COVID-19: A Guide for Re-opening

August 6, 2020 Agenda

1. Current Re-opening Status and Guidance 2. Risks Associated with Re-opening 3. Employees who Refuse to Return to Work 4. Best Practices for Re-opening

2 Thursday, August 6, 2020 Current Re-opening Status and Guidance

3 New York Forward (Re-opening) Plan

• The Phase 1 and Phase 2 guidance contains requirements related to: 1. Physical distancing; 2. Protective equipment; 3. Hygiene and cleaning; 4. Communication; and 5. Screening of employees and visitors. • These requirements continue to apply

4 Thursday, August 6, 2020 Mandatory Guidance: Physical Distancing

• Total number of occupants must be limited to no more than 50% maximum capacity • Maintain a distance of at least 6 feet amongst all individuals unless the “safety of the core activity” requires a shorter distance • If workers or visitors must come within 6 feet of one another, masks covering mouth and nose must be worn • Tight spaces (such as elevators or vehicles) may not be used by more than one person at a time unless face coverings are used ‒ If more than one person will be using a tight space, occupancy must be under 50% of the maximum • Shared workstations must be cleared and disinfected between users • Employers must reduce interpersonal contact and congregating

5 Thursday, August 6, 2020 Mandatory Guidance: Personal Protective Equipment

• Provide acceptable face coverings at no cost to employees ‒ Acceptable face coverings include: cloth masks, surgical masks, face shields, etc. • Train workers how to put on, take off, and clean/discard PPE • Advise workers and visitors to wear face coverings in common areas and when social distancing cannot be maintained • Limit the sharing of objects such as tools, laptops, notebooks, phones, screens, and writing utensil ‒ Otherwise, require that workers wear gloves and perform and hygiene before and after use

6 Thursday, August 6, 2020 Mandatory Guidance: Hygiene and Cleaning

• Regularly clean and disinfect the workplace using registered disinfectants in accordance with CDC and DOH guidance ‒ Arrange for more frequent cleaning of high-risk areas • Maintain a cleaning log that documents the date, time and scope of cleaning • Provide employees with cleaning supplies for commonly touched objects and surfaces • Workstations must be cleaned and disinfected between users • Prohibit shared food and beverages

7 Thursday, August 6, 2020 Mandatory Guidance: Communication

• Post signage reminding people to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning/disinfection protocols • Maintain a log of every person, including employees and visitors, who may have close contact with other individuals at the work site or area ‒ If a worker or visitor tests positive for COVID-19, the employer must immediately notify the state and local health departments and cooperate with contact tracing efforts, including notification of potential contacts, who had close contact with the individual, while maintaining confidentiality • Provide building managers with a list of essential visitors

8 Thursday, August 6, 2020 Mandatory Guidance: Screening of Employees and Visitors

• Employers must implement mandatory daily health screening protocols • At a minimum, screening is required of employees and visitors using a questionnaire asking about: ‒ (1) COVID-19 symptoms in past 14 days, ‒ (2) Positive COVID-19 test in past 14 days, and/or ‒ (3) Close contact with confirmed or suspected COVID-19 case in past 14 days

• Employers must review responses daily and retain a record of this review

• Employers must identify a contact person for individuals to notify if answers to any questions change

9 Thursday, August 6, 2020 Mandatory Guidance: Screening of Employees and Visitors (cont’d)

• Daily temperature checks may also be conducted • Immediately notify the health department of any positive case • A 14-day quarantine is generally required if an employee tests positive, has COVID-19 symptoms, or has had close contact with someone with COVID-19 ‒ Cleaning/disinfecting of certain areas is also required • Employers must coordinate with building managers to facilitate screening ‒ Tenants are responsible for screening their own employees and visitors, unless Responsible Parties and building management have agreed to alternate arrangement to ensure screening is in effect

10 Thursday, August 6, 2020 Risks of Re-opening

11 Risks of Re-opening

If you reopen too soon or fail to socially distance, you could be punished with:

• Fines of $1000 or more

• Citations

• License suspensions

• Business closures

• Summons to appear in court

• Lawsuits

• Arrest

Thursday, August 6, 2020 12 COVID-19 Wrongful Death Suit: Evans v. Walmart

• First known COVID-19 wrongful death suit - filed in Illinois • Decedent contracted COVID-19 while working at a Walmart store ‒ Another employee who worked at the store died of COVID-19 shortly after the decedent • Complaint alleges: ‒ Walmart failed to implement safety measures recommended by CDC/OSHA ‒ Management did not clean and sterilize the store, provide employees with PPE, or implement social distancing ‒ Walmart did not bar employees with symptoms of COVID-19 ‒ Walmart did not warn employees that other workers had COVID-19

13 Thursday, August 6, 2020 COVID-19 Wrongful Death and Workers’ Compensation Claims

• When an employee asserts he/she has been harmed as a result of work, exclusive remedy is usually workers’ compensation ‒ The only exception to this absolute bar is if the employer acted with the desire to bring about the specific consequence • Issues of causation arise in wrongful death and workers’ compensation cases ‒ Is COVID-19 the reasonable consequence of employer’s conduct • States have passed legislation on both sides of the fence ‒ CA: Rebuttable presumption in workers’ compensation claims, presuming that employees who are diagnosed with COVID-19 acquired the illness at work ‒ Executive Order expired July 5th and has yet to be extended ‒ Other states have passed narrower legislation that protects only first responders and/or those who work in environments where the hazard of contracting such diseases by an employee is inherent in the employment ‒ Some states have begun to draft and pass bills to shield employers from wrongful death suits/civil liability more generally

14 Thursday, August 6, 2020 OSHA General Duty Clause

Employers must furnish “a place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

15 Coronavirus-Related Whistleblower Claims May 6, 2020 COVID-19 OSHA Citation: Winder Nursing Inc.

• Nursing home in Georgia received first OSHA citation related to COVID-19 on May 18, 2020 • Citation alleges six nursing home employees were hospitalized as a result of COVID- 19 • Alleged COVID-19 was contracted while at work and the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period • The citation alleges the employees were hospitalized around April 19, but the nursing home did not report the hospitalization to OSHA until May 5 • OSHA has proposed a $6,500 fine for the alleged violation and classified the violation as “other than serious” • Ohio nursing home also received a citation on July 21, 2020 for failing to fully implement an appropriate respiratory protection program

16 Thursday, August 6, 2020 Whistleblower/Retaliation Claims on the Rise

• Reports of employees alleging retaliation for reporting lack of safety measures and personal protective equipment (“PPE”) ‒ Health care workers ‒ Warehouse employees • Thousands of OSHA complaints regarding lack of COVID-19 protections • Thousands of Whistleblower complaints

17 Thursday, August 6, 2020 COVID-19 Whistleblower Claims

• Hinich v. Norwood Crossing, Illinois (May 20, 2020) ‒ Assistant nursing director allegedly fired one day after complaining at safety meeting about facial mask fit • Bland v. Visiting Nurse Ass. of Greater Philadelphia, Pa. (May 27, 2020) ‒ Hospice allegedly fired staff after they filed with OSHA about lack of PPE and COVID-19 testing • Lin v. CGIT Systems Inc., Massachusetts (June 3, 2020) ‒ Engineer who lived with 81-year-old mother allegedly fired after requesting to work from home due to concern about passing disease to mother

18 Thursday, August 6, 2020 Violation of FFCRA: Mackie v. Coconut Joe’s

• Plaintiff brought suit alleging that his employer violated Families First Coronavirus Response Act when he was terminated after seeking medical treatment for COVID- 19 symptoms • Plaintiff allegedly informed his employer of why he was leaving work • Employer nevertheless terminated plaintiff for leaving work • The FFCRA states an employee is entitled to paid sick time to the extent that the employee is unable to work due to experiencing symptoms of COVID-19 and seeking a medical diagnosis • The FFCRA states that it is unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who takes leave in accordance with the Act • As a reminder, the FFCRA applies only to employees with fewer than 500 employees

19 Thursday, August 6, 2020 Violation of CARES Act: Professional Staff Congress/CUNY v. City University of New York

• Professors alleged that the City University of New York violated its obligations under the Coronavirus Aid, Relief and Economic Security Act by laying off thousands of adjunct faculty and staff within weeks of being awarded $251 million in relief money • CUNY was required to the greatest extent possible to pay its employees during the period of any disruptions or closures related to the coronavirus pandemic if receiving money from the CARES Act • Relief sought includes preliminary injunction against adjunct layoffs; reinstatement of laid off adjunct employees; permanent injunction against laying off adjunct employees until the conclusion of the period of closures related to COVID-19; and back-pay

20 Thursday, August 6, 2020 CLE Verification Code KL123F

Questions About CLE? Contact: Céline Kiermeier 212.969.5489 [email protected]

Thursday, August 6, 2020 21 Employees who Refuse to Return to Work

22 Employees who Refuse to Return to Work

• Under OSH Act employees may refuse to do a job because of hazardous conditions if three circumstances are met: ‒ (1) The employee believes he or she faces death or serious injury and the situation is so clearly hazardous any reasonable person would believe the same things; ‒ (2) The employee has tried, where possible to get the employer to correct the condition and has been unable to obtain the correction and there is no other way to do the job safely; and ‒ (3) The situation is so urgent the employee does not have time to eliminate the hazard through regulatory channels such as calling OSHA.

Thursday, August 6, 2020 23 Best Practices for Re-opening

24 Best Practices for Re-opening

• Regardless of industry or phase, companies considering re-opening should keep the following ten considerations in mind: 1. Temperature Screening 2. Diagnostic Testing 3. Employee Questionnaires 4. Social Distancing 5. Other Preventative Measures 6. Response Plan 7. Policy Modifications 8. Onboarding Furloughed Employees 9. Notice Regarding Scheduling Changes 10. Preventing Discrimination and Harassment

Thursday, August 6, 2020 25 1. Temperature Screening of Employees

• Temperature screenings are currently permitted under the ADA’s “direct threat” exception • Not a perfect solution to eliminate risk • Best practices for performing temperature screening: ‒ Subject all employees in the same job category to the same requirements

‒ Have them be conducted by a medical professional (or someone in HR)

‒ Adhere to current social distancing recommendations

Thursday, August 6, 2020 26 2. Diagnostic and Antibody Testing

• Diagnostic testing  Indicates whether the person is currently infected ‒ The EEOC has temporarily approved diagnostic testing ‒ Employers should ensure that tests are accurate and reliable before implementing • Antibody testing  Indicates whether the person has developed antibodies ‒ In guidance issued 6/17/2020, the EEOC has specifically stated that antibody testing may not be required before allowing employees to re-enter the workplace • Considerations for both: ‒ Maintain confidentiality of medical information ‒ Subject all employees in the same job category to the same requirements ‒ Have them be conducted by a medical professional (or someone in HR) ‒ Adhere to current social distancing recommendations

Thursday, August 6, 2020 27 3. Employee Questionnaires

• Implement a questionnaire or other method for employees to answer certain questions relating to their COVID-19 symptoms and exposure

• Additional considerations for employee medical information:

‒ These inquiries are permitted under the direct threat exception

‒ Information must be kept confidential and maintained in a separate file

• Consider practical issues regarding implementation and frequency

Thursday, August 6, 2020 28 4. Social Distancing in the Workplace

• Appropriate measures will depend on: ‒ (1) The nature of your business; and ‒ (2) The severity of outbreak in your location at the time • Be prepared to implement various levels of social distancing • Be prepared for a resurgence in cases • Monitor state and local guidance ‒ Keep apprised of New York City and New York State orders requiring that certain social distancing measures be implemented

Thursday, August 6, 2020 29 4. Social Distancing in the Workplace (cont’d)

• Examples of social distancing measures:

‒ Flexible worksites (e.g., telework);

‒ Flexible work hours (e.g., staggered shifts);

‒ Increasing physical space between people;

‒ Implementing flexible meeting and travel options (e.g., virtual meetings);

‒ Downsizing operations;

‒ Delivering services remotely (e.g., phone, video, or web); and

‒ Delivering products through curbside pick-up or delivery.

30 Thursday, August 6, 2020 5. Additional Steps to Prevent COVID-19 Transmission

• Require sick employees to stay home ‒ Follow CDC and state/local criteria for discontinuing home isolation • Provide personal protective equipment ‒ Consult appropriate OSHA guidance ‒ Consult NYC mandatory requirements

Thursday, August 6, 2020 31 5. Additional Steps to Prevent COVID-19 Transmission (cont’d)

• Other practical steps: ‒ Conducting training on recognizing symptoms, best workplace practices, and policies ‒ Provide hand sanitizer, disinfectant, and no-touch trash cans ‒ Frequently clean and disinfect high-touch objects and surfaces ‒ Place signs encouraging hand washing in restrooms and eating areas ‒ Encourage noncontact methods of greeting ‒ Prohibit employees from using other employee’s desks, offices, and equipment ‒ Instruct employees to exercise good hygiene (e.g., hand washing, avoid touching face) • Consider, in consultation with counsel and infectious disease experts, which practices are appropriate for your workforce

Thursday, August 6, 2020 32 6. Develop a Response Plan for When Employees are Diagnosed with COVID-19

• Communicate with your employees ‒ (1) Communicate with the affected employee to obtain information ‒ (2) If the employee was recently present in the workplace, communicate this to other employees at that location ‒ (3) If the employee had close contact with others, separately inform these people of their potential exposure • In all communications, do not disclose the name of the infected employee ‒ The same applies even if others can ascertain the identity of the employee ‒ Instead, provide enough information to allow others to assess their level of risk

Thursday, August 6, 2020 33 6. Develop a Response Plan for When Employees are Diagnosed with COVID-19 (cont’d)

• Consider whether the office should be closed and disinfected ‒ Consult guidance issued by the CDC and NY/NYC health department • Consider reporting and recording requirements ‒ Coronavirus is reportable when an employee is infected in the workplace ‒ If the employee is hospitalized, a report must be made within 24 hours ‒ If an employee dies, a report must be made within eight hours ‒ The US DOL has released guidance on recording COVID-19 cases ‒ Emergency response, healthcare, and correctional facilities must record as normal ‒ Other employers must record only if: ‒ (1) There is objective evidence that the case is work-related; and ‒ (2) The evidence is reasonably available.

Thursday, August 6, 2020 34 6. Develop a Response Plan for When Employees are Diagnosed with COVID-19 (cont’d)

• Consider reporting and recording requirements. (cont’d) ‒ All employers must record only if: ‒ (1) The case is confirmed; ‒ (2) The case is work-related; and ‒ (3) The case involves one or more of the recording criteria ‒ Consider state/local reporting obligations in the jurisdictions in which you operate • Consult CDC and state/local guidance on returning employees to work after they have been diagnosed positive for COVID-19

Thursday, August 6, 2020 35 7. Policy and Handbook Modifications

• New COVID-19 leave legislation (e.g., FFCRA, state/local laws) ‒ These laws also contain mandatory posting or notice requirements • Business-related and personal travel policies • Work-from-home policies ‒ Keep in mind work-from-home orders and social distancing recommendations ‒ The policy should address reimbursement of expenses ‒ Certain state laws (e.g. California and Illinois) may require reimbursement of expenses incurred while working remotely ‒ Reimbursement may also be required under employment contracts, policies, and CBAs

Thursday, August 6, 2020 36 8. Onboarding Furloughed Employees

• A complete re-onboarding process is probably not necessary ‒ Return access cards, credit cards, and electronic devices ‒ Consider having employees update personal information forms, emergency contact forms, and direct deposit authorization and payroll documents ‒ Provide any new policies that took effect during the furlough • Provide a communication prior to the date of return with: ‒ (1) The date of return; ‒ (2) The employee’s rate of pay and work hours; ‒ (3) The employee’s paid-time-off accruals as of the date of return; ‒ (4) An overview of the re-onboarding process; and ‒ (5) Impact on benefits. • Consider the impact on statutory leave entitlements

Thursday, August 6, 2020 37 9. Notice Regarding Schedule and Compensation Changes

• Provide written notice before the change takes effect: ‒ (1) The effective date of the change; ‒ (2) The new rate of pay and work hours; and ‒ (3) Any impact on employee benefits. • Certain states have laws regarding the timing and form of notice for rate of pay changes ‒ Requirements vary by state ‒ Requirements may depend on whether wages are increasing or decreasing

Thursday, August 6, 2020 38 10. Preventing Discrimination and Harassment Claims

• Conditions are ripe for an increase in discrimination and harassment claims ‒ Special issues presented by remote work and social distancing • Employers should consider: ‒ (1) Reminding employees that discrimination and harassment are illegal; ‒ (2) Advising supervisors and managers of their role; ‒ (3) Making clear that it will immediately review allegations and take appropriate action; or ‒ (4) Conducting training regarding EEO issues presented by the pandemic. • Be particularly mindful when making employment decisions ‒ Ensure that decision-makers rely on objective criteria ‒ Require that decision-makers document these reasons

Thursday, August 6, 2020 39 10. Preventing Discrimination and Harassment Claims (cont’d)

• Employees may need new or adjusted accommodations upon re-opening ‒ Those with asthma, HIV, and other underlying conditions may be at increased risk ‒ During the pandemic, employers may learn that employees can perform essential functions at home ‒ Employees may be entitled to teleworking as an accommodation after the pandemic, even if they weren’t before • Be careful to not inadvertently take adverse action on the basis of a protected characteristic ‒ Example: Unilaterally postponing the start date of a person who is over 65 or pregnant

Thursday, August 6, 2020 40 Proskauer’s Resources

• Coronavirus Resource Center ‒ https://www.proskauer.com/market-solutions/coronavirus-covid-19-resource-center • Law and the Workplace Blog ‒ https://www.lawandtheworkplace.com/

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