COVID-19 Business Re-Opening Challenges

 In Small Business Legal Help

Business Owners Still Run The Business

Pinch yourself, a pandemic really happened and a business owner is facing challenges never before seen. Just only two months ago on April Fool’s Day no less (April 1, 2020), all employers with fewer than 500 employees must offer emergency paid leave under a new law called the Families First Coronavirus Response Act (Act).  Offering paid leave is a first for some business owners, if you have less than 50 employees.  In April, the thought of paying leave was causing panic, and getting a lot of hype.  Over the last two months, some business owners decided to completely shut down and furlough employees where some sent their employees home to telework but decreased operations. We keep hearing about the financial relief offered to business owners through loans called “PPP” and “EIDL.”  With these loans come serious conditions for small business owners to juggle to ensure compliance.  Just the word “compliance” can send chills down the spine of a business owner. 

Re-Opening Challenges and Compliance Issues

Now with our daily lives slowly re-opening and people returning to work, compliance is at an all-time level of scary, for the business owner.  Why?  You are now facing:

  1. Following OSHA and CDC Guidelines by taking precautions with workplace conditions, social distancing, etc.
  2. Maintaining a workplace that doesn’t cause direct harm
  3. Communicating Your Plans and Policies To Your Employees
  4. Documenting All Communication With Your Employees
  5. Shielding the business from COVID-19 related legal claims for Retaliation (Whistleblower), Discrimination, Failure to Accommodate under the ADA, Hostile Environment, and Wage and Hour Violations.

Is It Possible To Stay In Control As A Business Owner?

Please remember that as a business owner, you still run the show.  Which means also that the buck still stops with you.  The employees don’t call the shots for your business and neither does the government.  Take a deep breath right now.  This is not the time for you to give up and completely lose your focus and motivation.  You got this.  The success of your business will depend on the decisions made that are necessary to keep the business in business. 

You Can Change Job Duties, Positions, Anything that Affects Operations.

Employers are free to change job duties, positions, expect employees to return to work, etc., as long as the decision to make those changes can be tied to the well-being of the business. If a business owner makes a decision that is not based on the economic vitality of the business, but instead is seen as discriminatory, then proceed with caution before making any rash decisions.  This means that for economic reasons you may cut jobs or benefits or change the direction of the business.  Carefully evaluate such business decisions to avoid claims of non-legitimate or discriminatory reasons.  For example, if you do not bring back all of your furloughed employees then verify that employment decisions are based on objective criteria rather than subjective criteria.  Avoid engaging in unlawful disparate treatment based on protected characteristics with employment decisions.

You Decide What Safety Measures Will Be Implemented

Again, you are still in charge, as a business owner.  What works today may not work next week.  The safety guidelines you put in place today may be too onerous so next week, you may decide to cut back.  You are allowed to make changes.  Also, don’t worry about what other businesses are doing.  Your business may require different safety standards and precautions than a dental office or a restaurant.  There is no set guideline for each type of business, it depends on what makes the most sense to keep your workplace protected.  For example, some clothing stores require all customers to wear masks and they are not allowing anyone to try on clothes.  On the other hand, other clothing stores may not be requiring masks and do allow you to try on clothes.  Again, there is no one way all safety measures are handled, you decide what works best for your workplace.

How Do You Protect Others From Harm At Your Business?

Follow OSHA and CDC Guidelines Appropriate For Your Workplace

This includes following all guidelines of state and local health departments and the recommended safety practices from OSHA and the CDC that apply to your type of workplace.  It will be critical for employers to give employees a safe place to work.  This includes:

  • Providing PPE (if applicable to your workplace);
  • Regularly cleaning and disinfecting workplaces;
  • Appropriately distancing employees to limit exposure; and
  • Training management-level employees on how to respond to safety concerns raised by employees.

Look at your workplace to ensure you are providing a safe environment as much for practical reasons as legal ones.  Some states recently passed laws to shield businesses from liability for COVID-19 positive test results (Utah Safe Harbor Law).  However, gross negligence is not protected.  For example, two companies in the state of Utah, “instructed employees to not follow quarantine guidelines after exposure to a confirmed case at work and required employees with a confirmed COVID-19 diagnosis to still report to work.” You could face employee lawsuits for failure to maintain a safe work environment if an employee can show that you were grossly negligent. 

Require Notification From Employees Who Pose Harm To Others

When should an employee notify you to determine if they pose direct harm to others at the workplace? 

  • If an employee was exposed to someone who is exhibiting symptoms;
  • If the employee has COVID-19 symptoms themselves (fever, cough, or shortness of breath);
  • If the employee has tested positive for COVID-19.

For employees who are not considered exposed (around someone else who may have been exposed), such employees should self-monitor for symptoms.  If they develop symptoms, they should notify their supervisor and stay home. 

Require Exposed Employees To Stay Home

Employees who are suffering from symptoms should stay home until:

  • Released to return to work by a medical provider; or
  • The employee is symptom-free for at least 3 days without fever, achieved without medication, and no respiratory issues, and 10 days after symptoms first appeared.

You May Require Employees To Test For COVID-19

The EEOC guidance states that under the ADA, “employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.”  Thus, if appropriate for your type of workplace, you can ask employees to be tested for COVID-19 before coming back to work.    

What if An Employee Is Suspected Or Confirmed To Have COVID-19?

In most cases, you do not need to shut down your business.  You should do the following to prevent harm to others:

  • Close off any areas used by the sick person;
  • Wait 24 hours (if possible) before cleaning and disinfecting to minimize the potential for other employees to be exposed to respiratory droplets; and
  • During the waiting period, open outside doors and windows to increase air circulation in the affected areas.

Be careful to keep the identity of the employee confidential unless the employee consents in writing to release his or her name.  Also, keep all medical records in a separate file from the personnel file to help maintain confidentiality.  You have a duty to inform others who may have worked closely with the infected employee that they may have been exposed, but do not release the identity of the infected individual. 

What If An Employee Refuses To Return To Work?

There May Be State Laws In Place Preventing Employees From Returning To Work

An employee’s refusal to return to work may be protected by a state or local law.  For example, if the employee has tested positive for COVID-19, has symptoms, or lives in the same household as someone who has tested positive or is exhibiting symptoms, then that employee can refuse to return to work and their position should be held open under the Act

Moreover, an employee may qualify for emergency paid leave under the Act for childcare issues.  The childcare question is fact-specific and qualification will depend on the specific circumstances.  Reach out to your professional advisor to review the facts in order to determine if an employee qualifies or not.

Determine If There Is A Reasonable Expectation Of Imminent Danger

Section 13(a) of the Occupational Safety and Health Act (OSH Act) protects employees from imminent danger where there is a threat of serious physical harm or a reasonable expectation of health hazards.  Requiring an employee to come to work who tests positive for COVID-19 could expose others to COVID-19 which poses an imminent danger to everyone in contact with that employee.  This could also support a claim of gross negligence.  Another threat of danger could be to employees who have a vulnerability or underlying condition so forcing them back to work may pose a threat of imminent harm to them.  In this case, the ADA interactive process kicks in to determine if accommodation is applicable.

What If There Is No Law Or Imminent Danger? Termination May Be Necessary

Before terminating an employee for refusing to return to work, consider possible retaliation claims if such an employee has raised safety concerns.  Carefully document your discussions with employees that outlines the safety measures you took to address their concerns.  If the employee still refuses, then inform the employee in writing that if they don’t return to work by a certain date, they will be deemed to have voluntarily resigned.  Be careful and ready to show that your decision to terminate was unrelated to any safety concerns raised by the employee or subjective criteria and the decision was made because of the employee’s violation of an express directive to return to work. 

How Should You Prepare To Defend Your Employment Decisions?

Timing and Documentation Will Be Key

It is inevitable that a business owner needs to make personnel changes that will be tough on employees.  It never looks good when those decisions are made at or around the same time an employee complains about something.  When making such decisions, consider the risks and benefits before acting.  Then if you proceed, be sure that you have appropriate documentation leading up to and through the date the action is taken that demonstrates that the personnel action is unrelated to any protected activity or protected characteristic. 

Leave Request Forms Will Help You Ask The Right Questions For Emergency Paid Leave

Employers who handle emergency leave requests by completing a form will avoid legal issues later.  Such a form will list out the questions that need to be asked to help the employer determine whether an employee qualifies for emergency paid leave or not.  Keep in mind that you cannot require the employee to complete the form in order to qualify.  To save time, you or the employee’s supervisor can fill out the form while getting the information from the employee.  Each situation is fact-specific and may be handled differently depending on the facts where one employee’s leave qualifies but another doesn’t. 

Written COVID-19 Policies and Emergency Paid Leave Policies Keep Everyone On The Same Page

Employers should be communicating in writing as well as training employees about how the business plans to handle business operations due to the pandemic of COVID-19.  The written policies should cover a variety of issues like sanitization, social distancing, teleworking, and leave requests including specifically the following:

  • How the company will ensure the health and safety of employees, customers, vendors, and others;
  • How the company will handle emergency family and medical leave requests; and
  • How the company will handle emergency paid sick leave requests.

Where Can A Business Find Policy and Leave Request Forms?

You have options.  First, if you use a payroll company, check with them.  Most payroll companies have these forms available at no additional cost.  Second, if you have a business attorney on retainer, check with him or her.  Third, you can purchase these forms online from us:  Click Here.

When Is A Doctor’s Note Required?

No Doctor’s Note Required When Employee Is Taking Emergency Paid Leave

In order for an employee to take leave under the Act, you may require the employee to identify his or her symptoms, document the date him or she is scheduled to see a medical professional, and the name of the medical professional.  However, you may not require the employee to provide further documentation from a doctor.

A Doctor’s Note May Be Required To Provide An Accommodation Request

An employer may still engage in the interactive process and request information from an employee about why an accommodation is needed.  There may be a duty to accommodate an employee with COVID-19, or some condition that makes him or her susceptible to COVID-19.  An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.”  Focus on whether your business can accommodate the employee without creating an undue hardship.  Also, consider whether bringing the employee to work creates a direct threat to the employee or others.  Possible accommodation may include telework, an unpaid leave of absence, emergency paid leave or reallocating non-essential job functions to other employees.  Flexibility by employers and employees is important in determining if some accommodation is possible.  The ADA allows an employer to require a doctor’s note to determine whether an accommodation is necessary or to allow an employee to return to work without any accommodations when accommodations were previously provided.

Stay CIVIL & Don’t Take Actions Without Professional Advice

If you don’t have a business attorney or a CPA already then start looking.  As a business owner, you have a duty to protect the business from common legal mistakes that turn into full-blown lawsuits. You also set the tone for your business as the business owner.  There are a lot of emotions going on right now.  Your people may not agree with how you handle things or they may be judging each other’s choices. We all have choices on how to respond or react to each other. Reminding ourselves to stay calm, put a smile on our face, respond timely, and respect each other at work will help us get through this crazy time. It starts with each of us individually taking responsibility for our actions. Civility is good for business! Even if you have crap going on in your life, pretend you are at Disneyland when you get to work, let yourself be positive, let yourself smile, and let yourself get through the day being civil. Try it and what happens may surprise you.

We are here for you at a socially safe distance, of course! You didn’t start your business to see it fail and Dana Ball has made it easy and affordable to protect your business.

Check out this recent Press Release:  Has Your Business Distributed COVID-19 Policies to Employees Yet?

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