April 29, 2020
Jeffrey A. Calabrese
Member, Stoll Keenon Ogden PLLC
Federal and state governments are rapidly reaching a consensus that COVID-19 “lockdown” orders closing businesses and ordering citizens to stay at home should be incrementally lifted. This SKO Insider will summarize current plans from the White House, Kentucky Governor Andy Beshear and Indiana Governor Eric Holcomb for reopening Kentucky and Indiana’s economies, and provide employment law suggestions for businesses planning to bring employees back to work.
I. Federal Guidance and State Government Plans
A. Opening Up America Again (White House)
The White House has released its guidance, entitled “Opening Up America Again,” on its website. The plan outlines a “phased approach” based on data and readiness and is designed to mitigate risk and protect vulnerable populations while permitting the economy to gradually restart on a state-by-state or county-by-county basis. “Vulnerable populations” include the elderly and people with serious underlying health conditions.
This federal guidance relies heavily on the concept of “gating criteria” that serves as a threshold for moving from phase to phase. The gating criteria focuses on sustained improvement in three areas over a 14-day period: (1) reported COVID-19 and other flu-like symptoms, (2) confirmed COVID-19 cases and positive tests, and (3) hospital resources for treating patients and testing healthcare workers.
All phases rely on state governments meeting “core preparedness responsibilities” including increased testing, suitable healthcare system capacity, and careful planning. Individuals are encouraged to practice good hygiene and observe CDC guidance. Employers are encouraged to monitor their workforce and implement policies consistent with federal, state and local guidelines, as informed by industry standards.
Phase One of the White House’s guidance takes effect once the “gating criteria” has been first met. During Phase One, individuals may venture out in public, but should minimize non-essential travel, observe social distancing requirements, and not congregate with more than ten (10) in a group. Employers may begin to return employees to work in phases, but should encourage telework when possible, strictly enforce social distancing, and close common areas where people might congregate. During Phase One, senior living, schools and youth activities, and bars will remain closed; venues like churches, gyms, restaurants, and theaters may reopen under strict social distancing and sanitation guidelines, and elective outpatient medical procedures may resume.
Phase Two of the White House’s guidance takes effect once the “gating criteria” has been met a second time without evidence of a rebound. During Phase Two, individuals may resume non-essential travel, and can meet in groups of up to fifty (50) people, so long as social distancing and other precautions are observed. Employers should continue to encourage telework, close common areas, and provide reasonable accommodations, but need only observe “moderate” social distancing protocol. During Phase Two, schools and youth activities may reopen, larger venues may operate under “moderate” social distancing measures, bars may reopen with diminished occupancy, and elective surgeries (inpatient and outpatient) may resume.
Phase Three of the White House’s guidance takes effect once the “gating criteria” has been met a third time without evidence of a rebound. During Phase Three, individuals with a low risk of vulnerability to COVID-19 no longer must observe social distancing requirements but are advised to minimize time spent in crowded environments. However, those with a high risk of vulnerability should continue to observe social distancing requirements. Employers may resume unrestricted staffing of work sites.
During Phase Three, senior living facilities may reopen with vigilant hygiene procedures; large venues can operate under limited physical distancing; gyms may move to “standard sanitation” practices, and bars may operate with increased standing room occupancy.
B. “Healthy at Work” (Kentucky Gov. Andy Beshear)
Governor Andy Beshear has released a two-phase reopening plan for Kentucky entitled “Healthy at Work” that will be implemented based on input from public health experts and industry experts and is designed to be consistent with the federal guidance described above.
Phase One of Healthy at Work is a “state-readiness” evaluation of Kentucky to be performed by the Kentucky Department of Public Health and the Governor. The criteria to be assessed, which are consistent with the federal gating criteria, are as follows:
• 14 days of decreasing cases,
• Increased testing capacity and contact tracing,
• Personal protective equipment (“PPE”) availability,
• Ability to protect at-risk populations,
• Ability to social distance and follow the CDC’s guidelines on large gatherings,
• Preparedness for a possible future spike, and
• Status of vaccine and treatment.
If and when Gov. Beshear determines these criteria have been met, Kentucky will move to the second phase. While no such formal determination has been announced, Beshear stated on Monday, April 27, that he expects to begin re-opening certain closed industries on Monday, Monday 11; that timing signals that the 14-day period of decreasing cases has likely already started.
Phase Two of Healthy at Work is an “industry-readiness” evaluation to be performed by the Department of Public Health and the Governor. In Phase Two, specific industries and businesses will be assessed to determine if they can be safely re-opened in a manner that maintains appropriate health and safety measures. Industry groups, trade associations and individual businesses that are closed due to COVID-19 are encouraged – but not required – to submit reopen proposals that identify the unique issues and challenges that industry/business will face in reopening. Industries and businesses that were not closed by previous executive orders remain open, subject to fulfilling public health requirements.
Once the Governor decides to re-open a sector of businesses, all of those businesses will be reopened, regardless of whether they submitted a proposal, so long as they observe all required health and safety measures established for their specific industries, and Kentucky businesses generally. Industry group proposals may be submitted online, as can individual business proposals.
Gov. Beshear has also announced a separate four-step reopening plan for the state’s healthcare services. The first step, which began on April 27, allows non-urgent/emergent services in hospital outpatient settings, healthcare clinics and medical offices, physical therapy and chiropractic settings, optometrists, and dental offices.
The second step, scheduled to begin May 6, will allow for outpatient/ambulatory surgery and invasive procedures to resume. The third step, scheduled to begin May 13, will allow non-emergent inpatient surgeries and invasive procedures to resume at fifty percent capacity. The fourth step, scheduled to begin May 27, will allow an increased capacity of inpatient surgeries and invasive procedures.
Finally, Beshear has announced that starting May 11, individuals must wear masks in public, including in the workplace. Businesses that fail to enforce this requirement may be forced to close by state or local health departments.
C. Reopening Indiana (Indiana Gov. Eric Holcomb)
As of April 28, Indiana Gov. Eric Holcomb had not released any specific re-opening plan for Indiana, but has stated in press conferences that the current “Hoosier at Home” order would not likely be renewed for long beyond its current May 1 expiration date, if at all, and that he was considering re-opening both specific industries and specific areas of the state in early May.
Gov. Holcomb has called for a “methodical, data-driven, rolling, gradual, incremental [re-opening] process” and has stated that he no longer wanted Indiana to be “fastest and the first” but “surest and the safest.” To those ends, Holcomb has solicited data and recommendations on hospitalization rates, morbidity rates, PPE inventory, hospital capacity, business plans, and how different regions of the state are faring. Holcomb has urged businesses to begin planning how they will address the following issues upon reopening:
• Cleaning protocols,
• Physical distancing,
• Redesigning the workplace/workflow,
• Necessary physical barriers,
• Visitation policies,
• Methods for bringing in food to the workplace,
• Provision of masks and gloves,
• Limiting the size of gatherings,
• Travel restrictions,
• Taking the temperature of employees and visitors, and
• Protocols for handling a sick employee.
Holcomb has been in consultation with Gov. Beshear and the governors of Wisconsin, Illinois, Michigan, Minnesota, and Ohio about how best to move forward as a region.
Like Kentucky, Indiana also started permitting healthcare services to resume on April 27. On that date, Gov. Holcomb signed an executive order allowing certain providers, including hospitals, veterinarians and dentists to provide some elective and non-emergency procedures.
II. Employment Law Considerations When Re-Opening Your Business
In addition to observing federal, state and local re-opening requirements, employers should be aware of their rights and responsibilities under labor and employment laws when bringing employees back to work. Here are a few of the more common issues businesses should be prepared to address:
A. Safety first.
All employers should become familiar with the guidance issued by the CDC and the Occupational Safety and Health Administration, then plan to conform their operations with this guidance, to the extent practicable. Adhering to external safety guidelines will comfort employees and customers and help establish a defense to potential liability for COVID-19 exposure. Employers should prioritize enforcing social distancing, providing access to PPE, limiting public/group interactions and following a strict sanitation protocol.
Recent guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”) has re-emphasized that employers are free to: require employees to report COVID-19 symptoms or positive tests; take the temperature of employees; remove employees displaying COVID-19 symptoms from the workplace; and report infected employees to public health officials. However, employers should be careful maintain the confidentiality of those employees and their related medical records.
B. Returning employees back to work.
Employers should consider a plan to permit employees to return to work gradually – taking full advantage of continued teleworking and extending as much flexibility as appropriate under operating requirements. Employees who have been furloughed or laid off should be given as much notice as possible of a recall, so adequate time is allowed for personal arrangements (E.g., childcare, healthcare, and other similar concerns). Any recall-related decision should be based on neutral, business-related criteria; but should also allow for the voluntarily self-identification of vulnerable employees (older workers and those with underlying health conditions) so that suitable accommodations can be made. Employers should be prepared to conduct “welcome back” sessions with employees to ensure “new normal” expectations are fully understood, and questions are answered.
C. Be accommodating.
Employers should continue to engage in an interactive dialogue with employees that have medical conditions about reasonable accommodations, as required by the Americans with Disabilities Act (“ADA”). Such accommodations could include, for example, continued telework; adjusted schedules and breaks; the use of alternative cleaning solutions or masks; or even unpaid leaves of absence (above and beyond that covered by other leave laws discussed below). The EEOC has stated that, in determining what constitutes a “reasonable” accommodation, employers may take into consideration how operations and financial limitations have changed in light of the COVID-19 pandemic. (For more information on recent EEOC guidance, see here).
D. Remember leave laws and paid time off benefits.
Employees who are asked to return to work at an employer’s place of business may require additional paid leave pursuant to the Families First Coronavirus Response Act while self-quarantining, recovering from COVID-19, helping a family member recover from COVID-19, or caring for a child whose school or child care provider has been closed. (For more information on the FFCRA, see here and here). Additionally, for eligible employers, certain employees may have the ability to take unpaid leave under the “regular” Family Medical and Leave Act for a serious health condition, or to care for a family member with such a condition. As discussed above, the ADA may require additional unpaid leave as an accommodation. Employers should be prepared to negotiate “leave management” issues consistent with these laws, and their own policies for paid time off.
E. Other potential issues.
Finally, employers should be mindful of other potential return-to-work issues, including:
• If unionized, the requirement to comply with a collective bargaining agreement, and bargain with the union if necessary,
• A reminder to employees to be respectful of each other’s family and health situations, and to refrain from having inappropriate conversations prohibited by anti-harassment or anti-discrimination policies,
• Support for employee wellness, including any Employee Assistance Program plans,
• Revised job descriptions and policy documents, if necessary, and
• Clear and consistent communication about what employees can expect from their employer, and what an employer expects from its employees.
Stoll Keenon Ogden understands that these are trying times for our clients and our country. Our firm operations have continued uninterrupted and our attorneys are equipped to serve as we always have – for more than 120 years.
Members of our firm’s Labor, Employment and Employee Benefits practice group can help your business navigate federal and state return-to-work requirements, including those of the Families First Coronavirus Response Act; the effects of the COVID-19 pandemic on your operations; or any related labor and employment matters.
Please also be sure to check out the Stoll Keenon Ogden Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state, and local governments in response to the Coronavirus pandemic.