The Employer’s Guide to Returning to Work During COVID-19 (Part 3)

  • May 12, 2020
  • COVID-19
  • Colin H. Hargreaves

This is the third and final installment of our series designed to guide Minnesota employers through the process of returning to more normal operations. The focus here is on critical legal issues that might arise from the return-to-work.

Workers’ Compensation

An employee who contracts COVID-19 from the work place may be entitled to workers’ compensation benefits. However, due to the community spread of COVID-19, it is hard to prove where a worker may have contracted the disease.

With respect to health care employers, Minnesota passed a new law providing for a presumption of workers’ compensation coverage for workers who contract COVID-19 while working on the frontline. All other workers do not benefit from the presumption but they still can file for workers’ compensation and seek to verify that in their specific case, the illness is work-related.

After an employee reports that they contracted COVID-19 (or any other illness or injury), ensure that you notify you claim administrator or insurer, in writing, within 14 days. In addition, any worker on temporary disability or workers’ compensation benefits is not entitled to any leave under the FFCRA according to the Department of Labor (“DOL”).

OSHA

Under the Occupational Safety and Health Act an employer has the obligation to a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.”

OSHA recently announced that COVID-19 might be a recordable injury pursuant to OSHA regulations, if:

  • There is a confirmed case of COVID-19 as defined by the CDC
  • The case is work-related as defined by OSHA, which states that an injury or illness is work-related “if an event or exposure in the work environment either cause or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness,” and
  • The case involves one or more of OSHA’s general recording criteria, which include: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant injury or illness diagnosed by a physician or other licensed health care professional

In addition, as we explained in our piece entitled OSHA Issues New Guidance on Recording COVID-19 in the Workplace, OSHA issued enforcement guidance on April 10, 2020, stating that employers in the health care industry, emergency response organizations (emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make individualized determinations of work-relatedness of COVID-19. However, until further notice, OSHA will not enforce regulations requiring other employers to make that same determinations except where:

  • There is objective evidence that a COVID-19 case may be work related. An example would include where a number of cases develop among workers who work closely together without an alternate explanation, and
  • The evidence was reasonable available to the employer. Examples of reasonable available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

Reasonable Accommodations

An employee with a known disability may require accommodations in order to continue or resume working during the COVID-19 pandemic. Absent undue hardship, employers should provide the accommodation. However, if the accommodation is an undue hardship, an employer should nevertheless continue cooperating with the employee to identify other alternative reasonable accommodations. Furthermore, employers may still seek documentation to determine the extent of the individual’s disability under the ADA (as long as the employer was not aware of it prior to disclosure).

Remember, teleworking, requesting PPE, or other similar accommodations that may prevent a disabled worker from getting sick with COVID-19 may be reasonable accommodations according to the EEOC. Another consideration is to provide end dates for any COVID-19 related accommodation so the process is quicker, but when the need for the accommodation ends, so does the accommodation.

Protected Concerted Activity

Under the National Labor Relations Act (“NLRA”), employees may act together to raise awareness of work-related issues, even if they are not in a union. Additionally, a single employee may be deemed to be engaged in concerted activity if they are acting under the authority of other employees or speaking on behalf of a group. Common examples of concerted activity include group complaints about compensation, protesting work policies, or engaging in walkouts. With the onset of the pandemic, most of the concerted activity has focused on improving working conditions and protesting unsafe work conditions, but it also has included employees petitioning for hazard pay, speaking with media, and requesting PPE.

With respect to unsafe work conditions, employees must generally have a “reasonable, good-faith belief” that the current working conditions are unsafe in order to qualify for protections under the NLRA. However, the standard changes depending on the context of the actions so be sure to consult with experienced labor counsel as soon as any of the activities referenced above arise.

If concerted activity is taking place, you should review the collective bargaining agreement (CBA) for pertinent language that might address the matter. Because such actions may very well be legally protected, a decision to terminate the employees may lead to unfair labor practice charges before the National Labor Relations Board (NLRB) and/or discharge grievances under the CBA.  Again, check with labor counsel before acting – there are steps you can take but a misstep can result in additional legal claims.

Discrimination

It is important to mitigate any potential discrimination that may arise when returning your workforce. If you are staggering returns, rather than bringing everyone back at the same time, you must do so in a nondiscriminatory manner with respect to race, gender, age and all other legally protected classifications. Therefore, no matter whether you are bringing your employees back by department, seniority, asking for volunteers, or even randomly, you must ensure that you are doing so in an impartial manner.

Wage & Hour

Lastly, remember your wage & hour obligations under the Fair Labor Standards Act (“FLSA”). If you require health assessments, make sure that you are paying all non-exempt employees for the time spent waiting to receive the assessment. In addition, if employees are coming back to reduced schedules and salaries, be sure that your exempt employees still meet the minimum weekly salary threshold for exemption ($684.00 per week).

Bottom Line

Reopening the workplace is going to be a complex matter requiring unprecedented levels of oversight in regard to employee health and safety.  Careful planning and proactive management will be critical to your success.