shared Work Plan must:

  • Apply to employees who normally work no more than 40 hours per week;
  • Include the names, social security number, and normal weekly work hours of all participating employees, and whether they are seasonal, temporary, or intermittent employees;
  • Reduce work hours and corresponding wages between 20% to 60%;
  • Replace the layoff of an equal percentage of your workforce;
  • Not reduce or eliminate fringe benefits, unless they are reduced or eliminated for the entire workforce;
  • Not extend beyond 53 weeks;
  • Cover all employees in an affected unit and reduce their hours by the same percentage. Employers may reduce different units by different percentages;
  • If there is a collective bargaining agreement in effect, the collective bargaining unit must agree to take part in the Shared Work Program.must provide employees with unpaid sick leave for the duration of the mandatory or precautionary order of quarantine or isolation.

Applications should be submitted one to four weeks before the start date of the plan. To file the application, employers may apply online at the www.labor.ny.gov website.  Employers must also complete the Shared Work Plan Application (Form SW-2.1) and the Shared Work Plan Participant Listing (Form SW-2.2) which are also available online.

Employee Benefits and Eligibility

Employees may participate in Shared Work if they are eligible to receive regular unemployment insurance benefits in New York State.  The Shared Work benefit is the person’s weekly unemployment benefit rate multiplied by the percentage their hours and wages are reduced.  Workers participating in the Shared Work:

  • May receive a maximum of 26 weeks of Shared Work benefits during a benefit year;
  • May not receive more in a benefit year from Shared Work benefits combined with regular unemployment insurance benefits than they would receive under the regular unemployment insurance program alone (26 times the regular benefit rate);
  • Must be fully available to work for the Shared Work employer, but are not required to look for other work;
  • Are not eligible for Shared Work benefits in any week in which they receive Supplemental Unemployment Compensation benefits (SUB pay) as defined in section 501(c)((17)(D) of the Internal Revenue Code;
  • Will have their Shared Work benefits reduced if they work for a different employer or work at self-employment.

EXAMPLES OF BENEFITS UNDER THE SHARED WORK PROGRAM

  Under Total Unemployment Under Shared Work
Employee earns $400 weekly $200 unemployment benefit rate 20% Reduction:  $360 weekly

·       $320 weekly wages
(20% of $400 = $80),

·       plus $40 Shared Work benefit

(20% of $200)

40% Reduction:  $320 weekly

·       $240 weekly wages
(40% of $400 = $160),

·       plus $80 Shared Work benefit

(40% of $200)

60% Reduction:  $280 weekly

·       $160 weekly wages
(60% of $400 = $240),

·       plus $120 Shared Work benefit
(60% of $200)

Application

Eligibility

In order to qualify, employers must employ at least two full-time employees working in New York State. For four consecutive calendar quarters, the employer must have paid unemployment insurance contributions.  In lieu of contributions, elected to reimburse benefits paid to former employees.

Effective Date

If approved, the Shared Work Plan begins on the date specified on the application, or the first Monday following approval of the Plan, whichever is later.  A Shared Work Plan cannot be retroactive.

Modifications to the Shared Work Plan

Once approved, an employer may change the percentage that their employees’ hours are reduced as long as it is between 20% to 60% reduction. As a result, employers may not split entire weeks among employees such that they are working 0% or 100% reduced weeks. An employer may however return all workers within a unit to a full schedule for a week or more and then resume the Plan with reduced hours.

If people in the affected work unit leave, the employer may hire replacement workers.  However, an employer may not hire additional workers in an affected unit or add additional work units to the Plan without submitting a modified application for approval.

Layoffs

Employers may lay off some workers who were originally in the Plan and still keep the remainder on the Plan.  This would still prevent the layoff of those who remain, which is the program’s intent.

Need Not Affect the Entire Company

Employers may use Shared Work in one or more departments, shifts or units.  The Plan lets the employer choose the areas involved.  However, employers must apply reductions in hours and wages equally to all of the employees in a participating unit or department.  Employers may reduce the hours and wages of employees of different departments or units by different percentages, if specified in the Plan. An affected unit must have at least two employees in the Plan.  Corporate officers cannot be included in the Plan.

Certification Requirement

Each week, both the employer and participating employees must certify the Shared Work benefits.  This makes sure that each employee is paid the proper Shared Work benefit amount.

If the Plan is not needed for any particular week that employees’ work and wages are not reduced, neither the employer nor participating employees certify for that week.

Impact of the CARES Act

On March 27, 2020, President Donald Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act.  The CARES Act promotes the use of short-time compensation (STC) arrangements such as the New York’s Shared Work Program and provides funding to support such programs.  Under the CARES Act, the federal government will reimburse states that have a pre-existing STC program, such as New York, for the total STC benefit costs, up to a maximum of 26 weeks for each participant.

Moreover, employees participating in an STC program will be able to supplement their partial unemployment benefits with the additional $600 per week Pandemic Unemployment Compensation (PUC) benefit through July 31, 2020.  The PUC does not constitute a supplemental unemployment benefit which would otherwise disqualify an employee from participating in a STC.  In the examples above, $600 would be added to the weekly benefit amounts through July 31, 2020.

Federal reimbursement for regular benefits paid under a state’s STC program is available through December 31, 2020.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On April 22, 2020, the New York City Council (the “Council”) introduced legislation that would require large essential businesses to pay premiums, or “hazard pay,” to certain non-salaried essential employees. The bill requires essential businesses with 100 or more employees to pay hourly workers an additional $30 for each shift under four hours, $60 for any shift of four to eight hours, and $75 for any shift over eight hours. The obligation would continue until the state of emergency is lifted. The Council will have a hearing to discuss the bill next week and it could become law as early as May.

The bill is part of a package of bills introduced by the Council called the “NYC Essential Workers’ Bill of Rights.” The other bills under the package call for just cause rights for essential workers, paid sick leave for gig workers, and resolution of misclassification of independent contractors.

Qualifying Large Essential Businesses

Under the bill, the term “essential business” means any person or entity identified by the New York Empire State Development, in accordance with Executive Order 202.6. An updated list of essential businesses is available on the Empire State Development’s website here.

Only large essential businesses qualify for making premium payments under the bill. A “large essential business” is any essential business with 100 or more employees. In determining the number of employees performing work for an essential business during any given week, all full-time, part-time, and temporary employees are counted. For essential businesses with a  workforce that fluctuates per week, the bill provides an alternative method of determining the number of employees. Chain businesses—businesses that are a part of a group of establishments that engage in the same business or operate pursuant to franchise agreements with the same franchisor—are counted as one employer for purposes of counting employees. Notably, businesses in the real estate sector (e.g., those primarily engaged in renting, leasing, managing, selling, or buying real estate) are exempt from the bill. 

Qualifying Essential Employees

To qualify for a premium, essential employees must work for a large essential business and cannot be:

  • Salaried;
  • Covered by a collective bargaining agreement if such agreement expressly waives the provisions of the bill and provides comparable or superior benefits for essential employees; or
  • Covered by a program created pursuant to an emergency order issued by the governor that provides comparable or superior benefits for essential employees.

Other Key Requirements

Premiums must be paid at the time an employee is paid wages for work performed during that workweek. The premium must also be separately noted on a wage stub, or other form of written documentation, and provided to the essential employee for that pay period.

Large essential businesses must post notices informing employees of their rights under the bill within five days after its effective date. Large essential businesses must also retain records documenting their compliance with the bill’s requirements for a period of three years.

Penalties for Non-Compliance

The bill makes it against the law for employers to retaliate against any essential employee for exercising or attempting to exercise any right under the bill. The bill also creates a private cause of action for any person or organization alleging a violation of the bill. The bill includes administrative and judicial remedies, including compensatory damages, injunctive relief, civil penalties, and reasonable attorney’s fees.

Takeaway for Employers

Employers that qualify as “large essential businesses” should monitor the status of the bill for whether it passes into law. Employers should also make arrangements to post the required notices under the bill and prepare to retain records documenting their compliance with the bill.

It is unclear whether employers may factor in any temporary incentive pay—or other similar employer initiative already in place—towards the premium. However, given that the premium must be separately noted on employee wage stubs, it is advisable that the full premium amount be noted separately from any employer initiative providing temporary incentive pay.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

Responses to Frequently Asked Questions as of April 23, 2020

  1. Effective Date of the FFCRA

The paid leave provisions under the FFCRA are effective April 1, 2020, and apply to leave taken between April 1, 2020 and December 31, 2020.

  1. Covered Employer

Generally, employers with fewer than 500 employees are covered employers under the Act and must provide paid sick leave and expanded family and medical leave.  Certain employers with fewer than 50 employees may be exempt from the Act’s requirements to provide certain paid sick leave and expanded family and medical leave.

  1. Calculation of Size of Employer

In making the determination as to whether a business is under the 500-employee threshold, employers should include employees on leave, temporary employees who are jointly employed employees (regardless of whether they are maintained only on one of the employer’s payroll), and day laborers supplied by a temporary placement agency (if there is a continuing employment relationship).

Workers who are independent contractors under the FLSA, rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must be counted towards the 500-employee threshold.  However, where a corporation has an ownership interest in another corporation, the two corporations are separate employers, unless they are joint employers of certain employees under the FLSA.  If two entities are joint employers, all of their common employees must be counted in determining coverage under the FFCRA.

In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA.  If two entities are an integrated employer under the FMLA, then employees of all entities making up the integral employer will be counted in determining coverage under the FFCRA. Under the integrated test, the following factors are considered:

  • Interrelation of operations;
  • Common management;
  • Centralized control of labor relations and personnel; and
  • Common ownership and financial control

The language about counting employees over calendar workweeks is only in the FMLA’s definition of employer and does not apply to the FFCRA for purposes of expanded family and medical leave and sick leave.  Employers should use the number of employees on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees.

  1. Private Sector Employers

Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.

  1. Small Businesses Exemption

Employers with fewer than 50 employees may be exempt from providing paid sick leave and expanded family and medical leave due to school closure or child care unavailability due to COVID-19 only, when doing so would jeopardize the viability of their business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

  • The provision of paid sick leave or expanded family and medical leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
  1. Eligible Employees

Both the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions use the definition of employee provided by the FLSA.  Thus, assuming the employer is a covered employer, all U.S. employees who meet the definition of employee are eligible, including full-time and part-time employees, and “joint employees” working on your site temporarily and/or through a temp agency.

Exceptions are health care providers or emergency responders who may be exempt, as well as employees of certain small businesses.

To qualify for expanded family and medical leave, employees must have been employed for 30 calendar days.  Employees are eligible for paid sick leave regardless of length of employment.

  1. Calculation of Hours Worked by Part-Time Employees

Part-time employees are entitled to leave for the average number of hours worked in a two-week period. This calculation is based on the number of hours the employee is normally scheduled to work.

If the normal hours are unknown or vary, a six-month average may be used. The part-time employee may take paid sick leave for this number of hours per day for the two-week period, and then expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If the employee has not been employed for at least six months, the number of hours that the employee agreed to work upon hiring may be used.  If no such agreement, the appropriate number of hours may be calculated based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

  1. Overtime Hours, Overtime Pay

When calculating pay due to employees for expanded family and medical leave under the EFMLEA, if the employee would have normally been scheduled to work more than 40 hours in a week, overtime hours must be included, subject to the daily and aggregate cap.  However, premium pay is not required for hours worked over 40 per week.

When calculating pay due to employees for paid sick leave under the EPSLA, the Act only requires payment for up to 80 hours over a two-week period.  So if an employee is scheduled to work 50 hours per week, that employee may take 50 hours of paid sick leave in the first week, and 30 hours of paid sick leave in the second week, for a total of 80 hours in two weeks, subject to the daily and aggregate cap.  Again, premium pay is not required for hours scheduled over 40 per week.

  1. Rate of Pay

The rate of pay for an employee taking paid sick leave or expanded family and medical leave under the FFCRA depends on the employee’s normal schedule and the reason for taking leave.

Employees who are taking paid sick leave because they are unable to work because they (1) are subject to a federal, state or local order of quarantine or isolation related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, will receive:

  • the greater of their regular hourly rate of pay, or the applicable minimum wage (federal, state or local)
  • up to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

Employees who are taking paid sick leave because they are unable to work because they are (1) caring for an individual who is subject to a federal, state or local order of quarantine or isolation related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for a child whose school or place of care is closed due to COVID-19; or (3) experiencing any other substantially-similar conditions that may arise, as specified by the Secretary of Health and Human Services, will receive:

  • the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
  • up to a maximum of $200 per day, or $2,000 total over the entire paid sick leave period.
  • Employees taking expanded family and medical leave:
  • for the first 10 days, they may take paid sick leave, or substitute any accrued vacation leave, personal leave or medical or sick leave under their employer’s policy
  • for the following 10 weeks, they will be paid for leave at the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
  • up to a maximum of $200 per day, or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when the employee is on leave to care for a child whose school or place of care is closed due to COVID-19.
  1. Calculation of Regular Rate of Pay

For purposes of FFCRA, the regular rate of pay used to calculate paid leave is the average of the employee’s regular rate (as determined by section 7(e) of the FLSA) over a period of up to six months prior to the date on which leave is taken.

If the employee has not worked for the employer for six months, the regular rate is the average of the regular rate of pay for each week worked for the employer.

If paid with commissions, tips or piece rates, they should be incorporated into the calculation of regular rate.

The regular rate can also be computed for each employee by adding all compensation that is part of the regular rate over the applicable period above and dividing it by the sum of all hours actually worked in the same period.

Once an employer identifies the six-month period to calculate an employee’s regular rate based on the first day the employee takes paid sick leave or expanded family and medical leave, that six-month period may be used to calculate all subsequent paid sick leave and expanded family and medical leave the employee takes under the FFCRA.

  1. Computation of Hours of Paid Sick Leave and Expanded Family and Medical Leave

Paid Sick Leave Hours

Generally, employers must provide employees with paid sick leave equal to the number of hours that employee is scheduled to work, on average, over a two-week period, up to a maximum of 80 hours.  If the employee works an irregular schedule, the employer must estimate the number of hours based on the average number of hours the employee was scheduled to work per calendar day over the six-month period ending on the first day of sick leave. The average must include all scheduled hours, including hours for which the employee took leave.

Expanded Family and Medical Leave Hours

Generally, employers must provide employees with each day of expanded family and medical leave taken based on the number of hours the employee was normally scheduled to work that day.  If an employee works an irregular schedule, the employer must determine the employee’s average workday hours, including any leave hours.  The average must be based on the number of hours the employee was scheduled to work per workday divided by the number of workdays over the six-month period ending on the first day of the employee’s paid leave.  This average must include all scheduled hours, including hours for which the employee took leave.

It is acceptable for employers to round to the nearest tenth, quarter or half hour when determining an employee’s hours worked. But, in an employer chooses to round, it must use a consistent rounding principle. Employers may round to the nearest time increment that is customarily used to track employee’s hours worked.

  1. No Stacking of Paid Sick Leaves

Employees may not use 80 hours of paid sick leave for one qualifying reason, and then another amount for another qualifying reason under the EPSLA.  Employees may only take up to two weeks of paid sick leave, capped at 80 hours total for full-time employees, or the number of hours worked over a two-week period for part-time employees, for any combination of qualifying reasons.

  1. Stacking of Paid Sick Leave and Expanded Family and Medical Leave

Employees may however take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed for COVID-19 reasons, for a total of twelve (12) weeks of paid leave.

The EPSLA provides for an initial two weeks of paid leave, which covers the first ten workdays of expanded family and medical leave (which is otherwise unpaid unless accrued vacation, personal, medical or sick leave under the employer’s policy is used).

 

Thereafter, the employee can receive another ten weeks of leave under the expanded family and medical leave at a rate of 2/3 the regular rate of pay for the hours the employee would have been scheduled to work in those ten weeks.  However, the additional ten weeks of leave can only be used care for a child whose school or place of care is closed for COVID-19 reasons.

  1. Paid Sick Leave Taken Prior to the FFCRA

If an employee was provided paid sick leave for a qualifying reason prior to the effective date of FFCRA, the employee is entitled to the full amount of paid sick leave under the EPSLA beginning on April 1, 2020.

  1. All Leave Under the FMLA Leave Is Not Paid

Only family and medical leave under the EFMLEA is paid, after the first 10 days of leave.  The first 10 days of EFMLEA leave is unpaid.

  1. Is Paid Leave Under the FFCRA Retroactive

No, the paid sick leave and expanded family and medical leave requirements under the FFCRA are not retroactive.

  1. Calculation of 30-Day Eligibility Period for Employees

Employees are considered to have been employed by their employer for at least 30 calendar days if the employer had the employee on its payroll for the 30 calendar days immediately prior to the day leave would begin.

For an employee who has been working as a temporary employee, and is subsequently hired on a full-time basis, the days previously worked as a temporary employee may be counted towards the 30-day eligibility period.

  1. Records Employers Must Retain for Paid Leave Under the FFCRA

Regardless of whether paid leave is granted or denied, employers must keep the following documents:

  • name of employee requesting leave;
  • date(s) for which leave is requested;
  • reason for leave; and
  • statement from employee that he/she is unable to work because of the reason.

If an employee requests leave because of a quarantine or isolation order or on advice of health care provider, employers must additionally document:

  • name of the government entity that issued the order; or
  • name of the health care provider who gave advice.

If an employee requests leave to care for a child whose school or place of care is closed, or the child are provider is unavailable, the employer must additionally document:

  • name of child being care for;
  • name of school, place of care, or child provider that has closed or become unavailable; and
  • statement from employee that no other suitable person is available to care for the child.

Private sector employers are eligible for reimbursement of the costs of leave required by the FFCRA through refundable tax credits.  Employers intending to claim tax credits should consult the Internal Revenue Service for applicable forms and instructions.

  1. Documents Employees Must Provide for Paid Leave Under the FFCRA

Employees requesting paid sick leave or expanded family and medical leave must provide their employer with the information above.  In addition, if leave is for the employee’s own serious health condition, all existing certification requirements under the FMLA remain in effect, and the employee must continue to provide medical certifications under the FMLA.

  1. Teleworking

Employers may permit employees to telework.  Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

  1. Inability to Work or Telework

Employees are unable to work or telework if their employer has work for them, and one of the qualifying FFCRA reasons prevents the employee from working.  Those employees would be entitled to paid sick leave or expanded family and medical leave.

  1. Intermittent Paid Sick Leave or Expanded Family and Medical Leave

While Teleworking

Allowed if an employee was teleworking, but is no longer able to work normal schedule because due to one of the qualifying reasons in the EPSLA. In that situation, the employee and employer may agree that the employee may take paid sick leave intermittently while teleworking.

Similarly, if an employees are prevented from teleworking their normal schedule of hours because they need to care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee and employer may agree that the employee can take expanded family medical leave intermittently while teleworking.

Intermittent leave may be taken in any increment, provided that the employee and employer agree.

While Working at Worksite

For employees working at the workplace, paid sick or family leave may only be taken intermittently if it is to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons, and only if the employee and employer agree that the employee can take intermittent leave.

Intermittent leave may not be taken for the following reasons:

  • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless an employee is teleworking, once the employee begins taking paid sick leave for one or more of these qualifying reasons, the employee must continue to take paid sick leave each day until the employee either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave.

However, if the employee no longer has a qualifying reason for taking paid sick leave before the paid sick leave is exhausted, employees may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.  For employees working at the workplace, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments.

  1. No Entitlement to Paid Sick Leave or Expanded Family and Medical Leave If Employer Closes Before April 1, 2020

Employers may permit employees to telework.  Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

  1. No Entitlement to Paid Sick Leave or Expanded Family and Medical Leave After Worksite Closes

Employees are not entitled to paid sick leave or expanded family and medical leave after the employer closes, even if the leave was requested prior to closure.  However, employees may be eligible for unemployment insurance benefits.

If an employer closes while an employee is on paid sick or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave used before the employer closed.  As of the date an employer closes its worksite, it is no longer required to provide paid sick leave or expanded family and medical leave.

  1. Furloughed Employees Not Entitled to Paid Sick Leave or Expanded Family and Medical Leave

Employees furloughed due to lack of work or business are not entitled to take paid sick leave or expanded family and medical leave. However, they may be eligible for unemployment insurance benefits.

  1. Paid Sick Leave or Expanded Family and Medical Leave Cannot Be Used for Reduced Hours

If an employee’s hours are reduced for lack of work, the employee may not use paid sick leave or expanded family and medical leave for hours that the employee is no longer scheduled to work.

  1. Health Coverage During and After Paid Sick Leave and Expanded Family and Medical Leave

Employees are entitled to continue group health coverage during paid sick leave and expanded family and medical leave on the same terms as if they continued to work. The employee must generally continue to make normal contributions to the cost of health coverage.

For employees who do not return to work at the end of expanded family and medical leave, they may or may not be eligible to keep their health coverage.  If they are no longer eligible, they may be able to continue coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).

  1. Concurrent Use of Preexisting Leave and FFCRA Paid Sick Leave and Expanded Family and Medical Leave

During the first two weeks of unpaid expanded family and medical leave, employees may not simultaneously take paid sick leave under the EPSLA and preexisting paid leave, unless agreed to by the employer to supplement pay up to normal earnings.

After the first two weeks (10 workdays) of expanded family and medical leave under the EFMLEA, employees may elect or be required to take their remaining expanded family and medical leave at the same time as any existing paid leave under their employer’s policies.

  1. Paid Sick Leave Under the EPSLA and Employer Policies

Paid sick leave under the EPSLA is in addition to employees’ other leave entitlements.  Employers may not require employees to use accrued paid vacation, personal, medical or sick leave before the paid sick leave.  Employers also may not require employees to use such existing leave concurrently with paid sick leave under the EPSLA.

However, if the employer agrees, an employee may use existing leave to supplement amounts received form paid sick leave, up to the employee’s normal earnings.  Note that the employer is not entitled to a tax credit for any paid sick leave that is not required to be paid or that exceeds the limits set forth under the EPSLA.

  1. Expanded Family and Medical Leave Under the EFMLEA and Employer Policies

After the first two weeks (10 days) of expanded family and medical leave under the EFMLEA, employers may require that employees take concurrently for the same hours expanded family and medical leave and existing leave under the employer’s policies.  Employers that do so must pay their employees the full amount to which they are entitled under the existing paid leave policy for the period of leave taken.  If the employee exhausts all preexisting paid leave, the employer would need to pay the employee at least 2/3 of his/her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 aggregate.

  1. No Tax Credit in Excess of FFCRA Requirements

Employers may pay their employees in excess of FFCRA requirements, but cannot claim and will not receive tax credit for those excess amounts.

  1. Contributions to a Multiemployer Fund, Plan or Program

Employers that are part of a multiemployer collective bargaining agreement may satisfy their obligations under the EFMLEA by making contributions to a multiemployer fund, plan or other program in accordance with existing collective bargaining obligations.  The contributions must be based on the amount of paid family and medical leave to which each of the employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement (CBA).  Similarly, employers that are part of a multiemployer CBA may satisfy their obligations under the EPSLA by making contributions to a multiemployer fund, plan or other program in accordance with existing collective bargaining obligations.  The contributions must be based on the hours of paid sick leave to which each of the

Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, employers may choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and CBA.

  1. Definition of Son or Daughter

Under the FFCRA, a “son or daughter” is an employee’s own child, which includes biological, adopted, or foster child, stepchild, a legal ward, or a child for whom the employee is standing in loco parentis- someone with day-to-day responsibilities to care for or financially support a child.

However, in light of Congressional direction to interpret definitions consistently, WHD clarifies that under the FFCRA, a “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older) who:

  • has a mental or physical disability, and
  • is incapable of self-care because of that disability.
  1. Enforcement for Refusal to Provide Paid Sick Leave and Expanded Family and Medical Leave

Employees who believe they are covered, but whose employer refuses to provide paid sick leave or expanded family and medical leave, are encouraged to try to resolve concerns with their employer.  Employees may also call WHD which is the agency responsible for administering and enforcing these provisions.

In most cases, employees can file a lawsuit against the employer directly without contacting WHD.  Some state and local employees may not be able to pursue direct lawsuits because their employers are immune from such suits.

  1. Right to Return to Work After Taking Paid Sick Leave or Expanded Family and Medical Leave

The Act requires employers to provide the same or equivalent job to an employee who returns to work following leave. However, employees are not protected from employment actions for legitimate business reasons, such as layoffs, that would have effected the employees regardless of whether leave was taken.

Employers may also refuse to return an employee to the same position if the employee is a highly compensated “key” employee, as defined under the FMLA, or if the employer has fewer than 25 employees and an employee takes leave to care for a child whose place of care is close or unavailable, and all four of the following hardship conditions exist:

  • the position no longer exists due to economic or operating conditions due to COVID-19 related reasons;
  • the employer made reasonable efforts to restore the employee to the same or equivalent position;
  • the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
  • the employer continues to make reasonable efforts to contact the employee for one year after leave concludes or 12 weeks after leave began, whichever is earlier.
  1. Relation of FMLA Leave and the FFCRA

Sick Leave. Employees are entitled to the full amount of paid sick leave under the Act, regardless of how much leave they have taken under the FMLA.

Family and Medical Leave.  If an employer was covered by the FMLA prior to April 1, 2020, eligibility for expanded family and medical leave under the Act depends on how much leave has already been taken during the 12-month period under the FMLA.

Employees may take a total of 12 workweeks of leave for reasons under FMLA or expanded family and medical leave during a 12-month period.  If an employee has taken some, but not all, 12 workweeks of leave under the FMLA during the current 12-month period, the employee may only take the remaining portion of leave available under the Act for expanded family and medical leave.  If any employee has already taken 12 workweeks of leave under the FMLA for reasons unrelated to COVID-19, the employee may not take additional expanded family and medical leave.

Note that expanded family and medical leave is only available until December 31, 2020.  After that, employees may only take FMLA leave.

  1. Relation of Other Paid Sick Leave and the Emergency Paid Sick Leave Act

Paid sick leave under the EPSLA is in addition to other leave provided under Federal, State, or local law, an applicable collective bargaining agreement or an employer’s existing company policy.

  1. Full-Time and Part-Time Employees

Paid Sick Leave.  For purposes of the EPSLA, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week.  A part-time employee is an employee who is normally scheduled to work fewer than 40 hours per week.

Expanded Family and Medical Leave.  In contrast, the EFMLEA does not distinguish between full-time and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

  1. Definition of “Health Care Provider” For Purposes of Determining Individuals Whose Advice Can Be Relied on As a Qualifying Reason for Paid Sick Leave

For purposes of determining eligibility for paid sick leave, the term “health care provider,” means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

  1. Definition of “Health Care Provider” For Determining Who Can Be Excluded by Employers From Paid Sick Leave and/or Expanded Family and Medical Leave

For the purposes of an exemption from paid sick leave or expanded family and medical leave by an employer under the FFCRA, a health care provider is:

  • any individual employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions;
  • any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility;
  • any individual employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; or
  • any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

However, the Department encourages employers to be “judicious” when using this definition to exempt health care providers from the provisions of the FFCRA in order to minimize the spread of the virus.

  1. Definition of Emergency Responder for Determining Who Can Be Excluded By Employers From Paid Sick Leave and/or Expanded Family and Medical Leave

For the purposes of an exemption from paid sick leave or expanded family and medical leave by an employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to:

  • military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel;
  • persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility; and
  • any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
  • However, the Department encourages employers to be “judicious” when using this definition to exempt emergency responders from the provisions of the FFCRA in order to minimize the spread of the virus.
  1. Federal, State, of Local Quarantine or Isolation Orders

For purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place and stay-at-home orders issued by a government authority that cause an employee to be unable to work or telework even though the employer has work that could be performed.  However, if the employer does not have work as a result of a shelter-in-place order, an employee is not entitled to paid sick leave.

  1. Self-Quarantine

An employee is eligible for paid sick leave if a health care provider directs or advises thee employee to stay home or otherwise quarantine because the health care provider believes that the employee may have COVID-19 or is particularly vulnerable to COVID-19, and the quarantine prevents the employee from working or teleworking. However, if the employee is able to telework during the quarantine, paid sick leave is not available.

If an employee becomes ill with COVID-19 symptoms and unilaterally decides to self-quarantine without medical advice, the employee is not entitled to take paid sick leave under the FFCRA.

  1. Caring for Someone Subject to an Order of Quarantine or Isolation

An employee may take paid sick leave to care for an individual who is subject to an order of quarantine or isolation and unable to care for himself/herself, and depends on the employee for care.  The employee must be prevented from working or teleworking due to providing such care.

The individual must be an immediate family member or someone who regularly resides in the employee’s household, or someone with whom the employee has a relationship such as to create an expectation that the employee would care for that person in quarantine or self-quarantine.

  1. Caring for Someone Who Is Self-Quarantining

An employee may take paid sick leave to care for an individual who is self-quarantining, if a heath care provider has advised that the individual stay at home or otherwise self-quarantine because the individual may have COVID-19 or is particularly vulnerable to COVID-19, and the provision of care to that individual prevents the employee from working or teleworking.

  1. Care for Child Whose School or Place of Care Is Closed or Unavailable Due to COVID-19

An employee may only take paid sick leave or expanded family and medical leave to care for his/her child when the employee needs to, and actually is, caring for the child and thus unable to work or telework.  Generally, an employee does not need to take such leave if a co-parent, co-guardian, or usual child care provider is available to provide the care.

A school or place of care is closed for purposes of the FFCRA if the physical location is closed but instruction is being provided online or through other forms of distance learning.

An employee may take paid sick leave to care for a child that is not the employee’s child only if it qualifies as care for someone else who is under an order of quarantine or isolation or self-quarantining under advice by a health care provider.

  1. Employees Receiving Workers’ Compensation and Disability Benefits

Employees generally may not take paid sick leave or expanded family and medical leave if they are receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan, unless they were able to return to light duty before taking leave.  If an employee receives workers’ compensation or temporary disability benefits because the employee is unable to work, the employee may not take paid sick leave or expanded family and medical leave.

  1. Employees on Employer-Approved Leave of Absence

Employees on a voluntary leave of absence may end their leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents the employee from working or teleworking.

However, employees on a mandatory leave of absence may not take paid sick leave or expanded family and medical leave, because it is the mandatory leave that prevents them from working or teleworking, not the FFCRA qualifying reason.

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

On April 13, 2020, New York State Governor Andrew Cuomo issued an executive order requiring all essential businesses or entities to provide their employees with face masks or face wear that must be worn when those employees are in direct contact with customers or members of the public. Employers are required to pay for the full cost of the face wear. The mandate goes into effect at 8 PM EST, on Wednesday, April 15, 2020, and shall remain in effect at least until May 15, 2020.  The executive order follows a similar order issued by New Jersey Governor Phil Murphy but is not as comprehensive. New Jersey’s mandate requires that all individuals wear face masks in a variety of public spaces such as supermarkets, but Governor Cuomo has not indicated that he intends to institute that measure.

Takeaway for Employers

Employers operating essential businesses who have not already required their employees to wear face masks, should implement broad policies requiring the use of facial wear when interacting with customers and co-workers.  Employers should ensure that they have a supply of facial masks that can be distributed to their entire workforce.

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

On April 9, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which addresses frequently asked questions from employers regarding compliance with various employment laws during the pandemic. Specifically, the EEOC provides guidance with respect to maintaining medical records, screening employees, providing accommodations, hiring employees and preventing pandemic-related harassment and discrimination.

Medical Inquiries, Examinations, and Information

The EEOC clarified that employers may ask employees if they are experiencing symptoms of COVID-19 and may take an employee’s temperature as provided by the Centers for Disease Control and Prevention (“CDC”). Further, employers can require an employee who has symptoms of COVID-19 to leave the workplace and stay home. Additionally, an employer may require an employee returning to work after being out for COVID-19 symptoms to provide a physician’s note certifying fitness for duty; however, employers should be aware that this may not be practical due to the current busyness of health care professionals. Accordingly, employers should be willing to accept other types of documentation, such as e-mails, indicating the employee does not have the virus. Medical information obtained by the employer, including the employee’s temperature or an employee’s self-identification of having the virus, should be kept separate from the employee’s personnel file but may be stored in an existing medical file.

The EEOC also stated that an employer may disclose the name of an employee who has COVID-19 to a public health agency. Similarly, a temporary staffing agency or contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has the virus.

Hiring and Onboarding

The EEOC made clear that an employer can take an applicant’s temperature as part of a pre-employment medical examination provided that the employer has made a conditional job offer to this individual. Likewise, an employer can screen applicants for symptoms of COVID-19 after making a conditional job offer; however, the employer must screen all entering employees in the same type of job or position.

If an applicant has COVID-19 symptoms, an employer can delay the start date of the applicant or withdraw the job offer if the employer needs the applicant to start immediately. However, an employer cannot withdraw a job offer solely on the basis that the individual is at a high risk for the virus, such as individuals 65 years old or older or pregnant women. According to the EEOC, the employer is permitted to ask the high-risk individual whether they would like to telework or postpone their start date.

Reasonable Accommodations

The EEOC also provides guidance in accommodating individuals with preexisting disabilities who are at a higher risk from COVID-19 but whose jobs can only be performed at the workplace. The EEOC suggests an employer can reduce an employee’s contact with others by making changes to the work environment by using plexiglass, tables or other barriers to ensure minimum distance between customers and/or co-workers. The EEOC also suggests providing flexibility to employees through temporary job restructuring of marginal job duties, temporary transfer to a different position, or modification of a work schedule or shift assignment in an effort to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure in the workplace or while commuting.

Moreover, if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an altered or additional accommodation, the employer may discuss with the employee whether the same or a different disability is the basis for the new request and why an additional or altered accommodation is needed. Absent an undue hardship, the employee may be entitled to the additional or altered accommodation.

With respect to employees that are currently teleworking as part of a mandatory teleworking policy but may need a reasonable accommodation upon return to the workplace, the EEOC urges employers to engage in the interactive process now; therefore, if a request for an accommodation is granted, the employer can make some arrangements for the accommodation in advance.

Pandemic-Related Harassment

The EEOC recommended employers explicitly communicate to their workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of protected characteristics, such as race or national origin. The EEOC also cautioned employers that pandemic-related harassment due to national origin, race or other protected characteristics may arise in the workplace.

Takeaway for Employers

Although the EEOC provides specific support for following the CDC’s guidelines such as taking an employee’s or job applicant’s temperature or asking an employee whether they have symptoms related to COVID-19, the EEOC also made clear that the on-going pandemic does not void an employer’s obligation to comply with the ADA and other anti-discrimination laws. For instance, employers are still required to provide an employee with a reasonable accommodation if there is no undue hardship. Employers are still obligated to engage in the interactive process with employees, request medical support if needed, and document discussions related to the interactive process. Additionally, employers still must ensure their workforce does not engage in pandemic-related harassment whether its employees are teleworking or in the workplace. Finally, employers should be on the lookout for additional guidance on the interplay between CDC recommendations and the various disability and discrimination laws since the recommendations may change as the pandemic evolves.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

The Occupational Safety and Health Act (“OSHA”) and the implementing federal regulations (29 C.F.R. Part 1904) require employers to prepare and maintain records of occupational injuries and illness (the “OSHA Recordkeeping Requirements”).  20 C.F.R. § 1904.29.  Employers subject to the OSHA Recordkeeping Requirements must complete three forms to satisfy their recording obligations.  As detailed in our previous Client Alert, the United States Department of Labor (“U.S. DOL”) issued interim enforcement guidance on April 10, 2020, regarding the recording of COVID-19 cases pursuant to the OSHA Recordkeeping Requirements.  This Client Alert provides an overview of the OSHA Recordkeeping Requirements, including the recording of COVID-19 cases.

Employers Subject to the OSHA Recordkeeping Requirements

  • Employers in the following industries with 11 or more employees at any time during the previous calendar year must prepare and maintain OSHA records:
    • Agriculture, Forestry, and Fishing (SIC’s 01-02 and 07-09)
    • Oil and Gas Extraction (SIC 13 and 1477)
    • Construction (SIC’s 15-17)
    • Manufacturing (SIC’s 20-39)
    • Transportation and Public Utilities (SIC’s 41-42 and 44-49)
    • Wholesale Trade (SIC’s 50-5 1)
    • Building Materials and Garden Supplies (SIC 52)
    • General Merchandise and Food Stores (SIC’s 53 and 54)
    • Hotels and Other Lodging Places (SIC 70)
    • Repair Services (SIC’s 75 and 76)
    • Amusement and Recreation Services (SIC 79)
    • Health Services (SIC 80)

29 C.F.R. §§ 1904.1, 1904.2.

  • Employers with more than one establishment should combine the number of employees at each establishment to determine if they are subject to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.1.
  • Employers in all other industries are exempt from the OSHA Recordkeeping Requirements, unless specifically requested by the U.S. DOL to maintain OSHA records. 29 C.F.R. § 1904.2; see 29 C.F.R. Appendix A.
  • However, all employers, regardless of size or industry, must report any workplace incident that results in an employee’s death, in-patient hospitalization, amputation, or loss of an eye to the Occupational Safety and Health Administration, even if the employer is not subject to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.2.

The OSHA Log

  • An OSHA Form 300 – Log of Work-Related Injuries and Illness (the “OSHA Log”) must be prepared and maintained by employers subject to the OSHA Recordkeeping Requirements for each physical establishment that the employer expects to be operational for at least one year. See 29 C.F.R. §§ 1904.29, 1904.46.
    • For employers with employees working from home, OSHA does not consider each worker’s home to be an establishment for record-keeping purposes. 29 C.F.R. § 1904.46.
  • Basic Recording Requirements: Employers must record on the OSHA Log each injury and illness that:
    • Is work-related;
    • Is a new case; and
    • Satisfies one or more of the general recording criteria.

29 C.F.R. § 1904.4

  • Work-Related Injuries and Illness
    • Employers are only required to record work-related injuries and illnesses on the OSHA log. See 29 C.F.R. §§ 1904.4, 1904.5.
    • Work-Relatedness is determined by analyzing whether an event or exposure in the work environment
      • (1) caused or contributed to the resulting condition, or
      • (2) significantly aggravated a pre-existing injury or illness.

29 C.F.R. § 1904.5.

  • Events Or Exposures In The Work Environment Causing Or Contributing To Injuries And Illnesses.
    • Work-relatedness is presumed for injuries and illnesses caused by or resulting from events or exposures occurring in the work environment. 29 C.F.R. § 1904.5.
    • The OSHA regulations provide exceptions to the work-relatedness presumption. These exceptions include, but are not limited to:
      • the illness or injury is solely the result of an employee doing personal tasks unrelated to their employment at the workplace outside of the employee’s assigned working hours;
      • the illness or injury results solely from a non-work-related event or exposure that occurred outside the work environment but involves signs or symptoms that surfaced at work;
      • the employee was present in the workplace as a member of the general public;
      • the illness or injury is solely the result of an employee eating, drinking or preparing food or drink for personal consumption; or
      • the illness or injury is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.

29 C.F.R. § 1904.5(b)(2).

  • Events Or Exposures In The Work Environment Significantly Aggravating A Pre-Existing Injury or Illness.
    • An event or exposure in the work environment significantly aggravates a pre-existing injury or illness when the event or exposure results in one of the following, which would not have occurred but for the occupational event of exposure:
      • Death;
      • Loss of consciousness;
      • One or more days away from work, days of restricted work, or days of job transfer; or
      • Medical treatment that was not needed before the workplace event or exposure, or a change in medical treatment necessitated by the workplace event or exposure.

29 C.F.R. § 1904.5(b)(4).

  • Work-related injuries or illnesses can occur while employees are working from home if “the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” 29 C.F.R. § 1904.5(b)(4).
  • New Cases. An injury or illness is considered to be a “new case” if:
    • The employee has not previously experienced an injury or illness of the same type that affects the same part of the body; or
    • The employee previously experienced the same injury or illness but had recovered completely (all signs and symptoms had disappeared) and an event or exposure in the work environment caused the signs or symptoms to reappear.

29 C.F.R. § 1904.6.

  • General Recording Criteria. The following work-related injuries and illnesses meet OSHA’s general recording criteria and must be recorded on the OSHA Log:
    • Death
    • Loss of consciousness
    • Days away from work
    • Restricted work activity or job transfer
    • Medical treatment beyond first aid
    • A significant injury or illness diagnosed by a physician or other licensed health care professional, such as cases of cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum that are work-related.

29 C.F.R. § 1904.7.

  • COVID-19.
    • An employee’s case of COVID-19 must be recorded on the OSHA Log if
      • The employee tests positive for COVID-19;
      • The case of COVID-19 is work-related; and
      • The case involves one or more of the above-listed general recording criteria.

See U.S. Dep’t of Labor, OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (Apr. 10, 2020).

  • However, the OSHA Recordkeeping Requirements for COVID-19 cases will only be enforced against healthcare employers, emergency response organizations, correctional institutions, and employers with reasonably available, objective evidence of a possible work-related cases of COVID-19.  Id.
  • Preparing and Maintaining the OSHA Log.
    • Employers are required to record work-related injuries or illnesses on the OSHA Log within 7 calendar days of receiving information that a recordable injury or illness occurred. 29 C.F.R. § 1904.29.
  • Recording Employee Names and Privacy Concern Cases.
    • The OSHA Log requires employers to record the employee’s name and job title, the date of the injury or onset of the illness, and the location where the event or exposure occurred.
    • Employers do not have to record the employee’s name on the OSHA Log if the injury or illness constitutes a “privacy concern case.”
      • For privacy concern cases, employers should enter “privacy case” in the space where the employee’s name would normally be entered.
      • Employers must keep a separate, confidential list of the case numbers and employee names for all privacy concern cases.

29 C.F.R. § 1904.29.

  • The following injuries and illnesses are privacy concern cases:
    • An injury or illness to an intimate body part or the reproductive system;
    • An injury or illness resulting from a sexual assault;
    • Mental illnesses;
    • HIV infection, hepatitis, or tuberculosis;
    • Needlestick injuries and cuts from sharp objects that are contaminated with another person’s blood or other potentially infectious material; and
    • Other illnesses, if the employee voluntarily requests that his or her name not be entered on the log.

29 C.F.R. § 1904.29.

  • Employers may not classify any other cases as privacy concern cases and may not remove the names of employees or any other information from the OSHA Log. 29 C.F.R. §§ 1904.29, 1904.35.

The OSHA Injury and Illness Incident Report

  • An OSHA Form 301 – Injury and Illness Incident Report (the “OSHA Form 301”) must be prepared and maintained for each work-related injury or illness that employers must record pursuant to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.29.
  • Employers are required to complete an OSHA Form 301 for each recordable injury or illness within 7 calendar days of receiving information that a recordable injury or illness occurred. 29 C.F.R. § 1904.29.

The OSHA Summary

  • An OSHA Form 300A – Summary of Work-Related Injuries and Illnesses (the “OSHA Summary”) is an annual summary of all work-related injuries and illnesses.
  • At the end of each calendar year, employers must review and finalize their OSHA Log and use the OSHA Log to create an OSHA Summary. 29 C.F.R. § 1904.32.
  • Employers must post the OSHA Summary by February 1 of the following year and keep the posting in place until April 30. 29 C.F.R. § 1904.32.
  • Employers with an establishment of 250 of more employees and employers with an establishment of 20 or more employees, but fewer than 250 employees, must submit their OSHA Summary online to the Occupational Safety and Health Administration by March 2 of the year after the calendar year covered by the OSHA Summary. 29 C.F.R. § 1904.41.

Reporting Deaths and Other Severe Incidents to OSHA

  • All employers, regardless of size or industry, including those not subject to the OSHA Recordkeeping Requirements, must report:
    • the death of any employee as a result of a work-related incident to the Occupational Safety and Health Administration within 8 hours of learning of the employee’s death;
    • the in-patient hospitalization of an employee as a result of a work-related incident to the Occupational Safety and Health Administration within 24 hours of learning of the employee’s in-patient hospitalization; and
    • an employee’s amputation or loss of an eye as a result of a work-related incident to the Occupational Safety and Health Administration within 24 hours of learning of the incident.

29 C.F.R. § 1904.39.

  • Reports of deaths, in-patient hospitalizations, amputations, and losses of an eye may be made to the Occupational Safety and Health Administration by using one of the following methods:

See 29 C.F.R. § 1904.39.

Application to COVID-19 Cases

  • Employers subject to enforcement of the OSHA Recordkeeping Requirements must record an employee’s case of COVID-19, if the answer to all of the following questions is yes:
  1. Did the employee test positive for COVID-19?
  2. Was the employee’s case of COVID-19 work-related?
  3. Did the employee experience death, loss of consciousness, medical treatment beyond first aid, days absent from work, restricted work activity, job transfer, or significant injury or illness diagnosed by a healthcare professional?
  • For each recordable case of COVID-19, employers should enter the appropriate information on the OSHA Log and complete an OSHA Form 301
  • Employers should also include all recorded cases of COVID-19 in the employer’s OSHA Summary at the end of the calendar year.
  • All employers, regardless of size or industry, must report an employee’s case of COVID-19 to the Occupational Safety and Health Administration if:
    • the employee dies as a result of a work-related case of COVID-19;
    • the employee undergoes in-patient hospitalization as a result of a work-related case of COVID-19; or
    • the employee suffers an amputation or loss of an eye as a result of a work-related case of COVID-19.

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP