Idaho Governor Announces Guidelines Permitting a Phased Re-opening of Idaho’s Economy

On April 23, 2020, Idaho’s Governor Little adopted “Guidelines” that constitute a “data-driven approach to opening up Idaho’s economy.”  The proposed approach is intended to reduce the risk of COVID-19 to the State’s most vulnerable population and preserve capacity in the healthcare system, while opening up businesses safely.  The Governor’s action readily acknowledges that employee and consumer confidence is necessary to promote business stability and growth.

Re-opening is phased using four increments that may begin on May 1, 2020.  This plan, however, is contingent upon review by the Idaho Division of Public Health and the Governor’s Coronavirus Working Group of syndromic, epidemiological and healthcare criteria every two weeks to assess if criteria are met or continue to be met.  To being or advance to the next stage, all criteria must be met.  If the criteria indicate that trends are beginning to move in the wrong direction, or there is evidence that a stage has adversely impacted rates, stages may have to be extended or reversed.  The dates proposed in this Guideline are only an estimated timeline.

At all times and regardless of stage, residents and employers must:

  • Maintain the six-foot physical distancing requirements for employees and patrons
  • Provide adequate sanitation and personal hygiene for employees, vendors, and patrons
  • Ensure frequent disinfection of the business as well as regular cleaning, especially of high-touch surfaces
  • Identify how personal use items such as masks, face coverings, and gloves may be required by employees, vendors, and/or patrons
  • Provide services while limiting close interactions with patrons
  • Identify strategies for addressing ill employees, which should include requiring COVID-19 positive employees to stay at home while infectious, and may include keeping employees who were directly exposed to a COVID-19 positive employee away from the workplace, and the closure of the business until the location can be properly disinfected
  • On a case-by-case basis, include other practices appropriate for specific types of businesses such as screening of employees for illness and exposures upon work entry, requiring non-cash transactions, etc.

During the initial phase from May 1 to May 15, assuming the criteria mentioned above have been met, employers should continue to encourage telework, whenever possible and feasible with business operations.  Employees should be returned to work in phases, if physical distancing, personal protections and sanitation are feasible.  Vulnerable individuals should continue to self-quarantine.  Of significance, employers should make special workplace accommodations for these employees if they are unable to work from home.  Non-essential businesses which are not excluded in the amended order may implement plans for re-opening that demonstrate the ability to meet business protocols.

While the Guidelines adopted today represent an important first step, they are obviously contingent upon the State’s ability to demonstrate that conditions have improved and will continue to do so.  Employers would be wise to carefully study the contemplated course of action and to begin addressing how they can fulfill what will be required of them.

Utah Releases Plan to Reopen Its Economy

Like many states, Utah has begun considering how and when it can return its economy back to more normal activity.  On April 17, 2020, Governor Gary Herbert issued his Utah Leads Together Plan, version 2.0 (“Plan 2.0”).  This plan was partly in response to legislation passed in a special session of the Utah State Legislature, presumably impatient with Governor Herbert’s earlier Stay Home, Stay Safe Directive, which closed schools, encouraged teleworking and restricted the activities of many Utah businesses, like restaurants, fitness centers and hair salons.  The legislation created a commission (the “Commission”) to address the scope and authority of public health orders issued by various state and local public health authorities.  On April 22, the Commission issued recommendation that the Governor lower the perceived risk level and allow certain businesses to reopen under certain health guidelines.  Although the specifics of the Commission’s recommendations are not clear, they generally appear to follow the timeline and guidelines in Plan 2.0.

Governor Herbert’s Plan 2.0 follows the phasing set out in his original Utah Leads Together Plan, with “Urgent,” “Stabilization” and “Recovery” phases.  Of most interest to Utah employers, Plan 2.0 identifies data upon which the move from one phase to another will be based, and provides workplace health and safety recommendations for different industries and varying phases of public health risk.  An overview of recommendations for various industries is here.  For example, Utah is currently High Risk statewide and, consequently, there is no dine-in restaurant service, but as the public health risk lowers throughout the state to a moderate level, dine-in service may be permitted with extreme precaution and strict social distancing measures, before eventually reopening under normal safety precautions when the public health risk is normal.

Plan 2.0 also contains an appendix with general employer guidelines (here).  These guidelines contain best practices for implementation of policies and measures to provide for emergency planning, social distancing, workplace cleanliness and hygiene, and symptom monitoring.

The recommendations and guidelines contained in Plan 2.0 will require Utah employers to undertake a broad review of their employment policies.  Employers will have to carefully consider whether existing policies should be modified and what new policies should be adopted.  The policies will cover a range of areas from remote work, leave, emergency planning, customer interactions, business travel, workplace health and safety and employee health monitoring.  Contact your Stoel Rives employment counsel for assistance creating and modifying policies as appropriate.

Oregon’s Plan for Reopening

Oregon Governor Kate Brown announced this week that Oregon is developing a multifaceted, step-by-step plan for reopening businesses and relaxing its “stay at home” measures.  In accordance with federal guidance, Oregon’s plan has three phases, with gating criteria and core preparedness requirements that must be met before moving to the next phase. Between each phase, state officials must wait 14 days and pass the gating criteria again before moving onto the subsequent phase.  The plan is expected to be finalized the week of May 4.

Threshold Criteria for Reopening

The gating criteria address the threshold health and safety measurements, and include the downward trajectory of flu- or COVID-like illnesses within a 14-day period, as well as of documented COVID-19 cases within a 14-day period or a downward trajectory of positive tests as a % of total tests.  In addition, hospitals must be able to treat all patients and have a robust testing program in place for at-risk healthcare workers, including emerging antibody testing.

Oregon counties must also meet core preparedness criteria regarding:

  • robust testing and contact tracing;
  • healthcare system capacity, including PPE (personal protective equipment) and surge capacity; and
  • plans for health and safety, including protecting the health and safety of workers in critical industries or high-risk facilities (e.g., senior living communities), protecting employees and users of mass transit, advising citizens regarding social distancing protocols, and monitoring conditions and immediately taking steps to mitigate rebounds or outbreaks.

Requirements for Employers During Phased Reopenings

During all three phases, employers must consider appropriate policies regarding:

  • social distancing,
  • protective equipment,
  • temperature checks, and
  • sanitation

Employers should also monitor their workforce for indicative symptoms and conduct contact tracing for employees who test positive.

Phased Reopening of Oregon Businesses

Once the gating and core preparedness criteria are met, restrictions may be lifted in three phases at Governor Brown’s direction.

Phase 1

  • Employers must continue teleworking efforts whenever possible.
  • Some industries may be able to reopen, depending on guidance from a working group developing proposed restrictions. As examples, restaurants may be able to offer sit-down dining, and bars and personal services (e.g., salons) may be permitted to reopen. The working group will propose a plan that is expected to contain strict social distancing and sanitation requirements. Gyms and large venues (e.g., sporting events, theaters, etc.) will likely remain closed.
  • Vulnerable individuals should continue to shelter in place.
  • All individuals should maximize social distance when in public.
  • Individuals should avoid socializing in groups of more than 10 people.
  • Non-essential travel should be minimized.

Phase 2

  • More businesses are expected to reopen with distancing and sanitation requirements.
  • Schools and gyms can open with physical distancing.
  • Gatherings can increase to 50 people.
  • Non-essential travel can resume.

Phase 3

  • Worksites have unrestricted staffing.
  • Restaurants and bars can have more seating.
  • Mass gathering size may be increased.
  • Visitors to nursing homes are allowed.

While Oregon’s plan is still in the works and additional guidance on reopening is forthcoming, employers should start developing and finalizing their own return to work plan as well as the policies and safeguards described above to prepare to reopen as soon as the Governor permits it.  When that happens, it will not be business “as usual”; it may be quite some time before workplaces resemble the environment many people left several weeks when the coronavirus pandemic began.  But the return to any business will be a welcome change for many.  For questions about implementing your own return to work policies, please contact us.

Governor Dunleavy Issues Phase 1 of the Reopen Alaska Responsibly Plan

On April 22, Governor Dunleavy announced Health Mandate 016, reflecting Phase 1 of the Governor’s Reopen Alaska Responsibly Plan.  The Governor anticipates issuing information on Phases 2 through 5 of the Plan in the near future.

Phase 1 of the Plan permits limited openings of businesses, including restaurants, retail businesses, personal services businesses, and both public-facing and non-public-facing businesses, as well as limited operations of fishing charters, churches, gyms, remote lodges and camping, childcare, and day camps, effective April 24.  Strict requirements apply to any business that reopens, including the establishment of a COVID-19 Mitigation Plan addressing practices and protocols for protecting employees and the public.

As an example of mandatory measures for reopening, a restaurant resuming table service dining must adhere to a long list of requirements that include:

  • limiting dining groups to household members only;
  • limiting dining capacity;
  • spacing tables at least 10 feet apart;
  • prohibiting walk-in customers and only accepting those with reservations;
  • requiring employees to wear fabric masks;
  • posting signage that customers with COVID-19 symptoms cannot enter the premises;
  • using disposable dinnerware if possible;
  • fully sanitizing tables and chairs between customers;
  • Cleaning and disinfecting the premises in compliance with CDC protocols;
  • Providing hand washing stations or sanitizer at customer entrances and in communal spaces;
  • Requiring frequent hand washing by employees;
  • training employees on COVID-19 requirements; and
  • conducting pre-shift employee screenings for symptoms of COVID-19 and prohibiting ill employees from reporting to work.

Other businesses must follow similar requirements tailored to the type of business.  Health Mandate 016 and specific requirements for businesses can be found here.

In addition, Phase 1 of the Reopen Alaska Responsibly Plan eases the restrictions on intrastate travel and outdoor recreation, effective April 24.  Individuals or groups from the same household are allowed to travel between communities in Alaska so long as they adhere to precautions such as minimizing stops en route; using cloth masks when stopping for food or supplies; and washing hands or using hand sanitizer before exiting and upon entering their vehicles.

Governor Inslee Speaks on Strategy for Reopening Washington

On April 21, Washington’s Governor Inslee remarked that the eventual reopening of Washington will “look more like turning a dial than flipping a switch.” But the timing of that dial turning is still unknown. Governor Inslee did not comment on whether his Stay Home, Stay Healthy order will be lifted on its current end date of May 4 or whether that order will be extended.

According to Governor Inslee, the reopening of the State will occur in measured steps, guided by science. Before reopening, he commented, the infection rate needs to continue to decrease and testing capacity needs to dramatically increase. The Governor anticipates having 1,500 workers performing contact tracing by the second week of May, but the State is still lacking sufficient test kits.

The Governor indicated that some restrictions, such as those involving elective surgeries, may be eased, and the State will be providing guidance to businesses on how to reopen safely. The first such guidance was issued on April 24: Phase 1 Construction Restart, which allows existing construction projects to restart if the contractor develops a COVID-19 Safety Plan and implements detailed requirements regarding social distancing, safety training, personal protective equipment, sanitation and hygiene, and monitoring of employees’ health. Those COVID-19 Job Site Requirements can be viewed here.

Senate Authorizes Additional Relief for Small Businesses Under the Paycheck Protection Program

Most employers are aware of the Paycheck Protection Program (“PPP”) created by the CARES Act that could provide assistance with meeting payroll, but the program quickly ran out of money, leaving many without funding.  To address that and other issues, the Senate passed the Paycheck Protection Program and Health Care Enhancement Act, see here, to increase PPP funding by $310 billion and also provide funding for hospitals, COVID-19 testing, and emergency disaster loans.  The Senate Bill does not substantively change the PPP, but it does set aside $60 billion of the new funds to guarantee PPP loans by smaller lenders and extends loan eligibility to some agricultural enterprises.  See our guidance on the PPP here and here.

The House is expected to approve the bill, and President Trump is expected to sign it, later this week.

For guidance about the challenging issues facing employers during this pandemic, see our COVID-19 Resource Hub and reach out to your Stoel Rives attorney.

Washington’s Emergency Unemployment Rules May Help Employers Retain Talent During COVID-19

Many Washington employers are looking for ways to retain skilled labor until businesses reopen.  The Washington Employment Security Department’s (“ESD”) emergency rules may help during the COVID-19 crisis.  Employers who plan to rehire employees when businesses reopen may request “standby” status for laid off employees, which has been expanded under the emergency rules.

Standby status waives the job search requirements while employees collect unemployment benefits during the standby period.  Under the new rules, workers can remain on standby status for up to 12 weeks.  In addition, ESD may grant requests for standby status for more than 12 weeks if there are infections at the employer’s place of business or if the governor issues an emergency proclamation that causes the employer to close or severely curtail operations.

To qualify for standby, the employee must:

  • be a full-time employee;
  • be returning to full-time work; and
  • have a probable return-to-work date within 12 weeks.

Employers should note that ESD is overwhelmed with unprecedented numbers of applications.  Employees should be advised to expect delays.

As we previously posted here, the CARES Act expanded unemployment benefits in many states including Washington.  ESD is working on implementing these benefits and expects to update its system in the very near future.  If you have questions or need help with strategy around furloughs and layoffs, please contact us.

California Continues to Fill in the Gaps Left by the Families First Coronavirus Response Act

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20 (the “Order”). Similar to laws recently enacted by local California jurisdictions, the Order entitles certain workers to paid leave for reasons related to COVID-19 who are otherwise ineligible for such paid leave under the Families First Coronavirus Response Act (“FFCRA”).

As discussed here, FFCRA requires employers to provide employees with up to 80 hours of paid leave for reasons related to COVID-19. Notably, however, FFCRA excludes from its scope employees working for employers with 500 or more employees.

Since FFCRA’s enactment, numerous local jurisdictions have passed ordinances attempting to fill the gap left by FFCRA by requiring employers with 500 or more employees to provide paid leave for reasons related to COVID-19. This includes the cities of San Francisco, San Jose, and Los Angeles.

While similar to those ordinances, the Order issued by Governor Newsom is different in that it applies to “Food Sector Workers” and “Hiring Entities.” Specifically, it provides that Hiring Entities are required to provide Food Sector Workers with up to 80 hours of paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) to the extent the workers are unable to work for any of the following reasons:

  • They are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • They are advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • They are prohibited from working by the Food Sector Worker’s Hiring Entity due to health concerns related to the potential transmission of COVID-19.

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Seattle City Council Expands Paid Sick and Safe Time in Response to COVID-19

The Seattle City Council has expanded Paid Sick and Safe Time (“PSST”) in response to COVID-19.  In addition to the usual reasons for which a Seattle employee may use PSST, the new amendments provide that Seattle employees must be allowed to use their accrued PSST:

  • when the employee’s family member’s school or place of care has been closed; or
  • for businesses with 250 or more full-time equivalents, when the employee’s place of business has been closed for any health or safety reason (even if the closure is not required by a public health official).

Before the amendments, PSST was available only if an employee’s child’s place of care or school was closed.  That has been expanded to include any family member, defined to be not just a child, but also a parent, spouse, registered domestic partner, grandparent, grandchild, or sibling.  In addition, the closure of the family member’s school or place of care does not have to be for a health-related reason or due to an order of closure from a public official.  Similarly, for larger employers, closure of the business for a health or safety reason no longer must be required by a public health official to serve as a basis for PSST use.

In addition to the expansion of PSST, the Seattle Office of Labor Standards has issued an emergency rule that prohibits employers from requiring a doctor’s note or healthcare provider verification for PSST use during the COVID-19 crisis.  Under the new rule, employers must provide alternatives for the employee to meet the employer’s verification requirement, and the alternatives may not result in an unreasonable burden or expense to the employee.

Washington employers should also consider Washington’s Paid Sick Leave Act, the Washington Paid Family and Medical Leave Act, and the Families First Coronavirus Response Act, which create overlapping leave requirements (and which we have previously posted about here).  If you have any questions or need help navigating these issues, please contact us.

Navigating ADA Issues in the Time of COVID-19: Four Situations Employers Should Be Prepared For

We have been counseling employers throughout the COVID-19 pandemic and have encountered several common scenarios.  Many of the most frequently asked questions are addressed in our Employer FAQs.  This post provides additional information on the interaction between various pandemic-related issues and the Americans with Disabilities Act (“ADA”).

  1. An employee known to be suffering from a mental health condition just told us that the COVID-19 situation is “too much” for them right now and has asked to go home.

While normal stress (including the additional stress we all feel during this pandemic) is not a disability under the ADA, anxiety disorders can constitute disabilities.  If an employee’s known medical condition prevents him from performing his essential job functions, it should be treated like any other ADA issue.  You should engage in the ADA interactive process (including requesting medical documentation if needed; see question 4 below) and determine what medical condition prevents the employee from coming to work and whether there are any accommodations that would enable him to do so (accommodation ideas might include additional breaks, shorter shifts, a different shift, allowing the employee to wear gloves and/or a face mask, or reassignment as a last resort).  If the employee has a medical condition that prevents him from working and there are no reasonable accommodations that would enable the employee to do so, the employee should be placed on an unpaid leave of absence until the employee is able to return to work.  (The new Families First Coronavirus Response Act (“FFCRA”) does not provide for paid leave in these circumstances.)  If you are not sure whether an employee has a disability that requires accommodation, you should err on the side of caution and engage in the ADA process.

  1. We are requiring all employees to wear face coverings in accordance with recent CDC guidance and several employees have said they can’t wear them due to medical conditions.

Requiring a face mask or covering is a workplace rule that can be enforced by the employer, but the requirement may need to be accommodated, just like other workplace rules, for a disabled employee.  In this case, the employees should be sent home and you should begin the ADA interactive process to find out what prevents them from wearing face coverings and whether there are any accommodations that would enable them to do so.  It is entirely possible that no accommodations will exist and you do not need to waive the requirement (just like you don’t have to waive other workplace rules for an individual with a disability, like those related to workplace safety), but you still need to go through the interactive process before making that determination.  If someone provides a legitimate medical reason for not wearing a face covering and you determine that there are no accommodations that would enable to employee to do so, the employee should be placed on an unpaid leave of absence until face coverings are no longer required.  The same analysis should be performed for other types of temporarily required equipment or clothing, such as latex gloves.  Again, this type of leave is not covered by the FFCRA and would be unpaid.

  1. We have several employees in the CDC’s “high-risk” category. Are there any additional accommodations we need to provide them during this time?   

If an employee has a disability that places her at higher risk and she requests a temporary accommodation during the COVID-19 crisis, you need to treat the request like you would any other ADA accommodation request.  Some states have started affirmatively requiring employers to take extra measures to protect employees considered to be at higher risk, including Washington, as we recently discussed here.  Accommodations might include additional protections to limit contact with others, such as one-way hallways or aisles and using plexiglass, tables, or other barriers to limit contact, or temporarily assigning the employee to a different position or allowing her to telecommute.  You should also assess whether the employee is eligible for paid leave under FFCRA (see our FFCRA Flowchart and FFCRA Leave Request Form.)

Finally, employers need to tread carefully and not assume that an employee is high risk or needs an accommodation.  You should not force anyone to accept an accommodation such as reassignment or leave if the employee has not requested an accommodation.  It is perfectly fine to initiate the conversation about need for an accommodation with your high-risk employees, to the extent that you know who they are.  We do not recommend that you ask employees for information about underlying health conditions that might make them high risk, but if they volunteer that information, or if you are already aware of the basis for the employee being high-risk (such as age), you can have the follow-up conversation about extra precautions.

  1. Our policy is that employees must provide supporting medical documentation before we can provide an accommodation under the ADA. What should we do if an employee can’t get an appointment with their doctor right now?  

While employers have the right to request medical documentation in conjunction with a request for an accommodation under the ADA, there is no requirement that employers obtain supporting medical documentation.  When the need for accommodation is obvious and the accommodation is easy to provide, we often encourage employers to just provide the accommodation (giving someone who needs to sit down or has back pain a new chair, for example).  Given the current health care crisis, employers should be practical and flexible with regard to the information requested for ADA purposes and consider whether documentation is necessary.  Employees may not be able to access their health care provider to have the provider fill out ADA paperwork, or may simply not be willing to put themselves at risk of exposure by visiting their health care provider.  Explore alternatives such as directly asking the employee for information about their impairment, limitations, and need for accommodations; accepting information from a past medical visit or telemedicine consult; or simply approving the accommodation without obtaining formal disability-related medical documentation at this time.

If you have any questions or need help navigating ADA issues (COVID-19 related or not!), please contact us.  ADA issues can be challenging in the best of circumstances, but they are some of our favorite legal issues to work through.