What’s Next? Practical Considerations for Employers Facing Continued Uncertainty Regarding COVID-19

More than four months ago, all but the most essential businesses in New York had recently been put “on PAUSE” due to the COVID-19 pandemic as we all grappled with unprecedented uncertainty about the future. Under the New York Forward program, business in the state slowly moved through four phases of reopening, and the state is now entirely within Phase Four (with some restrictions). Now some employers have reopened their offices, while many other continue to weigh the benefits and drawbacks of reopening offices and scaling up operations as guidance fluctuates and new and unexpected issues arise, including new virus hot spots in various areas across the country. In this alert, we provide an overview of some of the topics we find ourselves discussing with many clients, such as liability waivers, as well as other important issues to keep in mind. 

Back to the Office: Slow and Steady

One of the most common questions we are asked is “What are similar organizations doing in terms of going back to the office?” In our experience, many companies that have adjusted successfully to working remotely are taking a slow approach to reopening and ramping up operations, with many reopening at this point only for employees who voluntarily choose to return. Some employers have announced that employees will not be expected back in the office before a particular date (with some using dates in 2021), while others have taken a phased approach, with various groups expected back at different times depending on job function. We also have received reports of offices that reopen on a voluntary basis only to find that no employees choose to return. Other companies, however, have decided to reopen and bring back a larger in-office population after establishing a return-to-the-office program that complies with New York guidelines. This is clearly permitted under the applicable guidelines, and we anticipate there may be an increase in this approach over the next few months.

As discussed in a prior alert, all employers should be thinking through the return process, whether or not it is imminent, because there are a significant number of considerations employers must take into account along with preparations that must be made prior to bringing employees back. For example, businesses must read and affirm the state guidelines for their industry and develop business safety plans in addition to making modifications to their offices to facilitate social distancing.

As employees return, employers must have mechanisms in place to conduct daily health screenings of employees and maintain sufficient information for tracking purposes in the event an employee becomes ill with COVID-19. It also is essential that decisions about returning to work are made in a nondiscriminatory manner and appropriate protocols are followed if employees request accommodations.

Staying Current With Updated Guidance

Employers should ensure they are in compliance with state and local guidance and regulations as well as guidance from federal agencies such as the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC). These agencies, along with the state and local government, continue to update and refine their guidance and requirements as we learn more about COVID-19 and progress through the pandemic. A word to the wary: often these updates are posted to agency websites without any public announcement, so employers must regularly check the posted guidance to ensure they are complying with the most recent pronouncements.

Many federal agencies also have drafted FAQs addressing common topics such as return-to-work issues, health and safety, and COVID-19 leave-related benefits, including OSHA, the EEOC, and the Department of Labor’s Wage and Hour Division (addressing the Families First Coronavirus Response Act (FFCRA), the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA)). These documents are updated from time to time as well.

Interpretation of these regulations also is making its way through the courts. In an opinion decided on Aug. 3, 2020, in New York v. U.S. Dep’t of Labor et al, No. 20-CV-3020, (S.D.N.Y. 2020), U.S. District Judge Paul Oetken determined that the U.S. Department of Labor (DOL) exceeded its authority in regulations that restricted paid coronavirus leave under the FFCRA. Among other things, the court invalidated the DOL’s rule that leave can be taken only if the employer has work for the employee, ruled that employees need not obtain employer permission to take intermittent leave when it is permitted under the statute and rejected documentation requirements as a precondition to leave. These rulings should be taken into account when reviewing the DOL’s interpretation of the FFCRA.

At the state level, New York has updated its Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency (the Interim Guidance) several times since it was first released. When an employer affirms the Interim Guidance as required for reopening, it is affirming that it will stay current with any updates to the Interim Guidance. An employer that affirmed the June 16 version of the Interim Guidance will now find those guidelines out of date in some respects (as of the date of this alert, the Interim Guidance was most recently updated as of July 17, 2020). Thus, responsible individuals should revisit the Interim Guidance from time to time to ensure their organization remains compliant. Additional useful information is available in the form of FAQs from Empire State Development.

One change that is good news for caffeine-loving employees is that the prior recommendation to close nonessential amenities such as vending machines and communal coffee stations has now been modified to allow them to remain open if the employer makes hand sanitizer or wipes available next to the equipment.

Similarly, the advice regarding appropriate procedures for isolation and quarantine of positive and/or suspected cases and cases of known exposure continues to evolve. Employers who may have drafted policies outlining when employees may return to the workplace in any of those circumstances should consult the CDC and New York State for the latest guidance.

Concerns Regarding Employer Liability

Many employers have voiced concerns about potential liability as employees return to the workplace and asked whether it is sensible to have employees sign waivers.

As an initial matter, employers must take all reasonable steps to maintain a safe workplace in the face of COVID-19, and should ensure that they have policies and procedures that comply with current state and local guidance and regulations as well as guidance from government agencies such as the EEOC, OSHA and the CDC — employers cannot avoid these legal obligations by having employees sign waivers. Further, employers should clearly communicate the policies and protocols to their employees and take reasonable steps to ensure compliance.

Waivers are of limited, if any, benefit, and any benefit that could be derived may well be outweighed by the problems with this approach. Clearly, the best protection against potential liability for an employee’s illness is to take reasonable steps to establish and maintain a safe workplace in accordance with applicable guidance. In the event an employee does get sick, there likely would be substantial questions regarding causation — how would the employee prove that the virus was contracted in the workplace, as opposed to somewhere else (including on the employee’s commute, which is outside of the employer’s control)? Further, workers’ compensation is, with very limited and narrow exceptions, the exclusive remedy in New York and many other jurisdictions for employees who suffer an on-the-job illness or injury. While the precise interplay between workers’ compensation and COVID-19 is yet to be determined, it is likely that COVID-19 claims stemming from the workplace will be addressed by workers’ compensation and would bar separate claims against employers.

The enforceability of employee waivers of claims relating to COVID-19 would be subject to challenge in several respects. First, prospective waivers are generally unenforceable (although in some contexts an “assumption of risk” concept may apply). Second, the inherent power dynamic between employer and employee may raise serious questions as to whether waivers were freely given. Third, the use of waivers may suggest that the employer is not taking reasonable steps to maintain a safe workplace and potentially may be used against the employer in a potential litigation, or even pique the interest of agencies charged with ensuring compliance with governmental regulations.

Perhaps most troubling is the message that employees may infer from the use of waivers. In having employees return to the office, most employers undertake great efforts to ensure safety and to demonstrate to employees that they have done so. But asking employees to sign a waiver may well undermine that messaging, which could instead be perceived as “we think the office is (probably) safe, but if it isn’t, it’s not the company’s problem.”

We believe employee waivers are likely to be of limited, if any, benefit, and come with substantial negative implications. For these reasons, we find that very few employers are using employee waivers in connection with their return-to-office planning.

Beware of Rule Breakers

We have received anecdotal reports of managers, some of whom are very senior, asking junior employees to “voluntarily” attend in-person off-site meetings while the office is closed or meet in the office prior to its official reopening. Employers should remind all managers and supervisors that they need to follow the appropriate protocols to avoid exposing the business to potential liability, whether from claims related to COVID-19 or future discrimination and retaliation claims from employees who opted not to accede to manager requests to “go rogue” in this fashion.

In another arena, there has been a sharp increase in the filing of fraudulent unemployment claims. We caution clients, particularly larger clients who may have laid off significant numbers of workers, to pay careful attention to communications regarding unemployment insurance and ensure accuracy of applicants’ names, Social Security numbers, addresses and employment status.

Finally, there may be challenges to obtaining full compliance with mask requirements. Of course, employees who simply refuse to comply with rules put in place by their employer may be disciplined, up to and including termination. But other employees may violate the rules due to forgetfulness. Employers should strive to create a culture of compliance, led by managers and supervisors who remind employees of the rules when compliance is lacking and supported by a complaint procedure that allows co-workers to report violators without risk of repercussions.

Travel Developments

One measure New York State is taking to prevent a second wave of COVID-19 is a mandatory quarantine for visitors from states currently experiencing high levels of transmission. As of our date of publication, this requirement impacts individuals arriving from 34 states as well as Puerto Rico.

We recommend that, as businesses reopen, employers emphasize the importance of these restrictions to their employees and remind them that employees forgo any right to COVID-19 paid sick leave benefits if they engage in nonessential travel to high-risk states.

Conclusion

The applicable regulations and guidance continue to evolve, and we are monitoring them accordingly. If you have a specific question or would like to discuss any of these issues in greater depth, please reach out to a member of Kramer Levin’s Employment Group.