Category Archives: COVID-19

Health Care Workers and Labor Unions: The COVID “Bump” and the New Administration’s Efforts to Unionize More Workers

Contributed By Beverly Alfon and Michael Hughes, April 28, 2021

COVID-19 Pandemic Allows Unions to Make Inroads with Health Care Workers

For health care workers, the issues of staffing, wages and benefits are typically what unions have focused on in their organizing campaigns. Against the backdrop of the COVID-19 pandemic, these issues are heightened with the added urgency of worker safety. The realities created by the pandemic have and will likely continue to make their impact on health care workers – even prompting some who never may have considered union representation – to reconsider their position. For example, in September 2020, nurses at a hospital in Asheville, North Carolina, voted to become unionized. Yes!  North Carolina, a traditionally red, anti-union state. The union won 70% of the vote. The nurses cited issues related to PPE, testing and exposure notification inconsistencies.

Unions have certainly taken notice of this opportunity to organize and are seizing it. After all, according to the Bureau of Labor Statistics, by 2028 some 3.4 million new jobs will be added in health care and social assistance. The sector will account for about a third of all new employment in the U.S. by that time. In August 2020, a Colorado state inspection revealed that understaffing led to a patient death at a Denver area hospital. The Service Employees International Union (SEIU) local union – which does not represent the employees at the hospital – nonetheless engaged in an aggressive campaign alleging unsafe practices by the hospital’s parent company.

Health care workers who are already unionized – who in the past may have been complacent about union objectives and work issues – also appear to have become galvanized and willing to take action, including voting to strike. At the end of 2020, health workers in multiple states went on strike over staffing issues and pay. 

  • In Chicago, about 6,000 certified nursing assistants and food service and housekeeping employees at 64 nursing home facilities called off a planned strike after reaching a tentative agreement with employers for higher base pay, hazard pay, adequate personal protective equipment and paid sick days related to COVID-19.
  • In Providence, Rhode Island, about 100 nursing assistants and maintenance workers and other staff at a nursing home began a strike over demands for mandatory minimum staffing levels and pay increases. The strike followed a series of protests following outbreaks of coronavirus in nursing homes in Rhode Island and across country exposed staffing shortages. 
  • Near Philadelphia, nurses went on strike at a hospital. A month later, the owner of the hospital announced a labor agreement with the nurses’ union that gave nurses “a voice in discussions on staffing” while preserving the hospital’s right and authority to make all staffing decisions. 
  • In Chicago, nearly 700 caregivers walked off the job at 11 nursing homes, apparently triggered by the company’s discontinuance of hazard pay during the pandemic. A tentative agreement was reached after a 12-day strike, including significant wage increases, pandemic pay increase, additional five days of COVID-19 related sick time, and significant PPE guarantees and protections.
  • In Albany, New York, hundreds of nurses went on strike, citing issues wages and benefits, understaffing, and the hospital’s handling of the pandemic.
  • In Connecticut, nursing home workers continue to inch towards a major strike with initial union votes at 33 facilities overwhelmingly favoring a strike.

Clearly, COVID-19 is strengthening organized labor’s appeal and lengthening its reach. Couple that with a pro-labor agenda in the Biden administration and in Congress, and we are staring at a galvanized labor movement.

The Pro-Union Agenda at the Biden Administration and the National Labor Relations Board

On the eve of the presidential election in 2020, nominee Joe Biden vowed to be “the most pro-union president you’ve ever seen.” Upon being sworn in, President Biden wasted no time in making headway toward that promise. On his very first day in office, President Biden fired the National Labor Relations Board’s General Counsel, Peter Robb. The NLRB GC determines which cases are prosecuted at the labor board, and in so doing, sets policy initiatives and labor law enforcement guidance. Robb’s term was not set to expire until November 2021, and his firing marked the first time in history that an incoming President fired the sitting NLRB GC without letting him serve out his term. (The next day President Biden also fired the NLRB’s Deputy GC). Union leaders had called for Biden to sack Robb over their disagreement with Robb’s policy prerogatives and what they perceived as an anti-union agenda. Within days, the acting NLRB GC appointed by President Biden issued memorandums reversing many of Robb’s policy directives—unsurprisingly all of those reversals favored labor unions (but not necessarily workers). Among the policy provisions established by the acting GC’s newly issued guidance memos are provisions giving unions wider protection against accountability when they fail to properly represent workers’ rights; allowing unions to hide certain dues information from workers; and allowing unions to limit the time frame for workers to rescind a dues authorization.

In the coming months, the makeup of the 5-member NLRB (the body that makes final determinations in cases of alleged unfair labor practices and union representation issues) will also swing from its current Republican majority, to a Democratic majority, as there currently is one vacant seat waiting to be filled, and another seat will expire on August 27, 2021. With these changes (at the GC and board levels) it is a certainty that the NLRB will begin a period where its policy and enforcement priorities make it easier for unions to organize unrepresented employees; give unions additional ammunition and leverage in organizing campaigns and at the bargaining table; and remove employer tools to resist or counter union organizing.  

Congress Advances Union-Friendly Legislation

Not to be outdone by the Executive branch, Congress also is moving quickly to appease its labor union constituents, mainly through the re-introduction of the Union-friendly, “PRO Act.” We recently wrote about the nuts and bolts of that pending legislation, which has passed the House of Representatives and awaits action by the Senate. Currently, 47 of the 50 Democratic senators support the PRO Act, and labor unions and other organizing groups have set out to bombard the remaining three Democratic senators with an onslaught of demonstrations, phone calls, and other pressure tactics, in order to bring them to heel. The PRO Act would nearly completely re-write labor law as we know it, with an aim to making it a near impossibility for any organization to resist a union organizing campaign. Among the many drastic changes to long-standing labor law, the PRO Act would:

  • Outlaw Right-to-Work laws;
  • Remove any and all restrictions on Union strike activities (including removal of restrictions against intermittent strikes, partial strikes, and slow-down strikes);
  • Allow unions to strike and boycott directly against entities they have no labor dispute with, in order to pressure that entity to stop dealing with a company the Union does have a dispute with;
  • Impose penalties against employers who commit unfair labor practices (up to $50,000 for a first offense);
  • Erode the sanctity of secret ballot elections, allowing the Union alone to name the means and manner of election (mail ballot, off-site election, electronic election) and providing for a second-chance “card-check” election, if the Union loses and alleges an unfair labor practice;
  • Ban an employer’s ability to withdraw recognition from a union, even if 100% of all employees sign a petition saying they no longer want the union; and
  • Many more pro-union provisions.

While the PRO Act is not yet law (and likely will not be enacted wholesale, unless the Senate scuttles the filibuster), it is increasingly likely that certain portions of the PRO Act will find their way in to other legislation in the upcoming legislative sessions. Again, all of these developments are for one simple purpose: making it easier for unions to organize new groups of workers. As noted above, health care facilities, especially including long-term care facilities, have been a special focal point for many union organizing drives of late, with savvy union leaders leaning on the COVID-19 pandemic to make inroads with employees in the industry. A union-friendly Administration, NLRB, and Congress will only aid and embolden the SEIU and other unions seeking to organize health care workers to redouble their efforts.

What to Do?

  1. Get your union avoidance plan in place.
  2. Identify who your “supervisors” are (as defined by the National Labor Relations Act) and get them trained on identifying and dealing with union organizing. A “supervisor” cannot be represented by a union. They are also agents of your company, so training is key. They should be directed on what their role should be in avoiding union organizing and what they can and cannot do and say in the event that union organizing begins.
  3. Review policies for clarity, perceived unfairness, and employee relations. A union will often focus employees on (real or perceived) unfair policies or unequal implementation of work rules.
  4. Benchmark wages and benefits. A union will often promise more money. So, it is best to be prepared with a response.
  5. Identify employee relations problems now and deal with them before employees turn to a union. Get feedback from the group of employees who are vulnerable to union organization. Sometimes, it is as simple as tweaking a supervisor’s management-style.
  6. Train management on positive employee relations. Your supervisors need to know about the importance of providing regular feedback to employees and maintaining open communication with them.
  7. Get a communications plan in place in the event that union organizing begins or has begun.
  8. In light of current union tactics of staging demonstrations and strikes, even in support of organizing efforts, it also is advisable to have a comprehensive strike plan in place, especially once organizing efforts become known.

Being aware of the potential threat of union organizing at your workplace is not enough. Far too often employers are surprised when union organizing begins or a formal petition for recognition is filed. Assessment and planning are necessary now so that if the need arises, a response can be timely, effective, and within the parameters of the National Labor Relations Act. 

US DOL Publishes Model Notices for American Rescue Plan COBRA Subsidy

Contributed By Rebecca Dobbs Bush, April 8, 2021

close up of the hands of a businessman in a suit signing or writing a document

The American Rescue Plan Act (ARPA), signed by President Joe Biden on March 11, 2021, included a COBRA Subsidy covering 100% of COBRA premiums for “Assistance Eligible Individuals” during the period of April 1, 2021 through September 30, 2021.  The 100% premium subsidy will be reimbursed to employers through their quarterly payroll tax returns. 

Pursuant to ARPA, employers are required to notify certain individuals about potential eligibility and details of the subsidy by May 31, 2021. Individuals then have 60-days to elect.  And although Notice 2021-01 described extensions of various plan deadlines for potentially up to 1-year or 60-days after the expiration of the “Outbreak Period,” the US Department of Labor (DOL) now makes clear in its FAQ on COBRA premium assistance under the American Rescue Plan Act of 2021, that this extension of timeframes for employee benefit plans does not apply to notice periods related to the COBRA premium assistance.  Also noted within the published FAQ, a penalty of $100 per qualified beneficiary, not to exceed more than $200 per family, may be assessed on employers for each day they are in violation of the COBRA rules.

Model Notices Available:

The above model notices cannot be used without modification that customizes each with specific information about the relevant individual and the employer’s group health plan. As potential fines for noncompliance can be steep, employers should carefully set procedures for timely distribution of all requisite notices. 

Can I Ask My Employees If They Have Been Vaccinated?

Male doctor hand wears medical glove holding syringe and vial bottle with COVID-19 vaccine

Contributed by Heather A. Bailey, April 6, 2021

The short answer is: Be careful what you wish for!  During this COVID-19 pandemic, vaccinations have been at the front of everyone’s mind. Now, with the mass rollout of vaccinations across the country, employers’ main questions have been: i) Can we mandate vaccinations for our workforce or, alternatively, ii) can we ask employees whether they have been vaccinated or not (and to show proof of vaccination)? Our Labor & Employment blog has been at the forefront for the first question and provides more information on COVID-19 vaccination developments and what legal risks come into play for employers when mandating the vaccine in the workplace.

Whether you’ve chosen to mandate COVID-19 vaccinations or not, you still may be interested in asking your employees to show proof of their vaccination status.  This simple question comes with its own set of risks. The U.S. Equal Employment Opportunity Commission (EEOC) has given additional guidance in this area in Section K.3 of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”   

The good news is that generally asking your employees for proof of their vaccination status is not considered a medical exam for reasons that include the fact that there are many reasons that are not disability-related that may explain why an employee may or may not have gotten a vaccination.  For example, they may not have one yet because they have been unable to secure an appointment, or they simply do not believe in the vaccination because they think COVID is a hoax.  This is different from someone not getting vaccinated due to a disability or religious belief.  Moreover, this general practice is not a HIPAA violation and HIPAA does not apply in this context.  The rub and risk come if you ask follow-up questions that may elicit whether the employee may have a disability.  Simply following-up with “why do you not have the vaccination yet?” could be treading into that risky territory that touches on whether an employee’s disability is the reason why the employee has not been vaccinated. 

If you find yourself in that territory,  you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act (ADA) (or Title VII, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.”  This is the same analysis an employer must undertake when mandating vaccinations, and it can be a tedious and high standard to meet. View the Labor and Employment Blog for more information on the ADA and employers’ efforts to require mandatory vaccinations and health screenings for employees.

The same is true of follow-up questions that may elicit genetic information (e.g., I cannot get the vaccination due to my family’s history of being immuno-compromised).  (See Sections K.8 and K.9 of the EEOC guidance described above).  Once again, simply asking for vaccination proof does not run afoul of the Genetic Information Nondiscrimination Act (GINA) so long as you stop there in your inquiries.

Practice Tips:

  • Again, be careful what you wish for.  It’s one thing to ask the employee whether they were vaccinated and to show proof, and it’s another to ask why they were not vaccinated. Once you start eliciting disability, religious or genetic information with follow-up questions, you are placing your company at risk of knowing more information than you may have bargained for.
  • You need to ask yourself, first, why do I want to know information regarding why my employees have been vaccinated or not?  What are you going to do with this information?  Having a need and plan for this information will help ensure you have a business justification for why this information is necessary. If you don’t have a plan or a need, you may determine that knowing this information is not really necessary after all.
  • When asking employees to show proof of vaccination, it is good to remind them that you do not want them to include any other medical information that may be listed on their vaccination-related documents.
  • If you determine this is the route you want to take, always work with competent labor & employment counsel to help guide you through the process so you do not step on any landmines (even if it’s just a simple follow-up question). 

The American Rescue Plan Act of 2021: What’s in it for Employers?

*Save the Date! Complimentary webcast on March 23rd at noon CST: American Rescue Plan: What Employers Must Know Now

Contributed by Rebecca Bush and Kelly Haab-Tallitsch, March 11, 2021

Almost one year after the enactment of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and with the second extension of pandemic unemployment assistance about to expire for millions of workers on March 14, 2021, the American Rescue Plan Act of 2021 (the “Act”) was signed into law by President Biden on Thursday afternoon, March 11, 2021. 

The estimated cost of the Act is $1.9 Trillion, with $1,400 Recovery Rebate checks for each qualifying individual, the extension of supplemental unemployment benefits through September 6, 2021, as well as billions in new or additional relief for various industries, such as education, transportation and infrastructure, aviation/airlines, health care, shuttered venues, restaurants, and state and local governments.

Several provisions of the Act are potentially available for employers of various sizes across all industries. Some key non-industry specific provisions are set forth below.

Premium Assistance for Cobra Continuation Coverage for Individuals and Their Families

Remember the COBRA Subsidy implemented years ago where individuals had 85% of their premiums covered? The Act invokes similar assistance for individuals. However, this time the amount covered for individuals is set at 100%. It generally applies to premiums due related to coverage periods from April 1, 2021 through September 30, 2021. Employers will be required to notify employees about the availability of the premium assistance and the expiration date. The Secretary of Labor is required to produce model notices, with the initial model notice of availability to be provided within 30 days of the Act’s enactment. The 100% premium subsidy will be reimbursed to employers through their quarterly payroll tax returns.

Extension of Employee Retention Credit

The Employee Retention Credit was recently extended and amended as part of the Consolidated Appropriations Act of 2021 (enacted during the last week of December 2020). The Act further extends the availability of the credit for wages paid through December 31, 2021.  As a reminder, we explained the prior expansion to the Employee Retention Credit previously.

Extension of Tax Credits ONLY for Paid Leave under the FFCRA

In the last round of stimulus legislation, the tax credit for paid leave under the Families First Coronavirus and Response Act (“FFCRA”) was extended through March 30, 2021.  However, the extension was not mandatory and maximum leave allowances were not reset, meaning an individual that had already exhausted available amounts in 2020 was not entitled to further time off regardless of whether an employer continued to make the leave available on a voluntary basis. We previously explained the extension in a recent blog post.

Employers that are contemplating, or already, providing paid time off for employees to obtain the vaccine, now potentially have assistance funding that leave. The American Rescue Plan extends the availability of the tax credits for paid sick or family leave through September 30, 2021, and the maximum amount of tax credits that an employer can claim for each employee will reset on April 1, 2021.  This reset allows an employee who exhausts the maximum leave through March 31, 2021 to be able to utilize additional FFCRA leave on April 1, 2021 through September 30, 2021, provided the employer continues to voluntarily allow the use of FFRCA leave. In addition, two new permitted reasons for paid sick leave are added where: (1) an “…employee is seeking or awaiting the results of a diagnostic test, for, or a medical diagnosis of, COVID 19 and such employee has been exposed to COVID-19 or the employee’s employer has requested such test or diagnosis;” and (2) “the employee is obtaining immunization related to COVID-19 or recovery from any injury, disability, illness, or condition related to such immunization…”  

Optional Expansion of Limits under Dependent Care Flexible Spending Account Plans

Employers that offer dependent care flexible spending account plans may increase the maximum deferrals under the plan to slightly more than double the normal deferral limit. This is for the 2021 plan year only. This translates to a maximum deferral for a married couple in the amount of $10,500 and $5,250 for an individual.

For further information, register to attend SmithAmundsen’s complimentary webcast on March 23rd at noon CST: American Rescue Plan: What Employers Must Know Now

COVID-19 Extension of Group Welfare Plan Benefit Deadlines Clarified Bringing Potential Relief for Employers

Contributed by Rebecca Dobbs Bush, March 9, 2021

hand holding megaphone – benefits

In a previous blog article, we alerted readers to the extension of deadlines related to COBRA, Special Enrollment, Plan Disclosures and more. The prior Joint Notice from the DOL and IRS provided suspension of all deadlines until 60 days after the expiration of the National Emergency, referred to as the “Outbreak Period.”

The issue requiring clarification arose due to the unanticipated length of the Outbreak Period.  Much like all of us, the IRS and DOL did not foresee an Outbreak Period continuing well over a year later.  As the one-year anniversary of the Outbreak Period approached, a conflict began to arise with ERISA section 518 and Code section 7508A(b). Those provisions generally provide that the Secretaries of Labor and the Treasury may prescribe extensions of only up to one-year when it relates to a Presidentially declared disaster. Accordingly, some plans were contemplating a complete disregard of further extensions based on the one-year limitation on the emergency rule-making process.  Anticipating this potential action by plan sponsors, the DOL (also on behalf of the IRS) issued Disaster Relief Notice 2021-01.

However, with Notice 2021-01, the intended “clarification” of the discrepancy has led to a much more administratively complicated process.  Now, plan sponsors and participants must apply the extension on an individual basis for each separate deadline versus the previously declared extension of all deadlines.  Notice 2021-01 confirms that individual deadlines are revised to the earlier of: (1) one year from the date of the original deadline, or (2) the end of the Outbreak Period (previously defined and which has yet to occur).

Several specific examples were provided in Notice 2021-01 to help illustrate the revised administration of plan deadlines:

  • If a qualified beneficiary would have been required to make a COBRA election by March 1, 2020, the Joint Notice delays that requirement until February 28, 2021 – which is the earlier of 1 year from March 1, 2020 or the end of the Outbreak Period (which remains ongoing).
  • If a qualified beneficiary would have been required to make a COBRA election by March 1, 2021, the election deadline is now delayed until the earlier of 1 year from that date (i.e., March 1, 2022) or the end of the Outbreak Period.
  • If a plan would have been required to furnish a notice or disclosure by March 1, 2020, the relief under the Notice would end with respect to that specific notice or disclosure on February 28, 2021.

Note that none of the examples provided allow for a deadline extension of more than 1 year.  For this reason, Notice 2021-01 provides much needed relief for employers that were trying to manage never-ending extensions for COBRA elections, payments, etc. And as additional relief for employers, the DOL specifically indicates that prior notices furnished without relying on the relief set forth in Notice 2021-01, do not need to be reissued.   

Within Notice 2021-01, the DOL also reminds plan sponsors that “The guiding principle for administering employee benefit plans is to act reasonably, prudently, and in the interest of the workers and their families who rely on their health, retirement, and other employee benefit plans for their physical and economic well-being.”  In keeping with this guiding principle, the DOL encourages plan sponsors to consider affirmatively sending notices to those participants that are now facing the end of the relief period advising them of such.  In other words, if you now have COBRA participants or others that will be suddenly subject to election or payment deadlines, it is best practice to provide them with some type of notice or communication to that effect.

So Your Employee Wants to Work Remotely Out of State

Contributed by John R. Hayes, March 8, 2021

Work Remotely memo stick. Laptop for remote job.

Given the “new normal” of remote work for many employees throughout the country, the question as to whether to allow an employee to work in another state – either permanently or temporarily – has become something employers are now scrambling to answer.  However, it is not as simple as determining whether the employee can do the work remotely, there are numerous considerations and implications employers should be aware of if they have employees working in a different state than the location of their main operations. 

First, employers should have clear guidelines and policies regarding what is expected of the employee in terms of hours, availability, and work product. That is true wherever they are remotely located. Some general areas to consider include:

  • Detailing their normal work duties and responsibilities;
  • Making clear the hours of work the employee is expected to put in along with strict adherence to any timekeeping policies;
  • Setting the hours of availability to communicate regarding company business and job duties;
  • Determining how to handle communication of work assignments and personal needs, including reporting absences of work due to injury, illness, or caring for a family member;
  • Discussing the use of company equipment and materials;
  • Ensuring the employee protects company information by following the company’s policies and practices regarding information security and data protection; ensure that unauthorized individuals do not access company data, either in print or electronically; and not accessing restricted-level information in print or electronically unless approved by the supervisor; and
  • Maintaining a safe environment in which to work.

Next, for employees wanting to work out of state either all the time or for a period of time, there are potential tax and payroll issues for both the employee and the employer. Unfortunately, there is no one size fits all answer. It will depend on the state the individual is performing work in, how long they are there, and a host of other factors.  When an employee is working outside of the state where the employer operates the employer may be responsible for the other state’s taxes, including income taxes. Each state’s income tax and withholding requirements vary significantly, and may be based on both personal residence and/or work location. Making it even more complicated, states have differing thresholds for when an individual working remotely in that state triggers tax implications, for example in Illinois it is 30 days and in New York it is 14 days.

COVID-19 related remote work has dramatically impacted this area of the law, as it has exponentially increased the numbers of employees working in a different state than where the employer is located or where they reside, and many states have been slow to adjust to this. However, several states have implemented “COVID-19 Rules” regarding the tax implications for remote workers. Again, this is a state-by-state analysis that needs to be done by the employer for each employee wishing to work remotely out of state. 

In addition to state and local taxes, the labor and employment laws of the state where a remote employee is working may apply to the employment relationship.  An employer needs to examine the state’s (and possibly the county’s and/or the city’s) employment laws to see whether there are specific laws that would affect the employee, such as posting requirements and paid family or sick leave, amongst others.

Employers should also be aware of state laws regarding workers’ compensation insurance and unemployment insurance. Employers usually must obtain workers’ compensation insurance in the state where the employee is actually working. It may be the case that the workers’ compensation laws in the employer’s state would not apply to the employee working remotely in another state. The same also applies to unemployment insurance, where the out of state employee would likely trigger the state’s requirements that the employer register for and pay the unemployment insurance premiums through that state’s particular unemployment insurance program.

Ultimately, the decision to allow remote location work is up to the employer and depends on the particular facts and circumstances of each employment situation.  Given the complexity of having to figure out other states’ employment, tax, and other state-specific laws, employers may be justified in saying no to such arrangements.  The answer really depends on the employer’s desire to hire/retain the individual, and whether remote work is a means to that end.  And once such a remote work arrangement is granted to one employee, employers must be mindful in granting/denying it to others, as allowing it for one employee but denying it to another could potentially be considered discriminatory, depending on the facts of each situation.

Any remote work arrangement should be carefully considered in advance, a written policy and understanding between the employer and employee should be put in place, and the particular laws of the remote work location should be examined and understood, ideally by experienced counsel.

Yes, Even Vaccinated Employees Must Continue Wearing Masks

Contributed by Peter Hansen, March 3, 2021

Vector attention sign, please wear face mask, in flat style

Now that COVID-19 vaccines are starting to roll out, employees who have been vaccinated are beginning to question whether they are still required to wear face masks, practice social distancing, etc.  In short, yes they are – according to the Occupational Safety and Health Administration, along with numerous state agencies, “it is important to wear a face covering and remain physically distant from co-workers and customers even if you have been vaccinated because it is not known at this time how vaccination affects transmissibility.”

So, the same workplace protocols apply to vaccinated and unvaccinated employees, with one very limited exception: the Centers for Disease Control and Prevention issued guidance providing that vaccinated employees who were exposed to someone with COVID-19 are not required to quarantine if they meet all of the following criteria:

  • The employee is fully vaccinated (i.e., 2 or more weeks following receipt of the second dose in a 2-dose series, or one dose of a single-dose vaccine);
  • The exposure occurred within 3 months following receipt of the last dose in the series; and
  • The employee has remained asymptomatic since the COVID-19 exposure

Accordingly, employers should continue enforcing their existing workplace COVID-19 protocols – and reiterate to their entire workforce that all employees are still required to wear masks, practice social distancing, and report exposure to COVID-19 regardless of whether they have been vaccinated.

Of course, and as with everything else surrounding COVID-19, vaccine-related information available and protocols regarding vaccinated employees is subject to change, so stay tuned.

URGENT: Workers Can Refuse Work and Receive Unemployment Benefits Due to COVID-19

Contributed by Steven Jados, February 26, 2021

unemployment claim form on desk

On February 25, 2021, the U.S. Department of Labor (DOL) announced three new categories of individuals eligible to collect federally-funded unemployment benefits as the COVID-19 Pandemic continues.  They are:

  • Individuals who refuse to return to work that is unsafe or to accept an offer of new work that is unsafe;
  • Certain individuals providing services to educational institutions or educational services agencies; and
  • Individuals experiencing a reduction of hours or a temporary or permanent lay-off.

These changes are expected to take effect in late March, but could take longer to take hold as each state must adopt and administer to this new guidance in order to receive the additional federal COVID-19 specific funding.

Focusing on the first category, it essentially creates an additional “good cause” reason for an employee to refuse work, but remain eligible for unemployment benefits in situations in which “[t]he individual has been denied continued unemployment benefits because the individual refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19.  This includes, but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.”

In order to obtain benefits under this provision, the DOL requires individuals to attest, under penalty of perjury, that they have been denied continued unemployment because they “refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19.  This includes but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.” 

It is unclear exactly how it would be possible for, e.g., an applicant who never set foot on a worksite or an employee who had not been in the workplace since pandemic-related changes were implemented to credibly complete the attestation.

Beyond the attestation under perjury, specific standards and requirements will largely be left to the states.  Many states previously made clear that a generalized fear of COVID-19 in the workplace was an insufficient basis to refuse work and still receive unemployment benefits, and we anticipate many states will continue to require more than generalized fears when determining eligibility under this new DOL category.

The task for employers in light of this expansion is to demonstrate the safety and security of the workplace from a COVID-19 prevention and mitigation perspective.  Step one in that regard is, of course, to ensure that the business has enacted policies and procedures in-line with the most up-to-date guidance from the CDC and other federal, state, and local agencies.  Step two is to make clear to employees (1) what steps have been taken to improve health security in the workplace; (2) the fact that the business is vigilantly monitoring CDC and public health guidance and is ready to implement further protections in accordance with that guidance; and (3) that employees should feel free to express their questions and concerns to management regarding COVID-19 safety in the workplace without fear of adverse consequences or retaliation. This can take the form of e-mailed announcements and bulletin board postings for current employees. 

But for employees away from work because of pandemic-related concerns, more formal, written correspondence aimed at communicating how the business has directly resolved the employee’s concerns may be appropriate.  As always, we recommend drafting such correspondence with an eye toward an interactive process between the business and employee—and with guidance from experienced counsel. 

Check Local and State Health Department Rules: Some Require Reporting of COVID-19 Cases

Contributed by Peter Hansen, Michael Wong and Sara Zorich, February 23, 2020

COVID-19 Screening Questionnaire form with medical mask and a pen on it.

A question that employers often ask when someone in the workplace reports COVID-19 symptoms or a positive test is, who is the employer required to notify? Typically common sense and CDC guidelines have been that employers must engage in contact tracing and notify individuals who were in “close contact” with the person. In recent months and weeks, local and state departments of public health have continued to issue guidance, and mandates, that employers must also identify and observe and sometimes try to interpret despite conflicting statements.

For example, in December 2020, the Illinois Department of Public Health (IDPH) revised its regulations to add COVID-19, SARS and MERS to the list of Class I(a) diseases that “shall be reported immediately (within three hours) by telephone, upon initial clinical suspicion of disease to the local health authority, which shall then report to the IDPH immediately (within three hours.) Ill. Admin. Code tit. 77, § 690.100. For context, Class I(a) diseases include Anthrax, Plague, Smallpox, and suspected bioterrorist threats or events. The reporting of Class I(a) diseases has historically been the responsibility of the hospital, physician or medical provider who treats or confirms an individual’s positive tests result for such a disease. However, the applicable regulation does have a catchall provision that places reporting responsibility on “Any other person having knowledge of a known or suspected case or carrier of a reportable communicable disease or communicable disease death.” Ill. Admin. Code tit. 77, § 690.200.  Taken together, these provisions arguably require employers who know of a “known or suspected case” of COVID-19 to immediately report the information to their local health authority.

To further complicate the matter, the IDPH updated its “Guidance for Employers and Employees on Workers’ Rights and Safety” webpage on or about January 7, 2021 to state the following:

“If two or more employees report having COVID-19 related symptoms or test positive for COVID-19, the employer must notify their local health department within 24 hours of being informed of the presence of COVID-19 symptoms or positive test results.”

This is a pretty significant change as it modifies the reporting from voluntary to mandatory and is unclear regarding the time period for the two cases occurring (e.g. whether it is two cases over 14 days, two months, or since March 2020). That said, under CDC guidelines for contact tracing and the guidelines of some local public health departments it is reasonable to view the applicable time period for determining whether reporting is required under IDPH regulations as a 14 day period.

To add further confusion, local public health departments may have a higher or lower standard. For example, the City of Chicago and Kane County, Illinois health departments still advise businesses that they may voluntarily report employees with symptoms or confirmed cases, but are not required to do so. While in others areas, like Winnebago County, Illinois, the local health department is telling employers that they are required to report when one (1) or more employee develops COVID-19 symptoms or receives a positive test result, and are requiring employers to submit information regarding their businesses and the individual(s) at issue (including their symptoms and demographics).

Ultimately, no matter the standard for reporting, the employer is required to cooperate with local public health authorities in the investigation of cases, suspect cases, outbreaks and suspect outbreaks. This is fairly consistent throughout the United States.

What happens if you do not comply with reporting or an investigation? – It depends on the state and local laws and regulations regarding the violations of public health laws, but generally violations can result in fines, criminal charges and even result in a business being temporarily closed down. For example, under Illinois law, failure to comply may result in a Class A misdemeanor and the IDPH and local health department have the ability to order a business be closed if it deems immediate action is required to protect the public.

BUT WHAT DOES THIS MEAN WITHOUT THE LEGALESE?

  1. Employers MUST be aware of what requirements or guidance their local public health department has regarding reporting cases of COVID-19 AND should take steps to comply with both the state and local requirement regarding reporting when employees are suspected or confirmed to have COVID-19.
  2. Documentation through COVID-19 Questionnaires for employees who report symptoms will become even more important. Questionnaires should include questions not only about what symptoms an employee has, but where the employee has been in the last 14 days; whether the employee or family members have interacted with individuals outside of their home for more than a cumulative 15 minutes in a 24 hour period; whether the employee or family members have visited stores or other locations within 10 or more people; etc.
  3. Employers should recognize the potential risks, which may include fines, criminal prosecution and even being shut down, when responding to state and local public health departments’ requests for additional information and investigations. Any concerns should be vetted through competent risk management consultants and experienced legal counsel.

What President Biden’s American Rescue Plan Could Mean for Employers

Contributed by Suzannah Wilson Overholt, February 17, 2020

COVID-19 stimulus package, US dollar cash banknote on American flag

Congress is turning its attention to President Biden’s $1.9 trillion economic stimulus package, which is called the American Rescue Plan.  Because the package includes enhanced unemployment benefits that are currently set to lapse in mid-March, Congress is under pressure to take action by then.

The following aspects of the proposal have a specific impact on employers:

  • Restoration and expansion of emergency paid leave
    • President Biden has proposed reinstating and expanding the paid sick and family leave benefits passed as part of the Families First Coronavirus Relief Act (FFCRA) which expired in December. The proposal would reinstate those leave provisions through September. (Read more about the FFCRA leave requirements in our previous blog from March 2020).
    • The proposal expands the leave requirements to cover businesses with fewer than 50 and more than 500 employees, as well as first responders and healthcare workers, who could be exempted from the original leave requirements.  (The proposal would also grant leave to federal workers.) 
    • The government will reimburse employers with fewer than 500 workers for the full cost of providing the leave.
  • Restaurant industry:  The proposal includes the FEMA Empowering Essential Deliveries (FEED) Act that uses the restaurant industry to get food to families in need and helps get laid-off restaurant workers back to work. 
  • Minimum wage:  President Biden’s proposal includes raising the minimum wage to $15 an hour over four years and ending the tipped minimum wage and the sub-minimum wage for people with disabilities. Whether this will actually be considered by Congress as part of the stimulus package is uncertain.
  • Worker safety:  The proposal includes provisions regarding worker safety, which we addressed in a previous blog

Other aspects of the proposal that, while not being specifically workplace related, have an impact on workplace issues are as follows:

  • Vaccines and testing:  The proposal seeks $160 billion for vaccines, testing and related programs to fight COVID-19.  It includes $20 billion for a national vaccination program and $50 billion for testing.  Part of the funding would be directed to hiring public health workers to help administer vaccines and tests.  The goal would be for more people to be vaccinated faster, which should allow more employees to return to work and more businesses to re-open.
  • Extension of pandemic unemployment programs
    • President Biden has proposed increasing federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that Congress approved in December. 
    • The Pandemic Emergency Unemployment Compensation program, which applies to those who have exhausted their regular state jobless payments, and the Pandemic Unemployment Assistance program, which provides benefits to the self-employed, independent contractors, gig workers and certain people affected by the pandemic, would both be extended.
    • These payments and programs would be extended through September. Currently, they are set to expire in mid-March.
  • Child care: President Biden’s proposal creates an emergency stabilization fund for child care providers to allow them to re-open and stay open. It also contains additional funding to assist families with child care expenses. 

We will provide updates about the status of these proposals as they work their way through Congress.