The Department of Homeland Security (DHS) recently announced that it was extending its March 2020 policies that
1) allows employers who have implemented remote working policies in response to COVID-19 to review a new hire’s work authorization documentation remotely when completing the Form I-9, and
2) provides automatic 60 day extensions to assist applicants and petitioners who are responding to certain agency requests such as Requests for Evidence.

The expiration date for the I-9 remote review accommodation is now November 19, 2020.

The automatic 60 day extension to respond to agency requests applies to the documents listed below that have an issuance date between March 1, 2020 and January 1, 2021:

• Requests for Evidence (RFE);
• Continuations to Request Evidence (N-14);
• Notices of Intent to Deny;
• Notices of Intent to Revoke;
• Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant;
• Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
• Filing date requirements for Form I-290B, Notice of Appeal or Motion.

The EEOC also clarified two Q&As in its updated guidance concerning whether employers could screen their employees for COVID-19 prior to entering the workplace (see Question A.6), and whether employers could invite reasonable accommodation requests from their employees now even though they are unable to return to work due to COVID-19 stay-at-home orders (see Question D.8).

Today, the Department of Labor's Wage and Hour Administration published additional COVID-19 related guidance. The new guidance addresses questions related to the Family and Medical Leave Act, the Fair Labor Standards Act, and the Families First Cororavirus Response Act. 

According to DOL, the new guidance addresses questions that it has received recently as more workplaces have reopened.

On June 22, 2020, President Trump issued a Proclamation titled “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” suspending certain nonimmigrant employment-based visas for aliens currently outside the U.S., including H-1B visas. The Proclamation was issued in response to the unemployment woes Americans are facing in light of the Coronavirus.  

In addition to suspending new H-1B visa petitions for foreign workers, the Proclamation also suspends H-2B visas for nonagricultural seasonal workers, L visas for intra-company transfers, and most J visas for cultural exchange visitors.  Per the Proclamation, the admission of these nonimmigrants “presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.”

Notably, the suspension of these nonimmigrants visas does not apply to individuals who are already in the U.S. or to those who already have a valid nonimmigrant visa as of June 24, 2020. Nor does it apply to lawful permanent residents, spouses or children of a U.S. citizen, and any alien seeking to enter the U.S. to provide temporary labor or services essential to the United States food supply chain or other services deemed to be in the national interest. 

In addition to suspending certain nonimmigrant visas, the Proclamation also extends until at least December 31, 2020, the Trump Administration’s April 22, 2020 suspension of new green cards for immigrants not currently in the country.

The Department of Homeland Security (DHS) announced today that it was extending for an additional 30 days its March 20, 2020 policy that allows employers who have implemented remote working policies in response to COVID-19 to review a new employee’s work authorization documentation remotely when completing the Form I-9.  The expiration date for these accommodations is now July 19, 2020. 

In addition, employers who were served notices of inspection (NOIs) by U.S. Immigration and Customs Enforcement (ICE) during the month of March 2020 and had not already responded were granted an automatic extension for 60 days from the effective date. ICE will grant an additional extension of 30 days to these employers.  According to the press release, this will be the final extension for NOIs served in March 2020.

Today, the EEOC updated its COVID-19 guidance for employers by adding nine new questions and answers. Among the topics addressed in the new guidance are:

• Whether employees are entitled to an accommodation in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19;
• Best practices for inviting employees to request flexibility in work arrangements before returning to the workplace;
• How to respond if an employee requests an alternative method of COVID-19 screening due to a medical condition;
• Whether an employer may exclude an employee from the workplace involuntarily due to pregnancy; and
• The extent to which nondiscrimination laws grant a right to an accommodation based on pregnancy during the pandemic.

Today, the Labor Department's Occupational Safety and Health Administration (OSHA) issued new guidance about an employer's duty to record an employee's diagnosis of COVID-19 as work-related under OSHA's standard for workplace injury and illness reporting. 

In particular, the guidance focuses on the reasonableness of the employer's determination that an employee's contraction of the disease is work-related. Among the factors considered are: the evidence available to the employer, factors such as whether the employer was exposed to a co-worker or customer with a known case of COVID-19, work with frequent exposure to the public and no other known source of transmission, and the extent to which the employee's contact with family or close personal associates exposes the employee to COVID-19.

As a reminder, employers who take advantage of this remote review policy should write “COVID-19” as the reason for the physical inspection delay in the “Additional Information” field.  Once normal operations resume, employers must, within three business days, physically review the authorization documentation in-person for any I-9s completed remotely and should add “documents physically examined” with the date of inspection to the “Additional Information” field.

Today, the National Labor Relations Board announced that its Division of Judges will resume hearings on unfair labor practice complaints beginning on June 1, 2020. According to the announcement, the Board has now acquired the necessary technology and licenses to conduct hearings remotely via videoconferencing technology.

As some states begin the phased-reopening of businesses pursuant to stay-at-home orders as a result of the COVID-19 pandemic, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued recommended workplace safety alerts in English and Spanish for businesses in the following industries: nursing homes and long-term care facilities; ride-hailing, car and taxi service companies; and retail pharmacies.  These one-page workplace alerts are in addition to others that were earlier issued by OSHA for other businesses, including the package delivery, construction, manufacturing, and dentistry industries.  Some of these recommendations include the installation of plastic barriers, continuation of social distancing of at least 6 feet between workers and patrons, and routine cleaning and disinfecting commonly-used surfaces.  As a reminder, these OSHA alerts are recommendations and not formal rules by the agency.  However, as a reminder, OSHA can still hold employers liable if they are found to violate the Act’s general duty to protect the health and safety of its workers.    

To find out more information on the interim guidance being issued by OSHA on an ongoing basis that employers can access to protect workers in the workplace from exposure to COVID-19, please go to OSHA’s website at https://www.osha.gov/SLTC/covid-19/controlprevention.html.  

In light of the COVID-19 pandemic, several National Labor Relations Board (NLRB) Regional Directors have ordered that union representation elections take place via mail-in ballots, as opposed to traditional in-person voting, citing potential health risks to NLRB personnel who are normally onsite to oversee the election process. In an order issued May 8, 2020, a unanimous NLRB approved of the use of mail-in ballots in light of these “extraordinary circumstances.” While the Board’s decision does not guarantee that all representation elections throughout the country will be conducted by mail, it does signal that a Regional Director’s decision to do so based on the safety of agency personnel will most likely be upheld as the COVID-19 pandemic rages on.

Today, the EEOC announced and posted revisions to its technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which was issued earlier and designed to assist employers by addressing questions related to the ADA and the Rehabilitation Act arising out of the COVID-19 pandemic. The recently added questions and answers at G.3, G.4, and G.5 provide information for employers on accommodating employees during the pandemic that have underlying medical conditions.

For example, the answer to G.4 was revised to clarify that under the ADA an employer cannot exclude or take any adverse action against an employee, with a CDC-listed underlying medical condition, from the workplace for fear they may jeopardize their own health by returning to work solely because they might pose a “higher risk of severe illness” if they got COVID-19. Instead, to address this issue, the EEOC recommends that employers perform a comprehensive “direct threat” analysis, which is a high standard and is an individualized assessment based on relevant factors to determine whether the employee’s disability poses a “significant risk of substantial harm” to his/her own health that cannot be reduced or eliminated under a reasonable accommodation. But, if the employee never requested a reasonable accommodation under the ADA, the employer is not required to take any action. The answer also describes in greater detail the steps that employers should follow when conducting the “direct threat” analysis under the ADA to determine how an employee with a disability can return to the workplace.

Today, the Equal Employment Opportunity Commission announced that due to COVID-19, it anticipates not collecting EEO-1 data for 2019 in 2020. Instead, it anticipates that 2019 data will be reported along with 2020 data beginning in March 2021. CWC will be publishing additional information shortly. In the meantime, here are links to the EEOC's press release along with its notice to be published in tomorrow's Federal Register.

The U.S. Citizenship and Immigration Services (USCIS) recently published a Q&A which lists temporary policy changes  relating to the Form I-9 in light of COVID-19. Among other things, the Q&A states that employers can temporarily accept expired state identification documents as a “List B” document when completing the I-9 given that many state driver’s license processing facilities are currently closed. According to USCIS, “if an employee’s state ID or driver’s license expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19, then it is acceptable as a List B document.”  The agency recommends that employers notate “COVID-19 EXT” in the line normally required to list the identity document’s expiration date. 

Under the Trump Administration, Requests For Evidence (RFEs) in response to visa petitions have become more common especially with the heightened scrutiny on petitions for H-1B visas.  In response to the coronavirus pandemic, U.S. Citizenship and Immigration Services (USCIS) announced that it will continue to provide automatic 60 day extensions to assist applicants and petitioners who are responding to the following documents if received between March 1^st and July 1^st, 2020:

•             Requests for Evidence (RFE);

•             Continuations to Request Evidence (N-14);

•             Notices of Intent to Deny (NOID);

•             Notices of Intent to Revoke;

•             Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and

•             Filing date requirements for Form I-290B, Notice of Appeal or Motion.

Last week President Trump issued a Proclamation temporarily banning green cards for overseas foreigners to ensure that unemployed Americans will be first in line for jobs when the economy reopens. The Proclamation sets forth a 60 day ban on foreign nationals applying to permanently enter the U.S. on immigrant visas, i.e. green cards.  However, the Proclamation does not impact individuals applying for green cards that are already in the country and also has no direct impact on nonimmigrant visas used for temporary stays such as H-1B visas.

Additional exceptions to the ban include but are not limited to:

• Immigrants who already possess a valid immigrant visa as of April 22, 2020;
• Immigrants who possess an official travel document other than a visa that allows entry to the United States; and
• Spouses and children of U.S. citizens.

Overall the Proclamation should only impact the small group of employers who are attempting to hire, before June 22, 2020, a green card petitioner who lives abroad. And as a practical matter, most overseas consulates and embassies are closed because of the Coronavirus, so there was already limited opportunity for foreign nationals to apply for green cards.

Today, the Department of Labor’s Occupational Safety and Health Administration published new guidance jointly with the Centers for Disease Control addressing COVID-19 related matters in the meat and poultry processing industries.

As part of the guidance, OSHA discusses employer screening of employees for COVID-19 symptoms, including checking the temperature of employees, a practice now required by a growing number of state and local jurisdictions. In a footnote to the guidance, OSHA advises that employers should assess the burdens and benefits of recording workers’ temperatures or asking employees to answer written questionnaires because “these types of written products become records that must be retained for the duration of the workers’ employment plus 30 years.” 

Employers wishing to review OSHA’s Access to Employee Exposure and Medical Records Standard, which further details OSHA’s recordkeeping requirements, can find the standard on OSHA’s website.

The Department of Labor's temporary non-enforcement of the new paid leave mandates enacted as part of the Families First Coronavirus Response Act ended earlier this week and already DOL has announced its first successful enforcement action.

According to DOL, this case was pretty straight forward -- an Arizona electrical contractor refused to provide Emergency Paid Sick Leave to an employee who was ordered to self-quarantine by health care professionals with potential coronavirus symptoms. 

As a result of DOL's investigation, the company has been ordered to pay the employee for 80 hours of paid sick leave at normal rate of pay, or $20 per hour. 

In its announcement of this enforcement action, DOL emphasized that this case should serve as a signal to other employers that DOL is working to protect employee rights during the coronavirus pandemic. DOL also encouraged employers to use its online resources or contact them for assistance in complying with the new requirements.

Today, the Equal Employment Opportunity Commission (EEOC) added a new FAQ to its website What You Should Know About COVID-19 and the ADA, the Rehab Act, and Other EEO Laws addressing the extent to which an employer may administer tests to detect the presence of COVID-19 to employees before they return to work. According to the guidance, employers may administer such tests. However, employers should ensure that such tests are accurate and reliable. According to the EEOC, employers may wish to consider the number of false-positive and false-negative results associated with a particular test.

The Department of Labor's Wage and Hour Division has added additional FAQs to its guidance related to the new leave mandates enacted as part of the Families First Coronavirus Response Act. Both the law passed by Congress and the regulations promulgated by DOL focus in detail on how to pay employees who are nonexempt under the FLSA -- key to determining the amount of paid leave is a concept called the "regular rate."

However, neither the law nor the regulations address how to pay employees who are exempt from the FLSA's overtime provisions. Among the challenges in calculating pay for exempt employees is the fact that employers may not have tracked these emplyees' hours at all and because these employees do not have a "regular rate" as that term is used under the FLSA.

While DOL's new FAQ do not expressly mention how pay should be calculated for exempt employees, they do address how to calculate pay for salaried workers and when hours vary. New FAQ 83 addresses the computation of the regular rate for employees paid a fixed salary each week. While most of the FAQ is written as if it is discussing application of the pay rules to salaried non-exempt workers, at the end it explicitly states that "if you lack records for the number of hours your employee worked, you should use a reasonable estimate."

Thus, while it doesn't say so explicitly, it seems like DOL is finally providing some guidance on how to calculate pay for exempt workers -- and also some flexibility by requiring employers to use a "reasonable estimate." 

The Department of Labor issued a press release today reminding employers that the temporary period of non-enforcement that it applied in the first month after enactment of the Families First Coronavirus Response Act has now ended. DOL will now accept and investigate claims of violations of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act consistent with its newly issued regulations. 

Earlier today, CWC published a memorandum summarizing the Equal Employment Opportunity Commission’s (EEOC) web page, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws. Today, the EEOC has added ten new questions and answers (FAQs) to this resource, providing additional helpful guidance. The majority of the new FAQs address matters related to providing reasonable accommodations under the Americans with Disabilities Act and return to work procedures.

Yesterday, the Labor Department’s Occupational Safety and Health Administration (OSHA) published a memorandum for OSHA officials and their state counterparts explaining how the agency will exercise enforcement discretion with respect to certain OSHA standards that require annual or recurring audits, reviews, training, or assessments. According to the memo, during the course of an inspection, agency officials will evaluate whether the employer made good faith efforts to comply and, where compliance is not possible, ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not properly trained.

The memo further details factors the agency will consider in determining whether it will issue a citation and how OSHA will take steps to ensure corrective actions have been taken once normal operations resume.

Today, the State of New York filed a lawsuit in federal district court challenging several provisions of the federal Department of Labor's new final rule implementing the paid leave provisions of the Families First Coronavirus Response Act. In particular, New York argues that the rule is inconsistent with the law in four ways. According to the complaint, the rule:
(1) improperly prohibits the use of intermittent leave without an employer's consent;
(2) exempts too broad a class of workers under the definition of "health care provider";
(3) demands excessive documentation in order to take leave; and
(4) by denying access to paid leave if an employer does not have work for an employee.

New York is asking the court to declare these provisions of the regulation unlawful.

Last week, the Department of Defense (DoD) published a "class deviation" to implement a provision of the CARES Act that allows agencies to reimburse covered contractors for paid leave, including paid sick leave, a contractor provides to its employees to keep them in "a ready state," including during the COVID-19 public health emergency. Class deviations are policies that permit a departure from the Federal Acquisition Regulations (FAR) and the Defense Federal Acquisition Regulations Supplement (DFARS). 

The Equal Employment Opportunity Commission continues to add to its resource page detailing questions and answers related to COVID-19 and the EEO laws that the agency enforces. New topics added address questions related to employer inquiries about employees' COVID-19 symptoms, temperature checking and similar tests, special questions applicable to employees who may be vulnerable to COVID-19, and reasonable accommodations.  A few examples of the information provided include:

• Federal “EEO Laws, including the ADA and the Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic.”  An important theme throughout the updated resource is that employers should continue to follow the guidelines and suggestions made by the Center for Disease Control or your state/local public health authorities about combating COVID-19 within the workforce.

• All information obtained by employers concerning symptoms related to COVID-19 – including an employee’s disclosure that he/she has COVID-19, that he /she believes he/she has COVID 19, and symptoms relating to COVID-19 – should be kept confidential and stored separately from the employee’s personnel file. If an employer takes an employee’s temperature, this too, should be kept separately.  

• The ADA’s reasonable accommodation requirements are still relevant and employers should take such requests seriously, including requests relating to teleworking.

• Employers should not screen out or treat differently certain types of individuals because they may have been identified as high risk groups, such as individuals over the age of 65 or individuals with certain medical conditions.

Please don't hesitate to let us know if you have a question you would like forwarded to the EEOC.

Yesterday, the Department of Labor's Occupational Safety and Health Administration (OSHA) issued a press release to remind employers that they cannot retaliate against employees who report unsafe working conditions during the coronavirus outbreak (or at any other time). The release also detailed how employees may file a complaint with the agency if they believe they have been retaliated against.

OSHA has published a wide array of guidance on its website explaining, among other things, how existing OSHA standards apply in light of the current outbreak.

The National Labor Relations Board (NLRB) has announced that it is delaying the effective date of recent revisions it made to its union election rules that were finalized on April 1, 2020. The new revisions addressed the NLRB's blocking charge policy, the voluntary recognition bar, and special rules regarding union recognition in the construction industry. The Board had scheduled the revisions to go into effect on June 1, 2020.

According to the NLRB's notice, the revisions will now go into effect on July 31, 2020.

Included within the Labor Department’s final rule implementing the new paid leave mandates included within the Families First Coronavirus Protection Act is a provision discussing application of DOL’s “continuous workday” guidance under the Fair Labor Standards Act (FLSA). This guidance, codified at 29 C.F.R. §790.6, generally states that the workday begins when an employee performs his or her first principal activity of the workday and ends when an employee performs the last principal activity, with the exception of bona fide meal and other breaks consistent with DOL’s regulations.

The continuous workday rule has been a challenge when employees covered by the FLSA’s overtime provisions perform some minor amount of work at home before or after the workday and can have the effect of turning an employee’s normal commuting time into compensable time. This is one of the reasons that many employers prevent nonexempt employees from checking email or otherwise engaging in work tasks at home before or after normal working hours.

The new paid leave regulations (in the rule’s definition of “Telework” at § 826.10(a) and related commentary), DOL states that the guidance does not apply to telework related to COVID-19. This is to encourage employers to utilize “highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to other family responsibilities.” Of course, employees must be paid for all time actually worked.

Earlier today, DHS announced on Twitter that its rule authorizing 35,000 additional H-2B visas for seasonal, non-agricultural guest workers is being put on hold and that no additional H-2B visas will be released until further notice. 

OFCCP announced today that its Functional Affirmative Action Program (FAAP) team continues to process FAAP requests and certifications from their remote work stations, but that it has made the following adjustments in response to COVID-19:

• For FAAP contractors, and contractors interested in entering into FAAP agreements, we are available to meet by phone, WebEx, and Skype.
• All requests for agreement modifications, new application requests, updates, and certifications of FAAP agreements will be emailed for review and electronic signature.
• Finalized agreements will be signed by the Director and returned to the contractor electronically.

OFCCP also clarified that if contractors are experiencing challenges due to COVID-19, the agency will remain flexible and will provide “reasonable” extensions if requested. If contractors have further questions, or need assistance with their FAAP agreements, they can contact OFCCP’s FAAP unit at OFCCP_FAAP-UNIT@dol.gov.        

CWC has confirmed with OFCCP Director Craig Leen that the agency intends to continue offering contractors flexibility during the COVID-19 pandemic. As we mentioned to members in a recent policy alert, OFCCP is open and operational but the agency has implemented telework arrangements for all OFCCP staff. During this time, compliance evaluations will continue, but as you might expect, OFCCP will be granting reasonable adjustments and extensions in response to contractor concerns and evolving business circumstances.

Along these lines, OFCCP is granting what it refers to as a 30-day “extraordinary circumstances” extension after receipt of the desk audit scheduling letter. This would be in addition to the 30-day extension OFCCP already provides when the contractor is able to provide its basic E.O. 11246, Section 503, and VEVRAA AAPs within 30 days of receiving the scheduling letter. Furthermore, OFCCP is also generally providing at least two weeks to respond to information requests (and potentially longer), depending on the complexity of the requests. Note that these extensions and adjustments could be longer depending on the specific circumstances presented.

OFCCP will also be focusing on virtual compliance assistance, including “virtual” onsite evaluations (which may be conducted over the web or telephone). CWC also has confirmed with OFCCP that if a physical onsite is needed, it will be scheduled after the pandemic is over.

Finally, OFCCP has advised that if contractors would like to receive an electronic scheduling letter (in addition to a hard copy letter) during this time, they may do so by reaching out to the OFCCP Regional Director overseeing the review for the facility in question. For more information on OFCCP’s regional offices, please see https://www.dol.gov/ofccp/contacts/regkeyp.htm.

The agency’s senior leadership also emphasized to us that in the unlikely event contractors have any trouble obtaining reasonable resolution to these or similar issues, they are encouraged to contact OFCCP Ombudsman Marcus Stergio. Mr. Stergio can be reached at Stergio.Marcus@dol.gov.

The new Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion laws set to go into effect this week. Employers looking for compliance assistance are reminder to check updates from the Wage and Hour Division. Additional FAQs have been added over the last few days addressing matters such as intermittent leave and interaction between the new leave laws and the FMLA among other things. 

On March 27, the National Labor Relations Board's General Counsel published a memorandum summarizing cases where the Board has evaluated an employer's duty to bargain in emergency situations. The new guidance summarizes four cases addressing public emergencies and five addressing emergency situations particular to individual employers.

The U.S. Citizenship and Immigration Services (USCIS) has announced several updates related to the processing of visa applications in response to the ongoing COVID-19 outbreak and which may be of interest to CWC members.
First, USCIS is suspending the processing of Form I-907 “premium processing” applications for all I-129 (used for H-1B visas) and I-140 petitions until further notice. The agency will continue to process petitions with previously accepted Form I-907s, however, petitioners who don’t receive agency action on their case within 15 calendar days or whose I-907s were mailed but have not yet been accepted as of March 20 will receive a refund of the $1,440 filing fee. USCIS will notify the public when it plans to resume premium processing.
Second, USCIS has announced that those responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) which are dated between March 1 and May 1, 2020 will have an extra 60 days from the deadline contained in those RFEs and NOIDs by which to submit their responses.
Lastly, the agency announced that it would “accept all benefit forms and documents with reproduced original signatures” for the duration of the COVID-19 national emergency. For example, the submission of many agency forms must normally contain original “wet” signatures. Under the new guidance, all USCIS forms may contain photocopied or similarly reproduced signatures so long as the reproduction is derived from an actual original signature (no copies of copies) and the original versions are maintained by the individual or entity and available at the request of USCIS.

On March 27, the EEOC posted a recorded webinar on its website addressing questions submitted by the public related to the laws enforced by the EEOC and COVID-19.

We'll be reviewing the 42-minute webinar this afternoon and will let you know of any significant developments. In the mean time, you can access it here.

DOL has published a Field Assistance Bulletin announcing that it will not bring enforcement actions against employers who are attempting, in good faith, to comply with the new coronavirus-related leave mandates passed by Congress. According to the bulletin, DOL will not begin enforcement until April 18, 2020.

Employers are reminded that the leave provisions are not exclusively enforced by DOL as the leave provisions provide a private right of action.

The Department of Labor's Wage and Hour Division has posted to its web page a copy of the poster that all covered employers must post in conspicuous places around the workplace. DOL has also published some FAQs directly related to the poster, such as where it may be posted if employees are teleworking.

This afternoon (3/24/2020) the Department of Labor's Wage and Hour Division issued its first FAQs interpreting the new paid leave mandates that were included in the Families First Coronavirus Response Act. While these first FAQs do not include much new information, they do explain some of DOL's initial thinking about how it will interpret the new law.

Today, March 24, 2020, the Internal Revenue Service published a news release describing their approach to implementing the new federal paid leave tax credits. The guidance provides several examples and states that more information will be forthcoming in the next week.

By way of reminder, on March 20, the U.S. Treasury Department, the Internal Revenue Service, and the U.S. Department of Labor announced that small and midsize employers covered by the new Families First Coronavirus Response Act can begin to take advantage of two new refundable payroll tax credits that are designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing federally mandated COVID-19-related leave to their employees.  Such reimbursement will take the form of a tax offset against payroll taxes.

The EEOC has announced that it will post a pre-recorded webinar on the afternoon of Friday, March 27, 2020 to address questions related to COVID-19 that go beyond what is addressed in the agency's current guidance.  If you are interested in submitting a question, please sent it to COVID19.Questions@eeoc.gov by 9:00 p.m. eastern time Wednesday, March 25. 

3/23/2020
OFCCP announced last week that from March 17, 2020 through June 17, 2020 (and possibly longer), any new federal contracts to provide COVID-19 relief efforts will be exempt from the affirmative action obligations under Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act. The exemption does not apply to existing contracts, and does not apply to the processing of complaints of discrimination in either new or existing contracts. More information is available at: https://www.dol.gov/ofccp/nie.htm.

3/20/20
The Department of Homeland Security (DHS) announced today that employers who have implemented remote working policies in response to COVID-19 will not be required to review the employee’s employment authorization documentation “in-person” when completing the Form I-9. Rather, employers can inspect the authorization documents remotely (e.g., over video link, fax, or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing the I-9.

Employers who take advantage of this remote review policy should write “COVID-19” as the reason for the physical inspection delay in the “Additional Information” field.  Once normal operations resume, employers must, within three business days, physically review the authorization documentation in-person for any I-9s completed remotely and should add “documents physically examined” with the date of inspection to the “Additional Information” field.

Employers are permitted to use this I-9 remote review process for 60 days (until May 19, 2020) or until the National Emergency is terminated (within three days thereafter), whichever comes first.

The announcement was posted by U.S. Immigration and Customs Enforcement and is available online at: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

CWC has reached out to all major federal agencies that regulate the workplace to learn how coronavirus operational changes, such as telework policies, may impact employers and other stakeholders. Today, the Equal Employment Opportunity Commission (EEOC) notified us that they are working in a 100% telework environment. The agency’s electronic portals are working and they are continuing to conduct intake interviews by phone. In addition, many EEOC offices have sent up email boxes for “fax to email” services for attorneys to submit charges to EEOC.

The EEOC’s portal for respondents is open and the EEOC continues to send notifications and receive position statements through the portal. EEOC staff tell CWC that they will use their portal as fully as possible, perhaps at times in combination with email, to send out resolution documents. The EEOC is also experimenting with conducting mediation sessions remotely, with one office reporting holding four mediation sessions by phone just yesterday.

EEOC staff have also told CWC that they will not be able to operate as efficiently when it comes to handling mail as most offices do not have immediate access to their mail. To help alleviate the impact of this, the EEOC is requesting that all parties using email and the portals as much as possible. 

We’ll continue to monitor agency operational changes. Please let us know if you have any questions.

Last night, President Trump signed into law H.R. 6201, the Families First Coronavirus Response Act. The bill includes two separate paid leave mandates that will impact private sector employers with fewer than 500 employees (note, larger employers may have subsidiaries that are covered).

The first provision expands the Family and Medical Leave Act to provide a new category of leave for employees who are unable to work (or telework) to take leave to care for a son or daughter during a school closure or if child care is unavailable due to a public health emergency related to coronavirus. Employers are not required to pay employees for the first ten days of leave. However, after that, employers must provide partial wage replacement for employees on leave. Formulas in the bill provide minimum and maximum amounts of payment. Please note that although this provision is an amendment to the FMLA, it includes many of its own special definitions and rules. For example, it employees who have worked for an employee for as little as a month are covered.

The second provision implements a new paid sick leave requirement. This provision requires covered employers to provide 80 hours of paid sick leave for full-time employees for one of six enumerated purposes related to the coronavirus outbreak, including remaining in quarantine or isolation as ordered by a health care provider, self-isolating, seeking treatment for symptoms of COVID-19, caring for an individual under quarantine or self-quarantine, or caring for a child whose school is closed or whose child care provider is unavailable due to COVID-19. This law also provides formulas to determine the minimum and maximum amount of payments required.

Employers that make payments under the new provisions may apply for a tax credit against payroll taxes for 100% of covered payments. The new leave provisions are set to go into effect two weeks from today and expire on December 31, 2020.

CWC plans to publish a more complete analysis of the new law tomorrow.

CWC has reached out to all major federal agencies that regulate the workplace to learn how coronavirus operational changes, such as telework policies, may impact employers and other stakeholders. The National Labor Relations Board (NLRB) has provided us the following helpful details.

Hearings: Any previously scheduled NLRB hearings through March 31 have been postponed. Hearings scheduled for April 1 or later are still scheduled but may be postponed.

Elections: All elections scheduled prior to April 3 have been indefinitely postponed. 

Filings and Correspondence: Service of all Board and ALJ decisions and orders will only take place using the NLRB’s E-Service. The Board is encouraging any party with proceedings before the Board to sign up for E-Service by sending an email to e-Service@nlrb.gov. Additional information is available on the NLRB’s website.

We’ll continue to monitor agency operational changes. Please let us know if you have any questions.

CWC Rapid Response Update
CWC ramped up our COVID-19 Team to rapidly provide information to our members quickly and effectively. We will provide daily updates and move quickly to get information to assist members to get you accurate information.

Last week, Virginia’s first-in-the-nation permanent COVID-19 workplace standards for Virginia employers went into effect. These permanent COVID-19 standards are modeled after the temporary COVID-19 workplace standards, which we reported on earlier that went into effect in July 2020, but had expired on January 26, 2021. These new Virginia COVID-19 workplace standards are a potential model for an OSHA national workplace standard that require Virginia employers to assess the risk for COVID-19 exposure in certain job duties, and maintain various workplace sanitation practices, such as:

• Notify state health officials about two or more positive COVID-19 tests within a two-week period;
• Notify state safety officials about three or more positive tests within a two-week period;
• Develop a COVID-19 response and preparedness plan within 60 days and provide training to employees; and
• Distribute state-provided COVID-19 information to employees.

A key difference from the earlier temporary workplace standards is that Virginia employers no longer need to report on simply one positive COVID-19 case that occurs. Instead, under these new permanent workplace standards, Virginia employers are required to report to the Virginia Department of Health (VDH) within 24 hours of the discovery of two or more of its own employees present at the place of employment within a 14-day period who tested positive for COVID-19 during that 14-day time period. This qualifies as a COVID-19 outbreak. Once this outbreak has occurred, the employer shall continue to report on every positive case to VDH until the local health department notifies the employer that the outbreak is closed. Afterwards, the employer would return to the two-positive-test threshold for any subsequent reporting to VDH. In addition, high- and medium-hazard workplaces need to comply with the training mandates and completion of a preparedness and response plan by March 26, 2021.  

Virginia has created an online portal that employers can use to report employees’ COVID-19 exposures to comply with these new permanent standards.

Virginia’s new COVID-19 workplace standards coincides with actions also taken last week by the Labor Department’s Occupational Safety and Health Administration (OSHA), which issued stronger COVID-19 workplace guidance for employers nationally that was posted on OSHA’s official website. According to OSHA, employers adopting a COVID-19 prevention program for their employees is the “most effective” way to combat the spread of the virus. Although this newly issued OSHA guidance is not a standard or regulation that creates no new legal obligations, it does offer recommendations that employers can adopt.   

              On July 15, Virginia’s Safety and Health Codes Board issued Statewide Emergency Workplace Safety Standards “designed to establish requirements for employers to control, prevent, and mitigate the spread of [COVID-19]”. Many of the requirements mirror those published by the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA), however, the new standards contain several specific provisions that place more onerous responsibilities on employers in the state. For example, in addition to providing flexible sick leave and telework policies, assessing the risk for exposure in certain job duties, and maintaining various workplace sanitation practices, employers must, among other things:

• Notify state health officials about a positive COVID-19 test;
• Notify state safety officials about three or more positive tests within a two-week period;
• Develop a COVID-19 response and preparedness plan within 60 days and provide training to employees; and
• Distribute state-provided COVID-19 information to employees.

Lastly, the rules prohibit employer retaliation for whistleblower employees who raise concerns about an employer’s compliance with the provisions and employers who fail to comply with the new regulations could face fines up to $13,000 or for repeated intentional non-compliance, up to $130,000. The new standards are expected to take effect the week of July 27th and are set to expire after six months or at the termination of the state’s COVID-19 emergency order, whichever is sooner.

In May 2020, the Department of Labor issued UIPL 13-20 directing state unemployment agencies to develop and issue notices for employers in their state to use to notify employees of the availability of unemployment benefits. After more than a month having passed, these notices are challenging to find, even on a state’s newly developed COVID-19 unemployment webpage. Ostensibly, many of these notices may not even exist. To date, CWC has been able to locate approximately 11 of these new notices, many of which were issued by states that did not require that notice be given before COVID-19. We have been able to locate notices for Alaska, Arkansas, Arizona, Idaho, Maryland, Minnesota, Missouri, Montana, Nebraska, Nevada, and Washington.

For states which have neither published COVID-19 related notices, nor previously required them, members may wish to give departing employees a copy of a state’s general unemployment workplace poster. As an aid to members, CWC has developed a State Unemployment Notice Requirements resource which lists state notice requirements that were in effect before the pandemic.

In an effort to encourage businesses to reopen in the wake of the COVI-19 pandemic, states are enacting laws that give certain employers immunity from civil lawsuits brought by employees or customers who might allege that they were exposed to or contracted the virus due to some action or inaction by the business. Currently, North Carolina, Oklahoma, Utah , and Wyoming have some type of COVID-19 immunity law on the books, with states like Arizona, Louisiana, and Ohio positioned to pass similar bills in the near future.

While these laws vary, most provide that businesses who follow published COVID-19 government guidance will be immune from lawsuits, so long as their conduct doesn’t rise to the level of gross negligence or could be considered willful. Note, however, that several states have chosen to grant this immunity only to certain employers, such as those in the restaurant or health care industries.

As part of its response to COVID-19, the Chicago City Council recently enacted an ordinance prohibiting employers in the city from taking an adverse employment action against an employee for obeying a city or state official’s stay-at-home order, or a treating healthcare provider’s order requiring the employee to quarantine. Employers are also prohibited from retaliating against an employee who must care for a family member subject to one of these orders. The ordinance went into effective immediately.

As many states begin to allow certain employees to physically return to the workplace, some jurisdictions are requiring that employers post a specific safety notice related to COVID-19 in a conspicuous place on site.

For example, Illinois Governor J. B. Pritzker issued Executive Order 2020-32 mandating that all businesses having employees physically reporting to a work-site post safety guidance from the state department of health and the state attorney general and maintain the posting throughout the COVID-19 emergency. The Illinois poster is available online here.

Similarly, Pennsylvania Governor Tom Wolf has published guidance requiring all employers conducting in-person operations to post a “COVID-19 Safety Procedures for Businesses” flyer in the workplace. The flyer must be signed by the business’s corporate officer, site manager, site foreperson, or equivalent. The flyer also contains a space for the business to indicate the employee who is the “Pandemic Safety Officer,” or the person in charge of the COVID-19 safety procedures for specific worksite. The Pennsylvania poster is available online here.

Last week, the Oakland City Council approved an emergency ordinance to provide paid leave for certain reasons related to COVID-19. As with many state and local mandates to provide paid leave for COVID-19 related reasons, Oakland’s new ordinance also applies to large employers rather than smaller employers covered by federal law.

In the two months since we first reported of local jurisdictions requiring employers to screen employees for symptoms of COVID-19, such policies have expanded rapidly. The following is a list of jurisdictions within California that have mandated that employers screen most or all employees working onsite or interacting with the public. Note that this list does not include jurisdictions that have recommended screening, only those that have mandated it. In addition, we have excluded screening requirements that may only apply to a small segment of the workforce.

As always, given the rapid developments in this area, it is possible that the list will be missing a jurisdiction or two. If you learn of developments that you don’t see here, please let us know at statestandards@cwc.org.

Bay Area Jurisdictions

Seven jurisdictions in California’s Bay Area have undertaken many COVID-19 response measures together, and that holds true for employee screening.

These jurisdictions have adopted Orders requiring businesses that remain open to implement a “Social Distancing Protocol” at each facility in operation. The orders require employers to implement a Protocol that is substantially the same as the Social Distancing Protocol attached to the order as an Appendix. Among other things, the Protocol states “Symptom checks are being conducted before employees may enter the work space.” On April 29, 2020, these jurisdictions updated their Orders and their Social Distancing Protocol effective May 4. On or about May 18, these jurisdictions again updated their Orders. Please note that the new Orders require that employers update their Social Distancing Protocols to address revised requirements.

Alameda County (March 31 Order) (April 29 update) (May 18 update)
City of Berkeley (March 31 Order ) (April 29 update) (May 18 update)
Contra Costa County (March 31 Order) (April 29 update) (May 18 update)
Marin County (March 31 Order) (April 29 update) (May 15 update)
San Mateo County (March 31 Order) (April 29 update) (May 15 update)
City and County of San Francisco (March 31 Order) (April 29 update) (May 17 update)
Santa Clara County (March 31 Order) (April 29 update) (May 18 update)

Fresno County

On March 27, 2020, Fresno County became one of the first jurisdictions in the country to mandate that employers perform health screenings for employees reporting to work. Specifically, the county’s Department of Public Health has mandated that employers screen for signs of "febrile respiratory illness," which is defined as "a new or worsening episode of either cough or shortness of breath, presenting with fever ... or chills in the previous 24 hours."

In addition, the Order, which was amended on April 14, requires employers to exclude from work all employees who have had febrile respiratory illness symptoms for seven days from the day that they are identified as having symptoms.

The Order also details when employees who have had symptoms may return to work.

Los Angeles County

The county of Los Angeles has adopted similar requirements as the Bay Area jurisdictions described above, requiring employers to adopt a social distancing protocol that requires symptom checks of employees before they enter the workplace. The County updated its health Order on May 13. As amended, Los Angeles’ Social Distancing Protocol requires that symptom checks include a “check-in concerning cough, shortness of breath or fever and any other symptoms the employee may be experiencing.” While the Protocol states that these checks may be done remotely or at the workplace, “A temperature check should be done at the worksite if feasible.”

Mariposa County

On March 25, 2020, Mariposa County’s Health Office signed an Order requiring employers to conduct daily screenings of employees for febrile respiratory illness and exclude all employees who have symptoms from work for seven days after the onset of symptoms.

Merced County

On April 7, 2020, Merced County’s Health Office issued an Order requiring employers to conduct daily screenings of employees for febrile respiratory illness and to exclude all employees who have symptoms from work for seven days from the onset of symptoms. On April 24, the Health Officer further revised the order to impose additional restrictions. However, on April 30, the Health Officer suspended that portion of the order requiring employers to develop a Social Distancing and Safety Plan in response to stakeholder concern.

On May 8, new revisions were published.

Monterey County

On May 1, Monterey County updated its public health Order to mandate that employers adopt a Social Distancing Protocol that requires employers to provide symptom checks before employees enter the work space.

Sacramento County

On May 1, 2020, Sacramento County’s Health Officer has issued an Order similar to that initially enacted by the Bay Area jurisdictions summarized above. It requires employers to adopt a Social Distancing Protocol that includes screening employees for COVID-19 symptoms before they enter the work space.

Santa Cruz County

Sana Cruz County’s Health Officer has also issued an Order, updated April 29, requiring employers to adopt a Social Distancing Protocol that includes performing symptom checks before employees enter the work space.

San Diego County

On May 9, San Diego County’s Health Officer issued an Order that requires employers to conduct temperature screening of employees, prohibiting employees with body temperatures of 100 degrees or more from entering the workplace. The Order states that symptom screening (defined as screening for cough, shortness of breath, or trouble breathing or at least two or more of the following: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat or new loss of taste or smell) may be used only when a thermometer is nor available.

Solano County

On May 7, Solano County’s public health officer issued an Order that requires reopening businesses to implement a Social Distancing Protocol. The Order also permits certain businesses to reopen for low-risk activities provided, among other things, that they provide general screening for COVID-19 symptoms prior to employees entering the work space and provide training to all employees on COVID-19 symptoms.

In the six weeks since we first reported of local jurisdictions requiring employers to screen employees for symptoms of COVID-19, such policies have expanded rapidly. Earlier, we presented an updated list of California jurisdictions mandating employee health screenings. Now, we are pleased to present our list of jurisdictions outside of California mandating employee health screenings. Note that this list does not include jurisdictions that have recommended screening, only those that have mandated it. In addition, we have excluded screening requirements that may only apply to a small segment of the workforce.

This list begins with twelve statewide mandates, followed by local jurisdictions in alphabetical order by state, then local jurisdiction.

As always, given the rapid developments in this area, it is possible that the list will be missing a jurisdiction or two. If you learn of developments that you don’t see here, please let us know at statestandards@cwc.org.

Alaska
Alaska Governor Mike Dunleavy's Health Mandate 16, issued on April 22, 2020, requires employers to conduct pre-shift screening and maintain a staff screening log. The Order does not specifically state what employers must screen for. 

Colorado
On May 8, 2020, Colorado’s Department of Public Health & Environment published an amended Public Health Order in response to Governor Jared Polis’ Safer at Home Executive Order. The Order states that employers must “implement symptom monitoring protocols, conduct daily temperature checks and monitor symptoms in employees at the worksite to the greatest extent possible, or if not practicable, through employee self-assessment prior to coming to the workplace.” Colorado also links to a sample form that the state has developed for employers to use to track symptoms.

Georgia
On April 2, 2020, Georgia Governor Brian Kemp signed an Executive Order that requires businesses that remain open to screen and evaluate workers who show signs of illness, such as fever over 100.4 degrees, cough, or shortness of breath. While the order was scheduled to expire on April 13, is was extended to April 30.

During the week of April 20, Governor Kemp issued two Executive Orders (here and here) that permit some businesses to reopen. These Executive Orders require re-opening businesses to screen employees who show signs of illness.

Indiana
Indiana Governor Eric Holcomb’s Executive Order of May 1, 2020, requires employers to develop plans to ensure a safe environment for employees, customers, and others. Among the required elements of the plan are instituting an employee health screening process.

Kentucky
Employers must require employees to undergo daily temperature and health checks according to an Order signed on May 11, 2020. Employers may allow employees to self-administer health screenings or employers may administer them before employees enter the workplace. The order details the process employers are to use for health screenings and temperature checks.

Maine
On April 29, 2020, Maine Governor Janet Mills issued an Executive Order that incorporates, by reference, a state plan for resuming economic activity, known as the Restarting Plan. As part of the Restarting Plan, businesses that resume in-person operations must commit to comply with general and industry-specific checklists. Among other things, the general checklist requires employers to ask employees specific questions to screen for symptoms of COVID-19.

Michigan
On April 24, 2020, Michigan Governor Gretchen Whitmer signed an Executive Order that, among other things, requires employers to adopt policies to prevent workers from entering the premises if they display signs of respiratory symptoms or had had contact with a person with a confirmed diagnosis of COVID-19. On May 7, 2020, she signed an Executive Order permitting the reopening of certain industries, including manufacturing and construction. Employers in these industries must conduct a daily screening for COVID-19 symptoms using a questionnaire and, if possible, a temperature screening.

Minnesota
Minnesota, pursuant to Executive Order, is allowing “non-critical exempt” businesses, such as industrial, manufacturing, and non-customer facing office-based businesses to return to work if they establish a COVID-19 Preparedness Plan. Among other things, each plan must establish policies and procedures, including health screenings, that prevent sick workers from entering the workplace.

New Hampshire
On May 1, 2020, New Hampshire Governor Chris Sununu signed an Executive Order allowing certain businesses to reopen provided that they comply with new Universal Guidelines. Among other things, the Guidelines require employers to develop a process for screening all employees reporting to work for COVID-19 symptoms. Employers must also “document” the temperature of all employees daily before their shift.

South Dakota
On April 6, 2020, South Dakota Governor Kristi Noem signed an Executive Order that requires employers to “implement the recommended CDC hygiene practices and other business strategies designed to reduce spreading the disease (staggering shifts, flexible schedules, employee screenings, etc.).” The state has also developed guidance on employee screening.

Vermont
On April 24, 2020, Vermont Governor Phil Scott signed an Executive Order further expanding the types of businesses allowed to resume work. Among other things, the Order requires employers to screen employees, including through temperature checks and survey, for symptoms of respiratory illness.

Wyoming
Wyoming has modified several of its health orders (see examples here and here) to permit additional businesses to reopen. The new orders include provisions expressly requiring employers to check employees for symptoms of COVID-19 and previous exposure to a person with COVID-19 infection in the last 14 days.

Key West, FL
The city of Key West has issued an Emergency Directive that requires employers to screen and evaluate workers who exhibit signs of innless, such as fever, cough, or shortness of breath.

Oakland Park, FL
On March 27, the Oakland Park Mayor Matthew Sparks signed a City Order requiring essential businesses to screen employees and prevent any employee from entering the employer’s premises if experiencing any signs of COVID-19, such as a fever over 99.9 degrees, cough, or shortness of breath. Mandatory screening questions also prohibit employees from working if they have been to “any area known to have high numbers of positive cases” or been in any airport within the past 14 days.

Regional Medical Coordination Center Region 6, IA
On April 16, 2020, Iowa Governor Kim Reynolds announced increased COVID-19 mitigation efforts would be in effect for Region 6 of the state’s Regional Medical Coordination Center (which is in the Northeast part of the state). The governor’s proclamation includes a provision requiring employers with in-person operations to take “reasonable precautions to ensure the health of their employees and members of the public, including appropriate employee screening, social distancing practices, and increased cleaning and hygiene practices.”

Region 6 includes the following Iowa counties: Allamakee, Benton, Black Hawk, Bremer, Buchanan, Clayton, Delaware, Dubuque, Fayette, Grundy, Howard, Jones, Linn, and Winneshiek.

Cambridge, MA
On April 28, 2020, the City of Cambridge amended its Temporary Emergency Order to, among other things, requires employers to screen employees for symptoms of COVID-19 prior to allowing them on work sites.

Michigan Counties
A number of counties in Michigan have adopted similar Emergency Orders requiring employers to develop a daily screening program for all staff upon, or just prior to, reporting to work sites. In general, the screening process must include assessing whether the worker has COVID-19 symptoms. When a touchless thermometer is available, it is strongly recommended in lieu of verbal communication. However, if there is a shortage of such thermometers, employees may self-report temperature.

Employers also must screen employees as to whether they have had close contact with anyone with a diagnosis of COVID-19, certain activity or travel, and whether a local health department has told them to self-quarantine.

The counties with such orders include:

Grand Traverse
Ingham
Lenawee
Oakland
Washtenaw
Wayne

Ingham County has also adopted a workplace checklist and a screening form that employers may use. Oakland County has also developed a checklist.

Durham, NC
On April 17, 2020, Durham County, NC amended its Stay at Home Order to require businesses, to the extent possible, perform temperature checks of employees when they report to work and mandate that any employee with a temperature above 100.4 degrees be sent home.

Dallas, TX
On April 16, 2020, Dallas County amended its Safer at Home Order to implement mandatory screening requirements. Among other things, employers in numerous industries must check the temperature of employees before work and exclude any employees with a temperature above 99.6 degree.

Edinburg, TX
On April 3, 2020, Edinburg, TX Mayor Richard Molina signed an Order that, among other things, requires employers to screen employees before work and exclude any who show signs of a respiratory infection or has had close contact within the last 14 days with someone with a confirmed diagnosis of COVID-19. Businesses are required to submit a Work Safe Plan to the city.

El Paso, TX
On April 3, 2020, the El Paso, Tx Health Authority issued an Order that, among other things, requires employers to conduct regular health checks of employees either through temperature checks or respiratory screenings. Businesses must conduct the first health check of they day immediately upon an employee’s arrival to work. Employees with a temperature greater than 100 degrees are to be sent home.

Utah
Many jurisdictions in Utah have recommended that employers screen employees at the beginning of each shift for symptoms of COVID-19. However, screening is mandatory in the following jurisdictions:

Central Utah Public Health Department
Juab County
Millard County
Piute County
Sanpete County
Sevier County
Wayne County

Tooele County Health Department
Tooele County

In the five weeks since we first reported of local jurisdictions requiring employers to screen employees for symptoms of COVID-19, such policies have expanded rapidly. The following is a list of jurisdictions within California that have mandated that employers screen most or all employees working onsite or interacting with the public. Note that this list does not include jurisdictions that have recommended screening, only those that have mandated it. In addition, we have excluded screening requirements that may only apply to a small segment of the workforce.

As always, given the rapid developments in this area, it is possible that the list will be missing a jurisdiction or two. If you learn of developments that you don’t see here, please let us know at statestandards@cwc.org.

Bay Area Jurisdictions

Seven jurisdictions in California’s Bay Area have undertaken many COVID-19 response measures together, and that holds true for employee screening.

These jurisdictions have adopted Orders requiring businesses that remain open to implement a “Social Distancing Protocol” at each facility in operation. The orders require employers to implement a Protocol that is substantially the same as the Social Distancing Protocol attached to the order as an Appendix. Among other things, the Protocol states “Symptom checks are being conducted before employees may enter the work space.” On April 29, 2020, these jurisdictions updated their Orders and their Social Distancing Protocol effective May 4. Please note that the new Orders require that employers update their Social Distancing Protocols to address revised requirements.

Alameda County (March 31 Order) (April 29 update)
City of Berkeley (March 31 Order ) (April 29 update)
Contra Costa County (March 31 Order) (April 29 update)
Marin County (March 31 Order) (April 29 update)
San Mateo County (March 31 Order) (April 29 update)
City and County of San Francisco (March 31 Order) (April 29 update)
Santa Clara County (March 31 Order) (April 29 update)

Fresno County

On March 27, 2020, Fresno County became one of the first jurisdictions in the country to mandate that employers perform health screenings for employees reporting to work. Specifically, the county’s Department of Public Health has mandated that employers screen for signs of "febrile respiratory illness," which is defined as "a new or worsening episode of either cough or shortness of breath, presenting with fever ... or chills in the previous 24 hours."

In addition, the Order requires employers to exclude from work all employees who have had febrile respiratory illness symptoms for seven days from the day that they are identified as having symptoms.

The Order also details when employees who have had symptoms may return to work.

Los Angeles County

The county of Los Angeles has adopted the same requirements as the Bay Area jurisdictions described above, requiring employers to adopt a social distancing protocol that requires symptom checks of employees before they enter the workplace.

Mariposa County

On March 25, 2020, Mariposa County’s Health Office signed an Order requiring employers to conduct daily screenings of employees for febrile respiratory illness and exclude all employees who have symptoms from work for seven days after the onset of symptoms.

Merced County

On April 7, 2020, Merced County’s Health Office issued an Order requiring employers to conduct daily screenings of employees for febrile respiratory illness and to exclude all employees who have symptoms from work for seven days from the onset of symptoms. On April 24, the Health Officer further revised the order to impose additional restrictions. However, on April 30, the Health Officer suspended that portion of the order requiring employers to develop a Social Distancing and Safety Plan in response to stakeholder concern.

Sacramento County

On May 1, 2020, Sacramento County’s Health Officer has issued an Order similar to that initially enacted by the Bay Area jurisdictions summarized above. It requires employers to adopt a Social Distancing Protocol that includes screening employees for COVID-19 symptoms before they enter the work space.

Santa Cruz County

Sana Cruz County’s Health Officer has also issued an Order requiring employers to adopt a Social Distancing Protocol that includes performing symptom checks before employees enter the work space.

Many state unemployment laws require employers to provide separating employees a formal notice informing them of their right to apply for unemployment benefits. These notices can consist of a form to be filled out by the employer, an informational pamphlet, or simply giving a copy of the unemployment poster currently posted in the employer’s workplace. In light of the COVID-19 Pandemic, several jurisdictions which did not previously have such a requirement are beginning to issue executive orders or emergency legislation/regulations mandating employers give this type of notice to terminated employees. At this time, CWC is aware of four jurisdictions, Alaska, Minnesota, Pennsylvania, and Puerto Rico, which have  recently implemented new requirements that employers give separating employees notice of their unemployment benefits rights.

In the month since we first reported of local jurisdictions requiring employers to screen employees for symptoms of COVID-19, such policies have expanded rapidly. Earlier, we posted out list of California jurisdictions that have mandated that employers screen most or all employees working onsite or interacting with the public. Now, we are pleased to present our list of jurisdictions outside of California mandating employee health screenings. Note that this list does not include jurisdictions that have recommended screening, only those that have mandated it. In addition, we have excluded screening requirements that may only apply to a small segment of the workforce.

This list begins with four statewide mandates, issued in Alaska, Georgia, Michigan, and South Dakota, followed by local jurisdictions in alphabetical order by state, then local jurisdiction.

As always, given the rapid developments in this area, it is possible that the list will be missing a jurisdiction or two. If you learn of developments that you don’t see here, please let us know at statestandards@cwc.org.

Alaska
Alaska Governor Mike Dunleavy's Health Mandate 16, issued on April 22, 2020, requires employers to conduct pre-shift screening and maintain a staff screening log. The Order does not specifically state what employers must screen for. 
Georgia

On April 2, 2020, Georgia Governor Brian Kemp signed an Executive Order that requires businesses that remain open to screen and evaluate workers who show signs of illness, such as fever over 100.4 degrees, cough, or shortness of breath. While the order was scheduled to expire on April 13, is was extended to April 30.

This week, Governor Kemp issued two Executive Orders (here and here) that permit some businesses to reopen. These Executive Orders require re-opening businesses to screen employees who show signs of illness.

Michigan

On April 24, 2020, Michigan Governor Gretchen Whitmer signed an Executive Order that, among other things, requires employers to adopt policies to prevent workers from entering the premises if they display signs of respiratory symptoms or had had contact with a person with a confirmed diagnosis of COVID-19.

South Dakota

On April 6, 2020, South Dakota Governor Kristi Noem signed an Executive Order that requires employers to “implement the recommended CDC hygiene practices and other business strategies designed to reduce spreading the disease (staggering shifts, flexible schedules, employee screenings, etc.).” The state has also developed guidance on employee screening.

Oakland Park, FL

On March 27, the Oakland Park Mayor Matthew Sparks signed a City Order requiring essential businesses to screen employees and prevent any employee from entering the employer’s premises if experiencing any signs of COVID-19, such as a fever over 99.9 degrees, cough, or shortness of breath. Mandatory screening questions also prohibit employees from working if they have been to “any area known to have high numbers of positive cases” or been in any airport within the past 14 days.

Regional Medical Coordination Center Region 6, IA

On April 16, 2020, Iowa Governor Kim Reynolds announced increased COVID-19 mitigation efforts would be in effect for Region 6 of the state’s Regional Medical Coordination Center (which is in the Northeast part of the state). The governor’s proclamation includes a provision requiring employers with in-person operations to take “reasonable precautions to ensure the health of their employees and members of the public, including appropriate employee screening, social distancing practices, and increased cleaning and hygiene practices.”

Region 6 includes the following Iowa counties: Allamakee, Benton, Black Hawk, Bremer, Buchanan, Clayton, Delaware, Dubuque, Fayette, Grundy, Howard, Jones, Linn, and Winneshiek.

Michigan Counties

A number of counties in Michigan have adopted similar Emergency Orders requiring employers to develop a daily screening program for all staff upon, or just prior to, reporting to work sites. In general, the screening process must include assessing whether the worker has COVID-19 symptoms. When a touchless thermometer is available, it is strongly recommended in lieu of verbal communication. However, if there is a shortage of such thermometers, employees may self-report temperature.

Employers also must screen employees as to whether they have had close contact with anyone with a diagnosis of COVID-19, certain activity or travel, and whether a local health department has told them to self-quarantine.

The counties with such orders include:

Grand Traverse
Ingham
Lenawee
Oakland
Washtenaw
Wayne

Ingham County has also adopted a workplace checklist and a screening form that employers may use. Oakland County has also developed a checklist.

Durham, NC

On April 17, 2020, Durham County, NC amended its Stay at Home Order to require businesses, to the extent possible, perform temperature checks of employees when they report to work and mandate that any employee with a temperature above 100.4 degrees be sent home.

Dallas, TX

On April 16, 2020, Dallas County amended its Safer at Home Order to implement mandatory screening requirements. Among other things, employers in numerous industries must check the temperature of employees before work and exclude any employees with a temperature above 99.6 degree.

Edinburg, TX

On April 3, 2020, Edinburg, TX Mayor Richard Molina signed an Order that, among other things, requires employers to screen employees before work and exclude any who show signs of a respiratory infection or has had close contact within the last 14 days with someone with a confirmed diagnosis of COVID-19. Businesses are required to submit a Work Safe Plan to the city.

El Paso, TX

On April 3, 2020, the El Paso, Tx Health Authority issued an Order that, among other things, requires employers to conduct regular health checks of employees either through temperature checks or respiratory screenings. Businesses must conduct the first health check of they day immediately upon an employee’s arrival to work. Employees with a temperature greater than 100 degrees are to be sent home.

Utah

Many jurisdictions in Utah have recommended that employers screen employees at the beginning of each shift for symptoms of COVID-19. However, screening is mandatory in the following jurisdictions:

Central Utah Public Health Department
Juab County
Millard County
Piute County
Sanpete County
Sevier County
Wayne County

Tooele County Health Department
Tooele County

In the month since we first reported of local jurisdictions requiring employers to screen employees for symptoms of COVID-19, such policies have expanded rapidly. The following is a list of jurisdictions within California that have mandated that employers screen most or all employees working onsite or interacting with the public. Note that this list does not include jurisdictions that have recommended screening, only those that have mandated it. In addition, we have excluded screening requirements that may only apply to a small segment of the workforce.

As always, given the rapid developments in this area, it is possible that the list will be missing a jurisdiction or two. If you learn of developments that you don’t see here, please let us know at statestandards@cwc.org.

Bay Area Jurisdictions

Seven jurisdictions in California’s Bay Area have undertaken many COVID-19 response measures together, and that holds true for employee screening.

These jurisdictions have adopted Orders requiring businesses that remain open to implement a “Social Distancing Protocol” at each facility in operation. The orders require employers to implement a Protocol that is substantially the same as the Social Distancing Protocol attached to the order as an Appendix. Among other things, the Protocol states “Symptom checks are being conducted before employees may enter the work space.” These jurisdictions are:

Alameda County
City of Berkeley
Contra Costa County
Marin County
San Mateo County
City and County of San Francisco
Santa Clara County

Fresno County

On March 27, 2020, Fresno County became one of the first jurisdictions in the country to mandate that employers perform health screenings for employees reporting to work. Specifically, the county’s Department of Public Health has mandated that employers screen for signs of "febrile respiratory illness," which is defined as "a new or worsening episode of either cough or shortness of breath, presenting with fever ... or chills in the previous 24 hours."

In addition, the Order requires employers to exclude from work all employees who have had febrile respiratory illness symptoms for seven days from the day that they are identified as having symptoms.

The Order also details when employees who have had symptoms may return to work.

Los Angeles County

The county of Los Angeles has adopted the same requirements as the Bay Area jurisdictions described above, requiring employers to adopt a social distancing protocol that requires symptom checks of employees before they enter the workplace.

Mariposa County

On March 25, 2020, Mariposa County’s Health Office signed an Order requiring employers to conduct daily screenings of employees for febrile respiratory illness and exclude all employees who have symptoms from work for seven days after the onset of symptoms.

Merced County

On April 7, 2020, Merced County’s Health Office issued an Order requiring employers to conduct daily screenings of employees for febrile respiratory illness and to exclude all employees who have symptoms from work for seven days from the onset of symptoms.

Employers with operations in Puerto Rico may wish to review a new memorandum issued this week by Puerto Rico’s Secretary of Labor and Human Resources, Briseida Torres Reyes. The memorandum briefly reviews OSHA requirements relating to COVID-19 before articulating the elements of a contingency plan that employers are expected to create to address COVID-19 in the workplace. Among the required elements of the plan are detailing the screening and monitoring process that will be used before employees enter the workplace, a description of processes to be used for cleaning and disinfecting the workplace, and hygiene related resources, such as provision of hand sanitizer and antibacterial soap.   

On April 14, 2020, Governor Phil Murphy signed S2353 making New Jersey the latest state to take action concerning its mass layoff notification law in light of the ongoing COVID-19 pandemic. The new law delays the effective date of S3170, which was scheduled to go into effect on July 19, 2020 and made substantial changes to the state’s “mini” WARN law, until 90 days after the expiration of governor’s COVID-19 state of emergency order. Perhaps most significantly, the new law makes clear that mass layoffs necessitated by the COVID-19 “national emergency” do not trigger the NJWARN law and even makes this applicable to mass layoffs that took place after March 9, 2020.

New York Governor Andrew Cuomo has signed an Executive Order that requires businesses to provide face coverings for employees to use while in direct contact with members of the public.

Similarly, New Jersey Governor Phil Murphy has signed an Executive Order requiring employers to provide face coverings and gloves for essential workers.

Connecticut’s Department of Economic and Community Development has issued Safe Workplace Rules for Essential Employees. The rules say employees “should” wear a facemask at all times while in the workplace” and that employers can issue facemasks or approve employee-provided cloth face coverings in the event of shortages.

Rhode Island Governor Gina Raimondo has signed an Executive Order requiring that employers provide face coverings to certain employees, or materials for making face coverings. The Order describes when employees must wear face coverings and when they need not do so.

Los Angeles Mayor Garcetti also signed a Worker Protection Order that requires essential workers to wear face masks. Employers are responsible for providing face coverings and ensure that employees have access to clean, sanitary restrooms, stocked with all necessary cleansing products. Among other things, employees must be permitted to wash hands every 30 minutes.

As of today, CWC is aware of three states that have published policy statements concerning the impact of COVID-19 on the enforcement of their “Mini” WARN statutes, which require employers to give prior notice of impending mass layoffs or plant closings under certain conditions.

• As previously reported, California Governor Gavin Newsom issued an executive order suspending the 60-day notice requirement under certain conditions.
  
  
• In New York, the state Department of Labor’s website  appears to imply that the state will consider the COVID-19 pandemic as an “unexpected circumstances beyond an employer’s control” that excuses strict compliance with the notification requirements.
  
  
• Similarly, Vermont’s Department of Labor has announced that it does not intend to enforce its mini-WARN law “against businesses who are forced to lay off employees due to the effects of the COVID-19 pandemic,” but encouraged employers to still reach out to the department if they’re contemplating a layoff.

For more information on WARN Act requirements, see Memorandum 20-067 (April 3, 2020).

Two weeks ago, the Los Angeles City Council passed an ordinance that would have imposed an additional paid sick leave mandate on employers with 500 or more employees. While Mayor Gil Garcetti opted not to sign that ordinance, he signed a Supplemental Paid Sick Leave Order yesterday that is very similar to the City Council ordinance, but slightly more business friendly.  Here is a brief summary of the Order:

• Applies to all Employer that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States.
• Exempts employers that provide at least 160 hours of paid leave to employees annually (those employees that receive that “generous leave” are not eligible).
• Covered employees are entitled to up to 80 hours of paid leave.
• The amount paid to an employee who takes the supplemental paid sick leave cannot exceed $511 per day and $5,110 in the aggregate.
• This Supplemental Sick Leave is in addition to the up to 48 hours of paid sick leave that is already available to Los Angeles employees annually.
• An employer may not require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.

In addition, Mayor Garcetti also signed a Worker Protection Order that requires essential workers to wear face masks. Employers are responsible for providing face coverings and ensure that employees have access to clean, sanitary restrooms, stocked with all necessary cleansing products. Among other things, employees must be permitted to wash hands every 30 minutes. The Mayor also signed the Grocery, Drug Retail and Food Delivery Worker Protection Order that modifies the city’s existing ordinance related to predictive scheduling.

Michigan Governor Gretchen Whitmer has issued an executive order protecting workers from adverse employment actions if they stay at home because they or individuals they have close contact with have tested positive for COVID-19 or are exhibiting symptoms until certain timelines have passed. Under the order, employers must treat these employees as if they were taking leave under the state’s Paid Medical Leave Act, but may not limit the amount of leave, whether paid or unpaid as provided under the Act, so long as the employee is taking the leave for reasons allowed under the order. Like many other executive orders issued throughout the country, Michigan's makes exception for those working in critical occupations such as medical workers and first responders.

On March 27, 2020, the Los Angeles City Council passed a Supplemental Paid Sick Leave ordinance that requires large employers with at least 500 employees to provide up to 80 hours of paid sick leave to Los Angeles employees for coronavirus related purposes. Under the ordinance, the Supplemental Paid Sick Leave amount paid to an employee cannot exceed $511 per day and $5,110 in the aggregate.

An employee can take this paid leave for any of the following reasons:

1. The Employee takes time off because a public health official or healthcare provider requires or recommends the Employee isolate or self-quarantine to prevent the spread of COVID-19;
2. The Employee takes time off work because the Employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
3. The Employee takes time off work because the Employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine;
4. The Employee takes time off work because the Employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation.

An employer may not require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.

This Supplemental Sick Leave is in addition to the up to 48 hours of paid sick leave that is already available to Los Angeles employees annually.

The Supplemental Paid Sick Leave ordinance was sent to Los Angeles Mayor Eric Garcetti on March 28, 2020 for his expected signature, and he has until April 7, 2020 to act.

Several governors throughout the country have now issued executive orders requiring individuals to stay at their place of residence, unless attending to essential business such as buying groceries or filling prescriptions. Some of these orders are having an impact on employers’ ability to require employees to physically report to work. For example, a recent order by New York Governor Andrew Cuomo requires all employers except those “providing essential services” to “reduce the in-person workforce at any work locations by 100%.”  Similarly, California Governor Gavin Newsom’s N-33-20 essentially requires people to work from home unless they work in an critical infrastructure sector.

              While many employers have already implemented an indefinite full-time telework policy for their workforces, those who haven’t should be aware that the number of states implementing such mandatory telework orders is likely to increase as the COVID-19 outbreak continues.

The New Jersey Attorney General’s Division of Civil Rights has issued GUIDANCE surrounding the COVID-19 virus and its potential impact on discrimination and the use of job protected leave. In the guidance, employers are reminded that they are prohibited from terminating an employee because they suspect that the employee could have contracted COVID-19, even if the employee turns out to be healthy. Such action would be inconsistent with, and potentially in violation of, the State’s Law Against Discrimination as the employer’s action may be deemed as taking an action because of a perceived disability. In that same vein, employers should be aware of their duty to take reasonable action to cure any harassing conduct an employee may face that is related to the COVID-19 virus.

For purposes of job protected leave, the guidance makes clear that a diagnosis of COVID-19 meets the state’s family medical leave law definition of “serious health condition,” thereby enabling an employee take up to 12 weeks of leave to care for themselves or a family member, subject to certain conditions. And finally, the guidance emphasizes that employees may be able to use any accrued Earned Sick Time to care for a healthy child whose school or daycare has been closed as a result of the COVID-19 pandemic.

New York Governor Andrew Cuomo has signed legislation mandating that employers give their workers paid sick leave and job protection if they are “subject to a mandatory or precautionary order of quarantine or isolation…” The amount of sick leave to be given is dependent on the employer’s size. Employers with 100 or more employees must give affected employees 14 days of paid sick leave while employers with 11 to 99 employees or with 10 or fewer employees but more than $1 million in net yearly income must give employees 5 days of paid sick leave and then unpaid leave. Employers having less than 10 employees but a net income of less than $1 million aren’t required to offer paid leave but must allow employees to take unpaid leave for the duration of the quarantine order.

Importantly, employers may not require employees to exhaust any previously accrued paid sick leave before allowing them to take leave under the new law, nor may they retaliate or discriminate against them for exercising their right to take leave.

California’s Governor Gavin Newsom has issued an executive order easing the notice provisions under the state’s Worker Adjustment and Retraining Notification (WARN) Act, the law requiring employers to give employees a 60 day notice before implementing certain mass layoffs, relocations, or terminations at covered establishments. Temporary or emergency shutdowns necessitated by the COVID-19 pandemic are likely to trigger layoffs which could require these WARN act notices.

Under the new executive order, employers are relieved of the 60 day timeframe but they must still provide to the affected employees “as much notice as is practicable" and provide "a brief statement of the basis for reducing the notification period," in addition to certain other requirements. The California Labor & Workforce Development Agency is expected to provide guidance by March 23 concerning how the executive order is to be implemented. The order will remain in effect for the duration of the state’s declared state of emergency.

                Employers should work closely with counsel when conducting any mass layoff of their workforce and be aware that the federal WARN Act, which applies to employers with 100 or more employees, remains unaffected by Governor Newsom’s order.