COVID-19 Agency Update

By Fiona W. Ong - Shawe Rosenthal LLP

May 18, 2020

CDC and OSHA Issue Reopening Guidance, EEOC Explains Accommodation of High-Risk Workers, IRS Expands Employee Retention Credit, DOL Adds to FFCRA Q&As, FEMA Provides Exercise Starter Kit for Reopening

Various federal agencies have recently issued additional COVID-19 guidance of significance (more or less) to employers, including the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), the Internal Revenue Service (IRS), the Department of Labor (DOL), and the Federal Emergency Management Administration (FEMA). Some of this guidance applies to workplaces and employers generally, while others target specific industries, such as bars and restaurants, manufacturing, child care, schools, and mass transit. We summarize these developments below.

CDC’s Reopening Guidance for Workplaces Generally As Well As Specific Industries

The CDC provided relatively generic “decision tools” to assist in the reopening of workplaces generally, as well as bars and restaurants, child care programs, youth programs and camps, schools, and mass transit. (Reportedly, more detailed guidance will be forthcoming). These documents, which are substantially similar across all areas, pose sets of basic questions in three sets. Only by answering “yes” to all questions in each stage can the respondent move to the next stage of questions and finally, reopen.

- The first set of questions asks if the reopening is consistent with governmental orders and if high-risk employees will be protected.
- The second asks questions related to health and safety actions, such as handwashing, masking, cleaning and disinfecting, social distancing, and employee training.
- The third addresses ongoing monitoring, through protocols for addressing illness in the workplace, communications with local health authorities, and flexible leave policies.

In addition, the CDC updated its Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 with additional strategies and recommendations for employers seeking to reopen, such as:

- Conducting daily health checks
- Conducting a hazard assessment of the workplace
- Encouraging employees to wear cloth face coverings in the workplace, if appropriate
- Implementing policies and practices for social distancing in the workplace
- Improving the building ventilation system

The CDC further provides a table outlining the engineering controls, administrative controls, and personal protective equipment (PPE) that employers may use to help prevent the spread of COVID-19 in the workplace.

CDC and OSHA Provide Joint Guidance for Manufacturing Workers and Employers

The  CDC and OSHA has jointly issued Interim Guidance for Manufacturing Workers and Employers. Although targeted at manufacturing, this detailed guidance provides a good overview of reopening issues generally for employers in other industries. This guidance provides information and recommendations on topics including:

- Worker exposure risk (assessing distance, duration, and type of contact)
- Creating a COVID-19 assessment and control plan (including the identification of a qualified workplace coordinator, communication with governmental health authorities, and establishment of workplace contact tracing)
- Engineering controls (including changes to facilities and layouts, and production processes)
- Administrative controls (including use of face masks, employee workplace access and scheduling, as well as leave policies and worker access to handwashing or sanitizing facilities)
- Education and training of workers and supervisors on reducing spread of COVID-19 (including through posters in relevant languages other than English)
- Cleaning and disinfection
- Screening and monitoring for illness (including verbal screening and temperature checks), as well as returning to work after illness
- Determining if personal protective equipment is required, and properly training on and implementing such use
- Worker’s rights under the Occupational Safety and Health Act to be protected from retaliation for raising workplace safety concerns.

OSHA Issues Safety Alerts for Rideshare/Taxi/Car Service, Retail Pharmacies, Nursing Homes, Dental Practitioners, and Restaurant/Food and Beverage Businesses

OSHA issued several alerts for Rideshare/Taxi/Car Services, Retail Pharmacies, Nursing Homes, Dental Industry Practitioners, and Restaurant/Food and Beverage Businesses Providing Curbside Pickup and Takeout. These alerts list specific safety tips for each of the identified industries to help reduce risk of exposure to COVID-19. They are available in both English and Spanish.

EEOC Provides Guidance on Returning High-Risk Workers

The EEOC expanded its technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to add questions and answers about workers at higher risk of severe illness from COVID-19 – older workers and those with underlying health conditions. In particular, the EEOC makes the following points:

- Those with underlying medical conditions that may place them at risk for severe illness from COVID-19 must request, in writing or verbally, an accommodation from the employer. A third party, like a doctor, may make the request for the employee. The terms “reasonable accommodation” and “ADA” are not required, as long as the employee communicates that they have a medical condition that requires some workplace change. The employer is then required to engage in the interactive process, which may involve asking questions and obtaining medical documentation, to determine if a reasonable accommodation is available.

- If an employer knows that an employee is at higher risk of severe illness due to COVID-19 but the employee has not requested an accommodation, the employer may not simply refuse to bring the employee back into the workplace. The employer must engage in an analysis to determine if the employee poses a “direct threat” to their own health, meaning a significant risk of substantial harm, by returning to the workplace. The employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. And even if there is a direct threat, the employer must engage in the interactive process to determine if there a reasonable accommodation that would eliminate or reduce the risk to an acceptable level. If no reasonable accommodations are available to enable the employee to return to their job position in the workplace, the employer must consider alternative accommodations like telework, leave, or reassignment to another position (perhaps in a safer location or that permits telework).

- Examples of accommodations that may eliminate or reduce an employee’s direct threat to self include additional or enhanced protective gowns, masks, gloves, or other gear beyond the norm. They also include additional or enhanced protective measures such as barriers or increased space between the high-risk employee and others, as well as the elimination or substitution of non-essential, “marginal” job functions. Modifications of work schedules and work locations are other possible accommodations. In addition to discussing possibilities with the employee, the EEOC suggests that the Job Accommodation Network, askjan.org, may provide assistance in identifying accommodations.

The IRS Expands the Employee Retention Credit Under CARES

As we explained in a previously, the Coronavirus Aid Relief and Economic Security (CARES) Act provides a refundable tax credit for wages paid by certain eligible employers to employees employed between March 12 and December 21, 2020. The IRS has now clarified in its FAQs on the employee retention credit under CARES to state that health plan expenses paid on behalf of employees who have been furloughed or temporarily laid off will be eligible for the employee retention credit, even though the employees are not receiving wages. If an employee’s hours are reduced and the employer continues to cover 100% of the employee’s health plan expenses, the employer may take the credit for the portion of the health plan expenses that are allocable to the time that the employee is not providing services.

The DOL Adds to FFCRA Questions and Answers Resource

The DOL continues to add to its extensive Questions and Answers resource on the Families First Coronavirus Response Act, which imposed a paid emergency sick leave (E-PSL) mandate and expanded leave rights under the Family and Medical Leave Act (E-FMLA) for COVID-19-related reasons. We note the following items of particular interest:

- Those who employ domestic workers (meaning that the workers are economically dependent upon the employer) are likely required to provide E-PSL and E-FMLA to those workers. This does not include those workers who are independent contractors (meaning that they are in business for themselves) or those employed by a third party service provider under a contract for services.
- An employee of a temporary staffing agency with more than 500 employees (and is thus not required to provide FFCRA leave) is assigned to a company with fewer than 500 employees. Whether that second company must provide E-PSL and E-FMLA depends on whether it is a joint employer of the staffing company employee. It will be deemed a joint employer if it directly or indirectly exercises significant control over the terms and conditions of the employee’s work (i.e. it exercises the power to hire or fire the employee, supervises and controls their schedule and conditions of employment, determines the rate and method of pay, and maintains their employment records). The staffing agency may not interfere with, or take any adverse actions against the employee based on, the leave provided by the joint employer.
- Despite teleworking without issue for months, an employee is entitled to subsequently take E-PSL and E-FMLA for the closure of a child’s school or child care. Under the FFCRA, the employer may require only that the employee provide the following information for leave because of the closure of a school or child care:

The employee’s name;
The date or dates for which leave is requested;
A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason, which includes the following:

The name and age of the child (or children) to be cared for

The name of the school that has closed or place of care that is unavailable

A representation that no other suitable person (such as a co-parent, co-guardian, or a usual child care provider) is available to provide care for the child during the period for which the employee is receiving expanded FMLA leave

If care is needed during daylight hours for a child older than fourteen, a statement that special circumstances exist requiring the employee to provide care

A statement that the employee is unable to work, including by means of telework, for such reason.

The DOL states that the employer may ask the employee to note any changed circumstances giving rise to the new inability to work and consequent need for leave, but warns the employer to exercise caution in doing so.

- If an employee with COVID-19 symptoms takes E-PSL to seek a medical diagnosis, the employer may require the employee only to identify the symptoms and the date for a test or doctor’s appointment. No other documentation, including a doctor’s note, may be required. The DOL notes, however, that if the employee is seeking unpaid leave under the Family and Medical Leave Act for their own serious health condition, the employer would be entitled to a certification from a health care provider. Similarly, if the employee is taking some other form of paid leave rather than E-PSL, any documentation requirements under such leave would apply.
- An employee may not take FFCRA leave if their child’s school is closed for reasons unrelated to COVID-19, such as summer vacation. They will, however, be able to take E-PSL and E-FMLA if the child’s summer care provider – such as a camp – is closed or unavailable because of COVID-19.

FEMA Offers Reopening Exercise Starter Kit

The Federal Emergency Management Administration has jumped into the COVID-19 agency fray by issuing an Exercise Starter Kit that businesses can use to conduct their own planning workshop for reopening during the pandemic. The kit offers a sample facilitator guide and conduct slides. These documents identify many questions (but not answers) that businesses may need to consider as they plan for reopening.