California Modifies California’s Workers’ Compensation Laws to Deal with COVID-19

In yet another effort to adapt California law to the current pandemic, on May 6, 2020 California Governor Newsom signed Executive Order N-62-20 (the “Order”). As it pertains to workers’ compensation benefits, the Order provides that any COVID-19 related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following are true:

  1. The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
  2. The day that the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;
  3. The employee’s place of employment was not at the employee’s home or residence; and
  4. The employee’s diagnosis was done by a licensed physician and is confirmed by further testing within 30 days of the date of the initial diagnosis.

The presumption applies only to dates of injury occurring through 60 days following the Order’s execution – July 5, 2020 – and is rebuttable. If it is not rebutted then the Workers’ Compensation Appeals Board is bound to accept the presumption.

In addition to establishing a presumption for workers’ compensation benefits, the Order also establishes eligibility requirements for employees seeking temporary disability benefits for COVID-19 related illnesses.

While the Order emphasizes Governor Newsom’s plan of providing California employees with an expanded safety net during the current global health crisis, it also serves as an important reminder to California employers. Some employers may believe that during the current crisis they have the option of relaxing their compliance with certain laws, including laws relating to providing disabled employees with reasonable accommodations. This is not the case. To the extent California’s employment laws need to be changed or modified to fit the current crisis, the Governor (or legislature) will take explicit steps to make those changes or modifications. Until then California employers must be sure to stay in compliance with any and all laws as they exist on the books and the failure to do so is a risky and dangerous proposition.

Ten Things to Consider In Getting Back to Work

As restrictions are easing, employers are planning for and starting to bring people back to work.  In these extraordinary times, everyone recognizes that things will not be business as usual.  Here is our “Top 10” checklist of things to consider as we move toward the “new normal.”

  1. Reluctant Returners. Many employees are eager to return to work.  Others (who are earning more on unemployment benefits or are fearful) may refuse your invitation to return.  Carefully evaluate employees’ proffered reasons for not returning and your next steps, which may vary depending on their status (including whether they were previously terminated, furloughed, or on protected leave) and may include termination or protected leave upon reinstatement.  If your business received a loan through the Paycheck Protection Program, your eligibility for loan forgiveness may not be impacted by employees who refuse to return if you take certain steps, as we discussed here.
  2. State-Specific Mandates. Some states (including Oregon) now require or recommend that employers develop policies regarding social distancing, personal protective equipment (PPE), temperature checks, and more.  Some states also limit workplace occupancy for employees as well as customers/visitors.  Make sure you are up to date with any applicable state and local requirements.
  3. Social Distancing. Implement (and assign someone to enforce) social distancing policies (which should be in writing and clearly communicated to your workforce) to maintain at least six feet of distance between employees.  Ideas include restricting hallways to one-way use, moving workstations, erecting temporary barriers between workstations, and temporarily closing communal spaces (conference rooms, break rooms, etc.) or limiting them to the number of people who can maintain social distancing requirements, depending on the size and layout of the room.  If you have an area where employees congregate, consider markers on a wall or the floor to indicate the appropriate distance between people.

    Your supervisors should be prepared to enforce these new policies, and your employees may have good ideas – ask them for input!  Your human resources (HR) department should be prepared to respond to employee concerns or complaints about their co-workers stepping over the proverbial (or literal) line (remember, no retaliation!).

  4. Staggered Return and Modified Schedules. Encourage or require telework when feasible, but for those employees returning to the workplace, consider bringing them back in phases.  Also consider split or staggered shifts (or staggered arrival/departure times), and staggered meal periods and rest breaks.  If you can offer flexible scheduling, talk to your employees and incorporate their preferences if you can reasonably do so.  Be clear that any modifications are temporary and subject to change.

    If you are thinking about reducing work hours, evaluate whether participating in your state’s work share program (where available) makes sense for your business and your employees, and, for businesses that received a Paycheck Protection Program loan, what impact that may have on forgiving your loan.

  5. Hygiene and Sanitation. Provide hand washing stations and hand sanitizer and encourage frequent hand washing and good hygiene practices.  Ensure frequent disinfection through regular cleaning, especially of high-touch surfaces, and provide employees with sanitation wipes.  (Be prepared to police employees from absconding with highly coveted sanitation wipes and sanitizer for personal use at home.)
  6. PPE for Employees and Customers. Consider whether to require employees – and customers – to wear face coverings or masks or other PPE on your premises.  If the nature of your operations does not always permit appropriate distancing between employees or customers, this may be a reasonable requirement, and may be mandated by the Occupational Safety and Health Administration or state law.  Be prepared to send employees home if they refuse to use PPE, and to consider reasonable accommodations for employees as required by the Americans with Disability Act (ADA) or Title VII.  (Also make sure you are properly paying employees for time spent donning PPE.)
  7. Medical Screening. Consider whether to require employees to submit to medical screenings such as temperature checks, or to encourage employees to do a self-screen or temperature check before they report to work.  Though such procedures may ordinarily be considered “medical exams” that are regulated by the ADA, the Equal Employment Opportunity Commission recently released guidance that allows them.  Keep the screening results confidential and separate from personnel files and be cautious about who has access to this data.  HR personnel, who are familiar with handling sensitive matters, are good candidates to manage the screening process.
  8. Sick Employees. Have a detailed plan of action for sick employees, including prohibiting employees from entering the workplace until they have been symptom-free (unmedicated) for at least 72 hours.  Do not share the identity of any employee who shows symptoms of or is diagnosed with COVID-19, even if the employee gives you permission to do so.  Ask the employee to identify individuals with whom they have worked closely over the prior 14 days.  (Because it can be difficult to recall everyone you’ve been near over a two-week period, some employers are developing visitor logs and asking employees to meticulously track their personal contacts daily on their calendars.)  Inform potentially exposed individuals confidentially, and consider whether to permit them to take leave.
  9. Protected Leave and Updated Policies. Are you subject to the Families First Coronavirus Response Act (FFCRA)?  Know whether and when you may need to provide leave for COVID-19 related reasons, including school or daycare closures.  (See here or here for more information on FFCRA leave.)  Update your policies accordingly and pursuant to changes in state and local laws (such as sick child leave in Oregon and paid sick time in Seattle).  Develop any new policies required by your state or local officials (such as those required in Oregon).
  10. ADA Issues. Be prepared to navigate ADA issues and provide accommodations to “high-risk” employees – see our discussions of common ADA issues and Washington’s new mandate regarding “high-risk” employees.

Suffice it to say that getting employees back to work requires as much or even more planning and thought than employers undertook in implementing furloughs and layoffs when many businesses shuttered or slowed many weeks ago.  For additional guidance about bringing your employees back to work, contact your Stoel Rives attorney.

COVID-19 Litigation: The Next Wave

Just when you thought it was safe to go back in the water (or stop sheltering in place anyway), a wave of COVID-19-related employment lawsuits are being filed across the country.  At our last count, nearly 50 labor and employment-specific cases have been filed.  The first in Oregon was filed earlier this month by a former assisted living facility employee who seeks $950,000 in damages for alleged whistleblower and sick leave retaliation.  Although the types of claims being brought by employees are typical—wage/hour, whistleblower, contract, wrongful termination, protected leave and discrimination claims, WARN Act violations—employers now face a perfect storm: defending real-time decisions made to keep their businesses afloat against the backdrop of a global pandemic that has completely disrupted business operations.  (And as we all know, “You can’t just call time out and stroll on into the beach if you don’t like the way things are going.”)

As we have mentioned during several COVID-19-related client briefings, courts will now have to wade into murky waters and provide clarity on how newly enacted or amended local, state and federal leave laws such as the Family First Coronavirus Response Act (“FFCRA”) operate, especially where statutory and regulatory guidance has not always been clear.  Courts will also need to provide direction on how well-settled legal schemes, such as disability and contract law, apply in the face of a pandemic.

Of particular concern for employers right now are trends in wage and hour class actions suits, which can pose significant risk of crippling wage penalties and plaintiffs’ attorney fees, as well as leave discrimination and whistleblower retaliation claims. These kinds of claims could draw sympathy from jurors and sink a business.  Here are a few of examples of employment cases recently filed across the country, and trust us, “You’re gonna need a bigger boat.” Continue Reading

Staying Connected with Your Employees: Temporary Hours Reduction or Work Share Program?

Employers facing changes in their business or broader economic downturns must find ways to respond and weather the storm.  Typically, this means cutting expenses, while maintaining their ability to operate.  For many (if not most) businesses, payroll is the single largest expense item.  And when business slows, employees are left with excess capacity and are not fully utilized.  Consequently, layoffs and hours reductions are one of the first items on the list of options an employer must consider when responding to changing business conditions.

Employees who are laid off permanently can file for unemployment under their state’s unemployment compensation (UC) system.  But what if an employer wants to retain its employees and reduce their hours instead of laying them off?

Temporary Hours Reductions

A temporary hours reduction is one option.  Employees whose work hours (and corresponding pay) are temporarily reduced, may qualify for unemployment benefits.  In Oregon, for example, a full-time employee may qualify for unemployment benefits in any week of less than full-time work so long as the employee does not earn wages that exceed the individual’s weekly benefit amount (WBA).  The WBA in Oregon is 1.25% of the total earnings over a 12-month “base” period, subject to a weekly minimum of $151 and a maximum of $648.

By way of example, an employee, Employee A, earning $15 per hour, working 40 hours per week for the past year would be eligible to receive up to $390 per week in regular unemployment benefits if they were fully laid off.  Instead of being fully laid off, if Employee A’s hours were temporarily reduced to 24 hours per week, he would earn $360 per week in wages and be eligible for $30 per week of unemployment (the difference between his wages and his WBA).  Thus, for each week during the hours reduction, Employee A would receive a UC benefit of $30 and his total compensation would be $210 less than his full-time earnings of $600 per week.

Compare this to Employee B, who earns $30 per hour.  If Employee B’s hours were temporarily reduced from 40 to 24 hours per week, she would earn $720 per week in wages.  Because the employee’s WBA ($30 x 2080 x 1.25% = $790) exceeds Oregon’s maximum WBA of $648, Employee B’s benefits are capped at $648 and she would not be eligible for any UC.

Work Share Programs

Many states—27 at last count—have developed so-called Work Share or Shared Work programs.  These programs allow employers facing a temporary downturn in business to share available work among a group of employees instead of laying off employees.  (These Work Share programs are referred to as Short Time Compensation under federal law.)  The employees participating in Work Share may then receive partial UC benefits while working reduced hours.  Under the Work Share program, it does not matter whether the employee earns more than his WBA from his Work Share employer.  (Earnings from alternative sources, i.e. retirement benefits or a second part-time job, may reduce the amount of benefit received.) Continue Reading

FFCRA Leave for Childcare Closures May Extend Beyond the End of the School Year

Thank you to everyone who attended our webinar on Taming the COVID-19 Chaos, Part 6—Bringing Employees Back to Work.  If you missed it, be on the lookout for details on future webinars to help employers navigate these challenging times.

We received some questions about whether employees can continue to use FFCRA leave after the end of the school year.  The short answer is yes.  FFCRA provides employees with up to 12 weeks of emergency paid sick leave and paid family leave if an employee is unable to work because the employee’s child’s school or place of care is closed, or the employee’s childcare provider is unavailable, due to COVID-19-related reasons.  The FFCRA regulations define “place of care” broadly to mean any physical location where care is provided for the employee’s child while the employee works for the employer.  The physical location does not have to be solely dedicated to such care.  The regulations specifically define place of care to include summer camps and summer enrichment programs, as well as before and after school care programs.  This means that an employee may be entitled to FFCRA leave after the end of the school year, assuming that the employee meets the FFCRA eligibility requirements (which we blogged about here), still has FFCRA leave available, and is unable to work or telework because the employee’s child’s normal place of care (including a summer camp) is closed for COVID-19-related reasons.

The IRS has issued guidance on what documentation employees need to submit to support an FFCRA leave request based on a school or place of care closure.  The employee should submit a statement that includes the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable due to COVID-19 reasons, and a representation that no other person will be providing care for the child during the period for which the employee is requesting leave.  When the employee requests leave to provide care for a child older than 14 (i.e., age 15 to 17) during daylight hours, the statement should also indicate that special circumstances exist that require the employee to provide care.

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.