The Next Normal: Tips and Best Practices for Returning to ... · The Next Normal: Tips and Best...

The Next Normal: Tips and Best Practices for Returning to Work in NevadaMay 27, 2020

© Littler Mendelson, P.C. | 2020 Proprietary and Confidential

Presented by

2

SANDY KETNER KATY BRANSON

Counsel

Littler, Reno Las Vegas

[email protected]

(775) 785-6387

Associate

Littler, Las Vegas

[email protected]

(702) 862-7730

© Littler Mendelson, P.C. | 2020 Proprietary and Confidential 3

Opening Remarks

A quick reminder…

NO ONE HAS EVER DONE THIS BEFORE!

We have never had such a large segment of our economy shut down, and then subject to possible

re-opening in a time of such uncertainty!


Agenda

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1. Reopening and Recalling Employees

2. Returning to Work Safely

3. Leaves of Absence


REOPENING AND RECALLING EMPLOYEES

Katy Branson

5


Source:The New York TimesMay 22, 2020

Regional reopening


Phased Reopening -- Who Do You Call First?

• Review and comply with your handbook/policies/cba

• Call back “low risk” first?

⎻ But this invites possible age and disability and pregnancy discrimination claims by those not recalled


Possible Discrimination Defenses

• But, perhaps being at a high risk of infection is a “reasonable factor other than age”

• And perhaps returning a worker with a compromised immune system poses a “direct threat” to their own health and safety

• But beware…


FAQ #11 from the EEOC Webinar

• May an employer exclude from the workplace an employee who is 65 years old or older and who does not have COVID-19, or symptoms associated with this disease, solely because the CDC has identified this age group as being at a higher risk of severe illness if they contract COVID-19? The answer is no. The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave. One way to show that an action was based on age would be if the employer did not take similar actions against comparable workers who are under the age of 40.


Who Do You Call First?

• Recall by seniority?

• Recall by “merit”?

• Consider using objective measurements of merit, such as written evaluations

• Consider an A/C privileged disparate impact analysis


Just Because You Reopen Your Doors…

Doesn’t mean your employees will report to

work!


“I Don’t Feel Safe!”

• Some employees may resist a return to work – “I don’t feel comfortable returning to work.”

• Suggested initial response: “We are operating a safe workplace. We are operating in accordance with state and local safety and health guidelines. There currently is no recognized health or safety hazard in our workplace.”


“I Don’t Feel Safe!”

• In general, we want people to be comfortable at work

• Uncomfortable workers are distracted, less efficient, and possibly unsafe


If You Offer Work, and the Employee Refuses:

• You do not have to pay them

• You do not have to let them take PTO or vacation

• This should disqualify them from unemployment

• NOTE:

⎻ They may be eligible for state mandatory sick leave

⎻ They are not qualified for FFCRA EPSL (unless they otherwise meet one of the six reasons for qualification)


Unemployment Insurance

NH Governor’s Memo: Economic Re-Opening Task Force:

“With the increase in CARES Act funding to unemployment compensation, the average worker is getting paid the equivalent of $22/hour not to work, post taxes. It will be difficult to attract workforce for any employer that would pay below this threshold.”


Unemployment Considerations

16



• Nevada

⎻ $469 gross weekly maximum, up to 26 weeks

⎻ Unemployment tax rate ranges from approx. 0.6% to 6%, depending on number of successful unemployment claims

⎻ Legislation may be forthcoming that addresses ratings affected directly by COVID-19-related benefit applications

⎻ Unemployment benefits not available to an employee receiving paid sick leave or other paid benefit

⎻ Employees should immediately apply when furloughed or terminated

⎻ Governor has waived the 7-day waiting period and work-search requirement



• Federal⎻ CARES Act created new temporary federal programs

⎻ “Pandemic Unemployment Assistance” (PUA)

⎻ “Federal Pandemic Unemployment Compensation Program” (FPUC)

⎻ “Pandemic Emergency Unemployment Compensation” (PEUC)

⎻ PUA

⎻ Available to qualifying individuals who are otherwise able and available to work and not working through no fault of their own and are unemployed, partially unemployed, or unable or unavailable to work due to one of several COVID-19 related reasons identified in the CARES Act

⎻ For those who don’t otherwise qualify for UI

⎻ Not available to those who have the ability to telework with pay or who are receiving paid sick leave or other paid leave benefits

⎻ Not payable for any week of employment ending after December 31, 2020

⎻ 39 weeks, minus any weeks of regular unemployment compensation and extended benefits the individual received



• Federal (Cont.)

⎻ PEUC

⎻ For those who have exhausted their entitlement to regular unemployment compensation

⎻ FPUC

⎻ Expressly in addition to the weekly benefit amount they receive from certain other unemployment compensation programs, including PUA

⎻ Not payable for any week of employment ending after July 31, 2020

⎻ Those who quit without good cause to obtain unemployment insurance benefits is fraud under the programs

⎻ All programs (PUA, PFUC and PEUC) are 100% federally funded and employer will not be charged


What If You Offer Work and They Actually Accept?

• For those returning after a break in service, plans should address:

• Develop training and orientation programs for returning workers.

⎻ Social distancing applied to work interactions and workspaces,

⎻ Cleaning protocols, etc.

Background checks;

Drug tests; I-9 compliance;W-4, benefits forms, other

new hire forms;

Waiting periods for benefits.


Remember – We Are Returning to Something Different

• Acknowledge employee sentiment

⎻ Fear of the next wave

⎻ Discomfort about being close to others

⎻ Bereavement, lasting health consequences

⎻ Financial insecurity

⎻ Polarization

• Build appropriate feedback channels

• Prepare to accommodate

• Communicate transparently

“The world has changed and the source of this change is not a government order. It’s a virus.”

• Jonathan V. Last, The Bulwark, April 24, 2020


RETURNING TO WORK SAFELY

Katy Branson

22

© Littler Mendelson, P.C. | 2020 Proprietary and Confidential© Littler Mendelson, P.C. | 2020 Proprietary and Confidential

Governor Steve Sisolak’sRoadmap to Recovery for Nevada

Guidelines and Protocols for Individuals and Businesses

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• All essential and non-essential businesses opening or continuing operations in Phase One must adopt measures promulgated by the Nevada State Occupational Safety and Health Administration (NV OSHA) to minimize the risk of spread of COVID-19, including social distancing and sanitation measures, and abide by all other guidance promulgated pursuant to the Phase One directive.

• All employers shall require employees who interact with the public to wear FACE COVERINGS, to the maximum extent practicable.

Phase OneStatewide Standards: Requirements for Businesses & Employees


Phase OneStatewide Standards: Guidance for Businesses & Employees

• All businesses and employers are encouraged to adopt and/or take the following actions:

• Businesses should encourage customers to wear FACE COVERINGS.

• Continue to encourage TELEWORK, whenever possible and feasible with business operations. If possible, have employees RETURN TO WORK IN PHASES.

• CLOSE COMMON AREAS where personnel are likely to congregate and interact, or enforce strict social distancing protocols.

• Follow guidance from the NEVADA LABOR COMMISSIONER regarding sick leave policies.

• Strongly consider SPECIAL ACCOMMODATIONS for employees who are members of a vulnerable population.


Phase OneStatewide Standards: Guidance for Businesses & Employees

• Consider encouraging employees to do a SELF-ASSESSMENT each day in order to check if they have any COVID-19 type symptoms (fever, cough or shortness of breath).

• Remind employees to STAY HOME WHEN SICK, use cough and sneeze etiquette, and practice hand hygiene.

• Frequently perform enhanced ENVIRONMENTAL CLEANING of commonly touched surfaces.

• Social Distancing & Sanitation Practices in Businesses - All businesses should consider proactive measures to help protect staff and customers, including but not limited to:⎻ Implementing separate operating hours for the elderly and vulnerable customers.

⎻ Designating with signage, tape or by other means, six feet of spacing for employees, customers, clients or members to maintain appropriate distance.

⎻ Having hand sanitizer, and sanitizing products, readily available for employees and customers.


Returning to Work Safely: Legal Guidance

• OSHA Guidance on Preparing Workplaces for COVID-19

https://www.osha.gov/Publications/OSHA3990.pdf

• CDC Guidance - https://www.cdc.gov/coronavirus/

2019-ncov/index.html

• FDA Guidance - https://www.fda.gov/food/food-safety-during-

emergencies/best-practices-retail-food-stores-restaurants-and-food-pick-

updelivery-services-during-covid-19

• EPA Guidance – https://www.epa.gov/coronavirus/guidance-cleaning-and-

disinfecting-public-spaces-workplaces-businesses-schools-and-homes

• State and Local Authority Guidance-industry specific developing daily


Returning to Work Safely: Plans and Protocols

• Designate responsibilities

• Cleaning and disinfecting the workplace

• Engineering and administrative controls

• Face coverings

• Responding to cases



Responsibilities:

• All managers and supervisors must be familiar with the policies and be ready to answer questions from employees.

• Employees must be made aware of the policies and must be held accountable if not following them.

• Involve safety, risk management, human resources, and legal.



Cleaning and Disinfecting

• All frequently touched surfaces should be cleaned, as necessary. Once cleaned, all frequently touched surfaces should be disinfected with disinfectant wipes or a bleach and water mixture. Any person performing the cleaning must be trained on the cleaning task and the Safety Data Sheet (“SDS”) of the cleaning products.

• If performing cleaning in-house, ensure that you have the appropriate cleaning and disinfecting supplies and SDS information relating to the supplies, as well as any related personal protective equipment (“PPE”) in stock to meet the additional cleaning demands.



Cleaning and Disinfecting

• If a vendor is performing cleaning services for the Company, ensure that they are capable of performing the same enhanced cleaning steps safely.

• Cleaning staff should use appropriate PPE. Appropriate PPE includes disposable gloves and gowns for all cleaning tasks, including handling trash.



Engineering controls are physical modifications to the work environment that isolate workers from hazards.

High-efficiency air filters.

Increased ventilation rates.

Increased percentage of outdoor air that

circulates into the system

Increase physical space between employees by

decommissioning common high traffic

areas.

Increase physical space between

guest/customers.



Administrative controls are work procedures meant to reduce exposure to hazards.

Requiring employees to complete a wellness

questionnaire or answer health-screening questions prior to admittance to the

workplace.

Requiring symptomatic workers to stay home and direct those workers that

become symptomatic during the day to go home.

Allowing employees to maintain social distancing while maintaining a full onsite work week whenever possible.



Face Coverings

According to the CDC, the use of face coverings may slow the spread of COVID-19 by helping to prevent asymptomatic people

from unknowingly transmitting the virus.

A face covering is not PPE.

The CDC lists five criteria for “cloth face coverings,” which should:

• Fit snugly but comfortably against the side of the face;

• Be secured with ties or ear loops;

• Allow for breathing without restriction;

• Include multiple layers of fabric;

• Be able to be laundered and machine-dried without damage or change to shape.



Responding to Workplace Exposures

• Employee Discloses, or Presents at Work, With COVID-19 Symptoms

• Employee discloses that S/he is COVID-19 Positive

• Employee Has Been in Close/Direct Contact with a COVID-19 Individual

• Employee Has Been in Close Contact with a Suspected COVID-19 Individual

• Employee is Fearful to Report to Work


LEAVES OF ABSENCE

Sandy Ketner

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No Nevada specific paid sick leave for

COVID-19

Federal

EFMLA

No Nevada specific PFL

State Specific Disability

Federal EPSL

ADA

FMLA

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Time Off Requests: Where Leave Laws Converge


FMLA

• 50 employees within 75 miles of worksite

• 12 weeks

• Qualifying Reason

⎻ New child bonding

⎻ Serious health condition

⎻ Spouse, child, parent with a serious health condition

⎻ Military-related exigency or leave


Families First Coronavirus Response Act

• Requires covered employers to extend paid sick leave and/or paid FMLA leave to employees under defined circumstances

• Dollar-for-dollar tax credit available to reimburse employers

• Effective April 1, 2020 - December 31, 2020


Emergency Paid Sick Leave Act (EPSL)

1. Employee subject to a quarantine or isolation order related to COVID-19

2. Employee advised by a health care provider to self-quarantine because of COVID-19

3. Employee experiencing symptoms of COVID-19 and is seeking a medical diagnosis

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 precaution (like FMLA+)

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.

Employee is eligible if unable to work or telework because:


EPSL Wage Replacement

2 weeks

• For self-care reasons:

⎻ 100% pay

⎻ Capped at $511/day, per person, or aggregate of $5,110 per person

• For other care:

⎻ 2/3 pay

⎻ Capped at $200/day, per person, or aggregate of $2,000 per person


Emergency Family and Medical Leave (EFMLA)

12 weeks of partially paid leave

• First 10 days unpaid

• 2/3 of the employee’s regular rate

⎻ Capped at $200/day, per person, and an aggregate of $10,000, per person

• Employed at least 30 calendar days


EFMLA: Qualifying Reasons

Due to an inability to work or telework to care for a son or

daughter if the child’s school or place of care is closed, or child care

provider is unavailable, due to COVID-19


Two More Return to Work Issues…

1. Are returning employees immediately eligible for FFCRA EPSL?

⎻ Yes, no waiting period for eligibility.


Two More Return To Work Issues…

2. Are returning employees immediately eligible for FFCRA EFMLA?

⎻ You might think the answer is “no” -- an employee must be on the employer’s payroll for 30 consecutive calendar days before any EFMLA leave begins.

⎻ But see 29 CFR 826.30(b)(1)(ii): “An employee is considered to have been employed by an Employer for at least 30 calendar days if: … (ii) the Employee was laid off or otherwise terminated by the Employer on or before December 31, 2020, provided that the Employee has been on the Employer’s payroll for thirty or more of the sixty calendar days prior to the date the Employee was laid off or otherwise terminated.”


And As Long As We Are Talking About Leaves…

• Leave of Absence compliance in 2020 will be much more challenging than it was in 2019.

• States and cities are passing a staggering amount of new mandatory leave laws.

• Devote extra resources to leave compliance.

• Devote extra resources to multi-state and multi-city compliance.


Americans with Disabilities Act (ADA): Leave As Accommodation

• A reasonable accommodation may be a leave of absence

• Leave time will vary case-by-case

• Leave as accommodation if reasonable and no undue hardship to employer

• Requires an interactive process with the employee and possibly his/her healthcare provider – do not forget to document!


COVID-19 ADA Considerations

• COVID-19 not inherently a “disability,” but it could be one, triggering duty to consider accommodation

• ADA discrimination – “regarded as disabled” only requires regarding employee as having an impairment, not an impairment that substantially limits a major life activity

• Duty to consider accommodating those with underlying disabilities that may pose “direct threat” of harm to self or others

• “Direct threat” = “significant risk of substantial harm” to health or safety of employee or others, which cannot be eliminated or sufficiently reduced by a reasonable accommodation


COVID-19 ADA Considerations

• Post-Offer, Pre-Employment Medical Inquiries and Examinations⎻ Permissible under ADA within specific parameters

⎻ Can be targeted to uncover COVID-19 symptoms and diagnoses

• Current Employee Medical Inquiries and Examinations⎻ Must be “job-related and consistent with business necessity”

• “Direct Threat” Exclusions from Workplace – Need basis to believe that employee may have medical impairmentposing “direct threat” of harm to self/others in the workplace⎻ Right to require medical information to address justified belief that employee may be “direct threat” and to exclude employee

from workplace pending receipt

⎻ Practical considerations:

⎻ Employees may have difficulty getting HC provider to respond

⎻ Given current limits on testing and limited knowledge about virus, HC provider may not be able to provide sufficientinformation about likelihood of harm and/or nature of the threat

• Fitness for Duty Certifications⎻ Usually will need to be focused on the “direct threat” analysis, so commonly-used fit for duty forms (keyed to employee’s ability

to perform essential job functions) should not be used


ADA Issues: Taking Employees’ Temperatures

• EEOC link: https://www.eeoc.gov/facts/pandemic_flu.html⎻ Pre-employment: The ADA prohibits an employer from making disability-related inquiries and requiring

medical examinations of employees, except under limited circumstances

⎻ During employment: The ADA prohibits employee disability-related inquiries or medical examinationsunless they are job-related and consistent with business necessity.

⎻ A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or othersthat cannot be eliminated or reduced by reasonable accommodation.”

• Direct threat is an important ADA concept during an influenza pandemic.

• EEOC Guidance – As of March 21, 2020, the EEOC has issued guidance specifically concerningCOVID-19, the ADA and the Rehabilitation Act. This guidance clearly provides: “ The CDC statesthat employees who become ill with symptoms of influenza-like illness at work during apandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus.Additionally, the action would be permitted under the ADA if the illness were serious enough topose a direct threat. Applying this principle to current CDC guidance on COVID-19, this meansan employer can send home an employee with COVID-19 or symptoms associated with it.”


Your Policies

• PTO

• Sick

• Vacation

• Other “personal” or unpaid leave

• What do your policies say about:

⎻ Qualifying reasons?

⎻ Mandating use?

⎻ Run concurrently with other leave?


Nevada Paid Leave

52


Nevada Paid Leave

• REVIEW: 0.01923 hours of paid leave accrued, per 1 hour worked, for all part-time and full-time employees

⎻ Equates to approximately 40 hours of paid leave per benefit year for a full time employee

⎻ Effective January 1, 2020

⎻ Can be limited to use in increments of no less than 4 hours unless policy established prior to effective date states otherwise


Nevada Paid Leave

• NV Labor Commissioner Guidelines

⎻ Mandatory government quarantines as a result of potential exposure to COVID-19 should not result in any loss of leave to an employee working in private employment in the State of Nevada unless employee voluntary elects to use the leave

⎻ If employee is subject to a mandatory government quarantine by a state, federal, or local agency and is unable to report to work, the employer should not count the time against their leave balance

⎻ Employer is encouraged but not required to pay employee, or offer alternative working arrangements, for the time on a mandatory government quarantine

⎻ Employee can choose to use the paid leave or other applicable leave if available while on mandatory government quarantine, at the employee’s sole discretion


Nevada Paid Leave

• New guidance indicates employee should not be required to present doctor’s note/test results because of strain on healthcare system “to validate their illness, qualify for sick leave, or to return to work” [Technical Bulletin issued 3/27/2020 by the Chief Medical Officer, Nevada Department of Health and Human Services]

• DOL Guidance states that an employer may, but is not required to, allow use of existing paid leave benefits to make up for the one-third of lost wages for an employee receiving paid leave under the FFCRA

⎻ Employer is not allowed to require the employee to use existing paid leave offered by an employer under existing paid leave policies to supplement paid leave under the FFCRA

⎻ Paid sick leave under the FFCRA “is in addition to other leave provided under federal, state, or local law, any applicable collective bargaining agreement, or an employer’s existing company policy” unless the law expressly provides otherwise


Scenario #1: “I’m positive that I’m (COVID-19) positive.”

Employee tests positive for COVID-19 AND is under a government issued

order of quarantine/isolation

FMLA

EPSL

EFMLA

ADA

Your Policies

YES NO

MAYBE

MAYBE


Scenario #2: “I’m feeling COVID-19ish.”

Employee has symptoms of COVID-19, but no positive test and is not

under a government issued order of quarantine/isolation

YES NO

MAYBE

MAYBE

State/Local Laws

FMLA

EPSL

EFMLA

ADA

Your Policies

MAYBE


Scenario #3: High Risk Employees

Employee is “high risk” because of age or because he or she is

immunocompromised AND does not want to work

YES NO

MAYBE

MAYBE

MAYBE

State/Local Law

FMLA

EPSL

EFMLA

ADA

Your Policies

MAYBE


Scenario #4: “My (family member, roommate, house guest) has COVID-19.”

Employee is caring for an individual who is positive for COVID-19

YES NO

MAYBE

State/Local

FMLA

EPSL

EFMLA

ADA

Your Policies

MAYBE


Scenario #5: “My child’s school or daycare is closed because of COVID-19.”

Employee needs time off because his or her child’s school or place of

care is closed.

YES NO

MAYBE

State/Local Law

FMLA

EPSL

EFMLA

ADA

Your Policies

MAYBE

© Littler Mendelson, P.C. | 2020 Proprietary and Confidential© Littler Mendelson, P.C. | 2020 Proprietary and Confidential

Quick Leave Laws Guide

61

0.01923 hours of paid leave accrued, per 1 hour worked, for all part-time and full-time employees

Nevada PTO

Fewer than 500 employeesUp to 2 weeks (Reason 1-3, full pay; Reason 4-6, 2/3 pay)

Qualifying Reason: employee unable to work or telework because of these COVID-19-related reasons: (1) government

isolation or quarantine order; (2) health care provider advises isolation/quarantine; (3) symptoms and seeking diagnosis; (4) caring for person subject to isolation/quarantine; (5) school or child care provider is closed/unavailable; (6) substantially

similar condition

EPSL

Fewer than 500 employees/employed for at least 30 calendar daysUp to 12 weeks of leave (no more than 12 total with FMLA)

Qualifying Reason: employee unable to work or telework because

of need to care for minor child whose school or place of care closed/unavailable due to COVID-19

EFMLA

Employer-SpecificLeave time will vary Intersection with other leave depends on (1) type of leave; and (2) language contained in policy or collective bargaining agreement

Employer Policies

YES NO

YES NO

YES NO YES NO

At least 50 employees within 75 miles of worksite Up to 12 weeks Qualifying Reason: (1) new child bonding; (2) serious health condition; (3) spouse,

child, parent with a serious health condition; (4) military-related exigency or leave

FMLA

Leave time will vary case-by-caseQualifying Reason: leave as

accommodation if reasonable and no undue hardship to employer

ADA/ Nevada Law

YES NO YES NO


Littler

COVID-19 Resources and Toolkits

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COVID-19 Resources

Resources For All

• COVID-19 updates: littler.com/coronavirus

• ComplianceHR COVID-19 Resource Center

Premium Resources

• Littler OnDemand and Reliable COVID-19 Advice

• Return to Work Toolkits and Industry Guides


Compliance HR COVID-19 Resource Center

• Compliance HR’s COVID-19 Resource Center is fueled by Littler’s knowledge and experience

• The app is an automated application addressing issues including:

⎻ Health and safety;

⎻ Leaves of absence;

⎻ Wage and hour;

⎻ WARN;

⎻ Discrimination, travel and other employments issues.

• Free trial at compliancehr.com


Recalling Furloughed Employee Toolkit

General guidance on recalling furloughed employees

Toolkit includes:

• I-9 requirements

• Info on if a new background check should be completed

• Potential drug testing issues

• Two template recall letters – one intended to be used for shorter furloughs, and one intended to be used for furloughs of a longer duration that contains 50 state compliant offer letter language.


Safety and Health Return to Work Toolkit

The Littler Safety and Health Return to Work Toolkit provides industry-specific guidance to employers on opening their businesses in a safe and healthy manner.

Toolkit includes:

• Safety and Health Policy Guide

• Template Forms

⎻ exposure tracking and notice documents

• Safety and Health Policy


Temperature and Symptom Screening Toolkit

The Toolkit includes the following documents:

• Detailed Guidance on Legal Considerations for On-Site Symptom Screening

• Temperature Screening Protocol

• Jurisdiction-Specific Variations for the Temperature Screening Protocol

• Temperature Screening Training Guide

• Sample Notices, including:

⎻ Notice to Employees Regarding On-Site Screening Program

⎻ CCPA-Compliant Notice to CA Employees Regarding On-Site Screening Program

⎻ Symptom Screening Notice (poster)

⎻ Exclusion Notices – Employees & Non-employees

• Sample Forms, including:

⎻ Employee COVID-19 Questionnaire

⎻ Authorization for Release of Temperature Screening Results

⎻ Temperature Check Record –Screener Attestation

⎻ Temperature Check Log –Temperature Recording Requirement

This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and the current status of

any decision or principle of law should be verified by counsel.

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