Category Archives: COVID-19

I Don’t Want to Wear a Mask…Part 2: How Businesses Can Enforce the Policy Requirement

Contributed by Michael Wong, July 24, 2020

Vector attention sign, please wear face mask

With COVID-19 cases surging in numbers, the legal implications of face mask policies for businesses have taken center stage again. 

First a quick recap, from my prior article, ADA Implications, I Don’t Want To Wear a Mask…:

  • Businesses can require employees to wear masks at work and customers to wear face masks when coming into businesses;
  • Businesses can refuse entry or ask customers to leave if they refuse to wear a face mask;
  • For both employees and customers that say they cannot wear a face mask due to a disability or medical condition, the business must engage in the ADA interactive process. The interactive process is different for employees than it is for customers.
    • For employees, the business can request medical documentation. 
    • For customers, the business should not ask for medical documentation.  Rather, the business may ask limited questions such as whether the individual has a disability and whether the disability restricts him or her from wearing a mask.
  • For both employees and customers, a business should try to provide a reasonable accommodation, but may take into consideration safety issues/concerns and whether the requested accommodation is an undue burden.

Next, what other legal concerns are there for a business that requires face masks?  The major issue facing many businesses is how to safely enforce a mask policy. As we have seen from viral videos, asking a customer to put on a face mask can lead to threats of legal action, verbal confrontations and even physical altercations or violence. If an employee is injured during a confrontation with a customer, it will likely qualify as a workers’ compensation claim. Similarly, if the customer threatens to spit or cough on the employee and then, within the next 14 days, the employee has symptoms of or tests positive for COVID-19, there is the possibility that the employee’s illness could qualify as a workers’ compensation injury if they can show it resulted from that interaction. Alternatively, if a customer is hurt, there is the potential for the customer to pursue a personal injury case.  Finally, there is the risk of a discrimination claim, if the business selectively enforces its mask policy based upon a protected status, such as race, age, national origin, etc., or does not take steps to address a customer whose behavior includes making discriminatory or harassing comments.

The best way to limit your exposure to these types of claims is to train employees on your policy, how to communicate your policy and how to address these situations to limit the risk of someone being hurt. The training should address the following:

  • The business’ policy on face masks – including your posters and where they are located.
  • Understanding business’ ADA obligations – e.g. questions that customers may be asked regarding their reason for not wearing a mask, how to respond if a customer has a disability and understanding that posters/flyers alleging that the ADA prohibits businesses from requiring face masks are false and not issued by the EEOC or Department of Justice.
  • Determine how the business will enforce the policy – i.e. whether an employee will monitor entrances, whether only certain employees or members of management should be involved in addressing compliance issues with customers, etc.
  • Address what employees should do if a customer comes in without a mask – e.g. notify management and other employees before addressing the issue with the customer.
  • Remind all employees to be polite and respectful at all times when discussing the mask requirement with customers, even if the customer gets argumentative.
  • Methods to avoid conflict – e.g. asking the customer to discuss the issue outside of the store, and not raising your voice even if the customer does.
  • Methods to de-escalate conflicts – e.g. being polite, even if the customer is not, having more than one employee present, so if the customer starts verbally or physically threatening one employee, that employee may step back and the other employee can redirect the customer to try to de-escalate the situation.
  • Alternative methods of providing services/products to a customer who has a disability and cannot wear a mask – e.g. employee gathers products and brings to customer outside of the store, etc.
  • When and how to contact law enforcement to address compliance issues.
  • Understand the proper way to document any incidents and preserve evidence, including incident forms, witness statements, taking pictures of where incidents occurred, and if applicable, securing security videos of incidents.

The list above is not exhaustive—and businesses with additional questions regarding mask policy enforcement should contact legal counsel to discuss how best to resolve such questions.

Save the Date! Complimentary Webcast July 30th: Back to School: What Employers Need to Know Related to COVID-19 and Childcare for the Upcoming School Year

As school districts announce their plans to start the school year on modified schedules with continued digital learning, employers need to anticipate the accommodations parents will request and consider leave policies.

Join Allison Sues and John Hayes on Thursday, July 30, 2020 at 10AM CT as they discuss leave eligibility under the Families First Coronavirus Response Act (FFCRA), employee accommodations, and more. Key highlights include:

  • An overview of the different approaches to school openings by states, local governments, and school districts to try to reduce the spread of COVID-19 in the fall
  • Review of employee eligibility for FFCRA paid FMLA leave
  • Practical tips for employers accommodating employees who have school aged children
  • Updates on any new or potential legislation

Employees Entitled to Leave Because Camp is Closed? Yes.

Contributed by Suzannah Wilson Overholt, July 2, 2020

text summer camp written with chalk on a chalkboard

After schools and day cares closed in the spring due to the pandemic, employers and parents alike were hopeful that summer would bring a return to normalcy – especially in the form of camp for kids. Alas, that hope has not become a reality as many states have either delayed or prohibited the opening of camps. What are employers and working parents to do?

On June 26, the federal Department of Labor issued guidance stating that, under certain circumstances, an employee whose child’s day camp is closed as a result of COVID-19 may take leave under the Families First Coronavirus Response Act (FFCRA).  

As a reminder, the FFCRA requires employers with fewer than 500 employees to provide eligible employees with up to twelve weeks of expanded family and medical leave if the employee is unable to work or telework due to a need to care for his or her child whose place of care is closed due to COVID-19 related reasons. (You can read more about the FFCRA’s provisions in our earlier blog). A “place of care” includes summer camps and summer enrichment programs. 29 C.F.R. § 826.10(a). Therefore, an employee may request emergency FFCRA family leave to care for his or her child based on the closure of a summer camp or other summer program.  

An employee who requests leave on this basis is subject to the general requirements for requesting emergency family leave under the FFCRA and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed. 29 C.F.R. § 826.100(e)(2). The requirement to name a specific summer camp or program may be satisfied if the child applied to or was enrolled in the summer camp or program before it closed or attended the camp or program in prior summers and was eligible to attend again.  

The request for leave due to the closure of a camp or summer program must be based on planned enrollment and is not appropriate if the child has never attended the camp/program in question or any other camp/program, unless there were some indication that the child would have attended had the camp/program not closed in response to COVID-19. Actual enrollment in the camp/program is not required to qualify for leave. Factors to consider include: submission of an application or deposit before the camp’s closure; prior attendance in the camp/program; current eligibility for the camp/program; and being accepted to a waitlist pending the reopening of the camp/program. 

Employers should also consider that a child who met the age requirement for a summer camp for the first time in 2020 could not have attended the camp in prior years. Similarly, a child who recently moved to a new area may have to attend a different camp/program from prior years. Finally, parents may have delayed making arrangements for summer due to the pandemic. 

The status of summer camps is yet another area employers should monitor as their states re-open.

COVID-19 “Close Contacts” Just Got a Little Closer

Contributed by Suzannah Wilson Overholt, July 1, 2020

Social distancing, black and white figures with face masks

As has come to be expected, the guidance regarding COVID-19 has changed again. This time the CDC narrowed the definition of who constitutes a “close contact” for purposes of tracing people with potential exposure to someone who has COVID-19.

While a “close contact” is still defined as someone who was within 6 feet of an infected person for at least 15 minutes, what has changed is when the exposure occurred during the ill person’s sickness. The relevant time is now from two days before illness onset (or, for asymptomatic patients, two days prior to specimen collection) until the time the patient is isolated. 

Before this change, the relevant period was from two days before symptom onset until the ill person met the criteria for discontinuing home isolation, which requires the person to be symptom free for at least three days and for at least 10 days to pass from symptom onset or, if someone is being tested, to be symptom free for three days and to have two negative tests at least 24 hours apart.

The new definition effectively reduces the time frame for identifying close contacts to as little as a few days – two days before the symptoms started to the start of home isolation could occur in three days. This change should be helpful to anyone who is faced with the task of identifying close contacts of individuals with COVID-19 – including employers, contact tracers, and public health officials. Their jobs just got a bit easier since there is now a smaller field of contacts to consider. The guidance also makes sense since, presumably, the ill person should not have any contacts (outside household members) once home isolation begins.

The CDC’s guidance continues to remind us that the 15 minute standard is not necessarily a rigid test. Factors to consider include proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), whether the individual has symptoms (e.g., coughing likely increases exposure risk) and whether either the ill person or contact was wearing an N95 respirator (which reduces the risk of exposure). Note that using a fabric face covering should not be considered as reducing risk.

Different criteria apply in healthcare settings, where a prolonged exposure is defined as any exposure greater than 15 minutes because the contact is someone who is ill. While the CDC recognizes that brief interactions are less likely to result in transmission, symptoms and the type of interaction (e.g., did the person cough directly into the face of the individual) are important.

Employers must still be vigilant about identifying close contacts of any employees who have COVID-19. If you have not established an internal policy for doing so, now is the time.

ATTENTION Paycheck Protection Program Loan Recipients: REVISED Forgiveness Application Issued

Contributed by Rebecca Dobbs Bush, June 23, 2020

As written about previously, the Paycheck Protection Program Flexibility Act, while short in text, went to great lengths in helping borrowers extend their “covered period” and maximize forgiveness.  As such, the previously issued forgiveness application needed to be revised.

Last week, on June 16, 2020, the SBA released a revised forgiveness application, a short-form and corresponding instructions for both. Generally, the short form is available for: 1) self-employed individuals; 2) those that did not reduce salaries by more than 25% and did not lay off any employees; or 3) those that did not reduce salaries by more than 25% and laid off employees, but did so because they were complying with CDC and OSHA guidance. The latter category is a new category of borrowers that no longer have to worry about prorated forgiveness. The revised applications and instructions can be found here:

Full Application

Instructions for Full Application

EZ Form

EZ Form Instructions

Specifically, the new Safe Harbor that exempts a borrower from having to worry about maintaining employee headcount is available for a borrower, that in good faith, is able to document the following:

…that it was unable to operate between February 15, 2020 and the end of the Covered Period at the same level of business activity as before February 15, 2020, due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020, by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and precision, or the Occupational Safety and Health Administration, related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19.

In addition to the above, the revised forgiveness application and corresponding regulations and instructions clarify that maximum “payroll costs” are revised to the following:

 Prior to PPP Flexibility ActPursuant to PPP Flexibility Act
Self-employed/sole proprietors/ ownersCash Compensation limited to: $15,385 (for an 8-week covered period)Cash Compensation limited to: $15,385 (for an 8-week covered period) OR $20,833 (representing 2.5 months of compensation with a 24-week covered period elected)
EmployeesCash Compensation limited to: $15,385 (for an 8-week covered period)Cash Compensation limited to: $15,385 (for an 8-week covered period) OR $46,154 (representing 24-weeks of payroll with a 24-week covered period elected)

Borrowers that intend to rely upon the new Safe Harbor should work with knowledgeable counsel to ensure adequate documentation is prepared for reference in the event an SBA audit occurs at a later date.

Charting the Course for H-1Bs and Other Visas Through COVID-19

Contributed by Jacqueline Lentini McCullough, May 27, 2020

USA visa in a passport – travel background

U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns.

The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level.

Here are six situations I am helping clients navigate.

Work-from-Home Effect on H-1Bs

U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with some of the modern work world’s innovations. They prefer brick-and-mortar offices as evidence H-1B employees are working.

On a temporary basis, given our reality in many states, H-1Bs working from home is okay within certain parameters. However, if work from home were to become a permanent change, it could jeopardize their status.

Compliance for H-1B Employees Working from Home

H-1B employees working from home need to post the company’s Labor Condition Application (LCA) notice in their home for 10 consecutive days and complete the posting sheet. The posting sheet must then be sent to the employer and placed in the employer’s Public Access File.

Though this procedure sounds silly, it is important to comply with USCIS regulations.

Work and Pay Reduction Effects on H-1Bs

Clients have asked if they can reduce all of their employees’ hours by 20 percent to avoid work force reductions and have their H-1Bs remain in good standing.

The answer is it depends.

If a wage range was listed on the LCA, it will work.

Otherwise, pay reductions would still need to maintain the prevailing wage or risk violating Department of Labor (DOL) regulations and incurring fines. Pay reductions will require filing a new LCA.

Depending on the person’s salary, a ten percent reduction may not negatively impact the H-1B visa holder’s status.

Work Force Reduction Effect on H-1Bs

H-1B status is based on continuous employment during the visa’s duration. Loss of a job jeopardizes the visa. If terminated from the job, the H-1B employee has 60 days to find another one and to amend the H-1B before losing status.

Employers who decide to terminate an H-1B employee must notify the employee and USCIS and offer the employee the reasonable cost of return transportation.

Application Filing During COVID-19

We are in the midst of H-1B filing season and are continuing to file L-1s, Employment Authorization Documents (EADs) and green card applications on behalf of clients.

All applications require a “wet signature,” meaning the applicant signs with ink and there is evidence the application is original, like having an indentation on the reverse side where the pen was pressed into the paper.

For the moment USCIS is accepting copies of wet signatures, but I am having clients send the originals as well just to be ready for any inquiries. E-signatures are not the same and are not accepted.

USCIS’s preference for brick-and-mortar offices to show green card applicants are gainfully employed makes applying for a green card dicey right now. I’m advising clients who can wait to do so.

For others who may be nearing the end of their 6-year H-1B stay, I am helping them assemble the best application possible given the circumstances.

Travel During COVID-19

Many embassies and consulates have reduced or suspended visa processing services. Some posts are starting to accept appointments for late July/early August, such as the U.S. Embassy in London and the U.S. Consulate in Frankfurt.

Acquiring passport photos has become difficult. Walmart is now offering a service where you can upload photos taken following U.S. federal guidelines and they will print them for you to pick up.

Visa holder clients who had been planning to travel because their status was expiring have had to file with immigration because they can’t leave. Clients and their family members who have passports expiring soon have had to get extensions.

Visitors in the U.S. who came via the Visa Waiver Program (VWP), which allows citizens of participating countries to travel to the U.S. for up to 90 days without a visa, have had trouble securing travel for when their 90 days has expired.

The U.S. Custom and Borders Protection (CBP) issued guidance to ports of entry to grant these visitors a 30-day extension via a request for Satisfactory Departure. To avoid jeopardizing their ability to visit the U.S. in the future, VWP visitors need to request Satisfactory Departure before their 90 days expire.

As you can see, the intricacies of immigration regulations coupled with COVID-19 complications require diligence and creative problem solving to keep visa holders in status and applications in process.

COVID-19 Illinois Workers’ Compensation Amendment

Contributed by guest author Matthew Horn, May 26, 2020

After the Workers’ Compensation Commission withdrew its proposed Emergency Rule declaring that any employee in an “essential industry” contracting COVID-19 will be rebuttably presumed to have contracted COVID-19 at work, the legislature and business groups met and worked through a proposed amendment to the Workers’ Compensation Act addressing the issue.

Under the proposed amendment, which appears set to pass, first responders, frontline workers, and most “essential employees” will be rebuttably presumed to have contracted COVID-19 at work, if they have a confirmed case of COVID-19, and the presumption is not rebutted by any of the following: 1) the employee was not in the workplace for 14 days prior to the contracting COVID-19; or 2) the employer complied with all local and CDC guidance to protect its employees from COVID-19; or 3) the employee was exposed to COVID-19 by another source, such as a spouse.  Notably, even if an employee is successful in making such a claim: 1) the employer’s MOD rate will not be impacted; and 2) the employer is entitled to a credit against any TTD benefits for sick leave or other benefits paid to the employee.

Moving forward, employers should comply with all local and CDC guidance, and prepare a questionnaire to be filled out by employees with confirmed COVID-19 cases, inquiring as to the employee’s COVID-19 exposure—much like an accident report. Employers can use those questionnaires when evaluating a workers compensation claim.

Another Symptom of COVID-19: Union Organizing

Contributed by Beverly Alfon, May 26, 2020

Labor Law Lawyer Legal Business Internet Technology Concept.

If your “essential” workforce is not already organized, consider this your wake-up call. 

As this pandemic has worn on, and more “essential workers” have fallen ill to COVID-19, labor unions have become noticeably more active. Just last Monday, the AFL-CIO filed suit in federal court to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard, aimed at forcing the agency to mandate certain safety actions by employers. 

Noticeably, the rhetoric from the AFL-CIO has been focused on “all workers” as opposed to “their members.” Plagued by a continuing decline in membership, unions seemingly recognize that they cannot let this opportunity to organize more workers pass them by. In an April 30 opinion piece published by the Chicago Sun-Times, Gary Perinar, executive secretary-treasurer of the Chicago Regional Council of Carpenters, declared: “The importance of unions is more obvious than ever during the COVID-19 pandemic…Of all the injustices exposed by this public health crisis, the risks faced by non-union workers are the most apparent.” It was a direct call to non-union workers. 

Indeed, many of the headlines about labor activity during this pandemic have not involved unions. For example, there have been walkouts to protest unsafe work conditions in nonunion workplaces such as Amazon warehouses in Staten Island, New York; Amazon-owned Whole Foods grocery stores in Chicago and other locations; and McDonalds workers in Chicago have sued the corporation over safety concerns (albeit, this one was financially backed by the S.E.I.U.). Even gig workers delivering groceries for Instacart called for a work stoppage. Such activity, of course, confirms that some workforces are ripe for union organizing. 

As businesses begin to reopen (and essential businesses begin to move forward), they will be forced to deal with employee concerns and demands over personal protective equipment, wages, hazard pay, paid sick leave, disability accommodations, and the status of laid off employees.  These very matters – job insecurity, safety concerns, and benefits – are what unions rely upon to organize workers. 

So now what?  Get your union avoidance plan in place. 

  1. 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 organization and what they can and cannot do in the event that union organizing has already begun.
  2. Review policies for clarity, perceived unfairness, and employee relations. A union will often focus employees on unfair policies. 
  3. Benchmark wages and benefits. A union will often promise more money. So, it is best to be prepared with a response.
  4. 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.
  5. 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.
  6. Get a communications plan in place in the event that union organizing begins or has begun. 

While you may already have much to consider during these unusual times, being aware of the potential threat of union organizing at your workplace is not enough. Assessment and planning are necessary so that if the need arises, response can be timely, effective, and within the parameters of the National Labor Relations Act.

OSHA Revises COVID-19 Guidance….Again

Contributed by guest author Matthew Horn, May 22, 2020

Previously, OSHA issued guidance indicating that most employers only had to record or report confirmed COVID-19 cases when provided with objective evidence that an employee contracted COVID-19 at work.  In practice, this put the burden on employees to submit evidence to employers establishing that their COVID-19 cases were contracted at work.

OSHA recently issued revised guidance on this issue, which goes into effect on May 26, 2020. Under the revised guidance, OSHA puts the burden on the employer to make a “reasonable determination” as to whether a confirmed COVID-19 case was contracted at work. In order to make that determination, OSHA suggests that employers:

1) Question the employee as to how he/she believes he/she contracted COVID-19;

2) Discuss with the employee his/her out-of-work activities that may have resulted in exposure; and

3) Review the employee’s work environment for potential COVID-19 exposure.

If, after taking those steps, the only logical explanation is that the employee contracted COVID-19 at work, then the case should be recorded or reported to OSHA, as appropriate. 

Moving forward, employers should prepare a questionnaire to be filled out by employees with confirmed COVID-19 cases, inquiring as to the topics OSHA has identified in its guidance—much like an accident report. Employers can use those questionnaires to guide them in their OSHA-related decision making process, as well as if/when a workers’ compensation or civil suit is filed.

ON-DEMAND WEBCAST: COVID-19 in Skilled Care and Assisted Living: What You Must Do Now to Manage Risk and Impact

You CAN manage risk in senior living facilities during these trying times but understanding and following procedures is more critical now than ever to protect vulnerable residents and employees. In this recorded webcast, SmithAmundsen attorneys Betsy Ballek, Suzannah Overholt and Jennifer Stuart discuss how to most effectively ensure that the safety and health in your facility is not compromised. Topics include:

  • Overview of the state of long term care communities in the setting of COVID-19
  • Regulatory Impact and Potential Litigation
  • Immunity Laws and other Provider Protections
  • Employee Concerns and Testing