Coronavirus Updates: Shelter in Place, Updated EEOC Guidance, and More
Developments continue to occur rapidly with the Coronavirus impact. This weekend, California clarified the list of essential businesses that are exempt from its shelter-in-place order (while a handful of other states adopted their own shelter-in-place orders). The EEOC also issued some updated guidance for employers on how to respond to pandemic-related issues in the workplace. Meanwhile, the Secretary of Labor is working on (but still has not published) guidance on various unclear aspects of the recently passed Families First Coronavirus Response Act. Here are some key updates on these items:
California Shelter in Place Order—Exempt Essential Businesses
When Governor Newsom issued his Shelter in Place Order last week, the order was very unclear as to which businesses were considered “essential businesses” that are exempt from the Order and allowed to remain open. This weekend, the Governor’s office issued clarification in this regard, listing the types of workers (by sector) that perform essential, exempt work. Changes continue to be made to this list, but the most current list is available here.
Generally speaking, the sectors that have exempt workers include healthcare/public health, emergency services, public works, food and agriculture (including many retail grocery and similar stores, Big Box stores that sell household goods, and restaurants limited to takeout service), energy, water and wastewater, transportation and logistics, communications and information technology, financial services, legal services, hazardous materials, critical manufacturing, chemical workers, and various “other” workers. If you believe you have an essential workforce, you should review the list and ensure that your workers are, in fact, exempt. It is also a good idea to provide any essential workers with a letter or card they can carry identifying them as an essential worker (with brief explanation why), in the event they are stopped by law enforcement and questioned about not sheltering at home. If you believe you have essential workers that are not covered by the most recent list, you should contact the Governor’s office to request an exemption.
Businesses with essential workers should allow workers to telecommute to the extent practicable for their positions. If workers need to be present at the worksite, safe distancing practices should be utilized. The California order is in place until further notice by the Governor’s office.
More States Enacting Shelter in Place Orders
Over the last few days, several states have jumped on the bandwagon and issued their own shelter in place orders. This too is an evolving list, but currently the following states all now have shelter-in-place orders: California, New York, New Jersey, Connecticut, Delaware, Louisiana, Illinois, Ohio, and Michigan. Of course, even in states that have not issued a statewide shelter in place order, there are many counties throughout the country that have issued such local orders. If you are a multistate employer, it can be challenging to keep up with these rapidly evolving local orders. For what it is worth, the orders tend to exempt the same types of workers. The only way to determine for certain whether your workforce is exempt in any particular state is to review that state’s order, while noting that many of these states have not finalized their lists of exempt, essential workers. Those lists continue to evolve with requests by various businesses to be added to the exemption list.
Updated EEOC Guidance
The EEOC has updated its guidance for employers on various virus-related issues in the workplace. The updated guidance is here. Among other things, the EEOC clarified that during the pandemic, employers may ask employees if they have flu-like symptoms and may send employees home if they have flu-like symptoms. Employers also may conduct temperature checks of all workers entering the workplace. Note, however, that any information an employer collects regarding employee symptoms/temperatures would be subject to medical confidentiality requirements. In California, collecting such information also may trigger CCPA (California Consumer Privacy Act) notice requirements. The EEOC guidance still remains unclear as to whether employers may directly ask employees if they have underlying medical conditions that put them at higher risk for severe virus-related complications. The EEOC indicated that Covid-19 is a “direct threat” to the workplace which may justify disability-related inquiries, but their guidance on this issue is not entirely clear. As such, it remains best to avoid asking such direct questions. Instead, you can tell employees which groups are considered high risk (65 and older, those with compromised immune systems or certain underlying medical conditions) and ask the employee to let you know if they are in a high-risk group (without disclosing the nature of any underlying medical condition). You can also ask if employees have been exposed to someone with the virus.
The EEOC has added guidance for employers who are hiring during the pandemic as well. The EEOC advises that employers may screen applicants for symptoms of the virus after a conditional job offer has been made, assuming the employer screens all applicants and does not pick and choose among different groups. Employers may also conduct temperature checks. Finally, an employer may withdraw a job offer if a prospective employees has the virus and cannot work, assuming the employer has an immediate need to fill.
Families First Coronavirus Response Act Guidance
As reported last week with news of the enactment of the federal Families First Coronavirus Response Act, the Secretary of Labor is supposed to be issuing a model notice for employers to post about the new law, as well as issuing regulations covering whether employers with less than 50 employees are exempt and on other issues that need clarification. The notice and guidance have not yet been issued, but the Department of Labor has stated that the notice will issue this week. The regulations are not expected until April, which is less than ideal. The regulations are expected to clarify certain issues regarding how paid leave is calculated, whether the expanded FMLA leave for virus-related school closures is an additional bucket of FMLA leave available to an employee or the same 12-week bucket they have for other covered FMLA purposes, whether employees may be required to provide certification for the leave and what that certification looks like, and information on businesses that are exempt from the paid leave requirements. We will post more information as it becomes available. In the meantime, the DOL has a webpage providing some guidance on paid leave issues, as well as various wage and hour issues, that employers are confronting.