Category Archives: employers

Can I Require My Employees to Get the COVID -19 Vaccine?

Contributed by Suzannah Wilson Overholt, November 12, 2020

Medicine doctor and vaccine dose syringe in laboratory, microbiology and pharmaceutical research.

With the prospect of an FDA approved COVID-19 vaccine on the horizon, employers are already wondering whether they will be able to require their employees to get the vaccine. Because the pandemic has caused changes in other workplace rules, the answer to this question is not clear.

The Americans with Disabilities Act (ADA) generally prohibits employers from mandating that employees receive any vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary. This is ordinarily a difficult standard to meet unless the employer is part of the healthcare field. However, due to the current circumstances of the COVID-19 pandemic and the fact that an individual with COVID-19 is considered to pose a direct threat to the health of others, the EEOC may allow mandatory COVID-19 vaccines in workplaces beyond healthcare.  This conclusion is supported by the fact that the EEOC has already allowed employers to screen employees for COVID-19 on this same basis.

  While employers may be permitted or able to require employees to get the vaccine, employers should carefully consider the potential legal and employee morale implications and complications.  A Gallup poll recently showed just half of Americans would be willing to get a COVID-19 vaccine that the FDA approved, which is less than were willing to do so this past summer. These poll results indicate that a large number of employees will likely be reluctant to get the vaccine – at least initially. Therefore, enforcing a vaccine mandate, i.e. telling workers they have to have the vaccine or be fired, could be difficult if a large number of employees refuse to comply.  

If the EEOC authorizes mandatory COVID-19 vaccines anywhere in the workplace, employers should likely assume that the same restrictions that apply to mandatory vaccines in the healthcare field now will apply to all workplaces.  Currently, the EEOC requires healthcare employers to consider exemptions for employees who cannot receive vaccines for reasons related to disability, pregnancy, or religion. Employers analyze each request for exemption on a case-by-case basis, including reviewing the employee’s job position as well as the employee’s particular religious belief or medical documentation corroborating the disability at issue.  For more about these exemptions and the analysis that goes with them, see our previous blog on this topic, “Navigating the Legal Risks of a Mandatory Vaccine Program.”

As long as there continues to be widespread concern about the safety of a COVID-19 vaccine and no specific authorization from the EEOC to allow employers to mandate that employees have the vaccine, employers would be wise to continue to require masking, proper hygiene and social distancing.  Employers may also stress the importance of getting a flu shot and encourage employees to get one by subsidizing the cost, allowing paid time off to get one, or offering flu shots at the workplace to reduce any inconvenience. 

We will continue to monitor and report on guidance from the CDC, EEOC and other federal agencies for developments regarding the COVID-19 vaccine.

Employee Voting Rights: Are Employers Required to Give Time Off to Vote?

Contributed by Suzannah Wilson Overholt, October 15, 2020

Stickers to indicate voting

With the General Election on November 3rd rapidly approaching, registered voters are exploring various options for casting their ballots, be it through mail or in person early or on Election Day (November 3rd). One critical factor that may drive an individual’s voting plan is their work schedule, which raises the question of whether employers are required to give their employees time off to vote.

The answer to that question depends on the state where you work. A summary of the requirements from around the Midwest is below:

Illinois requires employers to give employees two paid hours off to vote. If the employee’s working hours begin less than two hours after opening of the polls and end less than two hours before closing of the polls, the employer must provide the employee a two hour paid absence during working hours. However, the employer may decide when the hours are taken. Employers may require that employees give at least one day’s advance notice of their intent to take the time off and to request paid leave.  No proof of voting is required.

Iowa requires employers to give employees as much time to vote as will add up to three hours when combined with non-work time.  However, time off to vote is not required if the employee has three consecutive non-work hours available while the polls are open.  The time off is paid but no proof of voting is required.  Employees must give their employers written notice of their intent to take voting leave before the election.  The employer may decide when the hours are taken.

Missouri requires employers to give employees three paid hours off to vote.  However, this leave is not required if the employee has three consecutive non-work hours available while the polls are open.  Employees seeking to take leave to vote must give notice prior to Election Day and must actually vote to be paid.  The employer may decide when the hours are taken.

Wisconsin also requires employers to allow employees up to three consecutive hours off to vote.  The time is unpaid and employees must notify their employers of their intent to take the leave before Election Day.  The employer may decide when the hours are taken.  No proof of voting is required. 

Kentucky requires employers to give employees a minimum of four hours of time off to vote.  The time is unpaid and employees must give one day’s advance notice of their intent to take the time off.  An employee who takes the time off but does not vote is subject to disciplinary action.  The employer may decide when the hours are taken.

Ohio requires employers to give employees a reasonable amount of time off to vote.  The time is only paid for salaried employees.  No advance notice or proof of voting is required.  An employer cannot refuse to allow an employee to serve as an election official on Election Day.

Neither Indiana nor Michigan requires employers to allow employees time off to vote. 

We encourage all registered voters to make a plan and cast their ballot.

Illinois Releases Disclosure Form for Employers to Report Adverse Judgments and Administrative Rulings Related to Sexual Harassment and Unlawful Discrimination in Advance of October 31st Reporting Deadline

Contributed by Sara Zorich, August 18, 2020

48895877 – hand with pen over form

In August 2019, SB0075  – the Workplace Transparency Act – was signed in Illinois.  The Act created a number of new requirements for employers including, but not limited to, a new reporting requirement regarding adverse judgments and administrative rulings related to sexual harassment or unlawful discrimination brought under the Illinois Human Rights Act (IHRA), Title VII of the Civil Rights Act of 1964, or any other federal, state, or local law prohibiting sexual harassment or unlawful discrimination.

This new reporting obligation begins on July 1, 2020 for the period from January 1, 2019 to December 31, 2019. The filing deadline for this disclosure period is October 31, 2020. This reporting requirement is applicable to any employer that employs one or more employees in Illinois; however, only employers who actually had an adverse judgment or administrative ruling during the reporting period will need to file a reporting form.

An “adverse judgment or administrative ruling” is defined by the IHRA as any final and non-appealable judgment that finds sexual harassment or unlawful discrimination, where the ruling is in the employee’s favor and against an employer. (775 ILCS 5/2-108). Reportable adverse judgments or administrative rulings include those in the State of Illinois and any other jurisdiction nationwide. Employers will only need to provide the number of adverse judgments or administrative rulings and the basis of each—but employers do not need to provide any further details regarding the specific matters. Further, employers do not need to report settlements as part of this annual disclosure.

The IHRA disclosure form can be downloaded online  and either physically filed or emailed to the IDHR at IDHR.Section2-108@Illinois.gov. Going forward, the disclosure deadline will be July 1st each year. The Illinois Department of Human Rights has also published a FAQ to assist businesses with the reporting requirements.

Any employer that has one or more employees in Illinois should review their litigation and administrative matters from 2019 to determine if their company needs to file the IHRA reporting form by October 31st.

California Court Re-Classifies Independent Drivers as Employees Pursuant to AB5

Contributed by Carlos Arévalo, August 11, 2020

close up of hand with transparent smartphone and virtual car sharing icons over black background,

On Monday August 10, 2020, Judge Ethan Schulman of the California Superior Court issued an injunction against Uber and Lyft ordering them to classify drivers as employees and not as independent contractors. The order follows a preliminary injunction lawsuit filed this spring by the State of California, along with a number of large cities in the state, where it was alleged that Uber and Lyft were in violation of California’s Assembly Bill 5 (“AB5”). A new state law that went into effect on January 1, 2020, AB5 codified what is known as the “ABC” test, which is commonly used to determine whether a worker is an employee as opposed to an independent contractor.

Specifically, under AB5, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

  1. The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. The person performs work that is outside the usual course of the hiring entity’s business.
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

In his order, Judge Schulman found that neither Uber nor Lyft would be able to establish the B prong of the ABC test and as a result, the likelihood that California will ultimately prevail in its action against Uber and Lyft is “overwhelming.”  Judge Schulman also found that any costs to Uber and Lyft related to restructuring and proper worker classification to come into compliance with AB5 are outweighed by the harm to the drivers, businesses and the public associated with workers being deprived of “the panoply of basic rights and protections to which employees are entitled under California law.”  The court’s opinion is not surprising in light of AB5’s prohibition of engaging anyone as an independent contractor who is critical to and part of a company’s business operations.  In short, prong B creates a burden that is very difficult for any business to meet.

The order represents the latest development in an ongoing battle regarding the classification of drivers. After the enactment of AB5, Uber filed a federal lawsuit challenging the law’s constitutionality. Uber, Lyft and others have also championed Proposition 22, a ballot initiative in the November 2020 election to define app-based transportation (rideshare) and delivery drivers as independent contractors.  Just last week, California’s Labor Commissioner Lilia García-Brower alleged in separate lawsuits against Uber and Lyft that they are “committing wage theft by misclassifying drivers as independent contractors” and that “freelance workers [are being] deprived of a host of legal protections in violation of California labor law.”  The lawsuit is in response to nearly 5,000 claims from drivers for lost wages.

While pending in California, these actions illustrate how critical it is to ensure workers are properly classified under applicable state law. Employers should be mindful to ascertain what test is used in their state for various laws, and how workers are evaluated against such standards. Counsel should also be utilized to analyze and craft independent contractor agreements that do more than simply label the relationship as independent contractor, but also incorporate elements necessary to demonstrate that the contractor truly meets the applicable standards.

U.S. Supreme Court Issues Landmark Decision Providing Discrimination Protections to LGBTQ Workers

Contributed by John Hayes, June 15, 2020

Judge’s Supreme Court gavel with law books

On June 15, 2020 the United States Supreme Court handed down a momentous decision ruling that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay and transgender employees from workplace discrimination. The decision consolidated three cases where the employees were terminated from their jobs: two separate cases involving the terminations of gay employees; and one case involving the termination of a transgender employee.

The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justice Alito wrote a dissent joined by Justice Thomas, and Justice Kavanaugh wrote a separate dissent.

Title VII bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether discrimination “because of sex” applies to gay and transgender workers. While most federal appeals courts interpreted Title VII to exclude sexual orientation discrimination, both the Second Circuit Court of Appeals (in New York) and the Seventh Circuit Court of Appeals (in Chicago) had previously ruled that discrimination based on sexual orientation is a form of sex discrimination. 

Writing for the majority, Justice Gorsuch stated:

An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

… 

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.  We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law.

Currently 22 states, including Illinois, have their own laws prohibiting job discrimination based on sexual orientation or gender identity.  While these laws remain in force, the Supreme Court’s ruling means federal law now provides similar protections for LGBTQ employees in the rest of the country.

Employers throughout the United States must now be aware that federal employment law (noting that Title VII covers only employers with 15 or more employees) prohibits discrimination against gay and transgender employees. The upside is that employers will no longer have to navigate inconsistent laws that vary from state to state and it will also likely make employee training easier and more consistent for employers operating in multiple states. Employers should update their discrimination and harassment policies to make sure gay and transgender employees are included in anti-discrimination protections.

It should also be noted that, for most employers, attempting to justify an employment action against gay or transgender employees on religious grounds will not be a successful avenue of defense.  The so-called “ministerial exemption” is very narrowly tailored to cover only churches and religious institutions, and applies only to employees performing a “ministerial” role within the institution.   

The takeaway for the vast majority of employers is that it is now crystal clear that Title VII’s prohibitions on discrimination based on sex include gay and transgender individuals. 

Reminder for Chicago Employers: Fair Workweek Ordinance Compliance Begins July 1

Contributed by Peter Hansen, May 28, 2020

calendar on white background. 1 july. 3d illustration.

Chicago employers take note – beginning July 1, 2020, you may be required to post work schedules at least 10 days in advance in order to comply with the Fair Workweek Ordinance. This seems like as good a time as any for a refresher on the Ordinance.

Are We Subject to the Ordinance?

Generally, employers must comply with the Ordinance if they meet each of the below conditions:

  • They employ 100+ employees (both inside and outside of Chicago) or, for non-profit corporations, 250+ employees;
  • They employ 50+ employees who spend the majority of their time at work in Chicago and earn $50,000 or less if salaried / $26.00 per hour if hourly; and
  • They are primarily engaged in one of the following industries: building services; healthcare; hotels; manufacturing; restaurants; retail; and warehouse services.

What About Union Workers?  

Employers subject to any existing Collective Bargaining Agreement (CBA) need not comply with portions of the Ordinance that conflict with the CBA as to the particular bargaining unit. However, any CBA entered into after July 1, 2020 must explicitly waive the Ordinance’s requirements “in clear and unambiguous terms” in order to avoid compliance through the collective bargaining process.

What Does the Ordinance Require?

The Ordinance places a number of requirements on employers, including:

  • Providing new employees with a written estimate of days and hours of work within 90 days of their start of employment;
  • Posting a written work schedule at least 10 days in advance for employees who earn $50,000 or less / $26.00 per hour or less;
  • Paying employees 1 hour of “predictability pay” for each shift change that occurs after the 10 day schedule notice;
  • Offering additional shifts to existing part-time employees first, then to full-time employees, then to temporary/seasonal workers; and
  • Providing at least 10 hours of rest between shifts, unless the employee consents to a shorter rest period in writing and is paid at least 1.25 times their regular rate of pay for the shift.

Additionally, employers must both post and provide notice of the Ordinance to all covered employees with their first paycheck on or following July 1, 2020.

But Wait, What About COVID-19?

Given COVID-19’s far-reaching impact, Chicago employers may have assumed that the city would delay enforcing the Ordinance. This is not the case, however: the city made it clear that the Ordinance’s schedule change provisions apply unless COVID-19 caused the employer “to materially change its operating hours, operating plan, or the goods or services provided by the Employer, which results in the Work Schedule change.”  This limited exception should be relied upon sparingly.

The city also delayed private employees’ right to file a lawsuit pertaining to alleged violations to January 1, 2021; however, the city can still enforce the Ordinance and issue fines – which could range from $300 to $500 per day, per employee.

This is a somewhat complicated topic, so any employers who are unsure of their covered status and/or how to comply on the most practical level possible should contact experienced labor & employment law counsel.

Illinois Department of Human Rights Issues Model Sexual Harassment Training

Contributed by Peter Hansen, May 6, 2020

notebook and computer

Recent changes to the Illinois Human Rights Act (IHRA) require all Illinois employers to provide sexual harassment prevention training to all employees by December 31, 2020, and once per year thereafter – and tasked the Illinois Department of Human Rights (IDHR) with creating a model sexual harassment training program employers could use to meet that requirement. After several delays, the IDHR released its model sexual harassment prevention training program along with an FAQ. Now that we have the IDHR’s model training, all Illinois employers should begin planning on how they will administer the training to all employees – including part-time employees, short-term or temporary employees, interns, and so on – especially since the IDHR announced that it will not extend the December 31, 2020 deadline due to the COVID-19 pandemic.

Minimum Standards

Employers may wish to develop or continue using their own anti-harassment training, especially if it covers more than just sexual harassment prevention. They are free to do so, provided the training includes the following:

  • An explanation of sexual harassment consistent with the IHRA;
  • Examples of conduct that constitutes unlawful sexual harassment;
  • A summary of relevant state and federal laws concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • A summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.

Illinois restaurants and bars have additional obligations, including an explanation of the internal complaint process available to employees and information on how to contact and file a charge with the IDHR and U.S. Equal Employment Opportunity Commission.

Otherwise, as long as the training is accessible for employees with disabilities or with limited English proficiency, there is no required format. The training may be live or recorded, there is no minimum or maximum duration, and it need not be interactive.

Recordkeeping

Employers must keep records demonstrating compliance with the sexual harassment prevention training requirement, either electronically or in paper format. The records should, at a minimum, include:

  • Names of the employees who received training;
  • Training date and location;
  • Sign-in worksheets, signed employee acknowledgements, certificate of participation, etc.;
  • A copy of all written/recorded materials used in the training; and
  • The name of the trainer.

What to do When Your Employee Tests Positive for COVID-19

Contributed by John Hayes, April 30, 2020

clip board and stethoscope conceptual illustration

With the constantly shifting state and local stay-at-home orders and the potential relaxing of these orders on the horizon, the question for employers still remains: What do we do if an employee has COVID-19? 

Once an employer receives a report that an employee has tested positive for or is presumed to have COVID-19, the employer should do the following:

  • Instruct the infected employee to stay home for the longer of the period of time recommended by his or her health care provider or the applicable health department or until 1) at least 3 days (72 hours) have passed since resolution of fever without the use of fever-reducing medications AND improvement in respiratory symptoms (e.g., cough, shortness of breath); and 2) at least 7 days have passed since symptoms first appeared. Employers may not disclose the identity of the employee diagnosed with or presumed to have COVID-19. Employers are also required to maintain the privacy of any health information they gather related to an employee’s medical condition or their symptoms, and any such documentation should be kept in a private health folder, separate from the employee’s personnel file, with limited access by only critical human resource staff.
  • Interview the infected employee to determine all co-workers, clients, vendors, or guests with whom the employee may have come into close contact during the 14-day period prior to the positive test or presumption of being positive for COVID-19 (the “Incubation Period”). “Close contact” means being within six feet of the sick employee for a prolonged period (10-30 minutes). The employee should also be asked to identify all areas within the workplace where he or she was physically present during the past 14 days and any employees with whom he or she shared a workspace or equipment. (The local health department may conduct this interview and provide the employer with this information.)
  • Contact directly each close contact and each co-worker who shared a workspace with the sick employee and advise that a person with whom they have been in recent contact and/or with whom they recently shared a common work area has been diagnosed with COVID-19. Instruct them that they are to remain out of the office for at least 14 days since the last contact with the infected employee and to work remotely, if possible. The co-workers should be encouraged to self-isolate and seek all medical care and testing that they feel may be appropriate. (The local health department may order the employees to be off work and inform the employer that it has done so.) It should also be noted that pursuant to recent CDC guidelines, under certain circumstances, an employer may allow an employee who is asymptomatic but was exposed to return to work.
  • Consider notifying clients, vendors and/or guests who may have been exposed to the diagnosed employee, while maintaining confidentiality.
  • Consider the wage and hour issues, such as mandatory paid sick leave, if the infected employee and close contacts are not able to work remotely and communicate the pay policies to employees pursuant to the FFCRA. 
  • Consider issuing a general notice to the workforce that an employee has tested positive for or is presumed to have COVID-19 (without identifying the employee). Any such notice should reassure employees that, unless the employee has been notified directly by the employer, the employee is not believed to have been in close contact with or shared a common workspace with the infected employee. Employees should be told all the steps the employer is taking to ensure their safety and should be advised to monitor themselves for symptoms of COVID-19 and reminded not to come to work if they are sick.
  • Shut down those areas of the workplace identified by the infected employee as areas that he or she used until those areas can be cleaned in accordance with CDC guidelines.

While employers may require a doctor’s note permitting an employee to return to work after recovering from COVID-19 or being mandatorily quarantined, such a requirement may not be practical. Acceptable alternatives include relying on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have COVID-19.

State, federal, and local discrimination laws remain in place and apply to harassment related to COVID-19, which may take the form of race and national origin harassment. Employers should inform all employees that such harassment will not be tolerated.

Employers should take action immediately in response to an employee who reports a positive test for or a presumption of COVID-19. Employers should be flexible and efficient in order to maintain a safe workplace and allow the focus to be on the work of the company going forward. 

CDC Issues New Relaxed Guidelines for Safety Practices for Essential Workers Potentially Exposed to COVID-19

Contributed by John Hayes, April 10, 2020

An important question for employers in essential industries is whether its employees should come to work after potential exposure to COVID-19.  The previous guidance from the Centers for Disease Control and Prevention (“CDC”) recommended employees stay home for 14 days after exposure.  However, late on April 8, 2020 the CDC issued new guidelines — abandoning the former restrictions — for employers of critical infrastructure workers in essential sectors such as health care, manufacturing, food and agriculture, information technology, and transportation.  The CDC guidance is designed to educate employers on the procedures to follow in allowing employees to return to work after having been exposed to the COVID-19, and to get employees in essential sectors back to work sooner rather than later.   

The CDC advises that critical infrastructure workers may be permitted to continue to work, or return to work, following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented by the employer.  Specifically, the CDC says employers should adhere to the following practices when an employee has been potentially exposed to COVID-19 (a potential exposure means a household contact or having close contact within six feet of an individual that has confirmed or suspected COVID-19, up to 48 hours before the individual became symptomatic):

  • Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.
  • Implement the CDC’s prior guidance for employers to plan and respond to COVID-19: Among other recommendations, increase air exchange in the workplace. 

The CDC further recommends that if the employee becomes sick during the day, they should be immediately sent home and surfaces in their workspace should be cleaned and disinfected pursuant to CDC guidelines.  Information on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled.  Others at the facility with close contact within 6 feet of the employee during this time would be considered exposed.

This is just the first step the federal government is taking towards reopening the country, and is only a small part in the ever-evolving guidance to employers from the CDC.  Employers of workers in an essential business sector should be mindful of these new guidelines issued by the CDC for both the safety of its workforce and potential pitfalls of allowing, or not allowing, an employee potentially exposed to COVID-19 to come to work.  We will continue to monitor this very fluid situation and issue updates here as soon as things change.

My Employee is Subject to a “Shelter-in-Place” Order – What Do I Do Now?

Contributed by Carlos Arévalo, March 20, 2020

As we continue to grapple with the impact of the COVID-19 pandemic, and with potentially more drastic measures being imposed by health officials, the question becomes what is the impact on employers if a shelter-in-place order is issued. The answer:  it depends on the order.

In response to the crisis, a number of states, counties and cities have imposed or are considering shelter-in-place orders. Generally, a shelter-in-place order means that individuals must stay in their residences and not leave “unless necessary for one of the designated exceptions.” The purpose of such orders is to contain the spread of the virus by minimizing interaction between individuals to only those activities that are absolutely necessary.  Such orders, as adopted or under consideration by various jurisdictions, do not appear to compel full out seclusion and isolation or to prohibit the public from venturing outside their homes. The City of San Francisco, on March 16, 2020, issued the first shelter-in-place order. California, in the first state-wide measure, followed suit last night extending local measures to its 40 million residents. A similar measure was also adopted last night in Pennsylvania where Governor Tom Wolf announced that all but “life sustaining” businesses in the state were ordered to shut down (Pennsylvania’s measure does contain a very specific list of affected businesses by industry and sector). While the terms of such orders will vary, they contain exceptions for “essential services” impacting a number of critical infrastructure sectors.

By way of illustration, the City of San Francisco’s measure had health officials issue an order that generally directed the public to stay in their homes except for the following:

1.      To provide or receive essential services;

2.      To engage in essential activities; and

3.      To work in essential businesses and government services.

Measures that followed elsewhere similarly include terms like “essential services”, “essential activities” and/or “essential business and government services.”  These terms are specifically defined and must be reviewed to determine whether or not your employees will be able to make it to work. In the San Francisco order “essential activities” incorporate activities or tasks essential to health and safety. Examples of this include going to the doctor, buying food or medicine, obtaining supplies to work from home, or performing work for “essential businesses” that provide “essential services.”  “Essential businesses” include health care providers, grocery stores or other food producing/retail establishments (restaurants are generally limited to take out/curb side), gas stations, banks, and even professional services that support the legally mandated activities of essential businesses. Certainly, protective services and first responders are also engaged in essential services so they are not going to be limited. Finally, orders also address “essential travel”, which generally consists of going to/coming from work, the doctor, or any destination where essential services will be procured.

Bottom line, individuals should be able to go to work provided their employers are engaged in an essential business or government service or in support of such businesses or services. While “shelter-in-place” orders may differ from one jurisdiction to another and may be more restrictive depending on your location, the objective is still containment of the virus. Thus, your employees should be able to come to work, go home at the end of the day and even stop at the store for groceries or other essentials.  But they will not be able to go out to dinner, hang out at a bar for drinks or engage in any entertainment or social activities with lots of people around them. 

As with all matters involving COVID-19, this is a fluid situation with frequent, if not daily, developments. These may involve not just “shelter-in-place” orders, but other health official directives that must be carefully reviewed to ensure compliance. We will continue to monitor and update as needed.