OSHA reinstates normal reporting and investigation standards for COVID

On May 19, 2020, the Occupational Safety & Health Administration (OSHA) reversed an earlier enforcement policy for recording cases of COVID. As Lake Effect reported in April, OSHA had announced that it would not enforce its record-keeping requirements on employers to make COVID “work-relatedness” determinations, except when (1) there was objective evidence that an employee’s exposure to COVID-19 was work-related and (2) that evidence was reasonably available to the employer. At that time, OSHA noted that it may be difficult for employers to determine if an employee with COVID-19 contracted COVID-19 at work. Yesterday, OSHA revised that policy.

OSHA will now increase in-person worksite inspections and enforce COVID record-keeping requirements for all employers. Acknowledging the difficulty in determining where an employee may have contracted COVID, OSHA reminded employers that a case of COVID in the workplace is a recordable illness. Employers must record cases of COVID if all of the following are true:

  • An employee has a confirmed case of COVID-19;
  • The employee’s case of COVID is considered to be work-related*; and
  • The illness involves one or more of the recording criteria, including medical treatment beyond first aid or days away from work.

*Note that an illness is considered to be work-related “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment” unless an exception applies.

Keep in mind that employers with 10 or fewer employees or in certain low hazard industries are exempt from OSHA reporting requirements unless the injury or illness results in hospitalization, amputation, or loss of an eye.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Please visit our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Dane County and Madison’s New Public Health Order

On May 18, Public Heath Madison and Dane County (PHMDC) issued Emergency Order #2 along with a guide for organizations to start planning a phased reopening under the Order, Forward Dane. We are currently in the Preparing for Safe Reopen Phase under Forward Dane and all individuals and organizations are required to follow the Emergency Order.

The Emergency Order is effective May 19 and will remain in effect until PHMDC determines that the outlined criteria to start Phase One toward reopening has been met. Note that no date is set for moving into Phase One. A new Emergency Order will be issued as Dane County moves into each new phase of the Forward Dane plan.

The Emergency Order and Forward Dane provide detailed requirements and guidance. Included below is an outline of the essential elements of each.

Emergency Order #2

Required Policies

Organizations must develop and distribute to employees the following written policies:

  • A hygiene policy that
    • Ensures employees who have a fever or other symptoms of COVID-19 will not be allowed to work
    • Establishes hand-washing expectations and ensures supplies are available to employees
    • Describes proper cough and sneeze etiquette
  • A cleaning policy that includes guidelines for
    • Cleaning and disinfecting frequently touched surfaces multiple times a day
    • Frequently wiping down any shared equipment, such as work spaces, credit card machines, lunchroom items, carts, baskets, etc.
    • Cleaning common areas and equipment between use or shift changes
    • Cleaning and disinfecting in the event of a positive COVID-19 case
  • A protective measure policy that ensures
    • Individuals are at least six feet from others whenever possible
    • Employees are provided with and wear face coverings when unable to maintain at least 6 feet of distance from customers; however, if a transparent partition is in place, a face covering is recommended, but not required
  • Employers must maintain documentation showing employees received, acknowledged, or were trained on these policies

All individuals are encouraged to continue staying stay at home and to maintain social distancing of at least 6 feet from any person unless you live together

  • All public and private gatherings are prohibited unless specifically permitted in the Emergency Order
  • Landlords may not enter rented residential premises unless emergency maintenance is required

Organizations must continue to follow Physical Distancing Requirements

  • Physical Distancing Requirements are defined as:
    • Maintaining physical distance of six feet between people
    • Washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer
    • Covering coughs and sneezes
    • Regularly cleaning high-touch surfaces
    • Not shaking hands
    • Following all other PHMDC requirements
  • If Physical Distancing Requirements cannot be maintained, the organization must ensure that employees are provided with appropriate face coverings or protective shields
  • All organizations must avoid in person meetings to the greatest extent feasible, and no door-to-door solicitation is permitted

Essential Businesses and Operations

Essential Businesses and Operations that may remain open include Healthcare and Public Health Operations, Human Services Operations, Essential Infrastructure, Essential Governmental Functions, and the following businesses and operations:

  • Stores that sell groceries and medicine
  • Food and beverage production, transport, and agriculture
  • Restaurants but only for take-out or delivery service
  • Bars, breweries, distilleries, brewpubs, wineries, and alcohol beverage retailers but only for carryout or order pick-up
    • Wineries holding direct wine shippers’ permits may deliver wine
  • Childcare
    • Childcare and youth programming is limited to 50 children per program or per license
    • Childcare providers must prioritize care for (1) families working in health care and (2) families working in other vital areas
  • Organizations that provide charitable and social services
  • Weddings and funerals
    • Gatherings for weddings and funerals must be limited to 10 or fewer people in a room at any one time
    • Weddings and funerals that occur outside must comply with the Physical Distancing Requirements, unless the individuals live together
  • Religious entities
  • Funeral establishments
  • Media
  • Gas stations and businesses needed for transportation
  • Financial institutions and services
  • Hardware and supplies stores
  • Building and construction tradesmen and tradeswomen such as plumbers, fabricators, cleaning and janitorial staff for commercial and governmental properties, carpenters
  • Mail, post, shipping, logistics, delivery, and pick-up services
  • Laundry services
  • Suppliers of products to work from home
  • Suppliers for Essential Businesses and Operations and Essential Governmental Functions
  • Transportation such as airlines, taxis, car rental services
  • Home-based care and services for seniors, adults, children, or people with disabilities, substance abuse disorders, or mental illness, including caregivers or nannies who may travel to the child’s home to provide care, and other in-home services including meal delivery
  • Professional services such as legal, accounting, real estate, and insurance services
  • Manufacturing, distribution, and supply chain for critical products and industries
  • Critical labor union functions
  • Lodging including hotels, AirBNB, VRBO, motels, and campgrounds
    • Swimming pools, hot tubs, and exercise facilities must be closed
    • Guests may not be permitted to congregate in any common areas, and facility must comply with restrictions applicable to bars and restaurants where applicable
  • Higher education institution for the purposes of facilitating distance learning, performing critical research, or performing essential functions as determined by the institution
  • Auctions but only if necessary to preserve the value of property and the auction follows other requirements outlined in the Emergency Order
  • Any business or worker identified on the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency List

Essential Businesses and Operations - Additional Requirements

In addition to complying with the Physical Distancing Requirements, Essential Businesses and Operations must also:

  • Restrict the number of workers on premises to no more than necessary
  • Increase standards of facility cleaning and disinfection, following guidance from PHMDC, the Department of Health Services, and the Centers for Disease Control and Prevention
  • Adopt policies to prevent workers from entering the premises if they have respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19

Non-Essential Businesses May Open for Minimum Basic Operations

Minimum Basic Operations include:

  • Basic functions, such as the minimum basic activities to maintain the value of inventory; preserve condition of the physical space and equipment; ensure security; process payroll and benefits; and related functions
    • Staffing must be limited to the minimum number of staff required
  • Preparation to open, including purchasing and stocking supplies, cleaning, and complying with PHMDC’s guidelines
    • Staffing must be limited to the minimum number of staff required
  • Facilitating remote work
  • Delivery and mailings, including of non-essential items but only under specified conditions
  • Curb-side pick-up and drop off
    • Services and items must be paid for online or by phone, and signatures cannot be required
    • The pick-up or drop off must be scheduled in advance to ensure compliance with Physical Distancing Requirements
  • In-person retail
    • Standalone or strip mall retail stores with an entrance to the outside may allow up to five customers at a time in the store
    • Retails shops must create a space for a line to form with markings six feet apart, or allow customers to wait in their cars for entry
  • Outdoor recreational rentals
    • Payment must be made online or by phone
    • Pick up and drop off must be scheduled in advance
  • Automatic and self-service car washes
    • High-touch surfaces must be cleaned between each use if feasible, or at least as frequently as possible
  • Arts and craft stores may offer curb-side pick-up, and may allow the minimum number of staff necessary in the store to make personal protective equipment (PPE)
  • Aesthetic or optional exterior residential construction and lawn care, so long as Physical Distancing Requirements are maintained
    • Aesthetic or optional interior work is not permitted

Facilities That are Closed or May Open with Restrictions

  • Schools are closed for all in-person instruction
  • Libraries are closed except for certain limited functions
  • Indoor and outdoor places of public amusement (including amusement parks, pools, water parks, splash pads, zoos, museum, arcades, parades, playgrounds, movie theaters, gyms, fitness centers, concert halls) are closed except to perform Minimum Basic Operations
    • Golf courses, disc golf ranges, tennis courts, and drive-in theatres may open under specified restrictions
  • Salons and spas (including spas, hair salons, barber shops, nail salons, waxing salons, tattoo parlors) may not provide any services to customers but can sell goods and perform Minimum Basic Operations

Forward Dane

PHMDC’s Forward Dane plan provides guidance on a gradual, phased reopening in Dane County broken down by industries. We are currently in the “Prepare for Safe Reopen” phase and subject to Emergency Order #2 outlined above. But if nine public health metrics are met, Dane County will move into Phase One, Phase Two, Phase Three, then full operations under a new normal can begin. Each phase will last for at least two weeks.

In general, each phase allows organizations to gradually open to a larger “capacity.” For example, in Phase One, gyms may open to 25% capacity; in Phase Two, 50% capacity; in Phase Three, 75% capacity. PHMDC has not defined capacity, and as of today’s date, does not plan to do so. Instead, each organization will use its best judgment to determine the appropriate metric for capacity. It may be the building code establish by your city or it could be an average number of customers or employees who would be at the worksite under normal, non-pandemic circumstances.

Forward Dane also outlines expectations and responsibilities of the community. The responsibilities of the business community include:

  • Protecting the health and safety of employees and customers
  • Developing flexible sick leave policies and creating a culture in which employees can stay home when they are sick
  • Monitoring staff for symptoms and working with local public health if an employee is diagnosed with COVID-19 or is a known contact to someone with COVID-19
  • Implementing infection control policies, such as disinfecting surfaces frequently, keeping both employees and customers 6 feet apart from others, and other prevention measures
  • Communicating to management, staff, and customers the importance of following prevention measures in order to prevent future outbreaks

The Lake Effect team will continue to monitor important updates such as these from Dane County and other counties across the state. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

SBA and Treasury Release PPP Loan Forgiveness Application

On May 15, 2020, the Small Business Administration (“SBA”), in consultation with the Department of the Treasury, released the PPP Loan Forgiveness Application and related forms and instructions. The application and forms instruct borrowers how to calculate and apply for loan forgiveness and specify the supporting documentation to be submitted to lenders. Key aspects of the application and instructions include the following:

  • Borrowers must calculate payroll costs over the course of a single, consecutive eight-week period, but they may choose to include those costs either:
    • During the “Covered Period,” which begins on the PPP loan disbursement date and ends 56 days later; or
    • During an “Alternative Covered Period,” which begins on the first day of the borrower’s regular pay period following the PPP loan disbursement date and ends 56 days later.
  • Borrowers may include eligible payroll and nonpayroll costs paid or incurred during the Covered Period or the Alternative Covered Period, as long as costs incurred during the period are paid by the next regular billing date, and any eligible cost is only counted once.
  • PPP loan forgiveness conditioned upon borrower’s retention of the same number of Full Time Equivalent (“FTE”) employees will not be reduced if:
    • Borrower meets the requirements of the FTE Reduction Safe Harbor by restoring FTE levels by no later than June 30, 2020; or
    • With respect to any position for which the Borrower made a good-faith, written offer to rehire an employee during the Covered Period or Alternative Covered Period which was rejected by the employee; or
    • With respect to any FTE employee who, during the Covered Period or Alternative Covered Period, was fired for cause, voluntarily resigned, or voluntarily requested and received a reduction in hours.
  • Borrowers must submit to their lender detailed documentation including bank account statements or payroll service provider reports, payroll tax forms, payment receipts documenting contributions to health insurance and other benefits, and documents supporting nonpayroll expenses such as mortgage interest payments, rent or lease payments and utility payments.
  • Borrowers must retain, but are not required to submit to their lender, all records relating to the PPP loan and forgiveness applications for 6 years after the date that the loan is forgiven or repaid in full.
  • There is specific guidance on calculating “Average FTE” from employees who work less than 40 hours/week (See Table Instructions of Schedule A Worksheet), reducing the amount of forgiveness by the amount of EIDL Advance (See line 11 of the Calculation Form), and limiting at eight weeks’ worth of 2019 compensation the amount of owner-employee’s or self-employed individual/general partner’s income, capped at $15,385 per person (See item 1 of the Representations and Certifications).

The PPP Loan Forgiveness Application is detailed and requires a substantial amount of specific, supporting documentation. Therefore, employers should work closely with their lenders, accountants, payroll providers, and tax advisors to ensure that the process is completed thoroughly and accurately.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Please visit our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

DWD’s Work-Share Program: Another Option to Avoid Layoffs

As employers evaluate options to address the impact of COVID-19 on their organizations, Wisconsin’s Department of Workforce Development (DWD) is encouraging participation in its Work-Share Program.

The Work-Share Program is designed to help employers avoid layoffs of at least two employees by reducing employees’ hours during slow business periods of up to six months. The state has adopted legislation relaxing some of the program’s requirements to make it more accessible for employers during the pandemic. Through December 31, 2020, the thresholds for work-share plans have been simplified and lowered, as follows:

  1. the plans are no longer restricted to a particular work unit;
  2. the plans normally apply to the greater of 20 positions or 10% of the employees in a work unit, but now the plans may cover at least two employees; and
  3. the participating employees’ reductions in hours previously could not exceed 50%, but now the participating employees’ hours may be reduced by 10-60%.

The intent of the program is to keep employees working and covered on employee benefit plans, while also allowing them to receive unemployment benefits. Participating employees are eligible for state and federal unemployment benefits, including employees earning more than $500/week from any employer/s who would otherwise be ineligible for unemployment. In addition, employers are required to maintain the participating employees’ health insurance coverage and coverage under any defined benefit or defined contribution retirement plan under the same terms and conditions that applied before participation in the work-share plan.

To participate, employers must submit an application to the DWD. The application must outline, among other things, information about the employees who will participate in the plan and the reduction in the employees’ hours. DWD has dedicated staff to handle questions about the Work-Share Program and is expediting the review of work-share applications.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Evers Administration Releases Specific Guidance to Prepare for Reopening

On May 8, 2020, the Evers administration released specific guidance on “turning the dial” toward reopening. The guidelines cover such issues as employee health and hygiene; social distancing and other protective measures in the workplace; cleaning and disinfection practices; physical distancing of employees and equipment; employee training, support and communication; and customer/public health and safety considerations. There is general guidance for all organizations to follow, as well as specific guidance for the following industries:

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Please keep watching for blogs and emails from your Lake Effect team for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Updated Cobra Forms

On May 1, 2020, the Department of Labor announced updates to the Consolidated Omnibus Budget Reconciliation Act (COBRA) Model General Notice and Model Election Notice. The modifications provide information about Medicare as an option for employees who have lost their health insurance as a result of a qualifying event. Given the number of layoffs and terminations resulting from the COVID-19 pandemic, these are timely updates.

Employers can download the updated forms in Word format by clicking on the button below, and the new language is highlighted in yellow and areas to be customized are highlighted in green. Employers will then need to insert information about their benefits plan/s, premium/s, COBRA deadlines, and COBRA administrator. Alternatively, the attorneys and HR professionals at Lake Effect HR & Law can help you tailor the forms for your organization. We can also assist and advise on overall COBRA administration.

Recovery Readiness Guide For Employers

As businesses prepare to reopen or resume full operations amid COVID-19, there will be new challenges and questions. No one has all the answers, but Lake Effect can help you anticipate some of the issues that are likely to arise as you reopen and/or return more employees to the worksite. We do not know when business will return to “normal,” but employers can put measures in place to be successful and compassionate as we introduce our employees and workplaces to our “new normal.”

Lake Effect has prepared detailed guidance to help employers welcome their teams. Below is an outline of those steps; if you would like to schedule a time to discuss a plan tailored to your organization, please let us know.

As always, the attorneys and HR professionals at Lake Effect HR & Law are available to advise you as you develop plans to restore operations and welcome team members back to the workplace. We look forward to helping our partners bounce back. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Steps to Welcome Team Members Back to Work in the Wake of COVID-19

STEP 1: MAKE THE DECISION TO RESTORE OPERATIONS

Who will decide?
How will you notify employees?
How will the return be implemented?

STEP 2: RESTORE, RECALL, AND REHIRE EMPLOYEES WHO WERE FURLOUGHED, LAID OFF OR TERMINATED

Furloughed Employees
Laidoff Employees
Terminated Employees
Work-share Program
Other considerations

STEP 3: CHOOSE EFFECTIVE SCHEDULING STRATEGIES

Continue telework for some
Ensuring social distancing
Other considerations

STEP 4: PLAN FOR ENHANCED CLEANING IN THE WORKPLACE

Cleaning plans and practices
Changes in utilization of space and equipment
Possible limitations on plans

STEP 5: EVALUATE PHYSICAL WORKPLACE, PROTECTIVE GEAR AND OTHER SAFEGUARDS

Changes to workspace and protective gear
Changes to interactions and gatherings

STEP 6: ASSESS OF EMPLOYEE HEALTH

Screening and/or testing
Logistics of testing

STEP 7: ADDRESS EMPLOYEE CONCERNS AND NEEDS

Communicate all post-quarantine changes and expectations
Monitor employees’ wellbeing
Assess employee morale
Prevent harassment and discrimination

STEP 8: CONSIDER & MONITOR POTENTIAL ISSUES UNDER ADA, OSHA, AND NLRA

ADA Issues
OSHA issues
NLRA issues

STEP 9: ANTICIPATE EMPLOYEE LEAVE REQUESTS

STEP 10: TRAIN SUPERVISORS AND MANAGERS

STEP 11: REVIEW AND UPDATE EXISTING POLICIES

STEP 12: PLAN AHEAD

Emergency Order #34: Interim Order to Turn the Dial

On April 27, 2020, the Evers Administration released Emergency Order #34 entitled “Interim Order to Turn the Dial.” In this order, the administration expands slightly the permissible business operations set forth in Emergency Order #28, “Safer at Home Order.” This Order takes effect on Wednesday, April 29, 2020 at 8:00 a.m.

While Section 14 of “Safer at Home” permitted curb-side pick-up as part of Minimum Basic Operations, this Order adds “curb-side drop-off of goods or animals for the purpose of having those goods or animals serviced, repaired, or cared for by the business.” Staff within the business or facility is still limited to 1 person in a room or confined space and payment must be made by phone or online (i.e., no transfer of cash or check and no signature for receipt). All arrangements must be scheduled in advance, and customers may not enter the business or facility to ensure proper social distancing.

This Order also expands Minimum Basic Operations to include rental of recreational equipment “including but not limited to boats, kayaks, canoes, paddle boats, golf carts, snowmobiles, and ATVs.” The staff count, payment methods, scheduling requirements, and prohibition against customers entering the business or facility mirror those set forth above for curb-side drop-off. All rental equipment must be thoroughly cleaned been uses.

Finally, the Order expands Minimum Basic Operations to include car washes, provided the car wash is entirely automatic or self-service. All high-touch surfaces must be cleaned between use if possible, or as frequently as practicable.

Consistent with its “Badger Bounce Back” plan, the Evers Administration is progressing towards its stated goal of gradually reopening businesses and operations across the state. As always, the attorneys and HR professionals at Lake Effect HR & Law are available to advise you as you develop plans to restore operations and welcome team members back to the workplace. We look forward to helping our partners bounce back. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Badger Bounce Back

On April 20, 2020, the Evers Administration released Emergency Order #31 entitled “Badger Bounce Back.” In this order, the administration sets forth a plan for a phased reopening of businesses so that Wisconsinites can get back to work.

Based upon recent federal guidelines, the Badger Bounce Back plan specifies criteria that will enable Wisconsin to begin the gradual process of reopening for business. Criteria include: reductions in cases and COVID-19 symptoms over an extended period of time; sufficient hospital capacity; a robust testing program; adequate personal protective equipment levels; and contact tracing capabilities.

In preparation for fully reopening their doors, employers are encouraged to rely upon federal, state and local regulations and guidance, informed by industry best practices and the WEDC, to develop and implement policies relating to: physical distancing and protective equipment; employee temperature checks and symptom screening; testing, isolating and contact tracing; sanitation; use and disinfection of common and high-traffic areas; business travel; and other best business practices to ensure a safe workplace.

It is clear that this will be a complex and gradual process. It will require Wisconsin employers to be patient, diligent and innovative. Rest assured, the attorneys and HR professionals at Lake Effect HR & Law are available to advise you as you develop plans to restore operations and welcome team members back to the workplace. We look forward to helping businesses move beyond “Safer-at-Home” to “Badger Bounce Back.” Contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC Technical Assistance Q&As Update

Last Friday, April 17, 2020, the EEOC updated its Technical Assistance Q&As about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws. The updated Q&As reiterate prior guidance and offer some new information. Key provisions for employers include the following:

  • Disability-related inquiries and exams
    • During the pandemic, employers may ask employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath or sore throat. Employers should rely on CDC and other public health authorities for guidance on additional, emerging symptoms which may be associated with COVID-19. Such new symptoms may include a loss of smell or taste, as well as gastrointestinal problems. (See A.1-A.2)
    • Employers may measure employees’ body temperature at work and maintain a log of its results. See below regarding maintaining the confidentiality of such information. (See A.3, B.2)
    • Employers may require employees with symptoms of COVID-19 to leave the workplace and/or stay home. (See A.4)
  • Confidentiality of Medical Information
    • Employers must maintain all information about employee illnesses, including body temperature logs, separately from personnel files. Such information must be maintained as confidential medical records in compliance with ADA. All medical information relating to COVID-19 may be stored in employees’ existing medical files. (See B.1)
    • An employer may disclose the name of an employee with COVID-19 to a public health agency. (See B.3) Note that this does not include disclosure of the employee’s name to co-workers.
    • A staffing agency or contractor who learns that one of its temporary workers has COVID-19 may notify and disclose the name of that temporary worker to the employer where the worker has been placed. (See B.4)
  • Hiring and Onboarding
    • An employer may screen job applicants for symptoms of COVID-19 and take applicants’ body temperatures after making a conditional job offer, as long as it does so for all entering employees for the job. (See C.1-C.2)
    • If an employer needs an applicant to start immediately, but the applicant has COVID-19 or related symptoms, the employer may withdraw a job offer to the applicant. An employer may not withdraw a job offer simply because an applicant is age 65 or older or pregnant and is at increased risk for COVID-19. The employer may propose telework or delaying a start date. (See C.4-C.5)
  • Reasonable Accommodation
    • Employers may be required to consider reasonable accommodations that can offer protection to an individual at increased risk for COVID-19 in the workplace if they do not cause undue hardship to the employer. Flexibility by both employers and employees is key in assessing potential accommodations. Keep in mind that federal agencies are encouraging employers and employees to engage in discussions and come up with creative solutions to foster the ability to work. (See D.1)
    • An employee whose preexisting mental illness or disorder is exacerbated by the pandemic may be entitled to a reasonable accommodation, absent undue hardship. Likewise, an employee who was receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. (See D.2, D.4)
    • If an employee requests a reasonable accommodation during the pandemic, the employer may still request information to determine whether the employee has a covered “disability” under the ADA. The employer may also engage in the interactive process and request information about why an accommodation is needed. (See D.5-D.6)
    • During the pandemic, where an employer may have limited time to discuss accommodation requests, an employer may forgo or shorten the interactive process and provide a temporary accommodation to an employee. The employer may also provide a requested accommodation on an interim or trial basis, or place an end date on the accommodation. (See D.7)
    • Circumstances created by the pandemic are relevant to determining whether a requested accommodation will cause significant difficulty or expense for an employer and, thus, pose an undue hardship. An employer’s difficulty in acquiring or providing certain accommodations, sudden loss of income stream, or reduction in discretionary funds due to the pandemic are relevant considerations in assessing whether a requested accommodation imposes an undue hardship, meaning significant difficulty or expense. (See D.9-D.11)
  • Pandemic-Related Harassment
    • Employers can minimize pandemic-related harassment by reminding employees that fear of the pandemic should not be misdirected against individuals because of any protected characteristic, including national origin or race. This holds true even when employees are teleworking or still working on site during the pandemic. As workplaces reopen or return to full operations, employers should reiterate prohibitions against all forms of harassment and discrimination and train managers to watch for and report any issues. (See E.1-E.2)
  • Return to Work
    • When employees begin to return to the physical workplace, employers can implement screening measures (i.e. take temperatures, ask questions about symptoms) as long as they are consistent with advice from the CDC and public health authorities regarding that type of workplace at that time. (See G.1)
    • Employers may need to consider requests for modified protective gear as reasonable accommodations when employees with disabilities or who wear certain clothing as part of their religious observation return to the workplace.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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