In the midst of the COVID-19 pandemic, employers everywhere are seeking to understand federal and state laws, regulations, and guidelines for both weighty business decisions that must be made in the workplace as well as daily business operations. A first step in understanding how to apply the onslaught of information is determining whether a business is considered to be an essential service, or a critical infrastructure business.
The Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) has defined “16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.” These sectors include chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, materials, waste, transportation systems, and water and wastewater systems. (https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19).
Individual states have further defined this list. For example, the Indiana Executive Order 20-18 dated April 6, 2020, has defined critical infrastructure workers to include businesses that sell medicine, food, beverage, agriculture, and firearms and ammunition; gas stations and transportation; professional services, e.g. legal, accounting, insurance, and real estate; charitable and social service organizations; religious entities and educational institutions providing that social distancing is maintained; media; manufacture, distribution, and supply chain for critical industries; critical trades including construction, hardware and supply stores, plumbers, electricians, exterminators, janitorial staff for commercial and governmental properties, security staff, HVAC, painting, relocation services; essential operation services of residences; mail, shipping, logistics, delivery and pick-up services; laundry services; restaurants for consumption off-premises; home-based care; residential facilities and shelters; critical labor union functions; hotels; and funeral services. (https://coronavirus.in.gov/2496.htm) Employers are also encouraged to check each state’s executive orders where they may employ workers.
While all employers must display the required posters for English-speaking and Spanish-speaking employees physically at the workplace, on the intranet, and/or via email to all employees; and develop procedures for leave requests, employers in essential services should also:
- Comply with a six-foot social distancing standard at all times and erect physical barriers, if needed.
- Implement voluntary or mandatory use of masks or cloth face coverings.
- Follow all other suggestions laid out by the CDC, to include: washing hands frequently, avoiding touching the face, using noncontact methods of greeting, and frequently disinfecting shared surfaces.
- Increase ventilation by opening windows or adjusting air conditioning.
- Stagger work shifts and lessen time in meetings. Schedule in-person meetings in a well-ventilated space.
- Allow employees to telework, and utilize video or teleconferencing, as needed for meetings.
- Cancel or postpone business travel.
- Provide safety training for employees.
When an employee has been exposed to, or has symptoms similar in nature to the coronavirus, employers
should immediately send the employee home and then:
- Assess and limit potential exposure.
- Compile information for all who had contact with the employee from two days prior to symptoms.
- Disinfect shared surfaces, common work spaces, and work stations, etc.
- Inform co-workers, taking care not to share the infected employee’s name or personal medical information. Send co-workers who have been in proximity to the employee home to self-isolate.
- Contact the Board of Health. Document this action even if voicemails are not returned.
The Centers for Disease Control and Prevention (CDC) recommends that employees who are ready to return to work after potential exposure be allowed to return as long as they remain symptom-free. Prior to entering the workplace, though, employers should ensure that these employees are prescreened by measuring temperatures and assessing symptoms. The employee should also self-monitor and wear a face mask at all times for 14 days after the last exposure.
All practical applications must be considered in light of federal and state laws, e.g. before implementing a mandatory use of face coverings, employers should consider the financial implications such as donning and doffing times, according to the Fair Labor Standards Act (FLSA); respiratory conditions or allergies impeded by a mask under the Americans with Disabilities Act and Its Amendments Act (ADAAA); religious beliefs that may prevent mask usage under Title VII; protected concerted behavior under the National Labor Relations Act (NLRA); and workplace violence prevention concerns and ongoing sterilization processes under the Occupational Safety and Health Act (OSH Act). Other important compliance issues that must be considered include:
- Fair Labor Standards Act (FLSA): Exempt and nonexempt classifications must be reviewed to ensure employees are correctly paid for wages that are due. In the case of a furlough or reduced hours, nonexempt employees only need to be paid for hours worked. Exempt employees, however, are paid on a salary basis that does not vary from week-to-week based upon the quality or quantity of work performed. Thus, their pay may not be reduced for partial day absences, except when permitted by state law.
- National Labor Relations Act (NLRA): Under the NLRA, adverse action, such as discipline or termination, or threatening adverse action against employees engaged in protected concerted activity is illegal. Therefore, if an employee who refuses to work says he or she is protesting on behalf of other employees, the actions may be considered protected concerted activity.
- Genetic Information Nondiscrimination Act (GINA): Employers must ensure that they are not asking targeted questions of their employees such as, “Does your child have the coronavirus?”. Instead, ask if they have been exposed to COVID-19, or informed by someone near them of COVID-19 symptoms.
- Americans with Disabilities Act and Its Amendments Act (ADAAA): The ADAAA requires that most employers provide an interactive process for employees who need a reasonable accommodation. This could be an employee who is at high risk for the coronavirus, e.g. over the age of 65, and wants to telework, an employee with diagnosed anxiety, or an employee who has run out of paid leave time.
- Occupational Safety and Health Act (OSHA): Employers must comply with the General Duty Clause, defined by OSHA as, “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” (https://www.osha.gov/as/opa/worker/danger.html)
- Worker Adjustment and Retraining Notification (WARN) Act: This U.S. labor law requires most employers with 100 or more employees to provide advance notification of plant closings and mass layoffs of employees, except in the case of an unforeseeable business circumstance or a natural disaster. Employers are also encouraged to check each state’s notification requirements where they may employ workers.
As employers strive to maintain viability, ensure employee safety, and provide services to the public in light of the guidance of federal and state agencies, they are encouraged to act with empathy and flexibility toward employees during this time of fear and uncertainty. They are also encouraged to step-up their communication practices. Whether a business is an essential or non-essential service and whether employees are on-site or working remotely, supervisors should regularly check-in with their employees in order to provide ongoing assurances during these times of uncertainty and to ensure employees are on-track with their workload.
For additional information on this topic, please contact us at www.newfocushr.com.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant