April 21, 2020
By Katie Nussbaum, as published in the Savannah Morning News
From new laws such as the Families First Coronavirus Response Act to furloughs and record high unemployment claims, Savannah business owners have been faced with many new challenges in the past several weeks as they navigate the changes that have come along with the COVID-19 pandemic.
This week, the Savannah Morning News talked to attorneys and HunterMaclean partners Sarah Lamar, Shawn Kachmar and Wade Herring to discuss where employers stand when it comes to allowing workers to stay home due to the pandemic, guidelines for proper personal protective equipment (PPE) and how they should approach a possible reopening.
Social distancing
From grocery stores to hospitals to home improvement stores, the list of businesses currently operating as essential varies under Gov. Brian Kemp’s statewide shelter-in-place order, which went into effect April 2.
Under the order, no business, corporation, nonprofit, municipal government or organization shall allow more than 10 people to be gathered at a single location if the gathering requires that people be standing or sitting within 6 feet of each other.
“I think if you’re an essential business or you’re part of the critical infrastructure business, that you need to do what you need to do to keep going, so I think the desire there is to enforce social distancing to the extent that you can,” said Lamar.
Kachmar said employers need to be in compliance with OSHA guidelines as well as any guidelines set forth by local or state shelter-in-place orders. OSHA enforcement is a bit more subjective, he noted.
“OSHA has issued some guidance recently on how it’s going to handle enforcement issues, and unfortunately, the guidance is clear as mud. What they basically said is if the employer has taken reasonable steps to protect the health and safety of their workers, they’re going to be OK,” Kachmar said.
While “reasonable steps” can mean different things to different people, Kachmar advises his clients to follow guidelines set forth by the Centers for Disease Control and Prevention.
The CDC outlines such guidelines as routinely cleaning surfaces with soap and water or other disinfectant, covering touch screens with a wipeable cover and wearing the proper PPE when cleaning.
“I’ve been telling clients, here are the CDC guidelines on safe workplaces and some industry specific stuff, as well, and if you’re following these, using these as a floor, you’re probably going to be in good shape,” he said.
Personal protective equipment in the workplace
As more and more businesses require employees to wear PPE on the job, Lamar said there had been a flurry of questions recently about making your own face masks and the guidance surrounding how effective homemade masks are for workers.
Employers can find guidance for PPE through the CDC and OSHA, and Kachmar suggests employers source PPE from a reputable manufacturer if at all possible.
“Now, that’s easy to say and hard to do when there’s a shortage, but if my social media feed is any indication, there’s lots of scammers out there willing to sell me a mask that is supposed to be an N95-compliant mask,” he said.
“You see all these stories about the state of New York having to send back 300,000 masks because they were fake. So, to protect the company, the best thing would be to try to source them from a reputable place.”
Families First Coronavirus Response Act
Signed into law in March, the Families First Coronavirus Response Act (FFCRA) requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
Generally, the act provides two weeks of paid sick leave at the employee’s regular rate of pay when the employee is unable to work because they are quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
The act also provides two weeks of paid sick leave at two-thirds the employee’s regular rate of pay because they’re unable to work because they need to care for a person in quarantine or a child under 18 years of age whose school or child care provider is closed or unavailable for reasons related to COVID-19.
The benefits are only available to those who are active employees and not to workers who have been laid off or furloughed.
All employers with under 500 employees must comply with the FFCRA, but if the FFCRA doesn’t apply, then it’s up to the employer to set the policy on whether or not employees are allowed to stay home and if they can use vacation or sick time if they aren’t comfortable coming into work because of COVID-19, Kachmar said.
″(The Occupational Safety and Health Administration) has workplace safety requirements and all employers have a general duty to provide a safe workplace,” he said.
“Assuming that the employer is taking reasonable steps to address hygiene in the workplace or following CDC or industry-specific guidelines, then an employee who just says, ‘I don’t have a specific reason, but I’m worried about coronavirus or COVID-19 and I don’t feel like coming to work,’ the employer doesn’t have to allow that. They can still insist an employee come to work.”
Herring said assuming the employer is doing what they’re supposed to do to provide a safe workplace, but the employee has a generalized fear and will not come to work and doesn’t have a doctor’s note, he advises his clients to treat that as the person quitting and under recent guidelines those employees wouldn’t qualify for unemployment benefits.
“I’m telling my clients that’s a quit and you will not apply for unemployment benefits for that employee because they quit,” he said.
″… It’s not at all what either the state or the federal government has in mind right now, for who should be getting unemployment benefits.”
Furloughs, layoffs and unemployment
State unemployment claims reached a record high in March, according to the Georgia Department of Labor’s monthly report, which was released last week. Unemployment claims showed an increase of 290,068 claims or 1,292% in March and were up by 293,774 claims or 1,567% from March 2019.
A furlough means there’s an anticipation that the employer will recall the employee and can mean there is no work at all or it could mean an employee’s work schedule has been reduced. Herring said oftentimes the terms furlough and layoff are used interchangeably.
“Layoff can mean a temporary absence of work, or it can mean permanent. I think in terms of the employer-employee relationship, what’s more, most important is for the employer to clearly communicate the decision,” he said.
In March the GDOL announced that employers were required to file partial claims on behalf of their employees, and last week state commissioner Mark Butler said about 75% of the claims received by the department had been employer-filed claims. These filings take about a third of the time to process compared to individual-filed claims, he said.
Those on unemployment are also eligible for an additional federal benefit of $600 a week under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The GDOL began distributing that funding to those already receiving state benefits last week and is currently in the process of building a new system to capture information for those who have previously not been eligible for state unemployment benefits, such as the self-employed, independent contractors or gig workers. These include Uber drivers or those with limited work history.
Herring said since furloughed workers are still considered employees, they should remain on the company’s group health insurance plan, while those who are terminated would be eligible for Consolidated Omnibus Budget Reconciliation Act (COBRA) or the Affordable Care Act.
“The problem is if you’ve lost your job, chances are you’re not going to be able to afford the COBRA premium, but if you’ve lost your job, that’s a triggering event for purposes of the Affordable Care Act, so you can go on the exchange and try to find health insurance that way,” he said.
Preparing to open after the pandemic passes
While it’s hard to know what normal will look like once the pandemic passes, Herring encourages businesses to look at how they will structure their workplace once things start flowing again while we wait for a potential vaccine.
He said employers will have to decide what works best for their workplace, but he suggests providing cleaning supplies for workers; possibly limiting the number of people allowed in common areas such as elevators and break and conference rooms; implementing the use of masks in the building; and providing plexiglass shields for receptionists or those who interact with the public.
“Those are things that companies need to go ahead and start planning right now,” he said. “Not just because the law says you’re supposed to provide a safe workplace, but it’s the right thing to do to make people feel comfortable.”
Lamar said the most important thing a business can do to prepare is communicate.
“Over-communicating is probably much much better than under-communicating,” she said, adding that robocalls, mass texts and emails can be good ways to share plans with employees or customers.
“People when they’re so anxious, do want to hear what’s going on, even if you’re perhaps repeating the same thing you did two days before.”
