Reopening Workplaces During The COVID-19 Pandemic

By Swerdlow Florence Sanchez Swerdlow & Wimmer

May 5, 2020

As governmental authorities begin to allow and contemplate allowing for the reopening of businesses closed as a result of the COVID-19 pandemic, many employers are wondering when – and specifically how– employees can return to the workplace. This memorandum discusses various issues employers should consider as they prepare their workplaces for a return to work. Because federal, state, and local guidance regarding COVID-19 is ever-evolving, employers should stay abreast of developments and consult with counsel for advice based on their particular workplaces and needs.

When Can Employers Reopen Workplaces?

First and foremost, employers should determine which state and local stay-at-home orders apply to their workplaces, and reopen physical workplaces only when permitted by such governmental authorities. California’s stay-at-home order, which requires all individuals living in California to stay at their place of residence except as needed to maintain continuity of operations of federal critical infrastructures, remains in place until further notice. Counties within California, however, have stay-at-home orders with varying dates of expiration. Los Angeles County’s “Safer at Home” order, for example, will be in place until at least May 15, 2020. Thus, employers should verify which orders apply to their businesses and comply accordingly.

Additionally, the U.S. Centers for Disease Control and Prevention (“CDC”) released guidance to assist employers in making decisions about reopening workplaces during the COVID-19 pandemic. The guidance states that employers should not reopen unless they can answer yes to all of the following questions:

1.    Is the workplace in a community no longer requiring significant mitigation?
2.    Will reopening be in compliance with state and local orders?
3.    Will you be ready to protect employees at higher risk for severe illness?

Even if an employer is able to answer yes to all the above questions, the CDC recommends that a business remain closed if unable to implement the following safety actions:

•    Promoting healthy hygiene practices such as hand washing and wearing face coverings;
•    Intensifying cleaning, disinfection, and ventilation;
•    Ensuring social distancing such as installing physical barriers, changing layout of workspaces, encouraging telework, closing communal spaces, staggering shifts and breaks, and having no large events;
•    Limiting travel and modifying commuting practices; and
•    Training all staff on safety actions.

Even with those actions in place, the CDC also recommends businesses not open until they can also establish ongoing monitoring, such as:

•    Checking for COVID-19-related signs and symptoms of employees;
•    Encouraging employees who are sick to stay home;
•    Planning for when an employee gets sick;
•    Regularly communicating with local authorities and employees;
•    Monitoring staff absences and having flexible leave policies and practices; and
•    Being ready to close if there are increased cases of COVID-19.

Preparing A Safe Workplace

The Occupational Safety and Health Act requires employers to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. 29 U.S.C. § 654(a)(1). The federal Occupational Safety and Health Administration (“OSHA”) issued an advisory entitled “Guidance on Preparing Workplace for COVID-19” to help assist employers in determining and implementing control measures to combat COVID-19.

OSHA recommends that employers implement an infectious disease preparedness response plan. The plan should consider and address the levels of risk associated with various worksites and tasks performed at those sites. To help employers determine appropriate precautions, OSHA has divided job tasks into four risk exposure levels: very high, high, medium, and lower risk. The level of risk depends in part on the industry type and need for contact within six feet of people known to be, or suspected of being, infected with COVID-19. Based on the level of risk for employees at particular worksites, OSHA has identified the following potential workplace controls: (1) engineering controls; (2) administrative controls; and (3) Personal Protective Equipment (“PPE”). Not every measure set forth by OSHA is appropriate for each workplace, but employers should undertake a risk assessment and determine what measures are necessary to keep their employees safe, given employees’ job requirements and the physical work environment.

Engineering controls involve isolating employees from work-related hazards, and include measures such as: installing high-efficiency air filters, increasing ventilation in the workplace, and installing physical barriers such as clear, plastic sneeze guards and drive-through windows for customer service.

Administrative controls require action by the employee and include:

•    Encouraging sick workers to stay home.
•    Minimizing contact among workers, clients, and customers by replacing face-to-face meetings with virtual communications and implementing telework if possible.
•    Establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full onsite workweek.
•    Discontinuing nonessential travel to locations with ongoing COVID-19 outbreaks and regularly checking CDC travel warning levels at https://www.cdc.gov/coronavirus/2019-ncov/travelers/
•    Developing emergency communication plans, including a forum for answering workers’ concerns and internet-based communications, if feasible.
•    Providing workers with up-to-date education and training on COVID-19 risk factors and protective behaviors, e.g., cough etiquette and care of PPE.
•    Training workers who need to use protective clothing and equipment on how to put it on, use/wear it, and take it off correctly, including in the context of their current and potential duties. Training materials should be easy to understand and available in the appropriate language and literacy level for all workers.
•    Promoting personal hygiene. For example, providing tissues, no-touch trash cans, hand soap, alcohol-based hand rubs containing at least 60% alcohol, disinfectants, and disposable towels for workers to clean their work surfaces.
•    Requiring regular hand washing or using alcohol-based hand rubs.
•    Posting handwashing signs in restrooms.

Employers may be required to provide PPE, depending upon the type of workers employed and the risk of being infected with COVID-19 while working. Employers should check the OSHA and CDC websites regularly for updates about recommended PPE.

According to the California Department of Fair Employment and Housing (“DFEH”) Employment Information on COVID-19, an employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related accommodation, the employer may need to provide reasonable accommodation absent undue hardship.

Employers should also comply with any applicable orders from local departments of public health. For example, San Bernardino County’s Department of Public Health imposes additional requirements on certain licensed facilities.

In addition to OSHA, many local governments require employers to provide employees with face coverings. For example, Los Angeles County requires employers to provide cloth face coverings to all employees and contracted workers whose duties require close contact (within six feet for ten minutes or more) with other coworkers and/or the public. Even if not required by a local order, however, we recommend employers make cloth face coverings available to all employees who will be returning to a physical office/facility.

In addition, California requires every employer to develop an Injury and Illness Prevention Program (“IIPP”), per Title 8 of the California Code of Regulations Section 3203. The California Division of Occupational Safety and Health (“Cal/OSHA”) has issued guidance stating that all employers are required to determine if COVID-19 infection is a hazard in their workplace and update their IIPP accordingly. If it is a workplace hazard, employers must: (1) implement measures to prevent or reduce infection hazards, such as implementing the CDC recommended actions listed above; and (2) provide training to employees on their COVID-19 infection prevention methods. Employers that fail to take these actions could risk investigation and citation by Cal/OSHA.

Screening Employees In The Workplace

The Equal Employment Opportunity Commission (“EEOC”) has provided guidance regarding what types of employee screenings are permissible during the COVID-19 pandemic. Although such guidance is merely persuasive, and state and federal courts as well as agencies (such as the California Department of Fair Employment and Housing) are not legally bound by such guidance, the EEOC’s advice is highly instructive during these uncertain times.

Temperature Checks For Employees

The EEOC has updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance to state that employers are allowed to take their employees’ temperatures to determine whether they have a fever. If an employee does have a fever, the employer may send the employee home without running afoul of the Americans with Disabilities Act (“ADA”). Based on this guidance, employers can require all employees to submit to daily temperature checks before commencing work, although advance notice of this policy should be provided to all employees, including a clear explanation of the non-invasive methodology that will be used, of the training provided to the person who will be taking or overseeing the temperature checks, and the PPE to be used by the person who will be taking the temperature checks.

Time spent waiting for temperature checks and undergoing temperature checks likely will be compensable time under California law for non-exempt employees. Therefore, employers should give thought to how to capture this time as “hours worked” in time systems for non-exempt employees.

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. The EEOC permits employers to maintain logs of the results of employee temperatures, but requires that such logs be maintained confidentially. Given the confidentiality requirements, temperature data should be maintained in the foregoing, confidential manner.

Diagnostic Testing For COVID-19

In its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the EEOC has stated that employers may administer diagnostic tests for COVID-19 before employees enter the workplace. However, employers should ensure that the tests are accurate and reliable, such as by following advice by the U.S. Food and Drug Administration (“FDA”). Employers should consider the incidence of false-positives or false-negatives associated with a particular test. Employers also should note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. As with other medical information, test results and related employee certifications should be kept confidential.

Exclusion From The Workplace

For health and safety reasons during the current pandemic, employers may lawfully exclude employees from the workplace (and send employees home) if an employee has COVID-19 or exhibits symptoms of COVID-19. According to the CDC, symptoms of COVID-19 include cough, shortness of breath or trouble breathing, or at least two of the following symptoms: fever; chills; repeated shaking with chills; muscle pain, headache, sore throat; increased tiredness or fatigue, or new loss of taste or smell. Employers should follow CDC guidance in any updated recommendations regarding COVID-19 symptoms.

If a California, non-exempt employee shows up for work and is sent home for exhibiting symptoms (i.e., a temperature check shows a fever), the employer should pay the employee reporting-time pay on the day that the employee is sent home.

Asking Employees About Health Information

Employers may ask employees physically entering the workplace if they have COVID-19 or are experiencing any symptoms related to COVID-19. Employers may also ask employees if they have had contact with anyone who has been diagnosed with COVID-19 or anyone who has symptoms of COVID-19. However, according to EEOC guidance, employers should avoid limiting this question to inquiries about family members, as this may violate federal anti-discrimination law.

Employee Refusals To Submit To Questions/Screenings

If an employee refuses to answer health questions or submit to a temperature check or other medical screening, the employer may prohibit such individual from entering the workplace. Before doing so, however, the employer may want to reassure such employee about the confidentiality of such medical information.

Identifying/Isolating Sick Employees

If it is determined that an employee has been infected or potentially infected by COVID-19, employers should take steps to trace other employees who may have had contact with the infected individual while maintaining confidentiality. Employers can inform employees who were in contact with the infected employee that they may have had close contact with someone who has or may have COVID-19, but should not reveal the identity of the infected or potentially infected individual.

Returning Infected And Potentially Infected Employees To The Workplace

The CDC has issued guidance about returning employees to the workplace after exhibiting symptoms of COVID-19 and after being in close contact with someone who had or may have had COVID-19.

If an employee is exhibiting any symptoms of COVID-19, the CDC recommends that the employee should not return to work until they meet the criteria to discontinue home isolation and have consulted with a healthcare provider and state or local health department. According to the CDC, there are two options for an employee to return to work after having COVID-19 or exhibiting COVID-19 symptoms:

•    Option 1: If, in consultation with a healthcare provider and local public health authorities knowledgeable about locally available testing resources, it is determined an employee will not have a test (due to testing unavailability) to determine if they are still contagious, the employee can leave home and return to work after these three conditions have been met:
   o    The employee has had no fever for at least 72 hours (that is, 3 full days of no fever without the use medicine that reduces fevers); AND
   o    Respiratory symptoms have improved (for example, cough or shortness of breath have improved); AND
   o    At least 7 days have passed since their symptoms first appeared.

•    Option 2: If, in consultation with a healthcare provider and local public health authorities knowledgeable about locally available testing resources, it is determined the employee will be tested to determine if the employee is still contagious, the employee can leave home after these three conditions have been met:
   o    The employee no longer has a fever (without the use of medicine that reduces fevers); AND
   o    Respiratory symptoms have improved (for example, cough or shortness of breath have improved); AND
   o    They received two negative tests in a row, at least 24 hours apart.

OSHA has issued guidelines setting forth that employers should 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. The CDC similarly provides that employers should not require a positive COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. The EEOC, on the other hand, provides that employers can require employees to provide a doctor’s note prior to returning to work. The EEOC provides, however, that as a practical matter it may be difficult for the employee to obtain the doctor’s note, so “new approaches may be necessary” for employers to obtain some type of authorization from a health care provider permitting the employees to return to work. Given this contradiction between agency guidance, employers will need to decide if they will require a healthcare provider’s note in such circumstances.

Updating Employee Leave Policies

Employers should be aware of new federal, state, and local leave policies that may require paid or unpaid leave for certain COVID-19 related reasons.

For example, the federal Families First Coronavirus Response Act (“FFCRA”) requires employers with fewer than 500 employees to provide all employees with:

•    Two weeks (up to 80 hours) of emergency paid sick leave (“EPSL”) at the employee’s regular rate of pay (up to $511 per day and $5,110 in the aggregate over a two-week period) for employees unable to work or telework because: (1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) the employee has been advised by a health care provider to self-quarantine because of COVID-19; or (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or
•    Two weeks (up to 80 hours) of EPSL at 2/3 the employee’s regular rate of pay (up to $200 per day and $2,000 in the aggregate over a two-week period) for employees unable to work or telework because: (4) the employee is caring for an individual subject or advised to quarantine or isolation; (5) the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or (6) the employee is experiencing substantially similar conditions as specified by the secretary of Health and Human Services, in consultation with the secretaries of Labor and Treasury.

Additionally, the FFCRA requires employers with fewer than 500 employees to provide employees who have been employed for at least 30 days with 12 weeks of emergency FMLA leave (“E-FMLA”) where an employee is unable to work or telework due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. Although the first ten days of this leave are unpaid, the remainder must be paid at 2/3 the employee’s regular rate of pay (up to $200 per day and $10,000 in the aggregate).

The FFCRA specifies that the government will provide tax credits for such paid leave. Under guidance from the Internal Revenue Service (“IRS”) and Department of Labor (“DOL”), eligible employers who pay EPSL and/or E-FMLA benefits will be able to retain an amount of the payroll taxes equal to the amount of EPSL and/or E-FMLA benefits that they paid, rather than deposit them with the IRS. The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees. If there are not sufficient payroll taxes to cover the cost of EPSL and/or E-FMLA benefits, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less.

In addition to the FFCRA, Los Angeles City enacted a Supplemental Paid Sick Leave Ordinance that applies to employers that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States. Employees covered by the ordinance are those who perform any work within the geographic boundaries of the City of Los Angeles and who were continuously employed by the same employer from February 3, 2020, to March 4, 2020. Covered employers are required to provide paid sick leave when an employee is unable to work or telework and the employee requests time off for any of the following reasons:

•    Due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine;
•    The employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
•    The employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
•    The employee needs to provide care for a family member whose senior care provider or whose school or child care provider closes in response to a public health or other public official’s recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.

Full-time employees eligible for leave under the Los Angeles ordinance are eligible to receive up to 80 hours of paid sick leave. The pay is calculated based on the employee’s average two-week pay over the period from February 3, 2020, to March 4, 2020, and is capped at $511 per day or $5,110 total. Part-time employees are eligible to receive paid sick leave in an amount no greater than the employee’s average two-week pay over the period from February 3, 2020, to March 4, 2020.

However, the following employers are exempt from the Los Angeles ordinance: employers of “Emergency Personnel” (as defined in the City’s Safer-At-Home Order) or health care workers; employers that provide global parcel delivery service; employers who have paid leave policies that provide at least 160 hours of paid leave annually; and businesses that opened or relocated to the City of Los Angeles between September 4, 2019, and March 4, 2020. In addition, if an employer has provided paid leave since March 4, 2020, in response to an employee’s inability to work due to COVID-19 in addition to any previously accrued paid leave, those additional hours provided will be offset against the total hours required under the Order.

Other California cities, such as San Francisco, San Jose, and Oakland, have also implemented emergency paid sick leave ordinances in response to COVID-19. Employers should verify whether any local ordinances apply to their operations and employees.

Additionally, the State of California, Executive Order N-51-20, requires employers with 500 or more employees to provide supplemental paid sick leave to food sector workers. A food sector worker is defined as an individual: exempt from state and local shelter-in-place orders, who leaves his or her residence to perform work for a covered employer, and who meets one of the following:

•    works in an industry that cans, freezes, or preserves food;
•    works in an industry that handles products after harvest to prepare the food for distribution;
•    works in an industry that prepares agricultural products on a farm for market;
•    works in an agricultural operation;
•    works for a hiring entity that operates as a food facility; or
•    delivers food from a food facility for or through a hiring entity.

Employers may want to consider updating their Employee Handbooks, or creating an Addendum, to address any such applicable policies.

Maximizing Loan Forgiveness Under PPP

The Paycheck Protection Program (“PPP”), a provision of the federal CARES Act, offers forgivable, low-interest loans to small businesses facing uncertainty during the COVID-19 emergency to enable employers to retain workers, maintain payroll, and cover certain other existing overhead costs. On the surface, the terms of PPP loan forgiveness appear straightforward; however, many questions remain unanswered, as discussed below.

Loan forgiveness is based on costs over the 8-week Covered Period, which begins on the date the lender makes the first disbursement of the loan. For the full loan to be forgiven, at least 75% of the funds from the PPP loan must be used for “payroll costs.” The remaining 25% can be spent on: mortgage interest (as long as the mortgage was signed before February 15, 2020); rent (as long as the lease agreement was in effect before February 15, 2020); and utilities (as long as service began before February 15, 2020). Funds spent on non-qualifying expenses must be repaid at an annual interest rate of 1% within two years.

Payroll Costs

Not all payroll costs are eligible for loan forgiveness. “Payroll costs” that are eligible for loan forgiveness include:

•    Salary, wages, commission or similar compensation (capped at $100,000 on an annualized basis for each employee);
•    Payments for employee benefits including vacation, parental, family, medical or sick leave (with an exception for FFCRA leaves);
•    Allowance for dismissal or separation;
•    Payments for the provision of group health care benefits, including insurance premiums;
•    Payments for retirement benefits; and
•    State or local payroll taxes.

Payroll costs that are not eligible for loan forgiveness include:

•    Payments to an independent contractor;
•    Cash compensation in excess of $100,000;
•    The employer’s share of federal payroll taxes; and
•    Qualified sick leave and qualified parental leave wages for which credit is allowed under the FFCRA.

Reductions In Loan Forgiveness

The loan forgiveness amount will be reduced if the business has reduced its number of full-time equivalent (FTE) employees or has reduced the salary or wages of certain employees based on certain formulas.

For any reduction of FTE employees, the loan forgiveness amount is subject to reduction by multiplying it by the following fraction:

•    The numerator of which is the average number of FTE employees per month employed by the borrower during the Covered Period;
•    The denominator of which is, at the election of the borrower, either:
   o    The average number of FTE employees per month employed by the borrower during the period beginning Feb. 15, 2019, and ending June 30, 2019; or
   o    The average number of FTE employees per month employed by the borrower during the period beginning Jan. 1, 2020, and ending Feb. 29, 2020.

For any reduction in wages, the loan forgiveness amount is subject to reduction by an amount determined as follows:

   o    Identify all employees, who did not receive during any single pay period in 2019, wages or salary at an annualized rate of pay of more than $100,000 (each, a covered employee).
   o    Compare each covered employee’s wages or salary during the Covered Period to his or her wages or salary during the first quarter of 2020.
   o    For any covered employee whose wages or salary during the Covered Period decreased by more than 25 percent:
       o    Multiply the first quarter wages or salary by .75; and
       o    Subtract the product from the covered period wages or salary.
o    Add all amounts computed under number three above.

The aggregate dollar amount calculated as set forth above will reduce the loan forgiveness amount.

Notwithstanding the foregoing, reductions in the number of FTE employees, or reductions in salary or wages, that occurred between Feb. 15, 2020, and April 26, 2020, will not reduce the loan forgiveness amount if, by June 30, 2020, the borrower recalls to employment or eliminates the salary reductions. However, as of yet, there is no guidance regarding how long employees need to remain employed or how long pay needs to remain undocked after June 30, 2020, for forgiveness to be approved.

Documentation For Loan Forgiveness

It will be important for businesses to keep detailed records regarding the use of the PPP loan during the Covered Period. While not required under the CARES Act or SBA guidance, PPP loan proceeds may be deposited into a separate bank account, with only costs eligible for loan forgiveness paid out of that account. Good recordkeeping and documentation will be critical in maximizing the amount of loan forgiveness.

We anticipate the SBA to continue to provide guidance in this area, as there remain many open questions regarding PPP loans.