The COVID-19 pandemic has affected the workplace in ways we could not have imagined just a few months ago. Indeed, the economic impact caused by the COVID-19-related shutdowns has prompted many employers to reevaluate how to conduct business and the number of employees they need. Consequently, many employers have been compelled to consider reductions in force. While not limited to times of pandemic, the basic principles apply.

Commonly, employers approach the exercise with a plan in mind: Which business lines are affected? How much payroll do we need to shed? What are the criteria for selection? Which employees will be selected for reduction? Who will make the selections? And more …. In addition, employers should consider the impact of their selections on groups of individuals of a certain demographic.

Considering Title VII of the Civil Rights Act of 1964, for example, employers should ask whether the rate at which females are selected for reduction is greater than the rate at which males are selected? How are minority employees faring against non-minority employees? And, considering the Age Discrimination in Employment Act, what about older employees as compared to younger employees? Additionally, are the differences in rates statistically significant? A disparate impact analysis can help answer these questions and possibly substantially mitigate risk for employers.

What if there is statistically significant disparate impact against a particular demographic? Confirm the criteria used to select the individuals for reduction are “consistent with business necessity” under Title VII. If a criterion does not meet the standard, revisit the selection(s).

Remember, intent need not come into the equation as these analyses examine the impact facially neutral selection criteria may be having on certain demographic groups. Of course, protected characteristics generally should not be included among the criteria being used to select individuals for selection. Be mindful of the importance and applicability of the attorney-client privilege when conducting these analyses and consider retaining a law firm to help.

States are reopening – find out which ones here. As they do, organizations will begin and/or continue adhering to a complex set of distancing, screening, capacity, sanitization, mask, posting, reporting, and other guidelines designed to maintain COVID19 curve flattening efforts. For organizations with operations in multiple states, the patchwork of federal, state, and local “guidelines” becomes even more complex. For organizations that tackle these guidelines, their job still may not be complete.

The risk of COVID19 infection in areas such as on a salesfloor, in common areas of an apartment complex, on a loading dock, or in an office environment is not limited to the members of an organization’s workforce or its customers or clients. Virtually all organizations rely on third-party service providers or vendors, directly or indirectly, to operate efficiently, including those providers and vendors. In a retail business, service providers or vendors might include delivery companies, manufacturer representatives, temporary staffing companies, and IT support services. Senior living communities might have similar service providers or vendors as retail businesses, along with landscape companies, building maintenance technicians, and equipment suppliers. The same is true for professional service providers, whose service providers or vendors also could include office equipment maintenance providers, window and office cleaners, food service providers, and transportation vendors.

As organizations develop policies and devise procedures to address COVID19 in their facilities, they should be taking their third-party service providers or vendors into account, especially when the workforce members of those entities will need to interact with the organizations’ employees, customers, clients, etc. How to do so presents some difficult questions and additional challenges. Some organizations may want to (or be required to) play a more active role, such as screening a vendor’s employees before being permitted to enter the organization’s facilities. Others might prefer to rely on the vendor’s compliance efforts. Either way, these decisions raise critical health, liability, insurance, public relations, operational, and business issues.

Depending on how organizations decide to approach the risks posed by third-party service providers or vendors, below is a checklist of items an organization might want to cover with respect to each of those entities.

  • Modifying the delivery of products and/or services to minimize COVID19 risk.
  • Compliance with all applicable federal, state, and local COVID19 guidelines, including those specific to the organization which may not be applicable to the service provider or vendor, and including changes to those guidelines and best practices as the pandemic continues to evolve.
  • Allocating responsibility for COVID19-related issues, such as reporting, exposures, liabilities, etc. For example, organizations may want to confirm whether they or their service providers are responsible to provide personal protective equipment (PPE) in the organizations’ facilities. Organizations also may want to reevaluate insurance coverage requirements, indemnification provisions, and limitation of liability clauses to ensure they align with a changing risk landscape due to the pandemic.
  • Ensuring service provider and vendor workforce members are aware and trained on the organization’s applicable COVID19 policies and procedures including without limitation social distancing, sanitization, screening, cleaning supplies, contact tracing, and other measures.
  • Administering screening/testing for all vendor or service provider workforce members prior to entering the organization’s facilities, and who is responsible for carrying it out.
  • Arranging for communication and reporting of COVID19 symptoms, or infections or likely infections in order to carry out contact tracing. As contact tracing efforts expand, many organizations are considering different approaches such as contact tracing apps. Depending on the circumstances, having service providers use the same contact tracing app could enhance the organization’s efforts.
  • Pushing service provider and vendor’s obligation downstream to their agents, subcontractors, and third-party service providers where applicable.
  • Ensuring cooperation and consistent communications in the event of any investigation concerning COVID19 infection believed to be at the organization’s facilities.
  • Maintaining a process to assess compliance and appropriate record keeping. Some organizations may want to be able to review a service provider or vendor’s record keeping to show they have been complying with applicable COVID-19 guidelines.
  • Confirming that service providers and vendors have hardened their privacy and cybersecurity protections as ransomware, business email compromise, and other attacks are on the rise with COVID-19 and could result in business interruption. Much of this post relates to increased physical interaction as organizations reopen. However, significant segments of the workforce will continue to work from home, including service providers and vendors, extending these heightened risks.

A “compliance with all applicable laws” or related clauses in the service provider or vendor’s master services agreement (MSA) likely will not be sufficient to address many, if not all, of these issues. COVID19 implications are far reaching, affecting the provision of services, service level agreements, costs, liabilities, etc. Organizations and their service providers and vendors may need to rethink certain provisions of their MSAs to address the new reality of how products and services are provided and performed during the coronavirus pandemic, including amendments that outline specific COVID19-related operational issues, practices, etc.

On May 14, OSHA issued a short guidance document for the car and ride service industry to reduce risk of exposure to coronavirus for its workers.  The guidance is issued to rideshare, taxi, and car service workers, although many such drivers are independent contractors and not covered under OSHA’s jurisdiction.  Even for workers who are in an employment relationship, the guidance is not a binding regulation, although rideshare, car service, and taxi companies should still consider these suggestions as good practices.  (Note that the CDC issued much more comprehensive guidance on April 17, 2020 available here, and many rideshare companies have also published COVID-19 pandemic response plans.)

The OSHA guidance includes some of the usual advice we have heard for months, including masking, disinfecting, and encouraging sick workers to stay home – but it also makes a few novel suggestions to take note of, such as assuring adequate air flow by advising drivers to open windows.  The guidance suggests some practices and requires others.  Items that are phrased as a mandate include:

  • Ensure “routine” cleaning and disinfecting of vehicle door handles and inside surfaces (with a qualifying coronavirus-killing disinfectant);
  • Advise drivers to lower vehicle windows to increase airflow;
  • Provide drivers and riders with alcohol-based hand rubs containing at least 60 percent alcohol;
  • Provide drivers with disposable towels and qualifying coronavirus-killing disinfectant; and
  • Provide drivers and riders with tissues and trash receptacles.

The following additional practices are encouraged or suggested by OSHA:

  • Encourage drivers to stay home if they are sick.
  • Allow drivers to wear masks over their nose and mouth to prevent spread of the virus, and ask customers to do the same.
  • Limit the number of passengers drivers can transport at a single time, and install plexiglass partitions between driver and passenger compartments where possible.
  • Encourage drivers to report any safety and health concerns

Given how widespread drivers for taxi, rideshare, and car service businesses tend to be at any given time throughout the day, accommodating all of these guidelines quickly may be a challenge.  However, in order to demonstrate a commitment to driver safety and potentially limit liability for potential future claims (whether a government citation or a private claim made by an employee or independent contractor), service providers should consider how to integrate some or all of these practices into their business model, if they have not already done so.  Some possible measures to adopt may include:

  • Draft employee communications regarding cleaning, masking and staying home when sick, and circulate through multiple avenues such as emails, texts, phone messaging, and/or signs posted at dispatch stations and/or driver centers.
  • Provide signs for drivers to place in their vehicles to remind both driver and rider of safe practices such as masking and frequent sanitizing/hand-washing – both in hard copy and in digital form (if drivers want to print them at home).
  • Supply packages of coronavirus prevention supplies such as hand sanitizer, paper towels and disinfectant, tissues and trash receptacles, and perhaps even face-coverings (some of our clients in other industries are providing complimentary branded face coverings, to hand out to workers and customers alike – of course this is limited by cost and by the ability to order and procure supplies quickly).
  • Consider when a plexiglass or other type of partition may be appropriate and feasible to install or reimburse for. (Various manufacturers are already working on developing partition solutions to fit a variety of situations.)
  • Examine how dispatch centers and apps can adjust their ride-matching practices to limit cross-contamination and reduce exposure.
  • Assure that there is a robust protocol for reporting safety and health concerns, ideally through multiple methods, and retrain all drivers on those methods.

As states begin to reopen, more and more customers will be hailing rideshares and taxis.  All efforts taken to preserve safety during the pandemic should be amply documented, including communications to drivers, purchase orders for safety supplies, distribution checklists, and documentation of quick investigation and resolution of driver reports of safety and health concerns.  Monitor state and local guidance and regulations and CDC guidelines for further tips.  And if you need assistance with drafting employee communications, policies, investigating concerns, or managing an OSHA inquiry, please contact any member of Jackson Lewis’s COVID-19 or Workplace Safety teams.

The Division of Judges of the National Labor Relations Board (NLRB) has announced it is going to resume holding unfair labor practice hearings beginning on June 1, 2020. The Division had postponed all hearings during May for COVID-19-related reasons.

It appears the NLRB expects to hold most hearings remotely, stating it “has . . . taken the necessary steps to acquire the licenses and equipment needed to conduct such hearings remotely using online videoconferencing technology.”

According to the NLRB’s press release, in order for a hearing to be postponed, a pre-hearing request for postponement will have to be made to the appropriate Deputy Chief Administrative Law Judge (ALJ) or Associate Chief ALJ. The Division of Judges will not take it upon itself to postpone scheduled hearings due to the COVID-19 pandemic.

The parties to the hearing also may request (by motion) or object to a particular type of hearing — videoconference or in-person.

Please contact a Jackson Lewis attorney with any questions about this development or the NLRB.

 

With California’s mandatory COVID-19 stay-at home orders impacting some 40 million people by forcing the vast majority of them to connect remotely to work, go to school, order necessities, socialize and do many other things, California’s Attorney General Xavier Becerra recently issued an alert reminding consumers of their privacy rights and to encourage them to be vigilant about practicing sound security practices while online.

In his alert, Attorney General Becerra urges consumers to take steps to understand their rights under the California Consumer Privacy Act (“CCPA”), a new law that went into effect on January 1, 2020 and provides important consumer privacy rights both during and after the COVID-19 public health crisis. To learn more about the CCPA’s consumer privacy rights, see our previous posts on this blog located at this link.

Attorney General Becerra’s alert also warns consumers about common COVID-19 phishing email scams; provides tips on how to enable privacy and security settings during virtual meetings and otherwise protect home networks from outside hackers; and recommends online resources that “help parents set boundaries and guide their children towards becoming good digital citizens.”

Visit our previous blog posts for more information about the CCPA and other privacy and security developments during the COVID-19 pandemic:

ICE has announced that its flexibility regarding the physical presence requirements for I-9 inspection will be extended for another 30 days, until June 18, 2020 due to continued COVID-19 precautions. The terms and details of this flexibility remain the same.

Basically, eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email). Once normal operations resume, all employees who were onboarded remotely must report to their employer within three business days for in-person verification.

This flexibility applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no flexibility is being implemented. ICE has said, however, that DHS will evaluate on a case-by-case basis situations where newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols. Where the new flexibility may not apply, employers may continue to designate authorized representatives to act on their behalf to review documents in person.

ICE is also granting an additional 30 days to the original 60-day extension of time to respond to Notices of Inspection (NOIs) that were issued in March 2020.

ICE notes that employers are required to monitor DHS and ICE websites for additional updates on when extensions will terminate and normal operations resume.

If you have any questions about Form I-9 Employment Verification and E-Verify requirements, especially changes during the COVID-19 pandemic, Jackson Lewis attorneys are available to assist.

Guest Authored by Jim Verdi.

On May 14, 2020, OSHA issued an “Industry-Specific Alert” for retail pharmacies that provides suggestions employers should implement to prevent the spread of COVID-19. OSHA’s Alerts do not have the force of formal regulations, so a failure to implement a specific suggestion cannot automatically serve as a basis for a citation.  However, OSHA could use the information in these Alerts to establish that employers know about a hazard in the workplace. Employers that do not implement these specific suggestions could face an OSHA inspection—or citation—for failure to remove a known hazard in the workplace.

Still, the alert generally duplicates recommendations that have previously been suggested by the CDC or already are required under various State Orders.  The Alert provides the following suggestions:

Engineering Controls

  • Install clear plastic barriers between workers and customers at order/pickup counters.
  • Use signage and floor markers to keep waiting customers at least six feet from the counter, other customers, and pharmacy staff.

Administrative Controls

  • Encourage workers who are sick to stay at home.
  • Encourage drive-through or curbside pickup and home delivery, where feasible.
  • Encourage customers to submit prescriptions online or by phone.
  • Allow customers to provide their insurance information verbally or virtually (e.g., through mobile apps or the pharmacy’s website).
  • Specify hours dedicated to vulnerable populations (the elderly, people with underlying health conditions, etc.).
  • Increase the use of self-serve checkout to minimize worker interaction with customers.
  • Limit the number of customers allowed inside the facility at any point.

Enhanced Cleaning

  • Frequently clean and disinfect checkout and customer service counters.
  • Provide a place to wash hands and alcohol-based hand rubs containing at least 60 percent alcohol.

Face Masks and PPE

  • Allow workers to wear cloth face coverings or surgical masks over their nose and mouth to prevent them from spreading the virus.
  • Provide gloves and eye and face protection, as necessary, for workers in the pharmacy.

Pharmacists that work in clinical settings or otherwise provide clinical services to patients likely require additional protections, and OSHA explicitly advises clinical pharmacies to consult OSHA’s guidance for healthcare workers.

Retail pharmacies must also consider relevant state orders, which may implement more stringent requirements and criminal penalties for employers that fail to implement them.  As many state orders continue to change (and some expire), OSHA’s Alert provides useful minimal requirements that retail pharmacies should consider in order to protect employees, minimize the risk of Covid-19, and avoid a citation.

Guest Authored by Melanie Paul.

With the nation’s most vulnerable population residing in nursing homes and long-term care facilities, OSHA on May 14, 2020, finally issued much-needed guidance for this industry. These facilities, deemed “ground zero” by former head of the Center for Disease Control, Dr. Tom Frieden, over two months ago, have been struggling to keep COVID-19 at bay.

Although the mandate of the Occupational Safety and Health Administration (OSHA) is to ensure employers are providing a safe and healthful work environment for employees, central to the ability to do so requires recognition of the unique challenges presented by these facilities’ patient populations, which are the most vulnerable to the corona virus (SARS-CoV-2) disease.  And, according to USA Today, 32 states and the District of Columbia have reported cases of coronavirus in approximately 4000 nursing homes across the nation, though this number is likely higher given the number of states which are not reporting such information.

Against this backdrop, OSHA has issued guidelines suggesting best practices to prevent the spread of COVID-19 at these facilities.  Some measures, which apply to all industries, include:

  • Encourage workers to stay home if they are sick.
  • Ask visitors to inform the facility if they develop a fever or symptoms consistent with COVID-19 within 14 days of their visit.
  • Screen workers (and residents) regularly for signs and symptoms consistent with COVID-19. Send sick workers home or to seek medical care.
  • Stagger break periods to avoid crowding in breakrooms.
  • Consider alternatives to in-person large group gatherings (e.g., staff meetings, resident activities).
  • Provide handwashing facilities and alcohol-based hand sanitizer with at least 60 percent alcohol throughout facilities.
  • Regularly clean and disinfect shared equipment and frequently touched surfaces in resident rooms, staff work stations, and common areas.
  • Use hospital-grade cleaning chemicals approved by the Environmental Protection Agency (EPA) from List N or EPA-approved, hospital grade cleaning chemicals that have label claims against the coronavirus.
  • Ensure workers have and use any personal protective equipment (PPE) they need to perform their jobs safely.
  • Train workers about how to protect themselves and residents during the pandemic.
  • Encourage workers to report any safety and health concerns.

Some additional recommend measures, more tailored to nursing homes and long-term care facilities include:

  • Follow CDC guidance on updating existing resident visitation policies.
  • Maintain at least six feet between workers, residents, and visitors, to the extent possible, including while workers perform their duties and during breaks.
  • Always follow good infection prevention and control practices. Consult OSHA’s COVID-19 guidance for healthcare workers and employers.
  • Continually monitor PPE stocks, burn rate, and supply chains. Develop a process for decontamination and reuse of PPE, such as face shields and goggles, as appropriate. Follow CDC recommendations for optimization of PPE supplies.

OSHA seems to recognize that nursing homes and long-term care facilities may not always be able to maintain 6 feet of separation between workers, residents, and visitors, given the language of “to the extent feasible.” In that regard, as a best practice, employers should be prepared to explain any challenges they face in implementing such a measure such as identifying tasks which make compliance with that measure impossible, should OSHA come knocking. Employers should also document challenges in procuring required PPE and all efforts made to do so when they are unable to procure it.  Still unanswered is whether OSHA will apply this guidance to other types of residential facilities that are neither nursing homes nor long-term care facilities.

On May 11, 2020, the IRS issued guidance about how to return an Economic Impact Payment (EIP), also known as a COVID-19 stimulus payment. Ineligible individuals who receive EIPs are required to return them.

Resident and Nonresident Alien EIP Eligibility

The IRS guidance indicates that:

  • A person who is a nonresident alien in 2020 is not eligible for the EIP.
  • A person who is a qualifying resident alien with a valid SSN is eligible for the EIP only if the person is a qualifying resident alien in 2020 and could not be claimed as a dependent of another taxpayer for 2020.

Aliens who received an EIP, but are not eligible, should return the EIP to the IRS.

The IRS guidance in Q41 sets out details about how and where to return an erroneous payment depending on whether an individual received a paper check or direct deposit payment and where the individual lives.

One way a person can be a resident alien is if they satisfy the IRS substantial presence test. The substantial presence test is based on a calculation of the number of days that an individual has been physically present in the U.S. The calculation formula is very specific, but most nonimmigrants who have been in the United States for at least half of 2020 will be considered resident aliens in 2020 for tax purposes. However, there are individuals whose days in the U.S. in certain visa categories do not count toward the calculation. That includes some students on a F visa. Generally, foreign students on F visas in nonimmigrant status who have been in the United States fewer than five calendar years remain nonresident aliens and are exempt from social security/Medicare taxes.

While the above sets out general outlines regarding resident aliens, EIPs, and the IRS Code, the regulations are very detailed. Before taking any action, you should reach out to counsel to determine what, if any steps, should be taken.

 

South Carolina’s Department of Employment and Workforce (DEW) recently issued guidance on how an employer should manage a former employee who turns down an offer of suitable work.

DEW recommends that if an employer offers an individual a job and they refuse, the employer should report the incident to DEW through the Employer Self Service Portal or submit an Offer of Work Form (UCB-261) to South Carolina Department of Employment and Workforce, Attn: Offers of Work, P.O. Box 995, Columbia, SC 29202. Pursuant to South Carolina Code of Regulations Chapter 47, Section 23, an offer of employment must be made by one of the two following methods: (1) Oral Offer of Work or (2) Written Offer of Work.

If the employer makes an Oral Offer of Work, the employer must submit a sworn statement to DEW, under penalty of perjury, that an offer of work was made directly to the individual, the nature of work offered, the wages and the hours per week, the shift or daily hours of the proposed employment, the expected duration of the employment, the time and place the claimant should have reported for duty, and any reason given by the claimant for his refusal to accept the work.

If the employer makes a Written Offer of Work, the offer shall set out the nature of the work offered, the probable wages, and hours per week, the shift or daily hours of the proposed employment, the expected duration of employment, the time and place the claimant should report, and the name of the person to whom he is to report. In addition, the employer must submit a copy of such offer to DEW together with certification that it was either received and refused by the individual, or that it was directed by registered or certified mail to the last known address of the individual and that no response was made by the claimant.

If the employer fails to follow Regulation 47-23 in making an offer of work, the individual will not be disqualified from receiving unemployment benefits if the individual denies the offer.

In conjunction with South Carolina Code of Regulations 47-23, the U.S. Department of Treasury issued updated guidance on May 3, 2020 clarifying the loan forgiveness calculation under the Paycheck Protection Program (PPP). Specifically, the Treasury Department noted that if an employer obtained a PPP loan, an employer’s loan forgiveness amount would not be reduced if the employer laid off an individual, offered to rehire the same individual, but the individual declined the offer. Similarly, this offer must be in writing and documented by the employer.

Accordingly, in compliance with both South Carolina’s Regulation 47-23 and the Treasury Department’s guidance and in the event an employee refuses an employer’s offer of work, it is in the best interest of the employer to first provide a written offer of work to its former employees so that it is well documented for unemployment and loan forgiveness purposes.