COVID-19 UPDATE: Reopening Your Business During the COVID-19 Pandemic: Key Employment Considerations

Plans to reopen the New Hampshire economy are underway, with Governor Sununu issuing a series of orders that allow various segments of the business community to resume normal – or close to normal – operations.

This is welcome news. But it presents risks as well as opportunities. This short article will discuss: how to plan for bringing back your workforce, Federal and State employment laws that apply to the decisions you’ll be facing, and New Hampshire’s reopening guidelines. We also include a short FAQ on common issues at the end.

How to Plan for the Return to the Workplace

Being prepared is paramount. Make a reopening plan and communicate it to your employees before they return. Foster open dialogue to alleviate concerns, and stay flexible. Recognize that plans may need to change as circumstances change.

Plans will look slightly different in each workplace. Executive Order 40, discussed below, contains a long list of elements employers are required to include in their reopening plans.

Remember that communication is key, and that employees may, understandably, encounter difficulties in resuming normal working activities. Consider updating (or implementing) an Employee Assistance Plan to help with any readjustment issues. Remain accessible and flexible, and encourage an atmosphere of teamwork and unity. Review workplace safety guidance from the CDC, OSHA and the EEOC, and be sure to update your employment policies and handbooks. Employees should acknowledge receipt of the updated policies in writing.

Key Employment Laws and Regulations

There are a host of Federal and State laws that apply (or might apply) to a workplace resuming operations after the quarantine. At the Federal level: Families First Coronavirus Relief Act (“FFCRA”), Family and Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), Continuation of Health Coverage (“COBRA”), Health Insurance Portability and Accountability Act (“HIPAA”), Centers for Disease Control (“CDC”) guidance, Occupational Safety and Health Administration (“OSHA”) guidance, and other U.S. Department of Labor laws and rules.

At the State level: NH Law Against Discrimination (RSA 354-A), NH Department of Labor laws and rules, the Governor’s Executive Orders, and his Universal and Industry-Specific Guidance.

We will discuss several of these as they apply to the most common workplace issue – requests for leave. Employers should anticipate higher rates of employee absences and requests for leave as in-person work resumes.

Federal Laws and Regulations

1. FFCRA Paid Leave.

The Families First Coronavirus Relief Act applies to employers with fewer than 500 employees and remains in effect until December 31, 2020. All employees, full or part-time, are potentially eligible for leave under FFRCA, and this entitlement is in addition to other leaves available by policy or law; an employer cannot require an employee to exhaust other accrued paid time off (“PTO”) first.

PTO is available to employees unable to work or telework who need leave for one of six qualifying reasons:

1. Governmental isolation/quarantine order
2. Advised by a health care provider to self-quarantine
3. Experiencing symptoms of COVID-19 and seeking a medical diagnosis
4. Caring for an individual under reason 1 or 2
5. Caring for a child due to school/daycare closure per government order
6. Circumstances similar to any of above

Eligible employees are entitled to 80 hours of PTO (i.e. two weeks). This amount is pro-rated for part-time and variable schedule employees. The leave is job-protected; meaning the employee is entitled to their job when they return. The pay rate is normal (i.e., not time-and-a-half), subject to the following caps:

If leave for reasons 1, 2, or 3 (i.e. care for self) – no more than $511/day, $5,110/year

If leave for reasons 4, 5, 6 (i.e. care for other) – no more than $200/day, $2,000/year

The employer can recoup the cost of paid leave through payroll tax credits.

1. FMLA Emergency and Expanded Paid Leave

Congress added a limited, expanded, leave to the Family and Medical Leave Act (“FMLA Emergency Leave”). The sole qualifying reason for FMLA Emergency Leave is an inability to work or telework in order to care for a child due to school or daycare closure based on a declared COVID-19 public health emergency. This is a far narrower scope of coverage than FFCRA.

This emergency leave policy applies to employers with fewer than 500 employees. (Contrast this with “regular” FMLA, which is limited to employers with 50 or more employees.)

All employees who have worked 30 days for an employer are potentially eligible. This too represents a more expansive group of eligible employees in comparison to the “regular” FMLA.

Up to 12 weeks of leave is available, although the first 10 days are unpaid. The remaining period is paid at 2/3 regular pay, not to exceed $200/day or $10,000 in the aggregate. Employees have the option (but cannot be required) to use other accrued PTO to pay for the first 10 days. Employees are to provide notice of need for this leave as soon as practicable.

As with the FFRCRA, jobs are protected, and reinstatement is required for employers with 25 or more employees. For employers with fewer than 25 employees, reinstatement may not be required if a job position is eliminated due to COVID-19 economic conditions and no equivalent job available when the employee returns. In addition, the USDOL has the authority to exempt businesses with fewer than 50 employees if requirements would jeopardize the viability of the employer. Here too, employees can recoup the cost of paid leave through payroll tax credits.

1. The ADA

The Americans with Disabilities Act requires employers to provide an employee with a disability a reasonable accommodation to enable that employee to perform their job. In the pandemic environment, disability claims may arise when employees with underlying health conditions request additional job-protected leave, or other accommodation asserted to be necessary to address COVID-19 complications.

In addition, the ADA is a primary source of rules surrounding the confidentiality of employee medical information.

New Hampshire Re-Opening Guidelines

In May, Governor Chris Sununu formed the Governor’s Economic Re-Opening Task Force, which is working to develop a plan and oversee the state and private-sector actions needed to reopen New Hampshire’s economy while minimizing the adverse impact on public health.

To date, the Task Force has drafted nearly a dozen guidance documents and more are expected in the near future. The Department of Public Health reviews the Task Force’s recommendations, and Governor Sununu has the final say.

1. Emergency Order 40 and Exhibit B – Universal Business Guidelines

Emergency Order #40 extended and modified Emergency Order #17 (addressing the closure of non-essential businesses and stay-at-home provisions). Exhibit B to Emergency Order #40 set forth “universal guidance” that “will serve as the bare minimum standards which businesses must meet to maintain or begin operations.”

These guidelines apply to businesses that remained open as “essential” and those that are starting to reopen. Employers must comply with the following guidelines:

• Require employees who are sick to stay home
• Develop a process for screening all employees reporting for work
• Strongly promote frequent hand hygiene and, if possible, make alcohol-based sanitizer readily available for employees and customers
• Implement cleaning and disinfection practices
• Mitigate exposure
  • Support the use of cloth face coverings in areas where social distancing is difficult, implement social distancing guidelines, and modify schedules to reduce the number of physical interactions.
  • Limit self-service options (e.g. candy dishes and common coffee creamer)
  • Promote etiquette for coughing, sneezing, and handwashing
  • Send sick employees home immediately and clean their area
• Allow working from home as much as practical
• Plan for potential COVID-19 cases
• Ensure employee privacy
• Abide by all paid or expanded leave laws, such as the FFCRA
• Update sick leave policies so they are consistent with state and federal workplace safety laws. Consider creating a specific COVID-19 policy. Distribute and post policies.
• Communicate frequently about the steps being taken to prevent spread.

 Employee Screening Requirements

The guidelines require employers to develop a process for screening all employees reporting for work. Identify a location and person who will screen each employee before they enter the workplace. Clearly communicate the plan with employees, and wear cloth face coverings during the screening interview.

The screener should ask a series of questions:

• Have you been in close contact with a confirmed case of COVID-19?
• Have you had a fever or felt feverish in the last 72 hours?
• Are you experiencing any respiratory symptoms including a runny nose, sore throat, cough, or shortness of breath?
• Are you experiencing any new muscle aches or chills?
• Have you experienced any new change in your sense of taste or smell?

The guidelines recommend that employers document the temperature of all employees daily before their shift with a non-touch thermometer. If this is not possible, temperatures can be taken before arriving as long as it can sufficiently be authenticated by the employee.

If employees exhibit any symptoms, the employer should instruct them to leave the premises immediately and to seek medical advice. The workspace of any symptomatic employee should be thoroughly cleaned. The privacy of their health information should be maintained to prevent stigma

Industry-Specific Guidelines

The Governor’s Stay at Home 2.0 orders prescribe additional guidelines for specific industries.

1. Industries that can continue to operate with new, modified guidance: private and public campgrounds, New Hampshire State Parks (interior – not beaches), manufacturing, and hospitals.
2. Certain types of health care services were permitted to phase in as of May 4, 2020.
3. Industries that can phase-in, or expand services as of May 11, 2020: Retail stores; drive-in theatres, private and public golf courses, barber and hair salons, and dental practices.
4. Industries that can phase-in, or expand services as of May 18, 2020: Restaurants, small group attractions, child care facilities, and equestrian facilities.

Guidelines continue to be drafted for additional industries

FAQs

1. Are employees required to wear face masks or other PPE at work?

Wearing a face mask is recommended, although not necessarily required depending on the circumstances. NH Executive Order 40: Universal Business Guidelines (Exhibit B) states that “[a]ll employees should … wear a cloth face covering while at work and in potential close contact with others.”

Industry-specific guidance may require it in some circumstances. The State is providing masks for business free of charge

2. Must an employer take each employee’s temperature every day?

NH’s Universal Guidance applies to all essential businesses that stayed open and businesses that are reopening. It provides, in part, that employers should take the temperatures of their employees on-site with a non-touch thermometer each day upon the employees arrival at work. If this is not possible, temperatures can be taken before arriving as long as it can sufficiently be authenticated by the employee.

3. What should an employer do if an employee develops COVID-19 symptoms at work?

Follow the plan you have developed, as well as the requirements of Emergency Order 40. Instruct the employee to leave the premises immediately and to seek medical advice. Remember to maintain the confidentiality of employee health information, and disinfect the employee’s workspace.

If possibly work-related, report the instance to OSHA and the NH DOL. You should also consider whether to perform internal contact tracing, a task that may be complicated by the need to maintain health information privacy.

4. What if an employee refuses to return to work for fear of catching COVID-19?

On a case by case basis, ask:

• Does the employee have a COVID-19-related qualifying reason to stay home (Executive Order #5 and FFCRA)?
• Is this protected leave under the FMLA?
• Is this protected leave for a disability under the ADA?
• Is reasonable accommodation available?
• Can the employee use other accrued PTO or sick leave?
• Can the employee work from home?
• Is there a different workspace to make the employee comfortable coming to work?

PPP loan borrowers should document, in writing, offers for employees to return to work to support loan forgiveness applications.

5. What if an employee refuses to return to work because they are making more on unemployment benefits?

You cannot make an employee come back to work. Make and document an offer to return to work. If the employee refuses to return, you may consider terminating employment. But before taking action, review any potential discrimination claims the affected employee may raise. And ask whether there is a legal right to other leave (sick leave, PTO, etc.).

For more information, contact Steve Winer or Lindsay Nadeau

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