On Monday, March 30, 2020 at 1 PM Eastern, join Eric J. Conn, Kara M. Maciel, and Daniel C. Deacon of the law firm Conn Maciel Carey for a complimentary webinar: “HR and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers.”
There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” The World Health Organization declared a global pandemic, President Trump initiated a National Emergency Order, and state and local officials have been ordering shutdowns of non-essential businesses and mandatory shelter-in-place orders. Furthermore, Congress passed emergency legislation that temporarily requires employers to provide paid sick and family leave and the Department of Labor has issued guidance on how employers should comply with employment and workplace safety laws.
Local craft breweries, distilleries, and wineries have been deemed essential businesses under current federal and state directives, such as the Virginia and Maryland governors March 23, 2020 orders, but the traditional way of doing business has changed considerably. These changes have raised numerous questions regarding how small businesses can successfully operate while complying with these new requirements.
During this webinar, participants will learn about recent developments, new federal legislation, EEOC, CDC and OSHA guidance, including:
- Federally required Paid Family Leave and Paid Sick Leave;
- Strategies for employers to prevent workplace exposures while complying with Federal and State labor and employment laws;
- OSHA’s guidance about preventing workers from exposure to COVID-19 and related regulatory risks;
- FAQs for employers about managing the Coronavirus crisis in the workplace;
- Federal and state orders concerning essential businesses and financial assistance; and
- Tips to maintain a thriving brewery, distillery, or winery while shifting business models.
Click here to register for this webinar.
For additional employer resources on issues related to COVID-19, please visit the Employer Defense Report and OSHA Defense Report. Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs with the latest news and resources for employers.
By Eric J. Conn and Lindsay A. Disalvo
There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions in recent days is the requirement to record and/or report work-related cases COVID-19. Below are two FAQs that describe the relevant analysis in more detail.
- Do I have to record a case of COVID-19 of an employee on my OSHA 300 Log?
By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):
“The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).”
The rationale for the exemption is that the spread of the cold and flu are so pervasive that it is typically near impossible to identify the source of infection; i.e., there would be no reasonable way to determine whether it was more likely than not that the illness was caused by an exposure in the workplace.
Despite great sacrifice around the country, the scale of infection of COVID-19 is expected to soon spread like the flu and common cold, but OSHA has already expressed in guidance that COVID-19 is not subject to the cold/flu recordkeeping exemption:
“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”
Industry has been advocating to OSHA to have the agency reconsider that initial declaration, but it does not appear OSHA will be exempting this novel strain of Coronavirus from the recordkeeping and reporting requirements any time soon. OSHA has been maintaining a Safety and Health Topics page for COVID-19 and separate Guidance on Preparing Workplaces for COVID-19 that it updates periodically as more information becomes available. In its most recent update to that page, OSHA appeared to double down on its decision that employers must spend time determining whether cases of COVID-19 are work-related. The guidance has been updated to be more explicit, with OSHA explaining that COVID-19 can be a recordable illness if the worker becomes infected while performing his or her work-related duties. Continue reading
On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”) to provide some relief to employees as a result of the Coronavirus (“COVID-19”). This law will go into effect on April 1, 2020 and will expire on December 31, 2020.
The Act includes many provisions which apply to employers, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19. Indeed, there are two provisions providing leave to employees forced to miss work because of the COVID-19 outbreak: an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law. The Act is the first federal law requiring private employers to provide paid sick leave to employees. Importantly, not all private employers are covered, as the Act applies only to private employers with fewer than 500 employees. A summary of the most relevant provisions of the emergency expansion of the FMLA and the paid sick law are as follows:
The U.S. Equal Employment Opportunity Commission (EEOC) has published guidance for employers on disability-related concerns in light of COVID-19. The EEOC enforces workplace anti-discrimination laws including the requirements for reasonable accommodations and rules about medical examinations and inquiries under the Americans with Disabilities Act (ADA). In a post What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus, the EEOC has made clear that while the ADA rules continue to apply, they “do not interfere with or prevent employers from following the guidelines and suggestions made by the [Centers for Disease Control and Prevention (CDC)] about steps employers should take regarding the Coronavirus.”
Specifically, the CDC has issued Interim Guidance for Businesses and Employers, which provides various recommendations including that employers “actively encourage” sick employees to stay home, perform routine environmental cleaning, emphasize that employees use respiratory etiquette and hand hygiene, and advise employees before traveling to take certain steps.
Notably, the Interim Guidance provides the following recommendations, which Continue reading
There are significant developments happening every day (and virtually every hour) relating to the Coronavirus (COVID-19). While we cannot predict all the effects of this virus, we can say that first and foremost, employers across all industries need to focus on the safety of their employees, customers, and guests. Thus, whether your employees are working at your company’s office or from home, employers must monitor guidance from federal, state, and local public health experts and implement recommendations or orders designed to maintain a safe work environment. To that end, please see our blog post from last week providing advice and FAQ’s regarding how employers can respond to COVID-19.
In addition to so many other issues, COVID-19 poses unique wage and hour and human resource challenges. Indeed, Since our last post, we have received dozens of wage and hour related questions from clients resulting from this virus. Although no employer could have full been prepared for the scope of this pandemic, it is important to be aware of both federal and state laws that apply to situations such as this. The best protection is to have a policies and procedures in place in advance (or if that ship has already sailed, to quickly create some policies and procedures) to ensure your employees are paid and well taken care of during this unprecedented time. Our guidance can be used by employers in navigating through the legal and business implications created by this pandemic. In addition, the information may be applicable to other future crises or disasters.
Therefore, please filed below answers to the most frequently asked questions we have received:
By: Kara M. Maciel and Beeta B. Lashkari
Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington. Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.
Recent Developments and Federal Guidance
- CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance. Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).