Across the country, state and local governments are considering safe ways to “reopen” their economies and revise some of their strict shelter-in-place orders. One such consideration includes masks and “face coverings,” with many implementing a requirement that members of the public, including employees reporting to work, wear such coverings.  Below are four things that employers should do now to be prepared to comply with mask and face covering requirements as they “reopen” their businesses.

Public health authorities at the federal, state, and local levels are likely to continue revising their recommendations on face coverings as they learn more about COVID-19. For example, last month, the federal Centers for Disease Control and Prevention (“CDC”) issued guidance recommending that individuals wear “cloth face coverings”[1] in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission. The CDC makes clear that the purpose of such coverings is primarily to “help people who may have the virus and do not know it from transmitting it to others.” In other words, a face covering primarily protects others from an asymptomatic wearer.

Although the CDC’s guidance is only a recommendation – and thus not binding – a variety of local and federal agencies rely on the CDC’s guidance generally to identify “best practices” for employers, including the Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”). State and local

On April 30, 2020, Governor Pritzker issued Executive Order 2020-32, effective May 1, extending social distancing requirements and, among other things, issuing new guidelines for Illinois employers.

The key employment-related aspects of the Executive Order are as follows:

• All employers are required to evaluate which employees are able to work from home, and are encouraged to facilitate remote working when possible.
• All employers that have employees who are physically reporting to a work site must post this guidance from the Illinois Department of Public Health and the Office of the Illinois Attorney General regarding workplace safety during the pandemic.
• When working, all individuals who are able to medically tolerate a face covering (which includes “a mask or cloth face-covering”) are required to cover their nose and mouth with a face covering when in a public place and unable to maintain a six-foot social distance. This includes public indoor spaces such as stores.
• All employers operating Essential Businesses and Operations and engaged in Minimum Basic Operations must take proactive measures to ensure compliance with “Social Distancing Requirements.”
  • Social Distancing Requirements include: “maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.”
  • In addition, employers should, where possible:
    • Provide employees with “appropriate face coverings” and require that employees wear face coverings
      

QUESTION: If an employee informs you that they are experiencing flu-like symptoms and complains that they have become ill from a workplace exposure to the COVID-19 virus, are you, as the employer, required by OSHA to record the illness on your OSHA 300 Log?

QUESTION: If an employee reports to you, as their employer, that they have tested positive for the COVID-19 virus, are you required by federal OSHA regulations to record that illness on your OSHA 300 Log?

QUESTION: If an employee in the healthcare, emergency response, or correctional institution industries reports to you, as their employer, that they tested positive for the COVID-19 virus, are you required by federal OSHA regulations to record that illness on your OSHA 300 Log?

Read this informative article written by our BCLP colleagues for answers to these and many other important questions for employers during COVID-19.

We will continue to monitor and provide insight regarding any developments in OSHA guidelines, as well as other federal and state government regulations, throughout the COVID-19 crisis and update you accordingly. We also invite you to review BCLP’s other COVID-19 resources, many of which are aimed directly at answering additional questions and concerns for businesses and employers operating during the COVID-19 crisis. If you have any questions related the above OSHA guidelines or any other concerns for your business’ operations during the COVID-19 crisis, please contact a member of the Employment and Labor team or your BCLP relationship attorney.

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance to employers regarding the COVID-19 pandemic. Notably, and in a significant departure from prior guidance, the EEOC advises that employers may administer a COVID-19 diagnostic test to an employee before entering the workplace. The EEOC also clarified employee rights and employer responsibilities relating to accommodations. It will be critical for employers to understand this guidance from the EEOC, as well as orders and related guidance from federal, state, and local authorities, as they prepare to bring employees back to work safely.

Testing Employees for COVID-19

The EEOC has previously advised that, under the Americans with Disabilities Act (“ADA”), an employer can only require an employee to undergo a medical test if that test is “job related and consistent with business necessity.” Under this exacting standard, it was not clear whether an employer could test its employees for COVID-19 before entering the workplace. The EEOC has now clarified that, because an individual with the virus will pose a direct threat to the health of others, employers may take steps to determine if employees entering the workplace have COVID-19, even if those steps involve a medical test. Accordingly, an employer may choose to administer COVID-19 testing to employees before they enter the workplace.

The EEOC reminds employers that, consistent with the ADA, employers should ensure that the tests are accurate and reliable. Guidance from the U.S. Food and Drug Administration describes the rapidly developing field of COVID-19 testing, and advises which

Although the federal Department of Labor (“DOL”) declared April 1 – 17 to be a temporary period of non-enforcement of the Families First Coronavirus Response Act (“FFCRA”), the DOL was far from idle during that period.  To the contrary, the DOL hosted an FFCRA webinar, published versions of the required FFCRA poster in additional languages, and actively encouraged employers and employees to become familiar with the FFCRA through posts on social media.  Importantly, the DOL also provided key revised and new guidance for employers by: (1) issuing technical corrections to the temporary rule; and (2) posting additional informal questions and answers (the “Q&A”).

As described below, this new guidance provides much-needed clarity on key issues, especially since the period of non-enforcement is now over.

Interplay Between the FFCRA and Employer Paid Leave Policies

Although the rules remain complicated and not entirely clear, there is now more information regarding whether and when an employee may choose, or an employer may require, leave under an employer’s existing paid leave policies to be used before, concurrently with, or as a supplement to, the use of leave under the Paid Sick Leave (“PSL”) and Emergency FMLA (“EFMLA”) provisions of the FFCRA.

In this context, “concurrently” means “to cover the same hours as.”  In other words, to the extent various types of leave run concurrently, then the employee’s leave entitlement is used / reduced under both types of leave at the same time.  “Supplement” means that paid leave under an employer’s

The Centers for Disease Control and Prevention (“CDC”) recently issued guidance applicable to “critical infrastructure workers,” and safety precautions employers should take when those workers are potentially exposed to COVID-19.

The CDC has generally recommended that any individual who has recently been in close contact with a person with COVID-19 (someone in their household or family member) should “self-quarantine” at home for at least 14 days, self-monitor for symptoms consistent with COVID-19, and check his or her temperature twice a day. Some employers have been applying this guidance to their employees, instructing any employee with a potential exposure to self-quarantine at home for 14 days.

Recognizing that certain essential businesses and functions need to continue operating even during the pandemic, the CDC has now updated its guidance for “critical infrastructure workers,” as defined by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”). Personnel (including contracted vendors) in 16 different sectors of work are considered “critical,” including:

• Federal, state, & local law enforcement;
• 911 call center employees;
• Janitorial staff and other custodial staff; and
• Other designated workers in the following sectors: chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, materials and waste, transportation systems, and water and wastewater.

Under the new guidance, critical infrastructure workers may be permitted to continue working following a potential exposure to COVID-19. A potential exposure means being in a household or

On April 15, 2020, the Pennsylvania Department of Health (“PDOH”) issued an order mandating that essential businesses (other than healthcare providers) which remain open and operational during the COVID-19 pandemic implement certain health and safety precautions.

The order contains a lengthy list of new requirements, including specific protocols for businesses that discover they have been exposed to a person, either an employee or visitor, with a probable or confirmed case of COVID-19. Among other things, a Pennsylvania business whose employees have been exposed to COVID-19 must implement temperature screenings for all of its employees. For employers in Pennsylvania and elsewhere developing temperature screening protocols for employees and visitors, refer to BCLP’s articles on this subject here and here.

Required Precautions for All Non-Healthcare Essential Businesses

The order requires employers to take the following precautions to ensure appropriate social distancing and other best practices for a healthy workplace. Among other things, according to the order, employers must:

• Maintain cleaning protocols for high-touch areas, including those recommended by PDOH’s April 5, 2020 order regarding building safety and cleaning measures.
• Provide masks for employees to wear during their time at the business, and require employees to wear masks while at work, except when using break time to eat or drink, in accordance with guidance from the PDOH and the Centers from Disease Control and Prevention (“CDC”). Employers may approve masks obtained or made by employees in accordance with PDOH guidance.
• Stagger work start and stop times for employees
  

Online portal

Today, the UK Coronavirus Job Retention Scheme (‘CJRS’) online portal has opened for employers to make applications for furlough grants.  You can find the portal here.

Claims can only be made in respect of furloughed employees who were on an employer’s PAYE payroll on or before 19 March 2020 and who were notified to HMRC on an RTI submission on or before 19 March 2020.  Employees who were employed as at 28 February 2020 and on payroll (that is, notified to HMRC on an RTI submission on or before 28 February 2020) and who were made redundant or stopped working for the employer after that date, but prior to 19 March 2020, will also qualify for the CJRS if the employer re-employs them and puts them on furlough.

In relation to claims made under the CJRS, employers should retain all records and calculations in respect of its claims, including records of the amount claimed for each furloughed employee and the period for which each employee is furloughed.

If an employer is furloughing less than 100 employees, in addition to providing certain employer-related details, it is required to enter various employee-specific information. This includes the employee’s name, National Insurance number, claim period and claim amount, and payroll/employee number (optional).  If an employer is furloughing 100 or more employees, it can upload a file with the above information rather than input it directly into the portal.  HMRC will accept .xls .xlsx .csv .ods file types.

For more information

The UK government announced this afternoon that it is extending the Coronavirus Job Retention Scheme (‘CJRS’) by a month to the end of June. The announcement is welcome news for many employers who for business planning purposes were considering whether they could continue to employ staff currently on furlough if the CJRS finished on the original 31 May date.

In addition, the government has finally provided guidance on holiday rights during furlough. The guidance gives welcome confirmation that employees continue to accrue holiday during furlough. Employees may also take holiday whilst on furlough, with any statutory holiday being paid at their usual holiday pay rate in accordance with the Working Time Regulations. Employers will be obliged to pay the additional amounts over the grant.

BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page.

On Monday 13 April 2020, the High Court released its judgment in the United Kingdom’s first case relating to the government’s recently announced Coronavirus Job Retention Scheme (“CJRS”).

The case considered the use of the CJRS by the Administrators of Carluccio’s Limited (“Carluccio’s”). Due to Carluccio’s being in administration, it was heard by the High Court as a matter of urgency.

The case raised several important points because the government had only outlined the CJRS in broad terms, nor has it detailed the way the CJRS interacts with existing insolvency legislation.

This blog deals with the administration and insolvency issues as well as the employment law implications regarding employees impliedly consenting to changes to their terms of employment.

Facts

• Carluccio’s entered administration subsequent to the imposition of the government’s ‘lockdown’ measures aimed at reducing the spread of COVID-19.
• The Administrators’ current strategy is to “mothball” Carluccio’s whilst it seeks a buyer. As part of this strategy the Administrators wish to retain its employees and claim for their wages through the CJRS.
• Carluccio’s has no money with which to pay the continuing wages of its employees. If Carluccio’s cannot take advantage of the CJRS and in turn limit its liability for wages to the amount it would be able to obtain under the scheme, the Administrators would be forced to make the workforce redundant.
• The Administrators made an offer to place the employees on furlough under the CJRS. The “overwhelming majority of employees” accepted the offer, a “handful” indicated that