I recently offered insights in an article on the workplace safety orders issued by state and federal agencies as many employees start the return to work following the COVID-19 pandemic. While these orders serve as helpful guidance on how to businesses can safely reopen, many are also questioning the liability risk that comes with reopening a workplace.

As I pointed out in the article, “The biggest issue is that it’s unclear at this point whether an employer can be held liable to employees who become sick. … Obviously this is an evolving situation. We’re learning new aspects about the virus every day and its transmission so the safety protocols considered best practices today might be outdated a few months from now.”

While the guidelines are helpful, I advised that “It’s really up to the employers to figure out what’s appropriate for their companies. It’s taking all of that, the totality of those guidelines, and figuring out what’s applicable to each company’s workplace and what they can reasonably do.” Clients should proactively develop policies and educate their staff on those policies, rather than wait for employees to request safety protections.

The full article, “Reopening Businesses Face State Virus Workplace-Safety Orders,” was published by Bloomberg Law on April 30 and is available online.

Bass, Berry & Sims has provided updated guidance on the employment-related provisions of the Families First Coronavirus Response Act (FFCRA) and answers to some frequently asked questions regarding the FFCRA regarding providing Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave Act (EFMLA) benefits under the Act. This guidance includes answers to some of the most frequently asked questions, such as:

  • Who is a covered employer under the FFCRA?
  • Do I have to provide FFCRA benefits to employees who are laid off or furloughed?
  • How much EPSL do I have to pay to my employees?
  • How do my current leave policies interact with EPSL?
  • How much EFMLA leave do I have to pay?
  • What are the differences between EFMLA and FMLA?
  • Is intermittent leave permitted under the FFCRA?
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As the U.S. economy reopens in the coming weeks and months, employers are faced with the challenge of bringing employees back to work to a workplace that is drastically different from the one that existed just weeks ago. While states and cities will have unique requirements and conditions with which employers must comply, they intend to rely on, in large part, the constantly evolving guidance provided by the Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC). Consequently, it will continue to be crucial for employers to comply with the most recent guidance from the CDC, OSHA, public health agencies, and the EEOC as they bring employees back to work and re-open businesses.

At the link below is a general overview of current guidance that employers must consider before allowing employees to return to offices and other workplaces, including:

  • EEOC guidance for the interpretation of the ADA and the Rehabilitation Act in light of COVID-19
  • OSHA guidance on preparing the workplace
  • CDC guidance on workplace health and safety

The overview is followed by a summary of the applicable return-to-work plans issued by the state of Tennessee and the city of Nashville. The final section of this update sets forth some frequently asked questions regarding the return of employees to the workplace in the era of COVID-19.

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As developments related to COVID-19 continue to unfold, it’s imperative to prioritize the rapidly evolving state and federal level regulations and act accordingly to ensure your business is complying, but also accessing available federal and state assistance. In an effort to help navigate the unique challenges government contractors face during this time, our attorneys will discuss recent developments and preview risks associated with what has essentially become war-time contracting.

In this webinar, Labor & Employment attorney Tim Garrett will join Bass, Berry & Sims’ Government Contracts and Isaac Natter, Associate General Counsel (Acquisition & Logistics) at the Department of Defense (DoD) to discuss these timely developments and offer practical guidance on key topics of interest, including:

  • A DoD insider’s view on the new Section 3610 “Ready State” CARES Act Authority
  • Latest on SBA’s Paycheck Protection Program
  • Overview of FFCRA benefits and qualifying reasons
  • Contractual issues such as excusable delays, stop-work order and terminations
  • Government use of the Defense Production Act in response to
    COVID-19

WEBINAR DETAILS

Title: Fighting the Virus: Update on COVID-19 Issues Impacting Government Contractors

Date: Thursday, April 16, 2020 Time: 1:00 p.m. – 2:00 p.m. EDT

Who Should Attend

  • Executives
  • Private equity professionals
  • Management professionals
  • General counsel
  • Other in-house legal and compliance personnel of government contractors, financial institutions and manufacturers

I recently explained how employers can legally respond when an employee tests positive for COVID-19 in an article for the Washington Business Journal. Many employers think the Health Insurance Portability and Accountability Act (HIPPA) protects employee health information, but that pertains specifically to health providers.

For employers, the Americans with Disabilities Act, protects the privacy of a workers health records and information, so employers may ask employees if they’ve tested positive for the coronavirus, but must keep that information confidential in accordance with the ADA.

When it comes to taking an employee’s temperature, the Equal Employment Opportunity Commission allows employers to get thermometer readings given the potential direct threat to others who could be exposed. I advised in the article to “treat this like a real medical test,” and go to a private room to take someone’s temperature and keep results completely confidential in that employee’s medical file.

Continue Reading Working in the Age of the Coronavirus

Bass, Berry & Sims attorneys Davidson French, Bob Horton and Kimberly Veirs recently presented a Middle Tennessee Society for Human Resource Management’s (MTSHRM) webinar.

The webinar, entitled “Update on Federal Legislation in Response to COVID-19 Pandemic Impacting Employers,” reviewed the latest DOL guidance for employers implementing the provisions of the Families First Coronavirus Relief Act as well as provide general guidance regarding the elements of the Paycheck Protection Program.

Access the recording here.

Since the passage of the Families First Coronavirus Response Act (FFCRA), many healthcare organizations, especially those with a structure that includes a friendly or captive PC model, have struggled to determine whether they may aggregate employees across all affiliated entities to reach the 500-employee threshold that exempts employers from the paid leave requirements of the FFCRA.

However, based on rolling FFCRA guidance recently issued by the Department of Labor (DOL), employers of healthcare providers may exclude such employees captured by the DOL’s definition of healthcare provider from paid leave benefits under the FFCRA.  Because of the broad scope of the definition of healthcare provider recently provided by the DOL, many healthcare organizations and even those entities that provide services to healthcare organizations may be able to exclude all of their employees from paid leave benefits under the FFCRA regardless of whether they meet the 500-employee threshold.

Continue Reading DOL Offers Definition of Healthcare Provider under FFCRA

Please note that the content below was posted on March 30, 2020. We have since provided updated guidance on the topics discussed in this post here.

The U.S. Department of Labor (DOL) is issuing ongoing guidance regarding the application of the Families First Coronavirus Response Act (FFCRA).  The guidance has provided answers to many pressing questions faced by employers as they prepare to implement the FFCRA’s requirements starting April 1, 2020, including how a “healthcare provider” is defined, whether furloughed employees are entitled to paid leave benefits, whether leave under the FFCRA may be taken intermittently, and the application of the small business exception.  DOL’s guidance can be found here.  Below is a summary of some of the most common FAQs.

Continue Reading DOL Issues Second Round of Guidance on FFCRA

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the new stimulus package recently passed by Congress, includes a “union neutrality” mandate for mid-sized employers who accept loan proceeds.  This union neutrality commitment would be in place for the life of the loan.  Mid-sized employers are defined as those with 500 to 10,000 employees.

For many years, to assist their organizing efforts, unions have demanded of certain multi-state employers that they commit to “stay neutral” in union organizing campaigns at other company sites.  Such neutrality demands have included asking the employer not to express opinions which disfavor the union’s organizing efforts, or not to hold captive audience speeches during the union’s organizing drive, or to accept a showing of majority status by way of checking authorization cards (i.e., that the employer not demand a secret-ballot election to determine if the union has majority support).

Continue Reading Employers Beware – Union Neutrality Requirements in New Stimulus Package

Government-mandated protocols and social distancing directives as a result of the COVID-19 pandemic have led to significant business interruptions and tremendous financial strain on employers. These measures may continue to disrupt businesses and the economy for the foreseeable future. As a result, employers are faced with difficult choices regarding their employees – including how to keep them working during this unprecedented time and for many employers, possibly reducing employees’ hours, furloughing employees, or terminations – all of which can directly affect retirement plans and other types of employee benefit plans. In addition, a wave of new federal legislation affecting employee benefit plans, much of which is intended to provide relief to employees, is being rolled out.

Bass, Berry & Sims’ employee benefits attorneys have compiled a series of FAQs providing the latest guidance on the impact of COVID-19 on employee benefit plans. We are closely monitoring the government’s response to this developing situation and will update our website with further guidance as it unfolds.