COVID-19 Checklist for Employers

The Governors of NH, Maine, Massachusetts and Vermont issued “stay at home” orders, whereby some businesses have been designated as “essential,” which means they are permitted to remain open (or partially open), and others have been designated as “non-essential,” which means they must close operations subject to rights to secure and maintain necessary operations. 

NH Governor Chris Sununu’s Emergency Order #17 is in effect through May 4, 2020. Attorneys in the in the labor, employment, and employee benefits practice at teh Concord law firm of Devine Millimet hace created this comprehensive checklist.

Preparedness is the key to success here.  It is also vital for creating a calm working environment.  No doubt, with the stay orders, and the abrupt interruption to regular streams of commerce, employers are seeking options to control expenses.  With that in mind, below is a checklist for employers to review and consider as they move forward – whether implementing a careful plan to remain open consistent with the various directives or, alternatively, implementing a plan to temporarily close due to the directive or economic pressures (See also Devine Millimet’s e-alert on  Stay Calm and Wash Hands  for additional guidance).

I. CONSIDERATIONS FOR ONGOING BUSINESS OPERATIONS

1. Safety Measures  – The Occupational Safety and Health Act (OSHA) includes a general duty clause requiring employers to maintain a safe workplace. Pursuant to this OSHA requirement, and recommendations from the  CDC  and other government agencies, below are suggested measures to take to limit the spread of COVID-19: 

• Instruct sick employees to stay home
• Instruct employees with a sick family member(s) to stay home or any employee who has been exposed to an individual with COVID-19 symptoms
• Advise employees to self-report exposure/diagnosis of COVID-19 to a particular person within the Company
• Send symptomatic employees home for a period of 14 days from the date of the first symptom
• Encourage respiratory etiquette
• Encourage good hand washing hygiene
• Increase the cleaning and disinfection of common surfaces
• Encourage employees to call their health-care providers for any symptoms
• Use personal protective equipment such as disposable plastic gloves for all employees who interact with customers
• Encourage and engage in social-distancing (keep 6 feet distance from others)
• Reschedule in-person meetings to phone/video conferences and honor the Governor’s most recent directive of not holding gatherings of more than 10 people
• Eliminate travel for business
• Develop a policy on personal travel so that employees are required to remain out of the workplace for a period of 14 days post-travel if their travel potentially exposed them to the virus
• Consider posting signage to customers about the high priority the company places on their health and highlight some of the steps the company is taking
• Consider posting notices discouraging sick customers or customers who have been exposed to the virus from visiting the company and requesting that the visit be postponed; the same information may be emailed to customers
• Convey to employees, customers, and suppliers that they are monitoring the virus outbreak and will take proactive steps as necessary to protect everyone’s health
• Identify “cleaning supervisor/task force” who will check CDC / OSHA daily; document changes to cleaning protocols; confirm safety measures enforced; draft communications to employees, customers, and suppliers as needed.

2. Employee Absences  – During this pandemic, many employees are requesting to be absent. That is, the company is open for business and the employee has work to do, yet the employee is unable to attend due to illness or otherwise.  There are various leave rights to be considered during this pandemic for employees under federal and state laws, as well as pursuant to an employer’s internal policies.  With any leave, it is important to consider and clarify for employees in writing, any changes to wages and benefits during the leave, as well as their rights to reinstatement.  During this pandemic, please be mindful of potential claims for discrimination and/or retaliation if a leave of absence is denied, or a decision to terminate is made for an attendance issue.  Below is an overview of the key laws and policies to consider at this time when assessing an absence from the workplace.

• OSHA:  Under OSHA, employees may refuse to work when there is a reasonable belief that there is a risk of imminent death or serious injury. 
• NLRA:  If a group of employees refuses to work because of concerns about Coronavirus, the refusal may be considered protected concerted activity under the National Labor Relations Act.
• Company policies on attendance:  Follow your policies and procedures related to attendance and absences, modified as needed based on the circumstances.
• Federally-mandated leave policies :
  • Determine whether absence is a qualifying event under the Family and Medical Leave Act (FMLA) relative to the right to take leave for an employee’s own serious health condition or the serious health condition of a family member.
  • As of April 1, 2020, employers with fewer than 500 employees should adopt a “Public Health Emergency Leave,” which expands FMLA rights to eligible employees to take up to 12 weeks of leave to care for children under 18 if their schools are closed or their daycare is unavailable because of a public health emergency (see Devine Millimet’s e-alert on  FFCRA FMLA expansion and the  US DOL website for the new poster requirement for employers).
  • As of April 1, 2020, employers with fewer than 500 employees should adopt a “Paid Sick Leave” permitting employees to take up to 80 hours of sick leave for certain qualifying reasons (see Devine Millimet’s e-alert on  FFCRA Emergency Paid Sick Leave and the  US DOL website for the new poster requirement for employers). Follow developments at the federal level regarding new paid leave and FMLA requirements.
  • Determine whether an absence is required as an accommodation under the Americans with Disabilities Act.
• State-mandated leave policies:  In New Hampshire, the Law Against Discrimination may also require an employer to provide an employee with an approved absence, if an absence is required as a reasonable accommodation for a qualified employee with a disability.  In addition, leave may be required pursuant to New Hampshire’s State of Emergency Leave at  RSA 275:66, applicable to emergency responders.  Employers with operations in other states may have different state laws to consider, such as Massachusetts' Earned Sick Leave law.
• Personal Leave of Absence (Company voluntary policy):  If an employee is not eligible for any leave referenced above, or exhausts available leave, then consider the option of leave pursuant to the company’s personal leave of absence policy.  If the company does not have such a written policy, then consider adopting one in light of COVID-19 to clarify the employee’s rights to leave, pay (paid or unpaid), benefits, and the company’s expectations during the leave period.

3. Wage and Hour Considerations: On March 12, 2020, the US Department of Labor issued a question and answer guide for employers on wage issues during a pandemic.  Below are some of the key considerations for employers.

• Non-exempt hourly employees: Non-exempt employees must be paid for all of their hours worked. Remote-based non-exempt hourly employees must be reminded to record all of their time worked.
• Salaried employees: New Hampshire employees who are paid on a salary basis must typically be paid the employee’s full salary for any week in which the employee performs any work. If a salaried exempt employee’s hours are reduced, be mindful of the minimum weekly salary requirements for exempt employees ($684.00), and the requirement to pay the full salary for any pay period in which the employee performs any work.
• Notice requirements: Pursuant to New Hampshire law and labor regulation, employers must provide notice to employees in writing of any changes in pay or fringe benefits, and the employee must acknowledge receipt of the same and the documentation must be placed in the employee’s personnel file.
• Unemployment benefits: Employees who experience a loss of income during this COVID-19 outbreak should be encouraged to visit the New Hampshire Employment Security website and apply for benefits.  See Section Warn Act (federal and state warn act) below.

4. Furloughs/Layoffs/RIFs: Businesses are facing unchartered territory.  Consequently, it is important to determine contingency plans for continuing operations with reduced staff, reduced schedules and the potential laws involved with either of those actions.

• Furlough:  A furlough is typically referred to as a temporary leave of absence.  The employer can issue a furlough on an involuntary basis to selected employees, or may solicit volunteers to take a temporary leave.  Furloughs may be of any length – days, weeks or months – however, there is an expectation that the employee will return to the workplace.  Furloughs are typically unpaid.  In general, when an employee is “furloughed” the employee’s seniority status is unaffected and benefits can be continued subject to any plan restrictions.  As noted above, if salaried employees are furloughed, employers are best off timing the start of the furlough to coincide with the end of a pay period, and the furlough should cover at least the covered pay period so as not to trigger an obligation to pay the salaried employee’s full salary pursuant to  RSA 275:43-b .
• Reduction in force:  A reduction in force (RIF) is a decision to terminate part of the workforce.  A RIF may be caused due to economic reasons, or a strategic decision to reorganize departments or jobs.  Upon termination, there is no expectation that the employee will return to the employer’s workplace.
• Lay-off:  A “lay-off” is a union workforce term, typically referencing a termination of employment with an expectation that the employer will recall the “laid off” employee once available work returns and subject to seniority rights. 
• Decision-making with a Furlough/RIF/Layoff:  When employers make decisions regarding furloughs, RIFs and Layoffs, there are usually two key goals in addition to the overall cost-savings intent:   retain the best employees  andavoid liability for discriminatory selection.  Keep in mind that “to discriminate” simply means to differentiate or separate.  When implementing a furlough (or RIF or layoff) program, employers must implement a decision-making process in a manner protected from discrimination claims.  To do so, employers should develop an overall “selection criteria plan” for the decision-making prior to announcing the end-result to employees.  Establish selection factors with the company’s legitimate business needs in mind, trying to keep the selection process focused on objective criteria as much as possible (e.g., seniority; elimination of unnecessary categories (part-time; temporary); pre-existing job-appraisals; etc.).   Before communicating any decisions, review the selection decisions and determine if there will be any disproportionate effect on any protected categories, such as race, sex, or age, or any employee on a leave of absence protected by, among other laws, the FMLA, the ADA, military leave or workers’ compensation.  Once a careful review has been undertaken, consider how best to communicate with those employees being placed on furlough or let go, and those who are being retained.  Employers, in conjunction with legal counsel, may want to further reduce their exposure to litigation by obtaining release agreements from terminated employees. 
• Warn Act (federal and state warn act):  The federal and New Hampshire state warn acts to overlap in many respects, and in general, apply to employers with 100 or more employees who are separating employees for 6 or more months.  There are various related terms and conditions, and these laws include the potential for substantial penalties if employers do not accurately comply with their terms.  Although California recently halted the application of the state’s mini-warn act during this COVID-19 outbreak, neither the federal nor New Hampshire warn act terms have yet been waived.  Employers should consult with counsel before any reductions in force to assess the application of these laws to the reduction.
• New Hampshire Mass Layoff statute:   New Hampshire law requires employers to file notices of “mass layoffs” with the New Hampshire Department of Employment Security if an employer lays off or expects to lay off 25 or more employees in the same calendar week for an expected duration of seven days or more. 
• Health Coverage:  If an employer wishes to continue coverage for employees who are furloughed, the first step is to confirm that this is possible under the health plan coverage.  Once confirmed, the employer should determine how the employees will continue to pay for their share of premium payments, if at all, and communicate this to affected employees.  COBRA is triggered if an employee experiences a reduction in hours (e.g., a furlough) or termination from employment and loses coverage as a result (e.g., as might happen with a layoff or RIF)  Failure to pay premiums is not a reason to trigger COBRA eligibility.
• Unemployment Compensation for Partial or Full Unemployment : Currently, employees who experience a reduction in hours worked, or total loss of work, maybe entitled to partial or full benefits from the New Hampshire Employment Security.   Employees who experience a loss of income during this COVID-19 outbreak should be encouraged to visit the  New Hampshire Employment Security website  and apply for benefits. Governor Sununu recently expanded the right to these benefits to cover various COVID-19 reasons, waived the typical 7-day waiting period for these benefits, and ordered that employer accounts would not be charged for the payment of these COVID-19 related unemployment payments.  For partial reduction in work hours, employers should consider the option of the worksharing program established by the New Hampshire Department of Employment Security following the recession of 2008. 
• Potential Alternatives to Furloughs/Layoffs/RIFs: Employers should also consider alternatives to furloughs, layoffs, and RIFs, that may help manage the economic pressures facing the company yet keep employees earning wages.  These alternatives include: hiring freezes; bonus reductions; postponement of wage increases; job sharing; discontinuance of temporary or part-time employees; reduction in wages; reduction in benefits; or reduction in total hours.

5. Other considerations while Continuing Business Operations during this Pandemic :

• Confidentiality:  Employers must maintain the confidentiality of an employee’s medical records and information, which means that an employer must not disclose the identity of an employee who has been diagnosed with COVID-19.
• Medical Inquiries:  The ADA prohibits medical examinations of employees unless they are job-related and consistent with business necessity. Taking an employee’s temperature may be a medical examination.  The Equal Employment Opportunity Commission, which enforces the ADA, recently issued a helpful one-page guidance  on the application of the ADA during this COVID-19 pandemic.

II. CONSIDERATIONS IF A BUSINESS MUST TEMPORARILY CLOSE OPERATIONS DUE TO A GOVERNMENT ORDER OR ECONOMIC SLOWDOWN

1. Order to Close Business .

• Order:  In response to a “stay at home” directive by the applicable government authority, employers should carefully review the order to determine if the business has been classified as essential or non-essential. 
• Communication:  Companies should communicate with employees about next steps.  As noted above, essential businesses may remain open for business as usual, subject to ongoing obligation to maintain a safe workplace as provided within the particular directive.  If part of the business has closed, anticipate confusion from employees on their obligations to report to work when other employees in have been instructed to shelter in place.  In non-essential businesses, some limited staff may be designated as “essential;” some staff, if not already set-up to work on a remote basis, may be asked to work remotely during this time.
• Employment Status : If some or all of the employees are required to stay home, and the employees are not eligible to work on a remote basis, then the Company should be prepared to tell employees what is occurring with their employment status, pay and benefits.  The  US DOL clarified in a question and answer guidance  last week that if the worksite closes, employees are not eligible to receive, or continue to receive, FFCRA leave.
• Legal compliance:  In addition to wage and hour and employee benefits issues discussed above, review any regulatory compliance issues that may be impacted by the order, such as the Cybersecurity & Infrastructure Agency on what may constitute “ Essential Critical Infrastructure Workers .”
• Contracts:  Identify contracts that may be impacted and any necessary communications required in relation to the contract.  See Devine Millimet’s e-alert on  Force Majeure Clauses .
• Technology:  Identify essential technology needs and who can support them, and how.
• Customer Notifications and Communications:  Regardless of whether your business is essential or non-essential, you will likely want to communicate with customers, and should plan for the content and how the message will be delivered. 

2. Other considerations .

Employers should continue to monitor the passage of additional state and federal relief acts in order to assess applicable financial assistance programs that benefit both employees and employers during these volatile economic times, such as the federal stimulus package enacted last week entitled the “ Coronavirus Aid, Relief, and Economic Security Act ” or the “CARES Act.”  As new laws and mandates unfold, we will continue to update this information.