New COVID-19 Guidance and Resources for Employers
As Governor Inslee starts to loosen the requirements of the “Stay Home, Stay Healthy” emergency order, businesses across Washington State are contemplating the logistics of opening their doors and welcoming employees back to the workplace.
Here are some things to keep in mind as you ramp up to open for business again.
- Proclamation to Protect Older and Higher-Risk Workers.
Governor Inslee issued a Proclamation to specifically address the needs and protections of older and higher-risk workers. This Proclamation makes clear that employers must:
- Seek any and all options for alternative work arrangements, if requested, such as telework, alternative or remote work locations, reassignment, and social distancing measures;
- Permit high-risk employees to use any and all available leave (such as sick time, vacation, and PTO) or unemployment benefits if alternative work or other preventative measures are not feasible;
- Maintain all employer-related health insurance benefits for an employee who has exhausted their paid time off during the period of leave until the employee is deemed eligible to return to work.
Of course, employers may not take adverse employment action against an employee for exercising their rights under the Proclamation that would result in loss of the employee’s current employment position by permanent replacement, or apply or enforce any employment contract provisions that contradict or otherwise interfere with the Proclamation.
However, employers may still do the following without running afoul of the Proclamation:
- Hire temporary employees, so long as doing so does not negatively impact the permanent employee’s right to return to their employment position without any negative ramifications to their employment status;
- Require an employee who does not report to work to give up to five days’ advance notice to the employer of any decision to report to work or return to work; and
- Take employment action when no work reasonably exists, such as a reduction in force. In this instance, employers still cannot take action that may adversely impact the employee’s eligibility for unemployment benefits.
The Proclamation will remain in effect until June 12, 2020, unless extended by the Governor. Keep in mind, however, that even if the Proclamation expires, taking adverse action against an employee may still result in liability under Title VII, the ADA, or other federal or state law. So, employers should proceed with caution.
- EEOC Guidance About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Many clients have been asking us what kind of testing, if any, they can require of employees returning to work after quarantine or who may be exhibiting symptoms of COVID-19 disease at work. Helpfully, the U.S. Equal Employment Opportunity Commission (“EEOC”) has offered guidance about how employers can continue to protect workers’ safety while abiding by the Americans with Disabilities Act (ADA) and other EEOC laws.
Specifically, the EEOC Guidance defines the disability-related inquiries and medical exams that an employer may require. In short, because the Center for Disease Control has declared COVID-19 a global pandemic, employees with COVID-19 are considered a “direct threat” to the health and safety of themselves and other employees. Therefore, certain testing is considered consistent with business necessity, and conducting such testing will not violate the ADA. Issues addressed in the Guidance include whether an employer can take the body temperature of an employee, when an employee can be required to stay home or return to work, instructions about confidentiality, and guidelines about reasonable accommodations related to COVID-19. The guidance is extensive but is in a user-friendly Q&A format. Of course, if you have any questions about applying this guidance to your workplace, reach out to counsel.
- Small Business Loans Above $2M Will Be Audited.
Finally, if you received a loan through the federal Paycheck Protection Program (“PPP”) – congratulations! Hopefully, these funds are providing a much-needed safety net for your business. If your loan is in excess of $2 million, be aware: United States Treasury Secretary Steven Mnuchin has stated that any company receiving a PPP loan of more than $2 million will be audited. So be prepared; businesses that received a loan through this program must keep careful records of all documentation of payroll and disbursements.