Introduction
Revisit emergency response plan

Workers' compensation claims
Prepare for potential second wave
Prepare for potential audits
PPP loans


Introduction

The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries.(1) The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, employers need innovative but practical solutions.(2)

This article focuses on strategies for employers to anticipate and address future workplace problems which may arise once employees return to work.

Revisit emergency response plan

As businesses begin to reopen and employees return to the workplace, employers should revisit their emergency response plan to prepare for the eventuality of an employee reporting that they have tested positive for COVID-19. An emergency response plan should consider the following things:

  • The employee should be asked to stay home, or go home if they reported to work, and then follow the directives of healthcare providers and Centres for Disease Control and Prevention (CDC) guidelines. Employers should interview the employee to ascertain who they had close contact with during the 14-day period prior to the positive test or presumption of a positive test and identify all areas in the workplace where the employee was physically present.
  • Employers should undertake emergency cleaning and sanitation of the workplace. Employers should shut down affected areas for 24 hours or as long as possible to minimise the risk to those cleaning them.
  • Employers should follow their communication plan to contact the employees, customers, vendors and guests who were or may have been directly exposed. Any employee that was directly exposed should self-isolate for 14 days before they can return to work. Employers could also communicate with the general workforce – this is an opportunity to showcase that the organisation takes these matters seriously and has an emergency response plan in place specifically for such situations.
  • When communicating with employees, employers should avoid disclosing the identity of the employee diagnosed or presumed to have COVID-19 and remind staff that medical information is private.
  • Employers should administer leave for employees who have tested positive for COVID-19 or are presumed to have COVID-19 appropriately. Employers should consider developing an internal checklist of all of the possible ways that the leave can be classified (eg, Families First Coronavirus Response Act (FFCRA) paid sick leave, Family and Medical Leave Act leave, leave as a reasonable accommodation to disability under the Americans with Disabilities Act or under company-sponsored sick leave benefits).
  • Employees who have tested positive or are presumed to be COVID-19 positive should not be reinstated until they meet the criteria to discontinue home isolation as enumerated by CDC guidelines.
  • Employers should consider whether this is a reportable offence.

Workers' compensation claims

In the context of workers' compensation claims, employers should follow best practices for reporting. If an employee alleges that they were infected at work, the employer should follow the standard approach and report the case to their insurer. If the employee does not claim that they were infected at work, the employer should review all circumstances to reach a reasonable conclusion. Employers should report a positive case if an employee's job carries a high risk of transmission or additional employees at the workplace also test positive and there is direct evidence that they came into contact with the first sick employee. There are also Occupational Safety and Health Administration (OSHA) requirements for recording workplace exposure. Effective 19 May 2020, OSHA announced that a confirmed case of COVID-19 is a recordable illness if it involves:

  • death;
  • days away from work;
  • restricted work;
  • medical treatment beyond first aid;
  • loss of consciousness; or
  • significant injury or illness diagnosed by a licensed healthcare professional.

OSHA will expect employers to make a reasonable and good-faith enquiry as to whether a confirmed case of COVID-19 is a work-related event. Employers need not record a positive case unless they determine that it is more likely than not that exposure in the workplace had a causal role.

Prepare for potential second wave

The COVID-19 pandemic is an unprecedented event and has caught many employers and employees off guard. Employers should take steps now to ensure that they can mobilise quickly and make decisions in the event of another shutdown. During this reopening phase, there are many opportunities for businesses to evolve and adapt in preparation for a potential second wave or future pandemics and crises. Employers may want to designate a primary lead for COVID-19 issues in the workplace to aid in delivering a consistent message to the workforce and to field general Q&As from employees on the company's plans to:

  • address COVID-19 exposure;
  • handle OSHA issues; and
  • update guidelines, policies and procedures.

Employers should also consider whether they are equipped to have employees work remotely in order to permit essential business functions to continue should there be a second wave or shutdown. This will require employers to be cognisant of rules and regulations (eg, tax and paid sick leave laws) in jurisdictions where employees perform work from home. Employers should determine what infrastructure and technology investments might be needed – for example, they may wish to:

  • invest in electronic time keeping so that employees can record hours outside the office; or
  • have a system in place to provide all employees with the technology equipment necessary to do their jobs (eg, laptops).

Employers may also want to review their data security policies in the event that someone loses a workplace device with sensitive information and consider whether to outsource or hire IT support to handle the influx of enquiries if the entire workforce must work remotely. In addition to addressing a future outbreak, preparing these options for the workforce can also help employers to respond to reasonable accommodation requests from employees.

Prepare for potential audits

Employers should prepare for potential audits by the government and the Plaintiffs' Bar relating to FFCRA compliance. Audits typically follow an employee complaint, so employers should prepare now by documenting compliance. The FFCRA provides for paid leave for employees who cannot work or work remotely for qualifying COVID-19-related reasons, along with expanded family and medical leave to care for a child. In turn, employers benefit from the allowed tax credits. The Department of Labour (DOL) (and the Plaintiffs' Bar) could audit the following:

  • Required posters and notices to employees – notices must be posted between 1 April 2020 and 31 December 2020. Employers can satisfy this requirement by emailing or mailing this notice to employees or posting on their intranet.
  • Coverage – employers should check whether their business is covered by the FFCRA because they have 500 or fewer employees or whether they are an integrated employer that has more than 500 employees across interrelated entities. If they have concerns about whether their business is a covered entity, they should consult outside counsel for written guidance to fend off any future claims that they wilfully violated the statute.
  • Compliance with leave provisions – employers must provide the benefits that they were required to under the statute.
  • Record keeping – the DOL has provided some guidance on information that employers can seek from an employee requesting leave, but the FFCRA does not expressly provide that they may request certification, including a doctor's note. The Internal Revenue Service (IRS) has indicated that in order to receive tax credits, employers can seek a written statement supporting the need for leave. Best practice is to use a form for leave requests and note that "additional documentation may be required" if further clarity is needed. Employers should follow DOL and IRS record retention requirements and state paid leave record-keeping requirements.

Employers should be aware that company-wide violations could involve significant liability, including:

  • liquidated or double damages for wilful violations;
  • criminal prosecution with fines; and
  • possible imprisonment.

Employers also run the risk of class action litigation and retaliation claims from employees who must generally be returned to substantially similar positions after taking leave.

PPP loans

Many businesses that took loans under the Paycheck Protection Programme (PPP) have been working to ensure that they have the procedures and mechanisms in place so that those loans can be forgiven. PPP loan compliance will be audited by the Small Business Administration (SBA), the DOJ, the Securities and Exchange Commission and the IRS. Any business that receives more than $2 million in PPP loans will be fully audited, and smaller loans may be spot checked. The SBA and the DOJ will audit employers' borrowing eligibility, and employers may want to obtain written guidance from outside counsel to show that they applied for the loan in good faith. They will also audit loan amounts and use of proceeds to ensure compliance. In addition, the SBA has made it clear that employers must certify (and provide supporting documentation) that the uncertainty of the current economic conditions made the loan request necessary to support the business's ongoing operations. Employers should preserve all documents, including:

  • payroll records;
  • financials and expense payment records;
  • applicable tax forms; and
  • proof of restoring full-time equivalents or salaries.

All documents should be retained for six years after the loan is fully forgiven or repaid.

For further information on this topic please contact Christopher A Braham or Yesenia M Gallegos at McDermott Will & Emery's Los Angeles office by telephone (+1 310 277 4110) or email ([email protected] or [email protected]). Alternatively, contact Joseph K Mulherin at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email ([email protected]). The McDermott Will & Emery website can be accessed at www.mwe.com.

Endnotes

(1) This article is based on a recent webinar, available here.

(2) This article is part five of a series on returning to work after the COVID-19 pandemic. For earlier articles in the series, please see: