Category: Labor & Employment

Connecticut Further Revises “Safe Workplace Rules for Essential Employers,” Requiring All Employees to Wear Face Masks or Face Coverings At All Times

On April 17, 2020, the Connecticut Department of Economic and Community Development materially revised its previously issued “Safe Workplace Rules for Essential Employers.” Now, all employees working at every workplace that remains open during the COVID-19 pandemic must wear a face mask or face cloth covering at all times.

Employers are required to provide masks or face coverings to employees and, if infeasible because of supply-chain shortages, employers must provide materials for employees to make their own masks or face coverings. Employers must provide these materials, along with the Centers for Disease Control tutorial showing how to make masks and face coverings or, alternatively, compensate employees for reasonable and necessary costs to make their own masks and face coverings.

The new requirements do not apply to employees whose health or safety would be negatively impacted by wearing a mask or face covering due to a medical condition.  And employees are not required to produce medical documentation to verify the stated condition.

© 1998-2020 Wiggin and Dana LLP

For more on states’ COVID-19 legislation, see the Coronavirus News section of the National Law Review.

Sole Proprietors, Independent Contractors and Self-Employed Individuals Addressed in Latest Paycheck Protection Program Guidance

On April 14, 2020, the Small Business Administration (“SBA”) issued its interim final rules regarding the Paycheck Protection Program (“PPP”), a $350 billion part of the Coronavirus Aid, Relief and Economic Security (“CARES Act”), to sole proprietors, independent contractors and self-employed individuals. Four days earlier the PPP loan application process opened for this group of applicants. These interim rules provide information for sole proprietors, independent contractors and self-employed individuals who are seeking a PPP loan.

Eligibility

Self-employed individuals are eligible to apply for a PPP loan provided certain eligibility requirements are met. To be eligible for a PPP loan, the individual must: (1) have filed a Form 1040 Schedule C for 2019; (2) have been in operation as of February 15, 2020; and (3) have a principal place of residence in the United States. The interim rules clarify that partnerships, instead of partners, are eligible to apply for a PPP loan. The partnership should file the application and claim each partner’s share of self-employment income from the partnership as “Payroll Costs” (see below).

Maximum Loan Amount

“Payroll Costs” are the base for determining the maximum loan amount for self-employed applicants. Payroll Costs for a self-employed applicant include wages, commissions, income or other similar compensation paid to employees, and net earnings from self-employment. Net earnings from self-employment are indicated on Schedule C of Form 1040 as net profit. Self-employment earnings in excess of $100,000 are excluded from the calculation of Payroll Costs. Payroll Costs also include health insurance, retirement benefits and unemployment benefits. The maximum amount of a PPP loan for a self-employed applicant is the lesser of $10,000,000 or 2.5 times the average monthly Payroll Costs.

Allowable Uses and Loan Forgiveness

Self-employed applicants are subject to the same limitations on allowable uses of PPP loan proceeds and loan forgiveness as business concerns. The amount of loan forgiveness will depend on the amount of loan proceeds spent by the self-employed applicant during the 8-week period following the first disbursement of PPP loan proceeds. A self-employed applicant must have claimed, or be entitled to a claim, a deduction for business expenses on Form 1040 Schedule C for those expenses to be considered for forgiveness. Those expenses must also qualify as allowable uses of PPP loan funds.

©2020 von Briesen & Roper, s.c

For more on the CARES Act, see the National Law Review Coronavirus News section.

Could the COVID-19 Pandemic Impact Child Custody and Relocation?

As a result of the COVID-19 pandemic, many face uncertainty about their jobs and careers. The last week of March saw 6.6 million Americans applying for unemployment benefits, and many more experienced reduction in their compensation. The uncertainty could lead to more people choosing to relocate closer to family or take jobs that may require them to relocate for different economic opportunities. If you share physical custody of your children with their parent, what should you consider before making the decision to relocate?

Under Michigan law, a parent is prohibited from relocating a child, whose custody is governed by a court order, more than 100 miles from the child’s legal residence at the time of the original court order. As a result, parents who share custody of their child and want to relocate will need court permission. MCL 722.31. The court analyzes a parent’s request to move with a child in four steps. The first is to determine whether the relocating parent can support the move of the child by analyzing the following factors:

  1. Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
  2. The degree to which each parent has complied with and utilized his or her time under a court order governing parenting time with the child and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
  3. The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent, as well as whether each parent is likely to comply with the modification.
  4. The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
  5. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

MCL 722.31

What impact, if any, does the COVID-19 pandemic have on a court’s analysis of the above factors? First of all, as far as the COVID-19 pandemic relates to the potential quality of life of a particular geographic region, as more and more data becomes available regarding the outbreak, certain regions of the country that found themselves more susceptible to COVID-19 may be less likely to increase the quality of life for a parent and child. Certain geographic areas may pose more of a health risk to families until the development of a vaccine. Second, many parents, although acting reasonably and in the best interests of their child, have informally agreed to modify their parenting time due to Gov. Whitmer’s Stay Home, Stay Safe order. Although it is difficult to imagine a court would criticize a parent for putting a child’s health first, lapses in parenting time and parental absence can dramatically impact a child’s relationship with a parent, which a court may be hard pressed to ignore, despite good intentions. At the end of the day, a parent’s desire to provide more stable financial and family support during this uncertain time may not necessarily result in a court approving the move.

© 2020 Varnum LLP

For more on family & other laws affected by COVID19, see the Coronavirus News section of the National Law Review.

To Provide an N95 Mask or Not to…That is the Question Plaguing Some Employers (US)

One of the biggest questions plaguing employers during the COVID-19 pandemic is whether or not to provide employees with respirators—the holy grail of all PPE at this time. On March 11, 2020, the White House issued a Presidential Memorandum, entitled “Making General Use Respirators Available,” which mandated all necessary efforts by the government and public at large to make respiratory devices available for use by healthcare workers during the COVID-19 pandemic to mitigate against further transmission of the virus. In response, OSHA has issued several forms of temporary enforcement guidance for the Respiratory Protection standard, as well as its April 13, 2020 Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), and both the healthcare and general industries have scrambled to comply with this exacting standard in the face of extensive shortages.

As we recently discussed here, OSHA issued two enforcement guidance memos on April 3, 2020, regarding issues surrounding the use of respiratory equipment. The first memorandum discusses the use of respiratory protection and the N95 mask shortage due to COVID-19, specifically outlining enforcement discretion to permit the extended use and reuse of respirators, as well as the use of respirators that are past their manufacturer’s recommended shelf life—when following the directions set forth in the memorandum (i.e., attempting to obtain other NIOSH-approved respirators and using all other feasible engineering controls) and when used as recommended by the CDC. The reasoning behind the memorandum is the sad fact that the pandemic has limited the availability for N95 filtering facepiece respirators to only workers in the healthcare and emergency response fields (and even then there are not enough respirators to go around). The second memorandum provides similar guidance on the use of respiratory protection equipment certified under the standards of other countries or jurisdictions during the COVID-19 pandemic, if the methods set forth in the first memoranda are unavailable. Both memoranda explicitly explain their application to both (1) healthcare personnel exposed to actual and potential COVID-19 patients, as well as (2) workers exposed to other respiratory hazards due to the shortage of respirators resulting from the COVID-19 pandemic response.

On April 8, 2020, OSHA issued further guidance and announced the expansion of temporary guidance provided in a March 14, 2020 memorandum regarding supply shortages of N95 masks or other filtering facepiece respirators (FFRs) due to the COVID-19 pandemic. The memorandum expands application of mandatory fit-testing requirements in the March 14 memorandum beyond healthcare to all workplaces covered by OSHA—where there is required use of respirators—and explains that “OSHA field offices will exercise enforcement discretion concerning the annual fit-testing requirements, as long as employers have made good-faith efforts to comply with the requirements of the Respiratory Protection standard and to follow the steps outlined in the March 14, 2020 memorandum.”

Notably, all three memoranda outline some version of this statement: “Due to the impact on workplace conditions caused by limited supplies of N95 FFRs, all employers should reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 respirators. Employers should, for example, consider whether it is possible to increase the use of wet methods or portable local exhaust systems or to move operations outdoors. In some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.” OSHA also clarified that “[a]ll employers whose employees are required to use or are permitted voluntary use of respiratory protection must continue to manage their respiratory protection programs (RPPs) in accordance with the OSHA respirator standard, and should pay close attention to shortages of N95s during the COVID-19 pandemic. Paragraph (d)(1)(iii) in section 1910.134 requires such employers to identify and evaluate respiratory hazards in the workplace, and paragraph (c)(1) requires employers to develop and implement written RPPs with worksite-specific procedures and to update their written programs as necessary to reflect changes in workplace conditions that affect respirator use.” OSHA confirmed this fact in its April 13, 2020 Interim Enforcement Response Plan, where it again focused on healthcare and emergency response job tasks with “high” and “very high” occupational exposure risk to COVID-19.

So who should be provided respirators in the first place then? OSHA has not yet put forth any guidance saying that it will require (or even recommend, consistent with CDC guidance for the general public) NIOSH-approved respiratory protection in the typical working environment, except for employees working within 6 feet of patients “known to be, or suspected of being, infected with SARS-CoV-2 and those performing aerosol-generating procedures.” The agency has also clarified that the use of PPE, including respiratory protection, should not take the place of other prevention strategies.

However, whether respiratory protection is required is still a case-by-case analysis, the outcome of which will be dependent on each employer’s internal hazard assessment and the risk category within which the employer’s workers fall (as described in OSHA’s guidance). Only for high risk and very high risk positions does OSHA recommend the use of respiratory protection, including NIOSH-approved N95 devices, as well as face shields or goggles—in accordance with CDC guidance for hospital preparedness. For medium risk workplaces, the guidance notes that situations requiring employers to use respirators are rare. And for lower risk workplaces, OSHA does not even recommend additional PPE, let along respirators. Instead, the agency directs that “[w]orkers should continue to use the PPE, if any, that they would ordinarily use for other job tasks.” Therefore, employers falling into the latter two categories that want to provide respiratory protection may be stuck between a rock and a hard place until supply levels increase and agency guidance expands.

That said, OSHA recognizes the difficulties at hand and has clarified that its inspectors will be given specific enforcement discretion when enforcing the Respiratory Protection standard during the COVID-19 outbreak. In exercising this discretion, inspectors are instructed to refer to OSHA’s guidance outlined herein, to continue to check for additional or modified guidance, and to always assess “whether the employer is making a good-faith effort to provide and ensure workers use the most appropriate respiratory protection available for exposures to SARS-CoV-2.” Per OSHA’s Interim Enforcement Response Plan, assessing good-faith efforts will be accomplished by the following:

  • Implementing the hierarchy of controls in an effort first to eliminate workplace hazards, then using engineering controls, administrative controls, and safe work practices to prevent worker exposures to respiratory hazards;
  • Prioritizing efforts to acquire and use equipment according to OSHA’s guidance memorandum above;
  • Performing a user seal check each time an employee dons a respirator, regardless of whether it is a NIOSH-certified device or not, and do not use a respirator on which they cannot perform a successful user seal check; and
  • Training workers to understand proper usage, maintenance, sanitation, and storage of respirators and other PPE.

In other words, it is hard to get respirators in the first place, even for healthcare and emergency workers falling into the high and very high risk categories. So, employers must implement comprehensive backup plans involving the use of engineering controls, administrative controls, safe work practices, and other appropriate PPE. However, if respirators are available for your workers, and they need and are provided respirators for their particular position, they must be used in the context of a comprehensive respiratory protection program that meets the requirements of OSHA’s Respiratory Protection standard (29 CFR 1910.134), at least to the greatest extent possible, including the requirements for medical exams, fit testing, and training.

© Copyright 2020 Squire Patton Boggs (US) LLP

For more on respirator availability & usage, see the National Law Review Coronavirus News section.

Are Tech Workers Considering Unionizing In The Wake Of COVID-19?

Big tech companies by and large have remained union-free over the years unlike their peers in other industries such as retail and manufacturing. However, earlier this year – and before the COVID-19 pandemic upended workplaces across America – unions scored their first major organizing victory in the tech sector when employees at Kickstarter voted to form a union. According to at least one recent report, more tech company workers may soon be following suit.

The Teamsters, Communications Workers of America, and the Office and Professional Employees International Union all reported an uptick in inquiries from non-union employees about prospects of unionizing the companies they work for, including in the tech and gig economy sectors. One of the reasons cited by these workers was a feeling that not enough is being done to protect employees against the spread of COVID-19, particularly those who work in e-commerce fulfillment centers or drive for ride-sharing apps. There also was concern by employees who were, at least at one point, denied remote work arrangements when they believed their jobs were suited for such an arrangement.

It remains to be seen whether organized labor will be able to augment its numbers based on these workers’ concerns. Several things may complicate any such efforts, including unprecedented layoffs and an almost singular focus by people across the nation on the ongoing pandemic itself.

To the extent unions try to capitalize on the unrest, there are many reasons employers facing organizing attempts should be concerned. For example, one of the most effective tools a company can consider to stave off a unionization attempt are large, all-employee meetings where leaders of the organization communicate directly to the workforce why forming a union isn’t in the company’s or employees’ best interests. In an era where social distancing is a necessity, such meeting – at least in-person – likely won’t be a viable option. In addition, mail-in ballot union elections may become the standard as long as social distancing requirements remain in effect, which are less preferred than live secret-ballot voting booths.

Accordingly, employers desiring to remain union-free should give thought to what talking points, materials, and strategies – as well as communications channels – they have available to them now around this issue. Waiting to do so until after a union petition hits may place them at a significant disadvantage.

© 2020 BARNES & THORNBURG LLP

For more industries impacted by COVID-19, see the National Law Review Coronavirus News section.

Emergency Paid Leave — Making it Work

The Families First Corona Virus Response Act creates a new entitlement – for workers – to receive paid sick leave and paid FMLA between April 1 and December 31, 2020.[i]  If the virus is contained in the next six to eight weeks as hoped, we can expect the economic impact on workers to be most severe in April, May and June 2020.  The Families First Act is intended to help as many individuals as possible to avoid financial exigency, job loss and loss of health insurance during this critical window. Emergency paid leave is funded at 100 percent by a federal tax offset and rebate.

This is not an employer v. employee situation.  Employers do not want to lay off their employees.  Layoffs create instability and have a significant economic domino effect.  Employees lose their income and benefits and, possibly, accept other employment in the short term out of necessity.  Employers may struggle to regroup and regain their markets if their trained workers are unavailable.  The ramifications of sudden mass unemployment are passed along through landlords and mortgage lenders, unpaid service providers and the emergency rooms that replace health insurance.

As clients adapt to the new normal, lawyers need to do the same.  Risk mitigation in the current environment requires thoughtful legal analysis supported by the capacity for change.  Two recent questions under the Families First Act illustrate the paradigm shift –

Emergency Paid Sick Leave – is a state shelter at home order a “State … quarantine or isolation order related to COVID-19”?

The Families First Act created temporary emergency paid sick leave accessible under six circumstances.[ii]  The first is when the employee is “subject to a Federal, State or local quarantine or isolation order related to COVID-19.”[iii]  Last month, as states rapidly issued shelter at home orders, employers and employees wanted to know whether a shelter at home order was a quarantine or isolation order entitling employees to paid sick leave.

The Wage and Hour Division published sub-regulatory guidance on March 23, 2020, (since updated several times) called Families First Coronavirus Response Act: Questions and Answers.  The WHD’s guidance did not initially answer the quarantine order question.  Questions 23-27 explained that emergency paid sick leave is not available when an employer has “closed” the employee’s worksite or furloughed the employee. [iv] The employee’s worksite is “closed” when the employer “sends the employee home” and “stops paying” the employee because the employer does not have work for the employee to do.  Under these circumstances, the employee is not entitled to take emergency paid sick leave.

A shelter at home order requires all individuals present within the state or local government’s boundaries to “stay at home or in their place of residence” with exceptions described in the order.[v] 

According to the common wisdom, although the Families First Act made no reference to it, the Centers for Disease Control and Prevention’s definition of quarantine applied.  The CDC’s definition of quarantine — separating and restricting the movement of people who were exposed to a contagious disease to see if they become sick — is discussed on the CDC’s webpage regarding ports of entry and land border crossings.[vi]  Using the CDC’s definition precludes the use of emergency paid sick leave for employees unable to work due to a state or local shelter at home order.

The legal analysis did not support the more restrictive reading.  The Emergency Paid Sick Leave Act does not make any reference to the CDC’s definition.  The related Congressional Record does not mention the CDC’s definition.  The Congressional Record for the compressed time during which Congress debated and then passed the Families First Act is explicit in its bipartisan emphasis on using taxpayer funded emergency paid leave to mitigate hardship for employees and employers.

The rules of statutory construction would not allow a court or administrative agency to read the CDC’s definition into the legislation.  The U.S. Supreme Court recently reiterated that courts are to enforce plain and unambiguous statutory language according to its terms.  In Intel Corporation Investment Policy Committee v. Sulyma, the Court relied on the dictionary definition of the word “actual” (“existing in fact or reality”) to confirm the meaning of the ERISA notice requirement of “actual knowledge.”[vii]

The Merriam-Webster Dictionary defines “quarantine” as “a restraint upon the activities or communication of persons or the transport of goods designed to prevent the spread of disease or pests.” [viii]  Shelter at home orders clearly qualify.

On April 3, 2020, the WHD confirmed that a state or local shelter at home order is a quarantine order for the purposes of the Emergency Paid Sick Leave Act.  With this context in mind, rather than looking for ways to avoid it, affected employers and employees should be encouraged to use an expansive view of Emergency Paid Sick Leave.

Emergency Family and Medical Leave Expansion Act – is it reasonable for the WHD to limit or prevent employees who recently used FMLA leave from the full use of Emergency Family and Medical Leave?

In contrast to the WHD’s initial silence on shelter at home orders, the guidelines clearly advised that FMLA time is limited to 12 weeks regardless of the entitlement.  The WHD’s guidance on this question does not seem reasonable when considered in light of the intent of the Families First Act and the likely consequences of applying it as advised.

An argument could be made that the WHD is creating, rather than interpreting, legislation by adding a limitation to the Families First Act that Congress did not intend.

Section 2612(a)(1) of the Family and Medical Leave Act entitles eligible employees to a total of twelve workweeks of unpaid leave during any 12-month period when the employee experiences “one or more” of five situations.[ix]  The same definitions of eligible employee and covered employer apply for each category of unpaid leave.

The Emergency Family and Medical Leave Expansion Act adds a fifth entitlement.  Section (F) creates a temporary nine month right to federally-financed paid childcare leave.[x]  A completely different eligible employee is entitled to a total of 12 workweeks from a completely different covered employer between April 1 and December 31, 2020, for a completely different reason, “because of a qualifying need related to a public health emergency in accordance with section 2620 [i.e., loss of access to child care or school].”

Although it is a new entitlement that is temporary, limited in time and applicable to a different set of employees and employers, the WHD restricted access to Emergency Family and Medical Leave.  Employees cannot take more than twelve total weeks of any FMLA leave during the employer’s 12-month unpaid leave administrative period.[xi]

This means employees who took unpaid FMLA leave in the first quarter of 2020 or earlier in their employer’s administrative period are partially or fully excluded from taking Emergency Family and Medical Leave.  These employees, by definition, are now at a much higher risk of job loss through no fault of their own.  Sudden job loss in the current environment is more likely to cause these families to lose their health insurance because they may experience longer periods of unemployment.  Loss of health insurance and the inability to pay medical bills is the most significant contributor to financial hardship and bankruptcy with all of the related economic reverberations.

It could be argued that the WHD has legislated an unintended restriction into the EFML Expansion Act.  Consistent with its decision in King v. Burwell, the U.S. Supreme Court recently limited Chevron deference in similar cases where agency guidance created prescriptive limits that do not exist in the legislation.  In Smith v. Berryhill, the Court noted, “[a]lthough agency determinations within the scope of delegated authority are entitled to deference, it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’”[xii]

The Emergency Family and Medical Leave Expansion Act entitlement is unique.  It applies to small employers with fewer than 500 employees who will receive tax credits for the leave payments.  The twelve-month availability period in the original FMLA is replaced by the quick start and hard stop nine-month Emergency Family and Medical Leave Expansion Act period of April 1 to December 31, 2020, after which the paid child care leave entitlement (hopefully) ends.  The standard FMLA eligibility requirements are replaced with the 30-day employment eligibility period.  The reason for the leave, to care for children because schools and daycare centers are closed, is situationally unique.

Most importantly, the EFML Expansion Act is a paid leave.  It is a significant, and significantly enhanced, entitlement for the people it is intended to help.  The legislative history clearly addresses the limited emergency parameters of this legislation and emphasizes that it is intended to be applied to workers as inclusively as possible.[xiii] Wages paid for EFML are reimbursed by the federal government at 100 percent.

Employees who used FMLA time in Q1 2020 (or within their FMLA administrative year) are, arguably, most in need of Emergency Family and Medical Leave.  They may suffer the most extreme consequences without it.

Employees who used FMLA time in 1Q 2020/admin year gave birth or welcomed an adopted or foster child into their home, received treatment for their own serious health condition or cared for a family member.  They are much more likely to need continuation of their employer-sponsored health insurance at this time.  If they are now home-schooling their children or unable to access daycare, they have no resources.  Loss of income and health insurance through a layoff or furlough would be a disaster that will affect the family well into the future.

It is difficult to understand how the WHD would not consider the effect of the guidance on overburdened hospitals, clinics and emergency rooms.  What possible rationale could support an interpretation of the Emergency Family and Medical Leave Expansion Act that will force employers to deny paid Emergency Family and Medical Leave to the employees who may need it the most and push families into the ER for their health care because they have lost their health insurance?[xiv]

There is a workaround.  Section 2653 of the FMLA, titled “Encouragement of more generous leave policies”, says “[n]othing in this Act or any amendment made by this Act shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act or any amendment made by this Act.”[xv]

In response to specific Congressional encouragement, employers covered under the Emergency Family and Medical Leave Expansion Act could reset their FMLA administrative period to April 1, 2020.  The reset would allow all eligible employees to receive up to 12 weeks of paid EFML between April 1 and December 31, 2020, when they may need it most.

Although the FMLA regulations require 60 day notice of an administrative period date change, they also re-emphasize that the employer should take every precaution to avoid reducing the employee’s FMLA entitlement and do everything possible to preserve the greatest benefit to the employee.[xvi]  As long as the employer is enhancing the FMLA entitlement for employees, the 60 day notice period should be waived.

To contribute at a higher level, lawyers should guard against assuming a reflexive defensive crouch and help employers and employees use the emergency legislation to mitigate economic distress.

[i] FAMILIES FIRST CORONAVIRUS RESPONSE ACT, PL 116-127, March 18, 2020, 134 Stat 178

[ii] SEC. 5102. PAID SICK TIME REQUIREMENT.

(a) IN GENERAL.—An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave 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 due to concerns related to COVID–19.

(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter *196 has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT, PL 116-127, March 18, 2020, 134 Stat 178

[iii] Id

[iv] Questions 23-27, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions (accessed 04/14/2020)

[v] State of Wisconsin Department of Health Services Emergency Order #12 Safer at Home Order https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf

NOW THEREFORE, under the authority of Wis. Stat. § 252.02(3) and (6) and all powers vested in me through Executive Order #72, and at the direction of Governor Tony Evers, I, Andrea Palm, Secretary-designee of the Wisconsin Department of Health Services, order the following:

1. Stay at home or place of residence. All individuals present within the State of Wisconsin are ordered to stay at home or at their place of residence, with exceptions outlined below.

[vi] See, https://www.cdc.gov/quarantine/. 

[vii] Intel Corp. Inv. Policy Comm. v. Sulyma, 140 S. Ct. 768 (2020)

[viii] https://www.merriam-webster.com/dictionary/quarantine

[ix] (a) In general

(1) Entitlement to leave

Subject to section 2613 of this title and subsection (d)(3), an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

29 U.S.C.A. § 2612 (West)

[x] (F) During the period beginning on the date the Emergency Family and Medical Leave Expansion Act takes effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency in accordance with section 2620 of this title.

29 U.S.C.A. § 2612 (West)

[xi] Questions 44 and 45, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions (accessed 04/14/2020)

[xii] Rather, “[a]lthough agency determinations within the scope of delegated authority are entitled to deference, it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’”

Smith v. Berryhill, 139 S. Ct. 1765, 1778, 204 L. Ed. 2d 62 (2019) quoting Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–650, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990).

[xiii] https://www.congress.gov/116/crec/2020/03/18/CREC-2020-03-18.pdf

[xiv] The issue of aggregating FMLA and EFML time is different than the question, not yet directly answered, of whether regular FMLA and EFML Expansion Act time runs concurrently after April 1, 2020.  The WHD did clarify that the EFML entitlement is limited to a total of 12 weeks.  In a temporary rule published April 10, 2020, the WHD explained that an eligible employee is entitled to no more than 12 weeks of EFML between April 1 and December 31, 2020, even if the employer’s FMLA administrative period runs from July 1 to June 30.  See, 29 CFR 826.70.

[xv] 29 U.S.C.A. § 2653 (West)

[xvi] 29 C.F.R. § 825.200(d)(1) says:

(d)(1) Employers will be allowed to choose any one of the alternatives in paragraph (b) of this section for the leave entitlements described in paragraph (a) of this section provided the alternative chosen is applied consistently and uniformly to all employees. An employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the Act’s leave requirements.

Lewis Law Office, LLC copyright 2020. All rights reserved.

For more on the Emergency Paid Sick Leave law, see the National Law Review Coronavirus News section.

Brazil and India Act to Protect Employers and Employees During the COVID-19 Pandemic

The COVID-19 pandemic has altered the global workplace and international employer-employee relations in profound ways. As COVID-19 continues to spread, countries are enacting legislation and issuing guidance to support employers and employees as they confront the global crisis. In particular, Brazil, with a population of over 211 million, and India, with a population of approximately 1.3 billion, each has enacted measures to combat the ongoing economic and financial troubles caused by the COVID-19 pandemic.

Specifically, Brazil has issued federal provisional measures, including Provisional Measure No. 936 (“MP-936”) and Provisional Measure No. 927 (“MP-927”), to socialize the idea that employers may seek to reduce employees’ pay in exchange for greater job security. MP-936 provides for an Emergency Employment and Income Maintenance Program, including an Emergency Employment and Income Preservation Benefit (the “Benefit”), as well as policies for reducing salary and working hours and suspending employment agreements, and provisions for collective bargaining agreement (“CBAs”) meetings by virtual means. In particular, MP-936 and MP-927 provide for the following:

  • Salary and Hourly Reductions: MP-936 allows salary and hours reductions for up to a 90-day period. Each employee’s pay rate, hours and tenure must be preserved and reinstated upon the employee’s return to work. In the event of a reduction in salary and/or hours, the government is responsible for paying the Benefit. Employees who receive the Benefit still may receive unemployment insurance benefits. The amount of the Benefit that employees receive is based upon the amount of unemployment insurance to which they are entitled. For employees who earn less than R$3,135 or more than R$12,202.12 there is no obligation to have collective negotiations. There are various notice requirements for any salary and hours reduction, and an employer’s failure to comply may result in legal sanctions or fines. The presence of a CBA may provide for different reduction and notice requirements.
  • Suspension of Employment: MP-936 provides for suspension of employment agreements (e.g., furlough) for a period of up to 60 days, with the government paying a Benefit of 100% of the unemployment insurance to which employees are entitled. Employers are required to preserve employees’ current pay rate, hours and tenure, and employees are entitled to all employer-provided benefits. For employers who earned a gross revenue exceeding R$4,800,000 in 2019, the government will pay a Benefit of 70% of the employment insurance that employees are entitled to, provided that during the suspension period, employers pay to employeesfinancial support equal to 30% of employees’ salary. There are various notice requirements for any reduction. If employees work during a suspension, including engaging in any telework, then the suspension will be deemed not to have occurred, and legal sanctions and fines may be imposed upon employers. For employers whose income tax is calculated on the basis of actual income, financial support is deductible from the net revenue for purposes of calculating employers’ income tax. Note that redundancy terminations are considered terminations without cause, and employers have the sole discretion to determine selection criteria and severance packages.
  • Use of Accrued, Unused Paid Leave: MP-927 authorizes not only the use of accrued but unused paid leave, but also the use of holidays still being accrued, as well as holidays for which the accruing period has not even started.

India has imposed even broader employee protections that require employers to bear the heavy economic burden to support employees during the national lockdown. In response to the COVID-19 pandemic, the Indian government invoked special provisions of the Disaster Management Act, 2005 (the “DMA”) to implement a series of orders under the DMA (“Orders”) to impose a 21-day nationwide lockdown, effective March 25, 2020.

To counter the negative impact of the COVID-19 pandemic on India’s labor force, the Orders include strict directives for employers. The Orders prohibit employers from terminating any employees or contract labor during the lockdown, except for disciplinary reasons. In addition, the Orders bar employers from reducing employees’ wages. In addition, the Indian government has addressed the following issues that affect employers and employees:

  • Maintaining the Workforce: During the lockdown, employers should not reduce or stop salary payments or terminate employees. Similarly, employers may not reduce work hours and wages during the lockdown. Employers, however, may temporarily halt non-statutory benefits and postpone incentives until the business normalizes, provided that such measures adhere to employers’ internal policies, employee handbook provisions and/or employment agreements. In addition, employers may defer or suspend bonuses and annual increments for employees, subject to some narrow exceptions.
  • Paid Leave: Employers are prohibited from requiring employees to use paid time off during the lockdown. Employees, however, are entitled to use their accrued annual leave at their discretion, subject to internal policies. Employers cannot mandate that employees take unpaid leave.
  • Medical Checks: Employers may take steps to verify employees’ health, as long as such measures protect the health, safety and well-being of other employees. Such steps include, for example, requiring medical check-ups for employees who have travelled internationally. If employers pursue such measures, they must ensure that they have systems in place to ensure that employees’ medical records remain confidential and secure. Employers should be mindful not to discriminate against employees by selecting employees for medical checks based upon race or nationality.
  • Sick Time for Employees with COVID-19: Certain state governments have issued notifications/orders requiring employers to grant 28 days of paid leave to employees who have been infected with COVID-19. Employers may encourage, but not require, employees who have contracted COVID-19 to use their accrued sick leave. If necessary, employers may require COVID-19-positive employees to continue to take leave until such employees medically certify that they may return to work, during which time employers should continue to pay employees’ full wages and benefits.

©2020 Epstein Becker & Green, P.C. All rights reserved.

For more employment considerations amid the COVID-19 pandemic, see the National Law Review Coronavirus News section.

Work-from-Home Lessons from a Veteran Virtual Worker

To all of my law firm marketing and PR colleagues, lawyers, and other law firm professionals who are working from home (or “WFH” — the new trending acronym — or so I’m told) amid the COVID-19 pandemic, I say, with mixed emotions, welcome to the club. I just wish the acknowledgment came under better circumstances — more because you want, can and/or should work from home, rather than you must do it in the interest of public health.

I’ve been working from home for nearly 10 years. Jaffe has been an exclusively virtual environment for most of its 42-year existence, so it’s a working and lifestyle model with which I am very familiar. It takes some adjustments and there are challenges aplenty for newcomers to the home office, particularly for those thrown into the fire without proper equipment or conducive working environments, not to mention psychological preparation for what can be a jarring transition.

Consequences of the WFH Lifestyle

First, there are obvious logistical issues for professionals working from home, including obtaining and maintaining laptops and other equipment, as well as other IT issues, not the least of which involves data security. The threat of breaching a client’s security is a major concern for law firms. In fact, the U.S. government’s Cybersecurity and Infrastructure Security Agency has been highlighting the elevated risk of malware, phishing attacks and other ransomware demands during the current pandemic. There also are challenges to dealing with the loss of human interaction that professionals are accustomed to having from being in close physical proximity to each other in an office. Technology allows us to get our jobs done just fine, but interacting with others only virtually is doubly stressful when we don’t have in-person interactions to compensate.

A couple of years ago, I wrote a National Law Journal article about the emergence of the competitive cloud-based law firm and what that looked like compared to the traditional firm model. Since that time, the number of virtual, or cloud-based, law firms has increased slightly, but the traditionally conservative legal industry overall still has barely dipped a toe into that water.

One positive outcome of the currently mandated WFH exercise is likely to be nearly wholesale preparedness for the next crisis that closes physical firm offices. Through this crash course, decision-makers at law firms are likely to realize there are some legitimate efficiencies and benefits to be gained from lawyers based at their homes, principally involving reduction in physical real estate and overhead, and the value proposition for offering a true work-life balance for attorneys and other support staff. The workers themselves also will see benefits from remote working that they probably had not considered or truly appreciated before they were in the trenches. An overarching conclusion of the 2020 State of Remote Work survey (by social media software company Buffer) of thousands of remote workers from around the world is that remote workers almost unanimously want to continue to work remotely (at least partially) for the rest of their careers.

Ultimately — according to many legal industry observers — this forced experiment could expand the virtual model for some firms permanently, at least on a partial or as-needed basis. Traditionalists may be beside themselves and clutching their pearls (so to speak), but this change to the core firm business model is inevitable.

How to Work from Home

Recognizing that a vast majority of legal professionals are now working from home for the foreseeable future, let me offer just a few pearls of wisdom based on having about a decade of applicable experience under my belt (or relaxed-waist sweatpants, I should say, since there are no dress codes at my house). If you haven’t already bought into these, consider what I feel are the most-important best practices and takeaways for working from home.

Dedicate a space for office work.

It also should be devoid of distractions like TV or music (unless you can handle that — I usually can’t). While some people can acclimate to different situations and environments quite easily, for me, a dedicated office helps me replicate an office-like routine and maintain a certain work ethic and discipline. Sure, sometimes, I’ll drag the laptop over to the sofa or to a restaurant (in simpler times, that is), but I’m never as productive as when I’m sitting at my desk in my home office. There’s some humor — much appreciated these days — to be had at the good-natured expense of many of you doing your best to make it work with innovative work-at-home set-ups.

It’s not so much about the number of hours you work, but the productivity that matters.

You will probably find that you can get more done in four or five hours working during the day at home than you did in the office. You have fewer distractions (if you can block out or put restrictions on others living with you). My workday can sometimes stop mid-afternoon and pick up again in the evening, as well as extend into the weekend. Oftentimes, the amount and type of work dictates when I work. That 24/7 mindset also allows for more responsiveness to clients’ needs, which those accustomed to more-traditional work hours cannot or will not necessarily deliver. However, if you find yourself grinding non-stop at the computer for five or six hours, that also can be detrimental to your work proficiency and mental well-being, so…

Take breaks.

It’s easy to get into a groove and churn out work product at home without the distractions typical of an office environment. Of course, if you have family, especially children, at home, chances are the distractions will find you anyway. Mentally, it’s just good to turn away from the work occasionally to catch up on the news, move around a bit, view a quick video or do whatever eases your mood.

Get exercise.

It’s easy to get lazy when you don’t have to commute back and forth to the office plus run errands or perform other tasks that usually offer daily exercise. No good can come from a sedentary work style over the long haul. Actually, while we’re social distancing, the majority of us don’t even have nighttime or weekend social excursions to get in our daily steps. Try to take a long walk, quick run or whatever other cardio activity works for your lifestyle. You may now have the luxury of building that into your daytime routine rather than relegating it to before or after work.

Also, just take a few moments to marvel at the fact that we can get so much done while never even being in the same room, building, ZIP code or even country as our colleagues. And be kind to your co-workers, clients and stakeholders. Everyone is in the same boat. Cut some slack the next time your boss joins your virtual meeting after turning herself into a potato.

© Copyright 2008-2020, Jaffe Associates

ARTICLE BY Randy Labuzinski of Jaffe.
For more on work from home and other COVID-19 considerations, see the National Law Review Coronavirus News section.

SBA Provides Guidance on Affiliation Rules for Paycheck Protection Program

Many issues have arisen related to the Small Business Administration’s (SBA) “affiliation rules” for determination of whether a small business is eligible for a loan under the Paycheck Protection Program (PPP), which is part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

Since April 3, 2020, the SBA has provided guidance relating to the PPP, including guidance titled “Affiliation Rules Applicable to U.S. Small Business Administration Paycheck Protection Program,” and a Letter Re: Size Eligibility and Affiliation Under the CARES Act. The SBA has also provided responses to a number of FAQs posted on the SBA’s website and updated through April 7, 2020. Pursuant to this guidance, the SBA has modified the affiliation rules (which are codified 13 C.F.R. §§121.103 and 121.301, the “Rules”) for purposes of determining eligibility for a PPP loan [1].

What Is a Small Business Generally?

One of the bedrock principles for SBA loans is that they are to be provided solely to “small businesses.” The SBA has generally defined a small business as one with fewer than 500 employees [2]. To ensure loans are not provided to larger businesses, the SBA enacted the Rules, which aggregate the number of employees of multiple affiliated businesses (each, a “Business Concern”). Although affiliation is generally determined based on control, the Rules are encompassing and provide the SBA with significant flexibility to determine if affiliation exists under a variety of circumstances. Such flexibility permits the SBA to look beyond a Business Concern’s creative structuring to determine if affiliation exists and exclude a Business Concern from meeting the SBA’s definition of a small business.

In practice, the Rules have generally prevented Business Concerns backed by private equity and venture capital investors (as a majority or minority investors) from receiving SBA loans because of the multiple investments typically maintained by these investors. Given the breadth of the Rules, many Business Concerns appeared to be initially ineligible for PPP loans, and therefore, the SBA has provided additional guidance which modifies the Rules (the “Modified Rules”) to permit certain Business Concerns to be eligible for PPP loans. Except as specifically addressed in the Modified Rules and the SBA and Treasury guidance with respect to the same, the Rules remain in full force and effect. Of particular importance, the SBA has opined that the Modified Rules waive the affiliation rules with respect to any Business Concern receiving financial assistance from a company licensed under §301 of the Small Business Investment Act of 1958, and such affiliation rules are waived no matter the amount of the financial assistance or whether there are other non-SBIC investors.

Modified Affiliation Rules

Although the Modified Rules are more limited in determining affiliation, the principle of aggregating the number of employees for a Business Concern that is controlled by a common entity or person (the “Presumed Owner”) remains in place. Under the Modified Rules, affiliation exists, and therefore the number of employees of a Business Concern is aggregated, in the following situations:

  • Affiliation Based on Common Ownership: If the majority of equity (stock, membership interests, partnership interests, etc.) of two or more entities is owned by the Presumed Owner, then the employees of such entities will be aggregated as the same Business Concern. In the most obvious instance, this would involve a Presumed Owner that owns greater than 50 percent of the equity of one or more business entities. As noted below, however, a Presumed Owner cannot circumvent the Modified Rules by divesting its equity in exchange for options, convertible securities or similar contractual rights to ownership.
  • Affiliation Based on Control: If the Presumed Owner has contractual rights to control two or more entities (even if such rights are not exercised), then the employees of such entities will be aggregated as the same Business Concern. Mere ownership of equity is not the sole determinative factor, and a Presumed Owner that owns a minority amount (or no amount) of the equity of an entity can be determined to be in control of such entity if such Presumed Owner has potential ownership of the entity (via options to purchase equity, convertible securities or equivalent) [3] or can control the management of such entity (via contractual rights that prevent a quorum of the governing body or otherwise prevent the governing body or equity holders from controlling the direction of such entity) [4]. This determination is based on contractual rights and therefore, agreements to negotiate future acquisitions, consolidations or mergers (such as letters of intent) do not alone cause an affiliation of entities.
  • Affiliation Based on Common Management: If two or more entities are managed by common management (same governing bodies, officers, managers, directors, partners, etc.), then the employees of such entities will be aggregated as the same Business Concern. Affiliation is also determined if a Presumed Owner can control, directly or indirectly, the management of two or more entities.
  • Affiliation Based on Familial Relations: If two or more entities are owned or managed by “close relatives” [5] and have identical or substantially identical business or economic interests, then the employees of such entities will be aggregated for SBA loan eligibility purposes. Unlike the Modified Rules for control and common management, this presumption may be rebutted by a potential borrower that can show that the interests are separate (e.g., in the case of estranged parties).

Based on the guidance provided by the SBA, the Modified Rules only supersede the Rules in specific instances, such as the elimination of the economic-dependence and common-investment affiliation rules that were in effect under the Rules. The remainder of the Rules, however, including the ability of the SBA to assess size eligibility and affiliation issues based on the totality of the facts and circumstances with respect to a Business Concern, should be presumed to remain in full force and effect.

The guidance provided by the SBA has been fluid in nature and is subject to ongoing modification. Given that and the potential criminal sanctions upon borrowers that seek PPP Loans in contradiction with the Modified Rules, we recommend having an open dialogue with your lender and that you err on the side of over-disclosure in all applications relating to PPP loans. In addition, if you have heeded the SBA’s advice and already applied for a loan under the PPP, you are entitled to rely upon the laws, rules and guidance that were available to you at the time you submitted your application; provided, if your application has not yet been processed, you are also entitled to update such application if your underlying assumptions and analyses are affected by subsequent regulations and interpretations.

If you have questions about small business loans and the PPP’s affiliation rules, we encourage you to reach out to your Much attorney.

  1. Under the Act, the Rules are waived for any business a) with 500 or fewer employees, that as of the date the PPP loan is disbursed, is assigned a North American Industry Classification System code beginning with 72, b) that is operating as a franchise with a franchise identifier assigned by the SBA, or c) that receives financial assistance from a company licensed under §301 of the Small Business Investment Act of 1958 (15 U.S.C. 681). Furthermore, under the Religious Exemption Guidance, the Rules do not apply to persons or entities that are affiliated based on a faith-based relationship.
  2. Under the guidance, the SBA has stated that the determination of whether a Business Concern is a “small business” can also be determined based on the applicable employee-based/revenue-based standards or the alternative size standard, each of which is provided under the SBA’s regulations, provided the Rules are applied with respect to these standards, if applicable.
  3. Affiliation is not created if the options, convertible securities, or equivalent, are subject to certain conditions precedent that are a) incapable of fulfillment, b) speculative, conjectural or unenforceable under federal law, or c) the probability of exercise is extremely remote.
  4. Under the guidance, the SBA has stated that if a Presumed Owner irrevocably waives or relinquishes such rights, then such Presumed Owner would not trigger the Rules (assuming no other circumstances relating to the Presumed Owner would trigger the Rules).
  5. “Close relatives” is a defined under the SBA and means a spouse, parent, child or sibling, or the spouse of any such person.

Disclaimer: We are providing the current SBA Loan Application and links to related information as a convenience. The application and related requirements may change and we are not responsible for updating this information. By providing this information, we are not giving legal or tax advice. For advice on your specific situation, please contact your advisors.

© 2020 Much Shelist, P.C.

For more on the SBA PPP Loans, see the National Law Review Coronavirus News section.

New Jersey Closes all Non-Essential Construction Projects

On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order No. 122, requiring the closure of all non-essential construction projects beginning at 8:00 p.m. on Friday, April 10, 2020. The executive order does not define “non-essential construction project”; instead, it lists the following “essential construction projects” that may continue to operate:

  • Projects necessary for the delivery of health care services (e.g., hospitals, health care facilities, and pharmaceutical manufacturing facilities);
  • Transportation projects;
  • Utility projects;
  • Affordable housing residential projects;
  • School projects (e.g., pre-K-12 schools and higher education facilities);
  • Projects already underway involving single-family homes or apartments with a construction crew of five or fewer individuals;
  • Projects already underway involving a residential unit for which a tenant or buyer has legally agreed to occupy by a certain date and the construction is necessary for the unit’s availability;
  • Projects involving facilities in which “the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses (as defined by Executive Order No. 107 (2020) and subsequent Administrative Orders)”;
  • “Projects involving data centers or facilities that are critical to a business’s ability to function”;
  • “Projects necessary for the delivery of essential social services, including homeless shelters”;
  • “Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency”;
  • “Any project that is ordered or contracted for by Federal, State, county, or municipal government”;
  • “[A]ny project that must be completed to meet a deadline established by the Federal government”;
  • Any work on a non-essential construction project that is required to physically secure the site, ensure building structural integrity, abate hazards, or confirm that the site is protected and safe during the suspension of the project; and
  • “Any emergency repairs necessary to ensure the health and safety of residents.”

The New Jersey State Director of Emergency Management (who is the Superintendent of the State Police) has the discretion to amend this list of essential construction projects.

Essential construction projects that continue to operate must continue to adhere to guidelines and directives issued by the New Jersey Department of Health, the Centers for Disease Control and Prevention (CDC), and the Occupational Safety and Health Administration to maintain a clean, safe, and healthy work environment for employees. These businesses must also implement policies and protocols to enforce best practices regarding social distancing and good hygiene, including but not limited to:

  • Prohibit all non-essential visitors from entering the worksite;
  • Limit worksite meetings and groups to fewer than 10 people;
  • Require individuals to maintain a minimum 6 feet of social distancing when possible;
  • Stagger work start and stop times to limit the number of individuals entering and leaving the worksite at the same time, to the extent possible;
  • Stagger lunch breaks and work times to enable operations to safely continue while utilizing the fewest number of individuals as possible;
  • Limit the number of individuals who can access common areas at the same time;
  • Provide employees with cloth face coverings and gloves, and require workers to wear them while on premises unless there is a medical reason prohibiting it (Note: If any individual (employee or visitor) declines to wear a face covering on premises due to a medical reason, the business cannot require the individual to produce medical documentation verifying his or her condition.);
  • Require essential visitors to wear cloth face coverings while on premises (Note: If a visitor refuses to wear a face covering for a non-medical reason and if a covering cannot be provided to the visitor, then the business must deny entry to the individual);
  • “Require infection control practices, such as regular hand washing”;
  • “Limit sharing of tools, equipment, and machinery”;
  • Provide hand sanitizer and wipes to employees and visitors; and
  • “Require frequent sanitization of high-touch areas” (e.g., restrooms, breakrooms, equipment, and machinery).

These businesses must also implement policies and protocols in the event the worksite is exposed to COVID-19, including but not limited to:

  • “Immediately separate and send home workers who appear to have symptoms consistent with COVID-19”;
  • “Promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws”; and
  • “Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19.”
© 2020, Ogletree, Deakins, Nash, Smoak & Stewart,P.C., All Rights Reserved.