An Easter Egg in the Coronavirus Relief Package: Employer Neutrality in the Face of a Union Election

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By Kathleen J. Jennings (kjj@wimlaw.com)

While the term “Easter egg” has been used to mean a hidden object (like an actual egg in an Easter egg hunt), it has come to be more commonly used to mean a message, image, or feature hidden in a video game, movie, or other medium.  Although not literally hidden in the Coronavirus Relief Package, there is a nice Easter egg buried deep in its hundreds of pages that helps unions.

One of the benefits of the Coronavirus relief package is the availability of low interest loans to businesses impacted by the pandemic.  Businesses, including non-profits, with 500 to 10,000 employees have access to loans that would have an interest rate not higher than 2%, and would not require interest or principal repayments in the first six months.

These loans have some strings attached.  In exchange for receiving the loans, borrowers would have to certify that they:

  •  Would use the loan to retain at least 90% of their workforce until Sept. 30, 2020.
  •  Intend to restore at least 90% of their workforce as of Feb. 1, 2020, within four months of the end of the coronavirus public health emergency.
  •  Are U.S.-based.
  •  Won’t pay dividends or repurchase equities.
  •  Won’t outsource jobs or relocate them outside the country or abrogate existing collective bargaining agreements for the term of the loan and two subsequent years.
  •  Would remain neutral on any union organizing efforts during the loan term.

That last condition is a major advantage for unions:  a company receiving one of these loans must remain neutral on any union organizing efforts during the term of the loan.  Meaning the company cannot take steps to oppose any union organizing efforts during the term of the loan.

The takeaway:  This is a term that companies need to consider very carefully before accepting one of these loans.  Does the short term relief of the low interest loan outweigh the long term impact of a possible union election that the company can do nothing to oppose?

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

You Have Questions, We Have Answers. JOIN US FOR A FREE LIVE WEBINAR: Complying with the April 1, 2020 Effective Date of the Coronavirus Act, State and Local Regulations, and Other Personnel Issues Related to COVID-19

Wimberly, Lawson, Steckel, Schneider & Stine, P.C. is offering a free Webinar dealing with some of the important legal issues arising out of the COVID-19 pandemic. Although it is free, you must register at jww@wimlaw.com.

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One of Your Employees Says He Is Infected with Coronavirus–Now What?

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By Kathleen J. Jennings (kjj@wimlaw.com)

The latest information from public health officials is that the COVID-19 sickness curve is on the upswing, so it is likely that those companies that still have workers on site will have someone come forward and say that they have been infected by coronavirus.  When that happens, what should the employer do?

Remove the employee from the workplace immediately.  Talk to the employee and find out the following information:

  • The department or area they worked in;
  • The names of employees who worked within 6 feet of the employee, ate lunch with the employee, took smoke breaks with the employee, carpooled with the employee, or otherwise came into close contact with them;
  • Have they been tested? If yes, have they received test results?

After receiving this information, the employer should:

  • Notify the employees who were in close contact with the sick employee that they may have been exposed to COVID-19 and send them home. Do not reveal the name of the infected individual.
  • In addition, if a sick employee is suspected or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations.

https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html

Then there is the issue of return to work–when does an employer let an employee with confirmed COVID-19, or who have suspected COVID-19 (e.g., developed symptoms of a respiratory infection [e.g., cough, sore throat, shortness of breath, fever] but did not get tested for COVID-19) return to work?

The CDC has provided guidance regarding the return to work of health care workers, who are among the most likely to be exposed to COVID-19.  That guidance can be useful when applied to other workers.  The CDC offers the following strategies, which depend on whether the worker has been tested for COVID-19:

  1. Test-based strategy. Exclude from work until
  • Resolution of fever without the use of fever-reducing medications and Improvement in respiratory symptoms (e.g., cough, shortness of breath), and
  • Negative results of an FDA Emergency Use Authorized molecular assay for COVID-19 from at least two consecutive nasopharyngeal swab specimens collected ≥24 hours apart (total of two negative specimens).
  1. Non-test-based strategy. Exclude from work until
  • At least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and
  • At least 7 days have passed since symptoms first appeared.

Finally, there are always going to be a few employees who lie about being sick with the coronavirus.  (This attorney heard from a client that an employee called in sick with coronavirus–that he claimed had been confirmed by a urine test).  At this time, it is better to err on the side of caution and take employees at their word if they say they are infected and remove them from the workplace.  If the employer has objective evidence to prove that the employee lied, the employer can consider discipline at a later time.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

After the Pandemic: How Will Your Employees Remember the Way You Treated Them?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Recent reports from the U.S. Surgeon General tell us that things are going to get worse before they get better in this pandemic situation.  But eventually, the crisis will end, the economy will (hopefully) recover, and employers are going to need good employees.  So what can a company do now to increase the odds that its top performers (or top talent from other companies) will want to come back to work for them after the pandemic? The following are some ideas.

  • Communicate with employees about the situation. Be honest in those communications.  Don’t tell your employees that everything is great, and then suddenly lay them off.
  • Make sure that employees have the tools they need to continue to do the job. If they are telecommuting, do they have the computers and software programs that will allow them to communicate with the office and others?   Are there IT resources available to answer questions?
  • Not every job is suited to telecommuting. Think about ways to reward those employees who have to come into a work location every day.
  • Follow CDC sanitation guidelines for employees who cannot work remotely. Post those guidelines for everyone to see and reinforce them regularly.  Make sure that there is enough soap, hand sanitizer, disinfectants, and PPE (if necessary).  Encourage sick employees to stay home. Be flexible in the application of leave policies.  Most of all, let employees know that the company takes the CDC guidelines and employee health very seriously.
  • Listen to employees. There are time when being a human resource professional is akin to being a therapist or counselor.  Now is one of those times.  Employees are nervous about their jobs, their spouse’s jobs, their kid’s education, their health, their grandmother’s health. Let them vent a bit some of those concerns.  And do not be dismissive of them.
  • Further, if the company has an EAP or professional counseling services are available from the health insurer, remind all employees of these services. Federal rules on Telehealth services have been relaxed somewhat, so employees may be able to access mental health care by video conference.
  • At the same time, do not tolerate bullying or bad behavior. Employees may be tense or worried, but that is not an excuse to mistreat other employees.
  • If you have to lay off employees, make sure you promptly get them the paperwork they need to file for unemployment benefits or request COBRA continuation of their health insurance benefits.

 

Bottom line:  How you treat employees now will go a long way toward whether they will work for you after the pandemic is over.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

Let’s Talk About Paid Leave–Federal and State

 

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By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the Senate passed, and the President signed into law, a virus relief package.  Of particular interest to employers is the provision requiring with less than 500 employees to provide paid sick leave to employees affected by the virus.  These employers must provide 2 weeks of fully paid sick leave for each employee’s own quarantine, treatment, diagnosis or preventive care. Full time employees would be paid for 80 hours and part-time employees would be paid based upon their typical hours in a 2-week period. If leave is taken to care for a family member, pay is 2/3rd of the employee’s regular rate of pay.

Paid sick leave under this provision is made available in addition to any existing paid sick leave policies of the employer, and use of paid sick time shall be available for immediate use by the employee regardless of how long the employee has been employed by an employer. An employer may not require that employee to use other paid leave provided by the employer for use during this paid sick time. The definition of “child” is expanded to include that of a “domestic partner,” which itself is broadly defined. The effective date of these paid sick leave provisions is not later than fifteen (15) days after the date of enactment, and the requirement shall expire on December 31, 2020.

Small businesses take note:  the U.S. Department of Labor has authority to issue regulations for good cause that will exempt small business with fewer than 50 employees if imposing the new requirements would “jeopardize the viability of the business as a going concern.”

It is also important for employers to monitor the state laws in the jurisdictions where they do business.

New York, for example, just passed a law that will expand paid sick leave to all public and private sector workers forced into precautionary or mandatory quarantine due to the coronavirus. It would not be surprising if other states followed with their emergency legislation.

There are currently six states with paid family leave, plus Washington D.C. The following have state paid leave laws:

  • California
  • Connecticut
  • D.C.
  • Massachusetts
  • New Jersey
  • New York
  • Oregon
  • Rhode Island

Businesses with operations in those jurisdictions should review the requirements for paid leave  to determine if they are applicable.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

OSHA Guidance for Reducing Worker Exposure to COVID-19

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By Kathleen J. Jennings (kjj@wimlaw.com)

The Occupational Safety and Health Administration (OSHA) is the federal agency tasked with the protection of worker health and safety, so it is not surprising that OSHA has issued some comprehensive Guidance on Preparing Workplaces for COVID-19.  This Guidance addresses how COVID-19 is spread and describes steps employers can take to reduce workers’ risk of exposure to the virus, such as the following:

Prepare to Implement Basic Infection Prevention Measures

For most employers, protecting workers will depend on emphasizing basic infection prevention measures. As appropriate, all employers should implement good hygiene and infection control practices, including:

■ Promote frequent and thorough hand washing, including by providing workers, customers, and worksite visitors with a place to wash their hands. If soap and running water are not immediately available, provide alcohol-based hand rubs containing at least 60% alcohol.

■ Encourage workers to stay home if they are sick.

■ Encourage respiratory etiquette, including covering coughs and sneezes.

■ Provide customers and the public with tissues and trash receptacles.

■ Employers should explore whether they can establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others if state and local health authorities recommend the use of social distancing strategies.

■ Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible.

■ Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment. When choosing cleaning chemicals, employers should consult information on Environmental Protection Agency (EPA)-approved disinfectant labels with claims against emerging viral pathogens. Products with EPA-approved emerging viral pathogens claims are expected to be effective against SARS-CoV-2 based on data for harder to kill viruses. Follow the manufacturer’s instructions for use of all cleaning and disinfection products (e.g., concentration, application method and contact time, PPE).

Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate

■ Prompt identification and isolation of potentially infectious individuals is a critical step in protecting workers, customers, visitors, and others at a worksite.

■ Employers should inform and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure.

■ Employers should develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.

■ Where appropriate, employers should develop policies and procedures for immediately isolating people who have signs and/or symptoms of COVID-19, and train workers to implement them. Move potentially infectious people to a location away from workers, customers, and other visitors. Although most worksites do not have specific isolation rooms, designated areas with closable doors may serve as isolation rooms until potentially sick people can be removed from the worksite.

■ Take steps to limit spread of the respiratory secretions of a person who may have COVID-19. Provide a face mask, if feasible and available, and ask the person to wear it, if tolerated. Note: A face mask (also called a surgical mask, procedure mask, or other similar terms) on a patient or other sick person should not be confused with PPE for a worker; the mask acts to contain potentially infectious respiratory secretions at the source (i.e., the person’s nose and mouth).

■ If possible, isolate people suspected of having COVID-19 separately from those with confirmed cases of the virus to prevent further transmission—particularly in worksites where medical screening, triage, or healthcare activities occur, using either permanent (e.g., wall/different room) or temporary barrier (e.g., plastic sheeting).

■ Restrict the number of personnel entering isolation areas.

■ Protect workers in close contact with (i.e., within 6 feet of) a sick person or who have prolonged/repeated contact with such persons by using additional engineering and administrative controls, safe work practices, and PPE. Workers whose activities involve close or prolonged/ repeated contact with sick people are addressed further in later sections covering workplaces classified at medium and very high or high exposure risk. GUIDANCE ON PREPARING WORKPLACES FOR COVID-19 1 1 Develop, Implement, and Communicate about Workplace Flexibilities and Protections

■ Actively encourage sick employees to stay home.

■ Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.

■ Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.

■ Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.

■ Maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.

■ Recognize that workers with ill family members may need to stay home to care for them. See CDC’s Interim Guidance for Preventing the Spread of COVID-19 in Homes and Residential Communities: www.cdc.gov/coronavirus/2019- ncov/hcp/guidance-prevent-spread.html.

■ Be aware of workers’ concerns about pay, leave, safety, health, and other issues that may arise during infectious disease outbreaks. Provide adequate, usable, and appropriate training, education, and informational material about business-essential job functions and worker health and safety, including proper hygiene practices and the use of any workplace controls (including PPE). Informed workers who feel safe at work are less likely to be unnecessarily absent.

■ Work with insurance companies (e.g., those providing employee health benefits) and state and local health agencies to provide information to workers and customers about medical care in the event of a COVID-19 outbreak.

Furthermore, to help employers determine appropriate precautions, OSHA has divided job tasks into four risk exposure levels: very high, high, medium, and lower risk. The types of recommended precautions will vary based upon the exposure level.  The very high and high exposure levels generally apply to workers in various healthcare fields.  Most workers at high or very high exposure risk likely need to wear gloves, a gown, a face shield or goggles, and either a face mask or a respirator, depending on their job tasks and exposure risks. Medium exposure risk jobs include those that require frequent and/or close contact with (i.e., within 6 feet of) people who may be infected with SARS-CoV-2, but who are not known or suspected COVID-19 patients. Lower exposure risk (caution) jobs are those that do not require contact with people known to be, or suspected of being, infected with SARS-CoV-2 nor frequent close contact with (i.e., within 6 feet of) the general public.

Overall, OSHA’s Guidance is a useful starting point for employers to utilize in formulating a strategy to deal with this ongoing pandemic.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

EEOC Guidance For the Pandemic

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By Kathleen J. Jennings (kjj@wimlaw.com)

The EEOC has been prepared for a pandemic for years.   Back in 2009, the EEOC prepared guidance for pandemic preparedness in a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.

The EEOC has acknowledged that the World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the EEOC has offered the following questions and answers:

    • How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
      During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
    • When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
      Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
    • Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
      Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
    • When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?
      Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

This is an evolving situation, and we will continue to provide guidance as things develop.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.