What are the immediately apparent effects of the widespread state and local shelter-in-place orders on employment law?
For starters, more than 30 million jobless workers applied for unemployment since mid-March, according to those who keep track of the numbers. Across the states, there have been many reported delays in processing and disbursements of claims. That means that millions of workers are left without the income they need to pay for necessities, such as food, rent or mortgage payments, and utilities, let alone discretionary spending of any sort.
Displaced workers. It also means that displaced workers are scrambling to find new sources of income, which often means employment as gig workers in the pandemic-prompted burgeoning home delivery service sector — groceries and restaurant-prepared meals, especially.
Or they may be at home, currently receiving unemployment — including the $600 per week additional payment guaranteed by the CARES Act and that some fear will make cautious (or complacent) workers reluctant to return to the workplace, even as loosening restrictions in some states allow select businesses to reopen. Of course, most reopening states have made it fairly clear that if businesses are permitted and choose to reopen, their employees, absent specific circumstances, would no longer be unable to work and thus no longer eligible for unemployment.
Payroll relief. Businesses that lacked financial means to keep employees on the payroll, even at reduced wages, until federal (or in some cases local) payroll relief became available, have faced a tough choice between closing down permanently or hanging on, with the hope of reopening when state and local governments start scaling back shelter-in-place directives. So much has depended on the financial relief available (and deliverable) to cover fixed costs like rent and utilities, even where all staffing has been furloughed or laid off.
For example, clients are reportedly anxious about their Paycheck Protection Program CARES Act loans — if they were able to obtain them — since not more than 25% of the loan forgiveness amount may be attributable to non-payroll costs. That means these businesses must spend 75% of the loan proceeds on payroll. For business (like restaurants, for example), that can open at only 25% capacity, will they be able to spend 75% of the proceeds on payroll?
Essential and white-collar workers. In the meantime, first responders, healthcare employees, and other essential workers have continued to work during the pandemic, with employers and employees alike struggling with how to keep working while implementing and managing safety protocols in the face of widespread shortages of personal protective equipment. And then there are workers in often higher-paid white collar jobs, many of which continued to be filled with work-from-home staff, 56% of whom like working from home (compared to 25% who don’t), according to a recent survey, and 68% of whom say they are equally or more productive at home than in their normal workplace. How amenable will they be to full-time work in a workspace that is likely to be markedly different than the one they left, due to a continued need for social distancing?
Greater demand. Taken together, this means that employment law practitioners are in still greater demand as businesses seek advice on closure, furlough, and layoff issues, unemployment compensation and federal loan programs, as well as such return-to-work issues as worker and customer safety compliance for those that remain open or contemplate reopening.
Enticing those work-from-home workers back into a shared working environment in the face of uncertainties is another potential employment law issue. Employee leave and discharge issues also come into play, especially where workers have contracted COVID-19 infections, display symptoms, have been exposed to coworkers or others who have contracted the coronavirus, or must stay home to care for a child whose school has been forced to close — by mid-March, that was 46 states — and across the country, schools in 47 states have recommended that schools remain closed for the rest of the school year.
And in every case, there is the fear of the virus — and the fear of liability.
Have the shelter-in-place orders changed employment law client demand for legal services, and if so, how?
Issues flowing from stay-at-home orders have created an uptick in the need for legal support on compliance issues that run the gambit from state and federal WARN Act obligations when businesses close, to state and federal OSHA requirements around worker safety, CDC guidance on the virus itself, and state and federal paid and unpaid leave requirements for businesses that have remained open or are contemplating what to do when they do reopen.
Compliance with COVID-19 laws. Getting up to speed on the Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security (CARES) Act — legislation that moved through Congress very quickly in response to the pandemic — is a critical client concern. Federal guidance on employer obligations and employee protections has been updated a number of times in short order, and the application of this guidance to some circumstances remains unclear — at best. Yet the pace of implementation isn’t gradual: The paid sick time and paid and unpaid family and medical leave provisions of the FFCRA have already prompted federal agency action where employers have denied mandated leave.
Re-opening compliance. Another area of intense interest for employers is the question of what procedures must be followed as businesses begin to reopen or move toward pre-pandemic functioning. Many of the requirements that apply are very nuanced by locality. One of the resources on Wolters Kluwer’s free Coronavirus Resources & Tools (COVID-19) website is its COVID-19 Smart Charts. The Labor & Employment/HR & Benefits “Back to Work” topic, as just one example, contains summaries of state back-to-work requirements, with links to full text. This state-specific information provides details as defined by state governments regarding essential and non-essential businesses, retail, bars and restaurants, healthcare (for voluntary and elective procedures), and other reopening mandates. For example, employers need to know, in customer-facing workplaces, what occupancy level applies? What customer and employee protections are mandated? Are masks to be required? Are employers required to provide them? The list seems endless.
“Guidelines for Opening Up America Again.” At the same time, federal agencies such as the CDC, OSHA, the DOL, and the EEOC have all issued guidance with varying degrees of specificity impacting return-to-work issues. Plus, the Trump Administration, back in April, provided very specific reopening guidance for not only states, but also recommended specific actions by employers at each of three reopening phases. Because this reopening guidance has taken a back seat to some of the more recent state guidance when they have announced their reopening plans (which are not exactly congruent with this guidance in all respects), it bears mentioning here.
Three-phase approach. The Opening Up America guidance outlines three reopening phases based on defined gating criteria. States or regions should see downward trajectories of both influenza-like illnesses (ILI) and COVID-like syndromic cases reported within a 14-day period. There should also be a downward trajectory of either documented cases or positive tests as a percent of total tests (with a flat or increasing volume of tests) within a 14-day period. Further, under the gating criteria, hospitals should be treating all patients without crisis care and have a robust testing program in place for at-risk healthcare workers, including emerging antibody testing. The three phases are:
One: For states and regions that meet the gating criteria;
Two: For states and regions with no evidence of a rebound and that satisfy the gating criteria a second time; and
Three: For states and regions with no evidence of a rebound and that satisfy the gating criteria a third time.
Employers at all phases. During all phases, the guidelines instruct employers to develop and implement appropriate policies, in accordance with federal, state, and local regulations and guidance, and informed by industry best practices, regarding:
- Social distancing and protective equipment;
- Temperature checks;
- Testing, isolating, and contact tracing;
- Use and disinfection of common and high-traffic areas; and
- Business travel.
Employers should also monitor their workforce for indicative symptoms and should not permit symptomatic people to physically return to work until cleared by a medical provider. Further, employers should develop and implement policies and procedures for workforce contact tracing following an employee COVID+ test.
Employers at Phase One. Under the guidelines, at Phase One, all employers should:
- Continue to encourage telework, whenever possible and feasible with business operations;
- If possible, return to work in phases;
- Close common areas where personnel are likely to congregate and interact, or enforce moderate social distancing protocols;
- Minimize non-essential travel and adhere to CDC guidelines regarding isolation following travel; and
- Strongly consider special accommodations for personnel who are members of a vulnerable population.
Vulnerable individuals include the elderly and people with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.
The guidelines also include industry-specific instructions at all phases for certain types of employers, such as schools, senior care facilities and hospitals, large venues, gyms, and bars.
Employers at Phase Two. At Phase Two, all employers should:
- Continue to encourage telework, whenever possible and feasible with business operations;
- Close common areas where personnel are likely to congregate and interact, or enforce moderate social distancing protocols;
- Non-essential travel can resume; and
- Strongly consider special accommodations for personnel who are members of a vulnerable population.
Employers at Phase Three. At Phase Three all employers can resume unrestricted staffing at worksites. As to special employers:
- Visits to senior care facilities and hospitals can resume, but those who interact with residents and patients must be diligent regarding hygiene;
- Large venues (e.g., sit-down dining, movie theaters, sporting venues, places of worship) can operate under limited physical distancing protocols;
- Gyms can remain open if they adhere to standard sanitation protocols; and
- Bars may operate with increased standing room occupancy, where applicable.
Employers’ good faith compliance with governmental guidance (and that apparently means federal, state, and local — even when conflicting, as seems to be the case) should go a long way to providing them with some protection against potential litigation.
What are some of the additional obligations that employers have around employee leave and return to work issues?
The COVID-19 public health crisis has ushered in new federal paid and unpaid leave obligations as well as a patchwork of state and local ones. For employers doing business in multiple states, compliance can be confusing and complicated. And, the provisions of the FFCRA are not always clear as to certain nuances that can arise in the compliance environment.
Families First Act. The FFCRA, which went into effect on April 1, applies to private employers with fewer than 500 employees, with potential exemptions available for certain health care providers and first responders, and businesses with fewer than 50 employees when the imposition of requirements would jeopardize the viability of the business as a going concern. Two parts of the FFCRA are directed to employer leave obligations: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).
Exemption confusion. For example, the FFCRA exempts who was narrowly defined in the FMLA to be a “health care provider” from the paid leave provisions due to the nature of the current crisis. But the DOL guidance redefines a “health care provider” to include “nearly any employee who happens to work for an employer who also employs a health care provider, works at any type of quasi-medical facility, works as an employee contracted for non-healthcare services in a facility that houses a health care provider, or merely works in the medical supply chain,” according to Democratic members of Congress who took issue with the DOL’s Q&As as to this exemption.
Paid emergency sick leave. Generally, the FFCRA requires covered employers to provide eligible employees up to two weeks (80 hours) of paid sick leave at full pay (up to a specified cap) when the employee is unable to work due to a quarantine or isolation order related to COVID-19; has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or is experiencing COVID-19 symptoms and seeking a medical diagnosis.
The FFCRA also provides up to two weeks (80 hours) of paid sick leave at two-thirds pay (up to a specified cap) when an employee is unable to work because of a need to care for an individual who is under quarantine or isolation order or health care provider self-quarantine instructions due to COVID-19 concerns; a need to care for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19; or is experiencing a substantially similar condition, as specified by the HHS Secretary (we don’t really know what this might be — the Secretary hasn’t yet specified).
Expanded FMLA leave. The FFCRA also requires covered employers to provide up to 12 weeks of expanded family and medical leave, up to 10 weeks of which must be paid at two-thirds pay (up to a specified cap) when an eligible employee is unable to work because the employee needs to care for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable, for COVID-19 reasons. Here, employers may designate the first 10 days of the leave as unpaid.
Coordination of sick leave, expanded family leave, PTO? Note there is some overlap between the conditions under which employees may be entitled to take either paid sick leave or expanded family medical leave. And a well-known employment law blogger (Jon Hyman of Ohio Employers Blog fame) has characterized as “confounding” DOL rules under which employers can require employees to substitute an employer’s own provided leave (think PTO) for paid leave — the 80 hours of paid sick leave or the 12 weeks of expanded family and medical leave — mandated by the FFCRA.
Ogletree Deakins explains (in its FFCRA FAQs) that the first two weeks (usually 10 days) of expanded family medical leave are unpaid, but notes that the FFCRA also includes EPSLA paid sick leave (for school and childcare closures) that covers the same event, which would cover the first two weeks (unless the employee’s paid leave has been exhausted for other reasons). Notably, the EPSLA provides for paid sick leave in a much wider array of scenarios related to COVID-19 than the expanded family medical leave provisions do, so paid sick leave could be exhausted before an employee seeks expanded family medical leave. And then, the employee has the ability to substitute any other form of available paid leave he or she may have during those first 10 days.
Job restoration exemptions. Under the expanded FMLA provisions, normal reinstatement rules apply to most employers. However, employers with fewer than 25 employees are relieved of usual job restoration requirements when an employee who has been on leave returns to work and certain conditions are met: when the job that the employee previously had no longer exits due to economic conditions or other changes in operating conditions that affect employment and are caused by the pandemic during the leave period. The employer still has an obligation (1) to make reasonable efforts to restore the employee to an equivalent position, and (2) for one year, beginning on the earlier of the date of the qualifying need or 12 weeks after the leave began, to contact the employee if an equivalent position becomes available.
Check state and local leave laws. Employers should remember that pandemic-related leave obligations don’t end here, with federal law or federal regs. There are also state and local paid and unpaid sick or family and medical leave provisions that may apply to “fill the gap” that exists under the FFCRA, so that sick time and family and medical leave provisions apply to a broader range of employees. For example:
- The governor of California has issued an executive order that gives food-sector workers up to 80 hours of COVID-19 supplemental paid sick leave when certain criteria are met.
- In Colorado, the Department of Labor and Employment has implemented emergency rules that temporarily require employers in certain industries to provide up to four days’ paid leave to employees with flu-like symptoms who are awaiting COVID-19 testing.
- In San Francisco, new guidance provides that employees may use accrued paid sick time to quarantine, self-isolate, because they are among a “vulnerable population,” due to temporary business closures, or to care for family members or children.
Workplace safety. On top of that, when employees return to work, whether because a closed business has reopened or at an up-and-running business where employees who were on leave are returning to work, there are myriad safety issues that employers must consider. These, too, include directives issued by federal, state, and local authorities — and unfortunately for employers, the recommendations may be inconsistent or even conflicting.
On the federal scene, there has been a significant amount of OSHA guidance targeted to particular types of employers and employees. While this guidance does not carry the force of law or formal regulations, except perhaps as to respirator standards, employers should be aware that Secretary of Labor Eugene Scalia has made clear that this guidance is enforceable under the general duty clause of the Occupational Safety and Health Act.
Again, employers must also check state and local requirements. For example, in Delaware, an executive order mandates that employers require employees to wear a face covering while working in areas open to the public and in areas where coming within six feet of other staff is likely; provide at the business’ expense, face coverings and hand sanitizer for employees; and deny entry to individuals without a face covering — or if one is not available for them.
Ohio, too has issued mask requirements for employers and employees. The requirement to wear cloth face coverings applies to employers and employees at Ohio workplaces as they reopen, but there are exceptions. Employers and employees are not required to wear face coverings if it is not advised due to health reasons, against documented industry best practices, prohibited for a specific position by law or regulation, or a violation of a company’s safety policy. A face covering also is not required if an employee is working alone in an enclosed workspace or if there is a practical reason one cannot be worn. If any of these exceptions apply, written justification must be provided upon request.
Disability accommodations. As if these multiple reopening requirements are not enough to manage, employers also need to make sure they are accommodating COVID-19-related needs of employees with disabilities. Again, these legal obligations may exist not just under federal laws, but also on the state and local level as well.
EEOC guidance. The EEOC has posted a series of questions and answers that address compliance issues under federal disability (and other antidiscrimination laws) that are very helpful for employers.
On May 5, the EEOC added a three more questions and answers—and then quickly took one of them down. One of the questions addresses how an employee must request “reasonable accommodation from her employer because she has one of the medical conditions that the CDC says may put her at higher risk for severe illness from COVID-19.” Those medical conditions include chronic lung diseases, serious heart conditions, severe obesity, diabetes, liver disease, chronic kidney disease undergoing dialysis, and those who are immunocompromised.
Individuals (the employee or someone on her behalf) may request accommodation verbally or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, they may. The employee or her representative should communicate that she has “a medical condition that necessitates a change to meet a medical need.” (This seems to be a deliberate choice to not use the words “disability requiring accommodation.”) After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
The question taken down addressed accommodation of employees with underlying medical conditions, which the agency believed had been “misinterpreted in press reports and social media.”
The agency’s third new question provided examples of what kinds of accommodations might eliminate, or reduce to an acceptable level, a “direct threat to self.” Some of the suggestions listed included:
- Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees.
- Additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.
- Elimination or substitution of particular “marginal” functions.
- Temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting)
- Moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).
State return to work accommodations. As an example of state protections that may apply, the Massachusetts attorney general has issued guidance under which essential workplaces remaining open during the pandemic should make accommodations for employees with disabilities that put them at greater risk of coronavirus infection, including allowing them to work from home, if possible, or transferring them to another shift or role that minimizes their interactions with the public.
Are there any lessons that employers should keep in mind that apply to leave and return-to-work issues during the pandemic?
Yes, far too many to count.
So many resources. First, the number of freely available resources provided by employment lawyers to the general public (not just their paying clients) deserves mention — and may mean that employers are without excuse. Firms both large and small have dedicated significant time and effort to educating the public on the employment law ramifications of COVID-19.
Just a few examples — out of hundreds (check out the Stanford Law School COVID-19 Memo Database, which contains dozens of firms and over 5,000 memos in the last two months) — are Dickinson Wright’s “COVID-19 Return-to-Work Checklist from an Employment Law Perspective,” FisherPhillips’ “Comprehensive And Updated FAQs For Employers On The COVID-19 Coronavirus,” Ogletree Deakins’ COVID-19 Resource Center “Return to Work”, and Squire Patton Boggs’ “Employer’s Guide to Return-to-Work Issues: COVID-19 Public Health Emergency.” Jackson Lewis has a COVID-19 Daily Briefing covering a multitude of topics.
Agency enforcement. Although it’s still early, the U.S. Department of Labor’s Wage and Hour Division already has taken compliance enforcement action where employers have refused to pay employees for FFCRA-qualified leave for health care provider directed self-quarantine with potential coronavirus symptoms, or to await a family member’s COVID-19 test. Employers should keep in mind that the Labor Department is on the beat in terms of enforcing FFCRA employer obligations and employee protections.
Litigation. And of course, the lawsuits are beginning to pile up. For example, we have already seen suits alleging that employers have failed to protect workers against workplace coronavirus transmission leading to death (Estate of Evans v. Walmart, Inc., and J2M-Evergreen, LLC); refused to implement adequate COVID-19 safety measures and instead incentivized sick workers to stay on the job (Rural Community Workers Alliance v. Smithfield Foods, Inc., and Smithfield Fresh Meats Corp., dismissed May 5); denied leave and fired an employee for requesting it to care for a child whose school closed for COVID-19 reasons (Jones v. Eastern Airlines, LLC); and fired an employee for refusing to violate a local shelter-in-place order to go to the workplace instead of permitting her to telework (Reggio v. Tekin & Associates, LLC).
There is also a lawsuit against an employer not covered by the FFCRA, for allegedly failing to grant leave for self-isolation directed by a health care provider that was purportedly available under company’s own policy, which it represented as consistent with FFCRA protections (Robtoy v. The Kroger Company, dba Peyton’s Northern Distribution Center).
Regardless of whether the plaintiffs in these cases get beyond the motion-to-dismiss and summary-judgment stages, they are a reminder to employers that it’s important to understand their legal obligations amid the COVID-19 crisis. Even where federal, state, or local government action is unlikely because guidance does not carry the force and effect of laws and regulations, there is always the possibility that adversely impacted workers will file a lawsuit — and where many employees are similarly affected, the possibility of a class action exists.
Traditional models of legal services delivery have been facing disruption in recent years — do you see the COVID-19 pandemic impacting trends in legal services?
Given the pandemic crisis, state and local shelter-in-place orders, and the reluctance of clients and practitioners alike to meet person-to-person unless absolutely necessary, legal services delivery has shifted toward attorney telework and client consultations through telephone- and video-conferencing.
Virtual delivery. With the sharply declining economy, many law firms have had to furlough or lay off attorneys and staff in order to cope with the loss of business in the face of certain fixed expenses that continue. Cloud-based (distributed) law firms, like FisherBroyles, though, have the advantage of not having to worry about much of the fixed overhead associated with brick-and mortar law firms. This type of virtual legal services delivery will likely increase, especially as lawyers working at office-based law firms adjust more and more to the conveniences that teleworking offers.
Remote options to become the norm? According to a Dorsey & Whitney webinar on May 1, “Litigation: The Pandemic’s Next Wave,” “how we practice and how clients are impacted has changed forever.” Practitioners are reporting that depositions, mediation, and arbitration all seem to be lending themselves quite well to being conducted by telephone or computer video, with court reporters adjusting very well. For example, some believe that we won’t be going back to in-person depositions; perhaps for key witnesses only, but clients simply won’t pay for the time and travel that has been devoted to taking depos (or conducting depo prep) in person.
Mediation also seems well suited to be conducted remotely rather than in person, especially in a process where the parties themselves rarely meet face-to-face anyway. Practitioners report remote mediation has been more successful than they expected, and without location restraints, parties have more ability to use their mediator of choice.
Arbitration too will be conducted remotely, perhaps adopting new technology and new procedures well before the judiciary does. Regardless, the pandemic will push the practice of law in ways we may not yet imagine.
What about the courts? As for the court system itself, there doesn’t seem to be a uniform response. And there are no clear indications when things will return to normal, although the situation changes rapidly. The Administrative Office of the U.S. Courts (AO) has handed out guidelines for restoring operations among the federal courts. The guidelines rely heavily on conditions in local communities and on objective data from local and state public health officials and the CDC, according to the AO. The Federal Judiciary COVID-19 Recovery Guidelines emphasize local decision-making by the courts as each considers multiple factors while moving through four phases, the final of which is a return to normal operations.
Will oral argument at the appellate level return to in-person or will there be some arguments conducted remotely? With the U.S. Supreme Court hearing oral arguments remotely for the first two weeks in May — and for the first time in history, making the audio available, live, to the public — does this portend any lasting change at the highest level? And how will that filter down into other appellate-level courts?
Do you foresee lasting changes to employment law that will endure past the point when the crisis has subsided?
On the other side of the coronavirus pandemic — whenever that will be — or perhaps as it continues to impact workplaces, we may see more robust and/or meaningful state and local laws and regulations around employer leave and health and safety obligations, should federal efforts be perceived as falling short. Depending on the outcome of the federal election in November, we may similarly see federal legislation and regulations that either bolter existing protections or create new ones.
Liability. On the liability front, we may see new theories of liability applying existing federal, state, and local law to perceived employer obligations rooted in pandemic-related conduct or failure to act that has arguably harmed workers, including class actions where groups of similarly situated workers have suffered similar harms.
In the meantime, there are some reports of an emerging “COVID-19 discount,” where plaintiffs’ attorneys may be willing to settle for less because of the uncertainties resulting from the virus.
Expanded protections. But as a result of the gaps in protection that have surfaced during the COVID-19 pandemic, we may also see expanded protections for workers who have in the past not clearly fit into the description of “employees” protected under existing federal, state, and local laws and regulations — particularly for gig workers, temporary workers, and independent contractors.
As the pandemic crisis continues and the pressure to provide additional or post-pandemic relief at the federal level mounts, and again, perhaps dependent on the November elections, we may also see negotiated legislative packages that include expanded worker protections in the collective bargaining and wage-hour realms.
How do you think employment practitioners will seek to differentiate themselves in the new competitive landscape?
As noted earlier, one thing many firms have done is to offer significant guidance digitally to the public generally, hoping to extend their reach beyond existing clients and perhaps generate significant goodwill at a time of national crisis. Will it be difficult to pull back from offering so much legal expertise for no cost? Will law firms experience a devaluing of their expertise resulting from the sheer amount of available information?
Regardless, growing out of the shelter-in-place orders we expect that practitioners will offer greater availability to clients through teleconferencing, Skype, and video options that save client costs, including for travel, as well as save attorney time. The prevalence of work-from-home may also see attorneys expand the hours they make legal services available to clients beyond the traditional 9-5.
Practitioners also will likely increase their profiles through social media, online information, client alerts, Facebook chats, webinars, and other digital options. And, of course, the pandemic is likely to accelerate the transition to cloud-based models of legal practice so that firms may lower fixed expenses and provide legal services at lower cost to clients.
Joy P. Waltemath is Managing Editor for Labor & Employment Law Daily and compliance-related Bankruptcy, Energy, Insurance, Products Liability and Safety, and Transportation products for Wolters Kluwer Legal & Regulatory U.S.
Pamela Wolf is a Senior Editor/Analyst for Employment Law Daily. She has been a member of the labor and employment team at Wolters Kluwer Legal & Regulatory U.S. for 15 years.