On Wednesday, May 20, 2020, Jeff Beemer and I conducted a webinar of the same title as this blog, which you can register to access here. In that webinar, we discussed the top concerns employers face as they seek to re-open their businesses under the relaxed stay-at-home orders and re-up their workforces. This blog will highlight those top concerns.

#1 – Continued Application of the Paid Leave Provisions of the First Families Coronavirus Response Act (FFCRA)

Effective April 1, 2020 through December 31, 2020, the FFCRA provides two types of paid leave benefits to applicable employees if they are employed by employers with under 500 employees.

Those paid leave benefits are 80 hours (in the case of full time employees) and two weeks (in the case of part time employees) of paid time off, if the employee needs leave for any one of the following conditions.

  1. Employee is subject to a federal, state, or local quarantine, or isolation order related to COVID-19;
  2. Employee has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Employee is caring for an individual subject to an order described in bullet 1 or 2 as described above;
  5. Employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
  6. Employee is experiencing any other substantially-similar condition specified by the US Department of Health and Human Services.

Qualifying employees may be eligible to receive up to two weeks of paid sick leave at:

  • 100% for qualifying reasons detailed in reasons 1 to 3, up to $511 daily and $5,110 total;
  • 2/3 for qualifying reason, described in 4 and 6, up to $200 daily and $2,000 total; and
  • If seeking leave as described in item 5, up to 10 weeks of expanded family and medical leave paid at 2/3 the employee’s wage, up to $200 daily and $10,000 total.

Employers should remain cognizant that employees may seek paid leave benefits as they return to work and until December 31, 2020. With that, an employer must document employees’ need for leave and request any documentation necessary to allow for the leave and to obtain the tax credits for money paid out to employees as wages.

#2 Re-Opening and the Impact of Unemployment Benefits

With businesses re-opening, the next concern is how this may impact workers who are receiving unemployment benefits under the state unemployment systems, including their expanded eligibility criteria as a result of COVID-19, and under the federal Pandemic Unemployment Assistance (PUA) Program that provides unemployed workers an additional $600 a week in unemployment benefits.

Because the additional money allowed under the PUA has meant that some workers may be more resistant to return to work because they are getting more money than if they were working, the Department of Labor had to address the issue in its April 27, 2020 Employment and Training Administration Guidance and made clear that, if an employee refuses work when called back or provided work by the employer, the employee is not eligible for PUA benefits unless:

  • Employee was eligible for PUA because they were the primary caregiver for a child who was unable to attend school due to a school closing, they would typically not have been eligible for PUA benefits during the summer months. However, if the ‘customary summer arrangements,’ such as summer camp, remain closed because of COVID-19 reasons, that worker may continue to qualify for PUA benefits;
  • Employee cannot reach their place of employment because of a stay-at-home, shelter-in-place or other municipal order restricting travel; or
  • Employee was offered telework but is unable to do so because of domestic violence, sexual violence or stalking.

Similarly, many states have reiterated that a refusal to return to work, even if the employee’s reason is fear of contracting COVID-19 in the workplace if required to return to work, would disqualify an employee from benefits. Some states even issued COVID-19 specific fraud forms for employers to use to report such works in an effort to curb misuse of unemployment funds.

#3 Re-Opening and An Employee’s Refusal to Return on the Employer’s Loan Forgiveness under the CARES Act Payroll Protection Program (PPP)

As any employer who received money under the CARES Act’s PPP knows, to obtain loan forgiveness, the employer must use 75% of the funds on salary, rent, and other specifically-enumerated items. They must also get their full-time employee headcount and salary payouts up by June 30, 2020 for any changes made between February 15, 2020 and April 26, 2020. This means that employers are seeking to re-hire many of their employees that were furloughed or laid off. The problem employers are seeing is that employees are hesitant or flat-out refusing to return to work, and most for the unemployment and fear issues discussed in #2 above.

In any event, because re-hiring is critical for employers to maintain their loan forgiveness, an exception was carved into the PPP that provides that a borrower’s PPP loan forgiveness (pursuant to section 1106 of the CARES Act and the SBA’s implementing rules and guidance) will not be reduced if the borrower laid off an employee, offered to re-hire the same employee, and the employee refused the offer.

Key to the employer/borrower qualifying for the exception is that the employer be able to prove that it made a good faith offer of re-employment to the employee and be able to document that the employee refused the offer. As such, the following are three best practices to qualifying for that exception:

  • Make any offer to return to work in writing;
  • Include salary information that provides the employee’s wage will be substantially similar to the wages the employee received pre-layoff/furlough;
  • Include a clear date by which the employee must respond, with notice that failure to respond shall be treated as a refusal to return to work; and
  • Include a statement that refusal to return to work may result in the individual being ineligible for continued unemployment benefits.

#4 Employer Absolving Itself of Workplace Liability through Employees Waivers

Many employers have started to think creatively about how to return employees to work and not face liability. One solution some have come up with is having employees sign liability waivers. Notably, one of the biggest foreseeable issues for employers will be the potential to be sued by an employee for workers’ compensation benefits if the employee believes he or she contracted COVID-19 in the workplace. While the burden to prove the causal connection may be difficult, some employers have asked employees to sign workers’ compensation waivers indicating they will not hold the employer liable for workers’ compensation benefits. The issue with this proposition is that workers’ compensation benefits are a matter of state law and most state laws include a provision that provides that benefits may not be waived by private agreement by the employer and employee as the administrative agency must be a party. It makes sense; if such a waiver were allowed, employers would have new hires sign one on day one of employment and the workers’ compensation system would cease to exist.

Outside the workers’ compensation context, to be legally enforceable, waivers have to be knowing and voluntary. Making employment contingent on signing away legal rights is arguably not voluntarily, especially if the employee will lose unemployment benefits for not returning. As for the knowing element, well, you cannot knowingly waive something that you do not know about, i.e., that has not occurred. While you can certainly waive rights that accrued in the past, you cannot waive rights that may accrue in the future. Turning back to the day one of employment scenario, if such a waiver were legal, every employer would have an employee sign a blanket, universal waiver of liability covering all employment-related claims, such as harassment, discrimination, retaliation, whistleblower, negligence, personal injury, etc. We know that such a waiver would not be valid.

As such, not only are such waivers unenforceable they can also lead to bad business and bad press. Earlier this month, the Las Vegas Review Journal contained an article about Las Vegas Restaurant, Nacho Daddy’s requirement that all employees sign a waiver of liability before they would be allowed to return to work. The article received a lot of attention, and, in turn, Nacho Daddy, received a lot of bad publicity. So much so that it got rid of the waiver.

So while an advance waiver may have a deterrent effect on employees who may seek to sue, ultimately, they are likely invalid and unenforceable and may do more harm in terms of negative employer/employee relations and bad press than good. So, a best practice is to skip the waiver and handle the issue with a policy that conforms to the employer’s state and local social distancing and related requirements and have the employee acknowledge that they received, read, and understood their responsibilities regarding social distancing, face coverings, etc. If the employer is sued by an employee for a COVID-19 related issue, the policy and enforcement of the policy by employee discipline will go a long way in structuring a defense to a negligence or intentional tort claim.

#5 Employer Medical Screening of Employees

In the wake of a pandemic, the protocols around employers making medical inquiries of employees and/or subjecting employees to medical screening is significantly relaxed. Employers may ask employees about their symptoms, take their temperature, make employees undergo self-symptom checks, etc. At this point, many states are similarly requiring employers to take such measures and the ADA cannot be used to interfere with such state/local health authority orders or the CDC’s guidance.

Two parts of the ADA that do however remain unchanged by a pandemic: (1) medical information is still confidential and must remain treated as such, i.e., in a separate file apart from the employee’s personnel file; and (2) that the employer may not “regard” an employee as disabled just because the employee may be in a high-risk age group.

Employers faced with the issue of returning employees to the workplace, including those in high-risk populations (e.g., those with chronic lung or kidney disease, serious heart conditions, autoimmune disorders, severe obesity, diabetes, or liver disease) should treat every case individually and engage in the interactive process to determine what, if any, reasonable accommodation the employer may be able to provide that employee.  Some reasonable accommodations may include providing additional personal protective equipment, letting the employee work from home, etc.

#6 Lawsuits

With anything new and uncharted, employers can expect lawsuits. A number have already been filed. In fact, from March 17 to May 2, 2020, plaintiffs’ lawyers filed almost 30 complaints related to COVID-19 in federal court. That number is perhaps small in comparison to the scope of the crisis, but the trend points upward…sharply upward. Of those filed, the types of suits filed looked like this:

  • 6 for discrimination and harassment;
  • 5 for wage-and-hour violations;
  • 3 for workplace safety,
  • 3 for constitutional and civil rights issues, and
  • 2 each for business restructuring

Most lawsuits were concentrated in states with stringent employment regulations, including California, New York, and Illinois, however the top state was Florida where five COVID-19 related suits were filed. Notably, this list does not include state lawsuits that were filed, but those numbers have been increasing significantly as well. The numbers also do not include workers’ compensation claims as those are not tracked by state or federal filings as they are administrative claims.

While there are lots of considerations and new things to think about, there are better ways of doing things. Please check out our webinar or reach out to us if you have any questions about these and any other COVID-19 employment-related topics.

About the Author

Sara H. Jodka is a member in the firm’s Columbus office. She is a member of the firm’s labor and employment group and also a member of the firm’s cannabis practice group, which boasts over 40 attorneys practicing in the cannabis space. She can be reached at 614-744-2943 or via email at sjodka@dickinsonwright.com.