Reopening Your Business Part II: Practical considerations for the post-shutdown workplace
by Janis Adams and Linsday Raymond
Now that your business is reopened, what happens if an employee contracts COVID-19? Are you required to grant an employee’s request for leave related to COVID-19? Are you still required to accommodate requests to telework? In Reopening Your Business – Part II, we focus on preparing employers to properly respond to these novel issues, and avoid liability.
Investigating Whether COVID-19 Is Work-Related
An employee contracting COVID-19 does not necessarily mean there has been an OSHA violation. Understanding that COVID-19 can be acquired both inside and outside of the workplace, on May 26, 2020, OSHA issued enforcement guidance requiring employers with more than 10 employees (certain low-risk industries are exempted) to reasonably investigate whether COVID-19 infections are “work-related.” A condition is “work-related” if an event or exposure in the work environment caused or contributed to the condition or significantly aggravated a pre-existing condition.
In accordance with OSHA’s recording requirements, a confirmed COVID-19 case that is work-related and results in death, days away from work, restricted work or job transfer, medical treatment beyond first aid or loss of consciousness, must be recorded by the employer in its OSHA Form 300 log. Importantly, employers are also required to annually post a summary of the log. Employers with 250 or more employees and certain smaller employers in designated hazardous industries are further required to electronically file their summaries with OSHA each year. Failure to comply with these recording requirements may result in OSHA citations and financial penalties.
In order to properly complete the Form 300 log, employers are now required to conduct a reasonable investigation to determine whether a confirmed COVID-19 case is “work-related.” This should include asking the employee his or her belief as to how the virus was contracted, discussing work and out-of-work activities that may have led to the illness (being cognizant of privacy concerns), and reviewing the work environment for potential exposures to the virus, such as evaluating whether appropriate mitigation measures were in place, and determining if other individuals also contracted COVID-19. Factors weighing in favor of or against a finding of “work-relatedness,” when there is no other alternative explanation, include, but are not limited to:
- Infection develops among employees working closely together;
- Contraction of the virus occurs shortly after prolonged exposure to customer/employee with a confirmed case;
- Job duties require frequent close exposure to public in an area with on-going community transmission;
- Employee associates with someone outside of work with COVID-19 during the infectious period; and
- Evidence of causation provided by a medical provider or health authority, if any.
The final determination of work-relatedness must be based on information reasonably available to the employer at the time of the decision; however, if additional, relevant information is subsequently discovered, the determination must be supplemented. If after a reasonable and good faith investigation the employer cannot determine whether it is more likely than not that the exposure was work-related, the employer is not required to record the COVID-19 case in the Form 300 log. However, the employer must document and maintain records of the investigation to support its determination.
Granting Leave Related to COVID-19
When employees know they have a job to return to after taking leave for COVID-related reasons, they are more likely to report potential exposure and remove themselves from the workplace. OSHA’s new “Guidelines for Opening Up America” (June 2020) recognize this, advising employers to “evaluate existing policies and, if needed, consider new ones that facilitate appropriate use of…sick or other types of leave, and other options that help minimize worker’s exposure risks.”
Several state and federal leave laws support this goal. The FFCRA provides for paid leave to employees experiencing specific, identifiable COVID-19 issues. If an employee’s request for leave under the FFCRA does not meet its specific requirements, or if such leave has been exhausted, employers may still be obligated to provide other leave related to COVID-19.
For instance, an employer with 50 or more employees would also need to consider whether an employee’s COVID-related leave request would qualify for leave under Michigan’s Paid Medical Leave Act or unpaid leave under FMLA based on the employee’s own serious medical condition or need to care for a family member. An employer with 15 or more employees must also consider whether the employee would be entitled to unpaid leave as a reasonable accommodation for a disability of the employee under the ADA, absent undue hardship or direct threat. Finally, employers must consider whether they have leave policies beyond those required by law, such as a discretionary unpaid leave policy, that is applicable to the employee’s COVID-19-related situation, and if so, must apply such policies consistently to all eligible employees.
Teleworking Allows for Workplace Flexibility
Teleworking has also been shown to be an effective method of combating the spread of COVID-19 in the workplace. For this reason, in each Executive Order (EO) issued by Governor Whitmer regarding temporary workplace restrictions, employers have been ordered to use teleworking when in-person work is not necessary. Thus, employers remain obligated to provide telework for their employees post-shutdown.
The OSHA Opening Guidelines, likewise, provide that telework should be considered at all phases of business recovery, and encourage employers to “consider additional policies that facilitate telework…to help minimize worker’s exposure risks.” Consistent with this direction, post-shutdown, employers will need to assess whether “in-person” work should remain an essential function of a particular job position: If an employee performed effectively while teleworking during the shutdown, why would telework no longer be offered post-shutdown? If “in-person” work is no longer an essential function of a job position, employers may also need to consider telework as a reasonable accommodation for a disability. With that in mind, employers who utilize teleworking should have a teleworking policy that sets forth clear criteria regarding tracking of hours and supervisor monitoring to ensure performance standards are being met.
Reopening your business requires compliance with countless laws, administrative regulations, and state executive orders. Employers can mitigate their risk of potential penalties and liability by working with legal counsel to ensure compliance.
Janis L. Adams and Lindsay J. Raymond of Danbrook Adams Raymond PLC are experienced employment law attorneys and business owners. You can reach them at email@example.com and firstname.lastname@example.org.