Employment Webinar Series: Workplace Safety Considerations for Employers

Date: April 28, 2020
Welcome to McDermott Will & Emery’s weekly employment webinar series. This week, we will be focusing on workplace safety considerations for employers. I am Carole Spink, I’m a partner in McDermott’s employment practice based in Chicago. If you have any questions during the webinar, please submit them using the Q&A feature, and we will address as many as we can at the end of the webinar. We have a busy agenda today, so if we are unable to answer your questions, we will get back to you directly afterwards. A link to the webinar recording as well as the slides will be shared afterwards. This program also offers CLE credit. Those who are able to participate in the full program will receive the certificate post-webinar. It is important that you fill out the post event survey that will be emailed to you in order to receive the CLE. And if you are in New York, I will read out a verification code at some point later on in the webinar that you should write down and enter onto the post event survey. For additional information and to stay informed of the latest developments, please visit our resource center at mwe.com/coronavirus. Without further delay, let’s launch right into these important insights. I’ll now introduce my fellow panelists. First, we have Ron Holland, who is a partner in our employment practice based in San Francisco. And we also have Abigail Kagan, an associate in our employment practice who’s based in New York. So without further ado, I will turn it over to Abigail.

Thanks, Carole. So we’re going to get started here today with this agenda. We’ll be going through some of the safety standards that we hope some, most of you are already familiar with, but we’ll do a small review of some of the existing standards and some, some of the more recent trends that we’ve been seeing coming out of OSHA, the CDC, and a couple other sources. That’ll flow us right into a conversation on, who is actually setting these rules? Where should we be looking for guidance? That’ll take us into our third topic of the afternoon. What exactly should you be doing with this guidance? What steps are you allowed to take; must you take? And is there anything that you should be avoiding? Maybe there’s some steps that your competitor across the street is taking, but you may want to stay away from. And finally, we’ll wrap it up with a summary and a couple of trends that we’re seeing develop in this new, sort of, post-COVID world.

So, we’re going to start out with a poll. I’ll just read out it loud. OSHA’s General Duty Clause says that employers must provide all employees with six weeks of paid vacation each year, a safe workplace, or a free turkey every Thanksgiving. We can pull up the results. All right, so we’ve got 99% of our viewers and attendees agree that OSHA’s General Duty Clause says that employers must provide all employees with a safe workplace. That’s what we’re trying to get at here. We want this webinar to serve as a reminder that employers have already been taking numerous steps. Some may seem cumbersome, others you don’t even notice, to keep their workplaces safe. Whether from, whether using slip and fall signs, to routine masks and gloves and helmets, ergonomic workstations, and, of course, the ever-present sign, employees must wash hands before returning to work. Which makes us all wonder who really needs that reminder. Nowadays we’re hearing a lot of news about all of the new safety protocols that employers can have, or must put in place, as a result of COVID. But it’s important to remember that all employers have navigated similar steps before. Rules like social distancing at work and remote work options can be broken down into equally manageable pieces, and what we’re here to review today.

So we’ll talk a little bit more about this later, but the main sources that we’re looking to hear today are Federal OSHA, State OSHA plans in the 22 states that have them, and other state and local requirements that may apply to certain industries. As already mentioned, OSHA’s, OSHA’s General Duty Clause says that employers must provide employees with a workplace that’s free from recognized hazards that do, or are likely, to cause death or serious harm just to employees. We’ve already seen some examples of workplaces that comply with the General Duty Clause, and if you’re currently in or can think of your usual workplace, you might recognize some of them. So these might include office-based employees who should have ergonomic workstations. For example, a space to sit at a desk rather than standing hunched over a desk all day. Employees in manufacturing plants may be required to wear masks or respirators if there’s a risk that they may be exposed to airborne particles. Health care workers are required to special sharps containers to dispose of needles and other sharp equipment to avoid accidental injuries. And finally, construction workers are required to wear helmets, when on site. We’ve all grown accustomed to safety standards that existed pre-COVID, even to the extent that some maybe have become obvious or almost second nature.

But in a during and post-COVID world, we’re not focused on trends in updating existing standards. We really want to emphasize here that we want to have more reasonable standards based on what the reasonable circumstances are today. So OSHA has issued a handful of temporary guidance documents that we haven’t yet seen any binding regulations that are specific to COVID. OSHA, for example, has explicitly advised that several of its existing standards continue to apply to COVID situations. So, for example, employees that may face recognized hazards, which could include someone that’s suspected or known to have COVID, have a right to protections from those hazards, like the use of face and respiratory protective equipment or workplace modifications to keep them safe. In addition, federal OSHA states and cities have also issued requirements. And we can see their impact on the essential businesses already, like requiring employers to provide facemasks to employees or restricting the number of people allowed in a grocery store at a single time. So we encourage all employers to work with legal counsel to make sure that their workplaces staying up to date with the latest updates and requirements. They are changing on, I want to say a weekly basis, but honestly, almost a daily basis, depending where you are living and working. And this is particularly important as states begin to reopen in graduated phases over the next few weeks. While we’re discussing areas of legal compliance and potential legal liability in this webinar, it’s also important to consider the reputational impact of adopting, or failing to adopt, certain measures. All businesses at the end of the day have customers or clients, and it’s important to remain mindful of their priorities as well. So in this case, attorneys are best poised to advise on, you know, whether you are required to provide their employees with masks in the workplace, let’s say. But we also take into consideration industry standards and even competing workplaces that can really help to shed light on best practices where the law may be silent. So what we’re seeing right now isn’t so much of a change of where we look for guidance or what the basic rule is, again, that’s really just keep your workplace safe based on the circumstances, but rather COVID has just introduced the new backdrop to update how we view what’s considered a reasonable safety standard.

Good morning or good afternoon, depending on where you are. We’re going to talk now a little bit about who sets the rules. Before we talk about specific measures that you can take, the question is where are the rules coming from? And from, is the source legal? Is the source industry? Is the source just simply recommended for best practices? Can we have the next slide, please?

Ron, I believe you’re on mute.

As OSHA hasn’t issued any bind— hi, everybody. I’m Ron Holland. Nice to meet you all. I was saying that before we jump into specific measures on what employers could take, we really need to look at the sources. And the sources are both legal, practical and industry wide. And so as Abigail was referring to, we first look at OSHA. Now, OSHA has been reluctant to issue any binding regulations pursuant to its emergency power. It does have the power to do that. The last time OSHA issued binding regulations on employers was 30, 35 years ago with regard to asbestos in the workplace. And currently, there is a bill pending in Congress by the, by the democrats who are trying to force OSHA to issue binding regulations, not only on specific industries like healthcare, but on all employers. The argument against that is because OSHA will issue these regulations and it will require public comment and public notice, by the time those regulations are issued and they’re binding on employers, OSHA’s probably behind the curve at that point. Because what we’re seeing is recommended guidance coming out from CDC, Center for Disease Control. We’re seeing the EOC getting into the mix with regard to the American Disabilities Act. But the most, I would say, enforceable and visible guidance that we’re seeing is at the state and the local level. Not state OSHA, because the state legislatures aren’t necessarily amending their state or their mini-state OSHA acts, but to executive order by the governors of the state, and indeed, by mayors of specific cities and within different counties. In fact, I’m in San Francisco, and we saw San Francisco, on a local level, lead the way by San Francisco’s mayor London Breed, issuing an ordinance requiring sheltering in place and a variety of social distancing requirements, and the governor subsequently followed. And so, there’s, there’s not, there’s some federal guidance, but it’s non-binding, for the most part. The state and the local governments are really taking the lead here on imposing requirements, both on the citizens of its cities and states, and on the way employers do business within those jurisdictions. Can I have the next slide, please?

Now, really what we’re talking about in the next couple of slides is spotting trends. And we’re all familiar right now. You can see Center for Disease Control has advocated social distancing, flexible work hours, wellness screening, taking temperatures. This is, we all know this at this point during the pandemic. But is the trend, the trend we see is going from optional to encouraged to recommended and, eventually, to required. And we’re seeing a scattering of that throughout the country of different jurisdictions moving from the recommended to the required. Indeed, as you could see there, under the second bullet point with regard to the ADA, we see the EOC and other agencies getting in the mix, loosening the rules with regard to what employers can do. For instance, taking advantage of the direct threat exception under the ADA to ask questions that you normally wouldn’t be able to ask on a normal basis. But when you overlay what’s reasonable, prior to the pandemic, but what’s now reasonable under the circumstances, we’re seeing that there’s a lot more tools that the employers can, that employers can use, not only to keep employees safe, but certainly in the end, to take these actions and reduce your, your own potential liability. Go to the next slide, please.

So we’re breaking them down. What we’re seeing is in state and local ordinances that are containing varying applicable safety guidelines. And it certainly depends on where you do business and where your employees actually work, because where you’re doing business might be different from where your employees live if they’re working remotely in different jurisdictions. So you might have an employee working remotely for a New York, in California for a New York company, and then they’re working out of their home, which is now becoming, of course, the new workplace. To the extent that you’re requiring your employees to work from home, you’re no longer regulating their office space. Now you’re regulating their office and what is necessarily safe within that environment. But we’re breaking it down into a few categories. So the first category, as you can see, is assessing employee health. The first bullet point, conducting wellness questionnaires before employees entering, enter the workplace. Not only are we seeing that as a trend as far as what is recommended, we’re seeing a requirement that be done. Indeed, in the San Francisco Bay area as well as Delaware, those, or a state and the municipality ordinance for San Francisco and then the state executive order in Delaware, envision a requirement that you actually ask employees about their symptoms and about what symptoms they have, COVID-related, before they return to work. The taking of temperatures. We’re seeing states like Pennsylvania, now, requiring that employers actually take the temperatures of employees for most industries and under certain circumstances before they return to work. The face coverings, of course, we’re seeing on a regular basis now becoming from recommended to mandated by a variety of jurisdictions. And not only do you need to have a face covering, but these jurisdictions are dictating when you must have a face covering, where you have to have it. Indeed, even the type of face covering as this push-pull between an N 95 mask and something more user friendly and more accessible to both employers and the public become available. And then finally, we know many of you are considering antibody testing. Testing for COVID antibodies before you allow employees to return to work. And while we’re seeing a big push and a lot of conversation behind that topic, the question that comes to my mind is a practical one. If you intend to open May 15th, let’s say, and expect your workers to return to work, requiring an antibody test sometime between now and then is likely to leave you short of employees because of the lack of availability of the antibody test. And then we’ve got compensation issues if you’re going to require it. Obviously, this is in most jurisdictions, it’s going to be compensable time. And then there are the downstream effects of the antibody test. And that is increased health insurance premiums, payment for copay, and various reimbursements to employees. And so, that, those issues, or those corollary issues are for a later slide. But there’s complexity within some of these very simple things that the jurisdictions are requiring. Promoting social distancing. You know, we’re certainly seeing that in most, if not all of the executive orders and ordinances that are coming out. But the social distancing that we’re seeing, it’s a snowflake, if you will. It’s different for all industries and all employers. What constitutes or is appropriate and available social distancing for an office space is going to be different than, say, food processing, which we’re seeing under a microscope right now. It’s different for retail. Indeed, it’s different for your workers who are on, say, an oil rig off the shore of California and they are in a space where they’re not leaving for the evening and not going, and not going home. And there’s one cafeteria where everybody’s eating breakfast, lunch, and dinner. And so, the social distancing requirements of separating workstations at least six feet, limiting the number of people that are in that space, and staggering, let’s say, work shifts. We’re seeing not only it going from encouraged to recommended, but to required now. And, I guess if there’s a takeaway from some of this before I get to sanitizing the work— the workplace, it’s if you’re not considering many of these things now, before they become mandatory, you’re going to be behind the curve. And so there’s some guidance that OSHA issued with regard to food processing that we’ll get in a slide or two that we think makes a lot of sense for employers of all industries to start considering those recommendations, because we do believe there’s going to be a trend to the mandatory off of that, off of that guidance. The sanitizing of the workplace. Obviously, you’re all using disinfectant in in the appropriate way. Nobody’s taking shots of it or anything like that, but we need to use disinfectant in the appropriate way, make it available for employees, and then the frequency of sanitizing the workplace. So not only how and what’s available, but the frequency, again, is moving from the recommended to the mandatory. Finally reminder signage. Whether you’re in, whether you’re, you’re a customer facing business or not, having that reminder signage, not only for your own employees, but for third parties coming in, of what those expectations are. Setting those expectations and setting them in a visible way is going to mean compliance. And it’s going to be less resistance to those requirements. Again, especially by third parties if you’re a customer facing business. Abigail, can we go to the next slide?

Industry specific guidance. We’re seeing the National Restaurant Association, the National Retail Federation, all issuing industry specific guidance. So we’ve moved from OSHA, the broad umbrella, to the narrower, where your next source is executive orders on a state level, and then grinding down to counties and different municipalities on the very local level. That’s where you’re going to get, not only your required guidance, but your recommended guidance. And then looking toward, to industry guidance for whatever industry you’re in, whether you’re looking at something as formal is the National Restaurant Association or the Retail Federation, or, or having a discussion with some of your competitors. Or viewing what your competitors are doing. Not that they’re doing it right, but you do want to see, again, these industry trends because you want to be out in front of it. Because when it becomes mandatory, when some of these industries are in particular having conversations through their political organizations that are ultimately making recommendations to your local mayor or your governor, this is where this guidance is going to come from. So we can expect that, those recommendations to be filtered up and then become law as we proceed through the crisis and through the peaks and valleys of the, of the pandemic. Next slide, please.

So, food processing. Just yesterday, OSHA, after, after taking so much heat about doing nothing in regard to the pandemic, at least nothing binding, has issued guidance. Non-binding, recommended guidance with regard to food processing plants. And I’m sure many of you have read some of the concerns that have come out of that particular industry. But there are significant highlights out of what’s been recommended. Some of them are just simply reiterating what is actually going on at the state and local level. But our view of what OSHA is doing here is they’re letting all employers know, it’s directed at food processing, but they’re letting all employers know what OSHA views as recommended guidance. And again, because Congress is pushing OSHA to implement and use its emergency power to implement binding regulations in this area, we think that this, this recommended guidance is critical to review. One. Recommending that there be a plan with a workplace coordinator. These are internal groups within your organization. You’ve got a workplace coordinator and a small think tank about what you’re going to do, what protocols you’re going to require, what your go—, what protocols you’re going to require of employees with regard to social distancing and the wearing of PPE, and what protocols are you going to require of the of the public. Two. A cohorting plan. Having workers work together in shifts without interchange and without exchange like you might normally have. Limiting the ability to work at different hours and different times. And this way you’re controlling to the extent any individuals or any employees are exposed to COVID 19, and your minimizing the widespread interactions of employees. Interestingly enough, the federal government has come out and said, please educate and train your employees on the reducing of the spread of COVID 19. We think that this is groundbreaking for the federal government, frankly, to get out there and recommend that that employers get in there and institute training and education of employees and make them more aware of their rights and make them more aware of what will minimize the spread of the virus. Screening and monitoring employees. Really, what we’re talking about is wellness checks and temperature taking. And these are fairly, they may sound pretty simple, but, but they’re fairly complex. I mean, they’re complex right down to the timing. If you institute wellness checks and you institute temperature screening now, when do you stop? Do you stop 6 months from now? Do you stop 18 months from now? Is it a permanent part of what you’re doing? If you are going to stop 6 months from now, during maybe a valley before another peak, have you made your workplace less safe, visibly less safe to employees by reducing some of your safety protocols? So determining which protocols you’re going to put in place, especially where they are recommended. Where they’re required, they’re required. But where they’re recommended, you really need to think about the long term. And how long am I going to be able to keep those protocols in place? What’s the financial implication? And what is the benefit that that we’re getting? And what happens if I can’t continue this for the entire pandemic? Managing your sick workers appropriately. Having a COVID response plan, obviously, is very important to minimize, not only exposure to other employees, but to trace and track exposure throughout the workplace. These, these plans, if we’re not working on these plans now for the next 6, 12, or 18 months, depending on how long this crisis lasts, again, you’re behind the curve at this point. Certainly we recommend that at least creating a qualified workplace coordinator and internal team, whether it’s 2 or whether it’s 15, depending on the size of your organization, is going to be instrumental in being ready for when these require—when these recommendations become requirements at a later date.

So moving on to our next section of the webinar. We’ve talked about some of the preexisting safety standards, looked, had an in-depth look at who’s setting the rules. And now we’re going to talk a little bit about what is it that you should really be doing, or, or as Ron said, perhaps not be doing um, as an employer during COVID? So one of the best ways to plan for ongoing and future needs is to see what’s working for essential businesses currently in operation. And, you know, we can look both anecdotally, and at what’s, what’s been recommended by any sort of government entity based on what some essential businesses have put into practice. So in grocery retail stores, we’re seeing taped markers on the floors throughout that are intended to indicate the recommended distance between the shoppers and employees alike. One helpful resource, this is one helpful resource for retail establishments, but it’s a tool that really could be adopted by offices, could be adopted by even production facilities to carve out individual workspaces. This is something that could be particularly useful if one of your employees, for example, has some sort of underlying medical condition that makes it difficult or impossible for them to wear a mask, for whatever reason. Being able to put down some tape on the floor and request that other employees not come within that amount of space of, of the employee with the underlying medical condition may be an accommodation that that employee could request, and that you may be required to provide. Retail establishments we’ve also seen have installed plexiglass barriers in front of cashiers. And some essential office workers have considered reverting back from the, sort of, open floorplan bullpen style back to cubicles, just to have some sort of barrier between each of the workers. Restaurants, whether sticking to take out orders or even those that are open on a limited basis for dine in on a res—with reservations, for example. They’re spraying down counters. As Ron had said, you know, swapping out condiments and really making sure that they are keeping everything in tip top shape. Paying close attention to services that are frequented by customers and delivery workers alike. We’re also seeing businesses simply limiting the number of individuals permitted in the workplace. Again, whether that’s employees or retail customers, or, or dining clients. Some capacity limits are legally enforced, but others, such as we may see in offices or production facilities, are really driven by the employer’s calculation of reducing production capacity and maximizing employee safety. Which is really also a main point that OSHA was getting out with that recent interim guidance as of yesterday. Employees are also staggering returns to work. Starting off with employees who cannot easily, or perhaps at all, work remotely. This could be physical workers or office support staff. There are also some questions about whether to just simply do away with, even on a temporary basis, the traditional 9 to 5 schedule. You know, some employers are considering introducing shorter work shifts or maybe a day shift and a night shift model. But through all of this, we’re really reminding employers to be mindful of disparate impact risks that could arise or, you know, policies that seem like a great, fair idea but may have a more punishing impact on some classes of employees a little more than others. So, for example, going to that day night shift model, an employer might assign employees without children to day shifts, thinking that employees with children would rather be home with their family. Maybe they can’t find other childcare arrangements, maybe they’re home schooling their children for the time being. But we have to remember that making an employment decision, you know, assigning someone to a shift based on their familial status and whether they have kids could land in the employer in some hot water. So it’s a well-meaning employer trying to do what’s right by their employees, trying to help them out and help them catch a break with, you know, with all of their care giving obligations, but could end up backfiring. Finally, we are, of course, seeing a huge increase in remote work arrangements for practically every workplace that can afford to keep on their employees working remotely, and that have employees that are able to work in a remote situation. But one major question that’s come up, and Ron had also touched on this, is how long do these measures last? Employers may be more willing to allow employees to work from home, to limit the workplace headcount to only those were actually needed onsite. But requiring employees to work from home brings up questions of whether those employees must be reimbursed for business expenses, like ergonomic chairs or computer monitors. How productive those workers will really be if they’re balancing caregiver obligations at the same time. And what is a, a huge legal question is, how can employers accurately track time for non-exempt employees who are working from home? So we’re continuing to monitor all of these developing safety trends based on what essential businesses are doing now. And what all, on site, and what all other businesses that are able to work remotely are doing from a remote location. As we know, one of the best ways to plan for the future is to see what’s been working in the past and the present and move from there. Now beyond addressing individual employees and their habits, employers should also consider taking steps to alter their physical workplace. Whether employees are currently there, and we can make these adjustments in real time, or if you have a reopening plan for the future and we want to make these changes before the employees come back to the physical workplace. So one of these options is rearranging workstations as much as possible to maintain at least six feet of distance between each employee. As we had already mentioned, you know, especially when workstations cannot be rearranged, consider installing barriers like plexiglass or using cubicle structures to keep any respiratory droplets really contained to one specific area. You know, we’ve, we’ve seen employers who are providing multiple sanitizing stations, facial tissues, hand sanitizer, a lot more trash receptacles, and generally encouraging employees to wash their hands or use hand sanitizer or other sanitizing materials every 20 minutes. And while we’ve seen employers who have considered implementing a every 20 minutes schedule, we also want to emphasize that this should be purposefully staggered, perhaps even going so far as to assign employees. You know, you’ll wash your hands on the 20 after the hour, on the 40 after the hour, and on the hour. Staggering those out so you don’t have all of your employees going to wash their hands or going to the sanitizing station all at the same time. And with all of this, we’re also seeing changes in the way that workplaces are used. Employers are scheduling more fre—more frequent or more detailed visits by cleaning services. A couple states have issued FAQs where they have confirmed that essential or critical infrastructure businesses that are currently still operating are permitted to hire third party vendors to do these cleanings. They are not required to do these cleanings by themselves. Common areas like break rooms are closed or only limited for certain periods of day or for certain classes of employees. Perhaps those who can’t access a car to, to go sit in their car and eat lunch, for example. We’re also seeing that visitors and other meetings are really limited to only those that are either absolutely necessary or, or can’t take place in any other way. And, of course, this is to minimize interpersonal contact, maximize social distancing, and simply reduce the number of variables that are introduced to the workplace each day. Now actions taken behind the scenes to reorganize workplaces don’t create as much publicity, perhaps, as easily as steps like masks or taking temperatures, which we’ll discuss in a moment. But they are, perhaps, even more important because they don’t require a total buy-in by each individual employee. And there are steps that the employer can plan in advance and try to have some sort of control over, rather than perhaps leaving it to hoping that each individual employee will still choose to comply in the future.

So before we get to face masks in the workplace, there are a few questions that we’ve seen back to compliance. One question was compliance with local—state, local, and federal standards, these would be workers comp. You know, we do see this growing trend that COVID-related illnesses are likely to be included, in say, your workers comp protection/preemption. That is, if one of your employees contracts COVID and they believe they contracted it at work, it would be more likely than not that it would be a worker’s compensation claim. However, one, one quick way on that you will lose what we believe is the protection of the workers compensation statutes is non-compliance with some of these safety requirements of the workplace. Because at that point you created an environment where you’re—a knowing environment where you are not in compliance and you’ve invited your employees into the workplace. At that point, if you think about it, if your workplace is unsafe because you’re not in compliance, or knowingly not in compliance, you do leave yourself open to tort claims based upon the injury or illness that that employee contracts. And from a litigation standpoint, instead of your insurance company dealing with it, you’re being sued as a company, maybe even as, as an individual. That would include emotional distress damages and punitive damages and, and high numbers. So, I wanted to address that one question. There was also a question about whether you put your federal funding at risk. There’s no specific guidance on this, but if your non-compliance with local and state requirements results in you being shut down, and therefore, workers aren’t working at that point, it does raise a question about whether you’re now—you’re, you continue to be in compliance with the terms of the loan that you received from the federal government. And then, and then there was a question regarding complying, and if you’re not in compliance, is there a worker’s right to not show up in the workplace? And Carol’s going to touch on that in a later slide. But it ironically, brings into question an act called the National Labor Relations Act. Most of you are probably non-union employers, but the National Labor Relations Act doesn’t cover just union employers. It actually has protections for all employees, union and non-union alike. And there some peculiarities that regard safety that Carol is going to speak about in a minute. So I wanted to address those because those went back to the compliance issues that I was discussing earlier.

Facemasks in the workplace. If we could put those bullet points out, there are a variety of issues with regard to wearing masks in the workplace. Obviously, you need to look at your state and local requirements. We’re seeing New York, Michigan, California all issue not just guidance, but requirements on the wearing of masks, the types of masks. In fact, New York and Governor Cuomo, he’s even issued a requirement that not only there be a mask used in a business that is a customer or public facing, but has gone ahead and said that the employer must require—must provide that mask on at its cost. Which is not remarkable because if it’s required PPE or required personal protective equipment, it’s most likely going to be an employer expense. And so we are seeing this requirement. The CDC, of course, has been recommending cloth face coverings, and we already, we already know that. I’ve been, I’ve been asked locally to, if I go out and ride my bicycle, to actually wear a face covering, which I’m not doing, but, but, but there is, there is a suggestion that even on out—outside activity like running and cycling, the CDC is recommending a face covering. But we’re moving away from that, and we’re getting into what is required in the workplace. The practical considerations is one, are you responsible for providing the mask? Well, certainly, if it’s required by the government, by the state or local government, you are, you’re likely responsible for providing the mask. If you’re requiring it when it’s not required by the state or local government, if it’s an employer requirement, an employer required PPE, then yeah, you’re likely responsible for providing that mask. But it’s not a cut and dried question. There was a, there was a question about where a state or local government doesn’t require the mask, can you require your employees, can you require third parties to, to wear masks before they enter your business? The short answer is yes, with an asterisk. There are some issues there that you need to be aware of. Too many to cover, you know, right now, but there are a possible discrimination challenges to the extent that somebody needs an accommodation, the public or on employee, there are issues regarding practicality, there are issues regarding the type of mask. But the short answer is yes, as a reasonable precaution for safety purposes, even if there’s no requirement pursuant to any of the executive orders or ordinances? Yes, you can require employees to wear a mask at work. What type of mask? What type of mask is going to be a question. Again, if it’s if it’s required, then generally there’ll be some guidance in the type of mass that’s covered. CDC is suggesting face coverings. We’re finding that many of the state and local governments are picking up and adopting that face covering language because it gives a lot of flexibility as to the type of mask. And we’re seeing specific industries actually being targeted as far as the type of mask, like hea—like healthcare and first responders. And so, you need to be aware of, obviously, the type. What if an employee refuses to wear a mask? We see that question here on our chat line. And if employee refuses to wear a mask, then, if that’s your required PPE, the easy answer is they can’t work for you at that particular time. The harder question is, are you able to take disciplinary action against that employee? And that starts to bring in, you know, our discrimination laws and our wrongful termination laws, and then consistency in the application of your policy. So while I can’t answer with whether you’re able to discipline that particular employee, I can answer that at that particular time, the employee doesn’t get to work or come into work because you, because your individual requirement is that you have to wear a mask. There is the question of reasonable accommodations, obviously, whether it’s a religious accommodation because there’s an issue with regards to covering the face or covering the mouth. There is medical accommodations, employees who are receiving oxygen or have various facial issues that are irritated with regard to the wearing of a mask. So we think that these objections are going to be few and far between, but they’re going to the unique enough that it requires a little more of analysis. We’re going to be doing a series of these webinars on return to work and some of these specific questions, we’re taking—we didn’t want to come in at 100,000 feet today. We wanted to take an overall view of this and provide some discrete recommendations, and we’re going to get more granular as this series continues and drill down on some of these, some of these specific issues. Thank you.

Great. Next we have a poll. If we could do the poll here.

So the poll says, do you currently, or would you if your workplace were open, take employees temperatures before they can come to work? The options are yes, their temperatures are taken when they arrive at work, yes, they take their own temperatures at home, or no. And we’ll see the results. So we’ve got about a 50/50, yes, their temperatures are taken when they arrive at work, or no, we do not currently, or if we were open, we would not take employees temperatures.

Great. Very interesting, thank you. Yeah so, so can, can we require as an employer to take, require employees to take their temperature? And I think if you had asked any of us this question, you know, even two months ago, we would have been shocked at the question because it’s like, why would you want to do that? It’s, it’s clearly a medical exam and all of the issues that, you know, arise on that under the ADA. But, that being said, we are in a pandemic situation, and the EOC has mentioned, has come out in its guidance and it’s updated guidance from last Thursday to reiterate that employers may take employees temperatures at work if they’re currently operating as an essential business or as they prepare for return to work under the under the, under the analysis that it’s, that you’re protecting against a direct threat to others in the workplace. So, so it’s allowed. They won’t, they do not view that as disability discrimination. That being said, there is no easy answer. You know, the first thing the EOC has made very clear and as we know from, as we learn more about the virus, that just because someone doesn’t have a temperature doesn’t mean that they don’t have COVID 19 or won’t get COVID 19. So, there’s the issue of what information are you really getting? It’s not going to ensure against someone definitely not having the virus in your workplace. So it’s a measure, but it’s certainly not the, you know, the kind of, the golden ticket, so to speak. So when you’re making it—now that being said, you’ve already heard Ron describe some of the states that are starting to go this route and to that theme of what is the industry doing? What are essential businesses doing? I think this is absolutely where companies are going. And so, even though it may not be, you know, an end-all be-all test, and it won’t necessarily tell you—it won’t eliminate all risk, I think that that’s, we can expect to see more and more temperature taking as just a regular, regular ordinary course of business in the return to work process. So, to the extent that you’re not currently taking employee’s temperatures, maybe because you’re still closed and you’re not an essential business, you’ll want to really start thinking about this issue because I think that this is not going anywhere. I think, this is only going to increase in use. So again, you know, it has limited assistance as far as what it tells you, but it is allowed. But, but do remember, it is a medical exam, so you do need to treat it as such under the ADA. So we’ll talk about some things such a confidentiality, and that can be very challenging as to when you’re getting all of this health data, you know, in droves when, in droves, when you’re requiring every employee to test. You know, that’s a lot of data that, that most employers aren’t used to having all at once. So it is going to be challenging, so keep that in mind. So then the question is, who is going to actually prepare these tests? So who is going to take the temperature? Ideally, you know, in a perfect world, a healthcare professional would take the employees temperatures. They are best prepared to conduct the tests, they will have the PPE, and they’ll, you know, be adequately qualified. Most employers are probably not going to be able to hire an outside healthcare service professional to conduct temperature checks, is my guest based on availability or just cost. So, what most employers are probably going to be faced with is either having employees take their temperature at home before they come to work or actually having somebody at the company perform the temperatures themselves. So, the more conservative approach would be to have self-screening. So, that would basically mean that you would have a policy in place that will require employees to take their temperature before they come to work, and if they have a temperature over 100.4, then they’re not to come in that day. And then they would be, you would follow your normal procedures based on someone that’s ill and unable to work. So, so that would be the recommended approach, would be to have employees do it themselves. That said, that may not be practical. Or employers just may choose that for visibility reasons, maybe you’re a retail company and you really want to be able to have that done in the workplace because you’re going to be having, you know, outside third parties are going to be having their temperature taken as well. So, so the self-screening may not be something that you rely solely upon. You may also have at-work screening. So in those circumstances, there’s a couple things to keep in mind. First of all, you want to have those screenings done, ideally, before the person enters the workplace. So as not to, kind of, further exasperate the issue if someone does have a temperature. But also, you’re going to have to decide who, who or whom, probably not just one person, depending on the size of your workforce, who’s going to be the lucky employee that gets to take the temperature of all of their colleagues? So, so those are going to be difficult decisions. You know, is it going to be the HR manager? Is it going to be a number of people? Probably if you’re a larger employer, it’s going to not just be one person in all likelihood. So figuring out who is that person that gets to take the temperature? Making sure you know, considering such things as, you know, getting the employees consent for authorization to conduct those tests. Both the employee that’s taking the test, although you probably want to require that as a policy, but also getting the consent of the person that’s actually conducting the test. Thinking of things such as allowing the employee to withdraw that, that authorization at any time. If they all of a sudden feel uncomfortable or, or worse, they themselves become ill. So, so things like that to keep in mind. The individuals that actually conduct the temperature checks need to have appropriate PPE. They need to stand within a certain distance apart. Recommend taking—using the, kind of, new geothermal temperatures instead of the old school, like putting it in their mouth, person. So, I mean, all of these things that employers are going to have to keep—take into consideration when they’re deciding who’s going to take the temperature if it’s going to be conducted at the workplace. So assuming that you’ve come up with a strategy, which again you will probably need to come up with a strategy if you haven’t already have one, because as I said, this is clearly the way that the, that the trend is going. And of course, you know, also keeping up to speed, as we’ve been mentioning throughout the presentation with what are the local legal requirements in your city? Because a lot of these ordinances Ron mentioned are being driven by the cities or your state, to the extent the federal government comes up, OSHA comes up with one maybe, and then also your industry as well, and, and again, your competitors. So again, as far as the temperature taking itself, you want to absolutely ensure that you have protocols in place to maintain the confidentiality of that information. It is medical information. You do need to keep it separate from the personnel file. It’s got to be, you know, protected just like any other medical information you would have on an employee that needs to be protected. But then you have added complexities, specifically if you have an employee that’s conducting the temperature. Now that employee has information about another employee’s medical data. They have, they know that the person has a fever and so, you know, kind of limiting, to the extent possible, individuals that have that knowledge. You know, making sure that there’s strong policies in place to protect that confidentiality of that information. Things like if the person that’s taking the test is a supervisor of, you know, employees that they’re taking the temperature, you know, being mindful that there could be some discrimination potential risks further down the line. If that, you know, that person was later down the line, you know, let go or etcetera, and the person is able to say, you know, claim that they were, they were let go because my supervisor knew that I had COVID, and because he took my temperature, and therefore that was discrimination. So those types of, so those types of challenges. Is the time compensable? If you’re requiring employees to take their temperature, at least at the workplace, you know, absolutely, that would be compensable. A more interesting question is, is it compensable at home? If you’re, is that six or seven seconds of the employee has to take their temperature at home before they come into work, is that compensable? Probably not, but I think that that’s something to keep in mind. Other states, you know, some states, may be more strict on that. I don’t know if Ron has any thoughts on California in that regard?

Well, I mean, you know, if you’re going to require your employee in California to, you know, have a thermometer and spend the real, the seven seconds that it’s going to take them to take their temperature. All of you who have employees in California probably have a smile on your face right now, because you know that the answer is it’s California, right? I was on the phone with the client the other day who said, I’ve got a blood pressure machine in my, in my house and a cholesterol machine, but I don’t have a thermometer. Is it possible employees don’t have thermometers? And right, it’s possible. So there’s the reimbursement component and the taking of the time. Carole, there are a bunch of questions, obviously, since you’re speaking, you didn’t see. But on the consent form, there was a question, if it’s permissible to take temperatures, why would we want to consent form? And I think, you know, Carole, Carole struck the right balance and got it right. I don’t think anybody in their workplace has got an employee whose duties include taking the temperature of co-employees, right? And so having a form that, where the worker consents, knowingly, to what they’re doing, acknowledges that they’ve received specific and certain PPE and they could ask for additional PPE. And then again, the voluntary nature of the assignment, that they can stop if they’ve got concerns at any time, you know, is going to, hopefully in our opinion, limit the downstream liability. When the employee says I was coerced into doing this, this was the only thing that I could do. I had no choice, and I contracted COVID. And so the consent form, which, which we put together for some clients, I can’t say one size fits all on that. But if you’re going to have your internal folks take those temperatures, you might want to consider it. It’s not a release, it doesn’t release claims. It’s an acknowledgement consent form that these are my duties, and this is what I’m doing. Sorry, Carole.

No, that’s perfect. Thank you. I think Ron mentioned this before. How long do you, do you take temperatures? You know, I mean, the medical experts, the thinking is that it might, that COVID might slow down in the summer and then come, possibly come back again in the fall. So I think just being nimble, and really, you know, understanding there aren’t necessarily any right answers to any of this. But, you know, kind of keeping in mind the fact that, you know, there might come a day when you do stop, but then when you do stop, does that mean that you have then deemed the workplace safe by not taking the temperatures? And these are all really, really challenging and interesting questions that we’re just going to have to, you know, address as the pandemic proceeds. Next slide.

So, some more interesting issues and some food for thought here. What if an employee refuses to have their temperature taken? So here, if you have a situation where it’s required by law, then obviously, if they refuse to have their temperature taken then that’s an easy response. Then they’ve refused to follow law, and then you would take appropriate disciplinary action. If you have a policy that requires them to take their temperature, the same thing. I mean, as Ron said, you know, it’s, you know, if you’re for sure that they wouldn’t, you would say that they should not work that day. And then you’re going to have to make a judgment call as to what that appropriate disciplinary action will be, that response. But again, keeping in mind that whatever decision you make, strategically making sure that that is, that is implemented in a non-discriminatory way to make sure that there is no disparate treatment. So what if an employee refuses to come to work because they’re scared? So we’ve already gotten this question a lot, both for essential businesses that are right now still operating, and also, even before we started seeing the various state shutdown orders very early in the crisis. We were getting these questions back in March. So, you know, it, it, it’s a challenging question. I mean, if they are refusing to come to work because of a purely general fear, they’re not claiming that they’re refusing to come to work because of something that might be covered by the NLRA, they are protesting or complaining of potential unsafe working conditions. That would be a different issue. That would be a potential NLRA issue. Or, they’re refusing to come to work, but they in, in addition, have a legally authorized reason not to have to come to work. So, for example, if you’re a small business, which is under, covered under the FFCRA, and the employee is refusing to come to work because they’re exhibiting symptoms of COVID or they’re having to care for their son or daughter because the school is closed, and you’re covered by the FFCRA, well, then they would be entitled as long as they haven’t exhausted those leave requirements, they would actually be entitled to that FFCRA leave. So, but assuming that there’s no, you know, protected reason, so to speak, it’s just a generalized fear, technically speaking, I mean, they, you have a right to require employees to come to work. They wouldn’t be, you know, if they refuse to come to work for no other reason than they’re just generally scared, then, technically speaking, they’re refusing to work. And then again, you have to decide, at least with respect to that day, okay, then they won’t be paid for that day. But then what is your, going to be long-term strategy, with respect to those people. Now one of the questions related to that is unemployment. We’ve had a lot of companies, essential businesses ask us this question, particularly in the healthcare space. What happens if they’re refusing to come to work because there’s this thought that they can just stay home and, you know, take that $600 extra CARES Act money that has been enhanced under the CARES Act? The $600 additional unemployment benefits that last until the end of July. So, very interesting issue. And I, obviously of a major concern to employers. Particularly, right now, essential businesses that actually need employees to be in the workplace conducting the work. So on that issue, unemployment is determined on a state-by-state basis. So you do need to look to the particular state to determine the eligibility for unemployment. So it really is going to depend on whether that state would deem that factual circumstance that’s entitling the individual to unemployment. I looked at this for a client just a few days ago, and in the state I was looking at, a generalized, I just don’t want to come to work because I’m scared, is not an authorized reason to entitle the individual to unemployment in that state. But again, it’s a state-by-state inquiry, so you just need to keep that in mind. So, a couple other considerations. What if an employee insists on working? Because even though they have COVID symptoms, you know, because they, you know, there’s a concern that everyone has, of course, as the pandemic continues, of financials. If an employee is exhibiting symptoms, they should not be in the workplace. That has been clear from day one. You should send them home. Now if you, now what happens next will depend on the particular situation. If the employee is exhibiting symptoms and they’re okay to work, and they can remote work, certainly, you should allow them to remote work. If you are a small employer, ie. under 500 employees and you’re covered by the FFCRA, then they should be, well, they should be instructed also, if they’re exhibiting symptoms, to go see a doctor, regardless. But if they are, if you’re covered by the FFCRA, then they would be entitled to the emergency paid sick leave because they would be experiencing symptoms and that, that time period they would be paid under federal law in order to get a confirmation of whether or not they have COVID. If they’re not, if, if you’re not covered by the FFCRA, and they can’t remote work or they’re too ill, then it’s going to be dependent on whether there’s any state law that requires paid sick leave. I know a lot of cities, again, San Francisco I know is one, New York, have an active special COVID-specific paid sick leave that may be applicable. So you need to pay attention to those and see if those are applicable. And also your policies. What, you know, if they would be entitled to sick leave or PTO based on your own company policy. So you need to make all those determinations. But, but the bottom line is that if they are exhibiting symptoms, they should be sent home. They should not be allowed to continue working. And then finally, if we req— if you require an employee to obtain a certificate to return to work, which you should. If an employee has exhibited symptoms or has had COVID, you can and should require them to provide some type of documentation that they are okay to return to work. Now, the EOC has mentioned in its guidance that, you know, we, the employer should be flexible to what that documentation looks like. You know, be willing to accept things like an email, you know, less formal documentation. But that being said, you do, as an employer, for safety reasons, do need to ensure that individual is not going to come back into the workplace? So you do need to be able to certify, from some reasonable means, that the employee is no longer exhibiting symptoms. And do you have to pay? That’s a state-by-state consideration. But generally speaking, you know, in a lot of circumstances employers pay. But, you know, whether state law requires you to pay is, you’re just going have to review that under particular state law. So, next slide.

I think this is going back over to Abigail. Looking ahead.

Yeah. So in our last couple of minutes here, I, we thought it would be helpful just to close this webinar by reviewing and summarizing a couple of the trends we’ve been seeing, starting with the business reopenings that are already in effect or coming up this week. So first up, we have this big picture visual. In green, you can see the states that have partially reopened businesses, or some just did not really enforce business limitations to begin with for COVID, as of today. In white are the states that have not yet lifted restrictions for businesses and do not have any plans to do so until on or after May 1st. Of course, this is fluid and could change later this week, but as of today, this is roughly where we stand. So employers with multistate presences, or even employers with the vendors located in states on a different reopening schedule, make sure that you’re aware of each impacted state’s reopening schedule as this could implicate, you know, your business may be open, your business may be ready to hit the ground and get running, but if your vendors aren’t allowed to open yet, that could create some production issues. As we look ahead to more businesses reopening in the coming weeks, and essential businesses becoming just another open business, it’s important for employers to be mindful of potential downstream impact of the actions that we’re taking today. So earlier in the webinar, Ron discussed antibody testing. Of course, we haven’t seen much guidance on administering these tests as a requirement for returning to work because they’re simply not that available yet. But as these tests potentially become more available and accessible, it’s going to take some of these concerns that we talked about before, like medical exams and confidentiality to a whole new level. Now, instead of just a snapshot of, say, whether an employee currently is running a fever, for whatever reason, the employer will actually have on file a record of which employees have ever potentially had COVID. This could lead to potential concerns over discrimination and other related issues down the road. We’re also seeing changes in the landscape of lawsuits. McDermott is actually actively tracking all COVID-related lawsuits, of which there have been more than 50 in the last month. That’s 50. While no particular topic has dominated the complaints that we have reviewed thus far, we are seeing a number of lawsuits that have been filed by former employees who say that they were wrongfully discharged after voicing concerns about workplace safety. So this gets a little more into what Ron and Carole have spoken about before. You know, if an employee is either refusing to comply with requirements or even voices concerns, can you refuse to allow that employee to work? Can you discipline that employee? And all of this will be based on what your policies say, what state law says. And of course, as Carole mentioned, what the legal requirements are. You know, if, if your state has issued an executive order that says you have to take everyone’s temperature and the employee refuses to have their temperature taken, that needs to be dealt with in the situation with the employee is refusing to assist the employer in complying with legal requirements. But now we’ve also seen a few states, led by Illinois, actually changing the standards for what an employee may need to prove in order to have COVID claims covered by worker’s compensation. This, Ron also touched on a bit earlier, so, of course, this could result in higher workers comp contribution rates if more claims are filed. But on the other hand, you know, if it ends up in different states, perhaps more difficult for employees to be covered by worker’s compensation. They may simply to choose to go after their employers directly in court instead. And so this is also something that we’re trying to keep our eye on as we move forward. And finally, through all of these updates, we really want to emphasize and highlight here that employer’s most basic obligations to employees continue to remain the same. Employers should consistently strive to achieve this, sort of golden standard, we’ll call it, of workplace safety, however that is defined for their particular industries, and in the particular given circumstances. Employees have to be compensated for all time spent working, whether it’s at home, remotely, at the workplace, or engaging in activities required by their employer, perhaps like these California employees who, even if they’re taking their temperature at home for a couple of seconds each day. Employers have to maintain the fullest confidentiality around employee medical information. And that’s, you know, whether related to COVID or otherwise. And finally, educate employees and promote realistic safety and productivity standards, particularly, as urged by OSHA, if productivity needs to take a hit in order to heighten attention to safety. So, these are all some trends that we’re looking at and reminders that we wanted to conclude this presentation. So, thank you very much. And I believe we have just a couple minutes for questions, if there are a couple, a couple others that may have come in.

Real quick before, before we get into Q&A, I wanted to give the New York validation code for CLE. So the New York validation code is APPLE, all caps. A P P L E 28, 2 8. So APPLE28.

We want to let you go and stick to our strict time constraints here. There are a variety of questions on temperature taking and I wanted to take the opportunity to, to use temperature taking is a microcosm of some of the traps for the unwary. You know, when you think about it, with regard to taking the temperature, let’s say, of employees, you have a compensability issue. Are they being paid? You have a privacy issue, not only with respect to the employee who may be a standing in line, with regard—and these are the other employees, but then you’ve got a privacy issue with regard to the information that you get by taking the temperature of the employee and how you keep that. Even just the mechanics of taking an employee’s temperature lead to social distancing issues, and the standing in line in keeping people who are who are possibly, you know, have a fever, away from each other. And so if you analyze temperature taking, you will see all of the slight traps. Legal and practical traps, that are potential hurdle, hurdles or traps to a lot of the other safety protocols that you’re going to implement. There was a second, just confusion, on the NLRA issue. Again, the NLRA is not just a union statute, but it’s a non-union issue. And so, there’s an except—you know, employees generally need to follow your direction, but when an employee believes that it is unsafe, their refusal to do that is not only on their behalf, but it’s on the behalf of the workforce as a whole. And so the NLRA takes it from being insubordination to actually protected activity on behalf of the group. And so a generalized, I’m afraid to come to work or I’m afraid to ride the bus to take, to get to work is probably not going to get you there, but a specific your, you don’t have hand sanitizer. You don’t have rules regarding hand cleaning. There’s no social distancing being observed; therefore, I’m not going to come to work. That becomes more complicated. And so, while the person, you may say, okay, then don’t come to work. But if there’s, if there’s a, if it goes further than that, where you want to take some sort of disciplinary action, there is a variety of statutes, but the National Labor Relations Act might actually protect that individual.

Yeah, thank you. Yeah, there was a lot of questions about temperature taking. Someone else also asked about remote work. And yeah, I think that to the extent that remote work is possible, even if it’s not for all of the workforce, but categories of employees, I think that is going to be the standard going forward. At least now until whenever this thing comes to end, I think that you’re going to see more and more companies doing that. So I think that the workplace itself is going to go through some really interesting changes. Which was one of the reasons on one of our earlier slides, we talked about remote work. And one of the considerations you want to think about is, are we now turning from this job position being, you know, an in-person, workplace position to a remote work? And all of the things, you know, if that’s going to be, you know, a permanent change in addition to all the accommodations you’re already making for the work, work from home environment. You know, making that a permanent part of the job category. So all those considerations, but yeah, I think that the best practice is going to be that, to the extent—and you’ve seen this, you’ll see this through all of the various guidance that, you know, from CDC to the EOC. You know, if you can do a remote work situation for categories of employees, it’s, it’s strongly recommended. You know, that being said, you know, just the idea of limiting the numbers of people in the workplace so that it is truly essential and that we can meet these other types of guidelines, like social distancing, etcetera. So I think that that is going to definitely be the way for the future.

Well, I want to thank everyone for joining this afternoon. We hope that you found the, the webinar very helpful. And I also wanted to let everybody know, I think Ron mentioned this earlier, but starting next week, we’re going to be launching a multipart webinar series specifically focused and, you know, providing a really deep dive into return to work issues. So we’re going to go into the discrimination issues. We’re going to go into all of these things that we’ve been touching on in this webinar, kind of starting to set the stage. So please be sure to stay tuned for those. I think they’ll be really helpful. And then, you’ll receive an invitation in the coming days, and so hopefully you’ll be able to join us. And again, CLE forms are going, along with the slides from—I know that was another question. Slides from today’s presentation will be emailed to you shortly. As a reminder than New York code is APPLE28. And then, of course, if we were unable to answer your specific question today, we will follow up in the coming days. And for ongoing updates, again, please click on our resource center at mwe.com/coronavirus. So thank you so much again for joining, and we hope to see you next week at our return to work series. Thank you.


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