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08 July 2020
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.
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:
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:
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.
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:
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:
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.
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:
Employers should be aware that company-wide violations could involve significant liability, including:
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.
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:
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 (firstname.lastname@example.org or email@example.com). Alternatively, contact Joseph K Mulherin at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email (firstname.lastname@example.org). The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) This article is based on a recent webinar, available here.
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